Negligent design.

Practice point: Under New York law, a manufacturer cannot be held liable for not adopting an alternative product design which is not shown to retain the inherent usefulness of the product when manufactured according to the more risky, but otherwise lawful, design that actually was used.

Case: Rose v. Brown & Williamson Tobacco Corp., NY Slip Op 03147 (1st Dept.)

Facts: Plaintiff developed lung cancer and neurological damage as the result of decades of cigarette-smoking. In her negligent design claim, plaintiff contended that the tobacco company should have sold only "light" cigarettes with relatively low levels of cancer-causing tar and addictive nicotine. The jury returned a plaintiff's verdict, but the Appellate Division reversed the denial of defendant's motion for a judgment notwithstanding the verdict. While "light" cigarettes were available during the relevant period, plaintiff failed to present any evidence that they appealed to more than a small portion of the cigarette-smoking public. Stated otherwise, the record contained no basis for a finding that "light" cigarettes have the same utility for the vast majority of smokers as do regular cigarettes.