Practice point: The defendants established prima facie entitlement to judgment as a matter of law by demonstrating that the solvent-based sealer, as designed, was reasonably safe for its intended use; that is, the utility of the product outweighed its inherent danger. Specifically, the defendants' expert affidavits established that the volatile solvent contained in the defendants' sealer was critical to the sealer's ability to dry quickly and results in a quality finish to the wood upon which it is applied, that the sealer is cost effective for users, and that the sealer may be safely used when the warnings and instructions provided on the sealer's label are followed.
In opposition, however, the plaintiff raised a triable issue of fact as to whether the utility of the solvent-based sealer did not outweigh its inherent danger because particular water-based sealers, which were safer than the solvent-based sealer, were equally useful.
Student note: A summary judgment motion will be defeated if
plaintiff submits evidence sufficient to raise a triable issue as to whether a
product’s utility outweighs its inherent danger.
Case: Andrade v. T.C. Dunham Paint Co., Inc., NY Slip Op
06905 (2d Dept. 2012).
Tomorrow’s issue: Legal malpractice.
