Defendant loses an interesting product liability case. Usually, the replacement of a component by the owner of the product after the sale is an intervening act which releases the manufacture from harm. In this case, the change was not enough to overcome the initial negligent design.

The Zip Line was designed with bungee cord that was used to break the ride. The owner of the zip line replaced the bungee cord with another bungee cord that was allegedly shorter than the initial cord in the design by the plaintiff.

Sanchez v. Project Adventure, Inc., 12 A.D.3d 208; 785 N.Y.S.2d 46; 2004 N.Y. App. Div. LEXIS 13184

State: New York, Supreme Court of New York, Appellate Division, First Department

Plaintiff: Benjamin Sanchez, Also Known as Gerard Sanchez

Defendant: Project Adventure, Inc., Appellant-Respondent and Third-Party Plain-tiff-Appellant. Bedford Central School District, Third-Party Defend-ant-Respondent, et al., Third-Party Defendant

Plaintiff Claims: Product Liability Claim

Defendant Defenses: Intervening change in the product

Holding: For the Defendant

Year: 2004

The facts are simple. The plaintiff, a 15-year-old, was on a school trip to a challenge course. A bungee cord was used on the “zip wire” as a braking system. The bungee failed, hitting the plaintiff in the eye blinding him.

The then-15-year-old plaintiff, while on a school field trip to a challenge course located at a facility operated by third-party defendant Bedford Central School District (Bedford), was standing in line for an elevated “zip wire” ride, when the bungee cord used as a braking device on the “zip wire” snapped and hit his right eye. The injury produced by the impact of the bungee cord caused plaintiff to go blind in that eye.

Analysis: making sense of the law based on these facts.

The course was designed by the defendant Project Adventure. The design incorporated a bungee cord to break the zip line. The owner of the zip line replaced the original bungee cord with another bungee cord, which was shorter.

The defendant admitted liability for the accident. However, they argued the owner of the zip line who had replaced it was the party with principal liability for the injuries.

The “zip wire” had been designed and inspected by defendant, which conceded liability for the accident, but, citing evidence that the bungee cord used on the “zip wire” had been replaced before the accident by a Bedford employee, contended that Bedford was principally responsible for plaintiff’s harm.

Normally, an intervening, act, such as replacing the cord, in many types of negligence claims is enough to shift the liability of the defendant to a third party.

Here the appellate court agreed with the jury and found that the design was negligent, and the shortness of the replacement bungee was not the cause of the accident. The use of a bungee as a breaking device was the cause of the accident, no matter the length.

Defendant urges that this finding was contrary to the weight of the evidence. We disagree. The evidence fairly interpreted permitted the jury to conclude that while Bedford had been negligent in utilizing a replacement bungee cord that was too short, this negligence merely echoed a design defect for which defendant was responsible, and thus did not appreciably augment the injury-producing risk.

The appellate court agreed with the jury and held the designer of the course liability for the injuries of the plaintiff.

So Now What?

As stated above, this is an odd case because of the intervening act. However, a bad or negligent design, no matter what the intervening act, will not release the defendant from liability.

Product liability cases are hard to win if the design is found to be negligent.

Retailers need to be aware that any act that modifies or changes a product in any way, other than how it arrived from the manufacturer may place them in the same position as a manufacture.

Examples of this are bindings that are mounted on skis or scuba tanks that are filled. In both cases, the general liability policies of ski shops and scuba shops usually understand and have coverage for this. Make sure if you are modifying a product other than how the manufacturer suggested that you understand the risks and have the coverage you need.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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