Rainbow v. Swisher, 72 N.Y.2d 704 (1988)

Evidence of a manufacturer’s post-manufacture, pre-accident modification is generally inadmissible to establish fault in a strict products liability case based on design defect or failure to warn, unless it demonstrates feasibility of alternative designs or the manufacturer’s failure to warn of a known risk.

Summary

This case addresses the admissibility of evidence regarding modifications made to a product after its manufacture but before an accident occurs, in the context of a products liability claim. Rainbow sued Swisher, alleging injuries from a defectively designed insect repellent and failure to adequately warn of its dangers. The Court of Appeals held that admitting evidence of a post-manufacture label change was reversible error, as it did not fall within the exceptions for demonstrating the feasibility of alternative designs or proving failure to warn of a known risk. The court also clarified the standard for determining product defect, requiring a balancing of risks versus utility and affordability.

Facts

One of the plaintiffs was injured after being sprayed with insect repellent manufactured by Swisher. The plaintiffs claimed the ethyl alcohol fumes from the repellent ignited due to static electricity from a television. They alleged defective design and inadequate warnings. Critically, the trial court admitted evidence that Swisher changed the warning label on its insect repellent cans after manufacturing the can involved in the accident but before the accident occurred itself. There was no evidence presented that Swisher knew of a defect prior to the accident.

Procedural History

The trial court admitted evidence of the changed warning label over the defendant’s objection. The jury was instructed on “products defect.” The Appellate Division affirmed the trial court’s decision. Swisher appealed to the New York Court of Appeals.

Issue(s)

1. Whether evidence of a manufacturer’s post-manufacture, pre-accident modification is admissible to establish fault in a strict products liability case based upon a defect in design or failure to warn.
2. Whether the trial court’s jury instruction on “products defect” was proper.

Holding

1. Yes, because evidence of post-manufacture modifications is generally inadmissible unless it falls within specific exceptions, such as demonstrating the feasibility of alternative designs or proving failure to warn of a known risk, neither of which applied here.
2. No, because the jury charge failed to instruct the jury to balance the product’s risks against its utility, affordability, and the risks, utility, and costs of alternative designs.

Court’s Reasoning

The Court of Appeals reversed the Appellate Division’s order, emphasizing the inadmissibility of post-manufacture modifications as evidence of fault. Citing Cover v Cohen, 61 NY2d 261 (1984), the court reiterated that such evidence is only admissible in limited circumstances. The court found that feasibility was not in issue, as modifying a warning label does not present the same challenges as complex design changes. The court also stated that the modified warning label could not be admitted as evidence of a continuing duty to warn because there was no evidence Swisher was aware of a danger or defect before the accident; the modification itself is not an admission of prior knowledge of an inadequate warning. The court referenced precedent requiring consideration of risk versus utility. The court stated, “[T]he charge failed to apprise the jury that, in order to determine whether defendant’s product as marketed was reasonably safe for its intended use, the product’s risks must be balanced against its utility and affordability, and against the risks, utility and costs of alternatively designed products”.