Does New York Law Contain A Heeding Presumption? It Depends Who You Ask

Few theories of liability are as elusive and difficult to defend against as "failure to warn." Given the hindsight borne of any accident, it is tempting to suggest, and for a jury to want to believe, that a few simple words of warning would have avoided a catastrophic consequence. Moreover, failure to warn claims are favored by plaintiffs because they do not require the thorny analysis of the risk and utility of the product at issue that design defect claims present. "One simple sentence would have prevented this accident" is a powerful pitch for plaintiff's counsel, and it is one of the hardest arguments for defense counsel to respond to in front of a jury.

The question of burden of proof on a failure to warn claim is therefore a critical one for defense counsel, given the simplicity of the plaintiff's argument. As this Alert details, there is a split in how New York state and federal courts, sitting in diversity, address the question of whether the fact-finder shall presume that the person injured by a product would have heeded an adequate warning if given (the "heeding presumption"). While there are variations from court to court even within the state and federal systems, it is fair to summarize the state of the law as this: there is no heeding presumption in New York state court, but there is such a presumption in federal court. How this can be possible in light of Erie RR Co. v. Tompkins, 304 U.S. 64 (1938) is less than clear, and perhaps creates an issue that will need to be squarely addressed by the Second Circuit.

The split originates with the Second Circuit's decision in Liriano v. Hobart Corp., 170 F.3d 264 (1999). Liriano, a case originally brought in the U.S. District Court for the Southern District of New York pursuant to diversity jurisdiction, which involved a supermarket worker who was injured when he inserted his hand into a substantially altered meat chopper. At trial, the plaintiff offered no evidence that a warning would have altered his conduct, yet a jury returned a verdict in his favor on his failure to warn claim. On appeal, the manufacturer argued that because there was no evidence as to whether the plaintiff would or would not have operated the machine as he did if there had been a warning, the plaintiff failed to demonstrate that the lack of a warning was causally related to his injury. In response to this argument, the Second Circuit stated:

Hobart's argument about causation follows logically from the notion that...