Individual States 

NEW YORK

ASSUMPTION OF RISK

Assumption of risk will not bar recovery, but will reduce the plaintiff's award proportionally to his negligence. N.Y. C.P.L.R. 1411 .

CAPS ON NONECONOMIC DAMAGES

There are no exclusive Products Liability statutes under this category.

COLLATERAL SOURCE RULE

In any action brought to recover damages for personal injury, injury to property or wrongful death, where the plaintiff seeks to recover for economic loss, the court shall admit evidence of recovery from a collateral source except for life insurance, benefits provided under title XVIII of the social security act, or collateral sources entitled by law to liens against any recovery of the plaintiff. If the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two-year period immediately preceding the accrual of such action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits. N.Y. C.P.L.R. 4545(c) .

COMPARATIVE FAULT

In an action to recover damages for personal injury, property damage, or wrongful death, contributory negligence does not bar recovery. Damages are diminished proportionately. N.Y. C.P.L.R. 1411 .

ECONOMIC LOSS

Absent personal injuries or damages to property other than the defective product itself, a plaintiff has no cause of action in tort against a manufacturer for contractually based economic losses occasioned by the failure of a product to perform as intended. Bocre Leasing Co. v. General Motors Corp., 84 N.Y.2d 685 (1995) .

The economic loss doctrine does not bar an action seeking recovery in tort if a product causes harm as a result of an accidental or cataclysmic occurrence. Suffolk Laundry Services, Inc. v. Redux Corp., 238 A.D.2d 577 (2nd Dep't. 1997) .

Tort damages are not generally recoverable where the product fails to meet the expectations of a customer and where the claimed injury is solely to the product itself. The focus is whether or not the plaintiff is merely seeking the benefit of the bargain, which sounds in contract, or compensatory relief for personal injury or property damage, which, in appropriate circumstances, may be recoverable in tort. Village of Groton v. Tokheim Corp., 202 A.D.2d 728 (3d Dep't. 1994).

JOINT & SEVERAL LIABILITY

Generally, subject to some exceptions, defendants are jointly and severally liable. However, in a product liability case involving multiple joint tortfeasors, a tortfeasor 50 percent or less liable will not be required to pay more than his equitable share for noneconomic loss sustained by the plaintiff. N.Y. C.P.L.R. 1601-1603; 1602 sub. 10 .

A defendant 50 percent or less liable is entitled to pay no more than his equitable share even where fault is attributed to a non-party, bankrupt tortfeasor. Kharmah v. Metropolitan Chiropractic Ctr., 288 A.D.2d 94 (1st Dep't 2001) .

PUNITIVE DAMAGES

Punitive damages are recoverable in tort actions, including product liability suits, where a plaintiff proves through preponderance of the evidence, that the defendant's actions display exceptional misconduct that surpasses negligence. Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196 (1990) .

Corporate defendants cannot be held liable for punitive damages unless it can be demonstrated that a "superior officer" of the corporation ordered, participated, or ratified the injurious conduct. Camillo v. Geer, 185 A.D.2d 192 (1st Dep't 1992) .

For any injury, an action may be brought or continued against the personal representative of the decedent, but punitive damages shall not be awarded nor penalties adjudged in any such action brought to recover damages for personal injury. N.Y. Est. Powers & Trusts Law §11-3.2 .

Punitive damages are recoverable in wrongful death suits. N.Y. Est. Powers & Trusts Law §5-4.3(b) .

Punitive damages are allowed in strict product liability case where theory of liability was failure to warn and there is evidence of wantonness or conscious disregard for others. Home Ins. Co. v. American Home Prods. Corp., 551 N.Y.S.2d 481 (Ct. App. 1990) .

RIGHT TO CONTRIBUTION

A party may claim right to contribution whether or not an action has been brought or a judgment rendered against the person from whom contribution is sought. No person shall be required to contribute an amount greater than his equitable share as determined in accordance with his relative culpability. It may be asserted by cross-claim, counter-claim, or third party claim in a pending action, or in a separate action. N.Y. C.P.L.R. 1401 to 1404 .

A release reduces the claim of the releaser against the other tortfeasors by the greatest of: the amount stipulated in the release, the amount actually paid for the release, or the amount of the released tortfeasor's equitable share of damages. N.Y. Gen. Oblig. Law §15-108 .

For multidefendants, the "aggregate" approach to offsetting the settling defendant's share of liability is to be used. This approach compares the total amounts paid in settlement by all settling defendants, to the total amount of apportioned liability. The greater amount represents the set-off. Didner v. Keene Corp., 82 N.Y.2d 342 (1993) .

New York's highest court has adopted the "settlement-first" method, where the court will reduce a verdict by the amount of the plaintiff's settlement with another defendant before reducing the verdict for the plaintiff's comparative fault. Whalen v. Kawasaki Motors Corp., 92 N.Y.2d 288 (1998) .

A release will relieve the settling party from liability for any claims for contribution; it similarly precludes the settling party from bringing any claim for contribution against any other person. N.Y. Gen. Oblig. Law §15-108(b), §15-108(c) .

SPECIAL DEFENSES

A manufacturer of a product reasonably safe for its intended use will not be held liable for personal injury under strict liability or negligence, based on a design defect, if it has been substantially modified and proximately causes the plaintiff's injuries after it has left the possession and control of the manufacturer. Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 (1991) .

STATUTES OF LIMITATION

Personal injury actions based on strict product liability or negligence must be brought within three years. N.Y. C.P.L.R. 214 .

Wrongful death actions must be brought within two years after the decedent`s death.

Note: An action on behalf of a decedent whose death was caused by the terrorist attacks on Sept. 11, 2001, other than a decedent identified by the attorney general of the United States as a participant or conspirator in such attacks, must be commenced within two years and six months after the decedent`s death. N.Y. Est. Powers & Trusts Law § 5-4.1 .

Breach of warranty actions must be brought within four years. N.Y. U.C.C. §2-725 .

STATUTES OF REPOSE

There is no statute of repose for product liability actions in New York.

STRUCTURED SETTLEMENT

In an action to recover damages for personal injury, property damage, or wrongful death, where future damages are in excess of $250,000, the court shall enter a judgment for the amount of the present value of an annuity contract that will provide periodic installments, unless claimant and any liable party consent to a different judgment. The statute further provides for posting and maintaining security, failure to make payment, death of judgment creditor, adjustments, settlements, and insurance. N.Y. C.P.L.R. 5041 to 5049 .