That quote is from an opinion issued at the end of July that we wanted to bring to your attention. Dehring v. Keystone Shipping Co. involved an able-bodied seaman who lost his thumbs to a winch. He brought negligence and unseaworthiness claims against the ship owners and product liability claims against the company that designed and manufactured the winch. The manufacturer moved for summary judgment on the product claims and plaintiff sought a partial summary judgment on the ship owners' contributory negligence defense. The motions were referred to the magistrate who recommended that the defendant's be granted and the plaintiff's denied. Rather than some dull, perfunctory order adopting those recommendations Judge Ludington authored a gem of an opinion. Concise and insightful it contains an excellent account of the evolution of thinking about product design defect claims as well as a useful reminder about the nature of, and purpose behind, the duty to warn.

Why for example do courts often resort to negligence-like language even when addressing a design defect claim within a strict liability framework? Because design defect was never supposed to be rolled into strict liability. Design defect claims inevitably involve questions of was there a risk, was it a risk worth taking, was it foreseeable (ie an appreciable risk), and was there some feasible, risk-reducing alternative. Those after all are also the questions at the heart of the negligence inquiry.

And what must plaintiff show in a design defect to carry his burden of proving that the risk posed by the product outweighed its usefulness? Is it enough to show that what happened was foreseeable and that the resulting harm outweighed the cost to make the product safer? No. Doing so skips the vital question of what was the probability of the harm occurring in the first place. The foreseeability inquiry comes after the "how likely was it" question, not before.

Finally, are sophisticated user cases premised on the "no duty" argument that so many courts reject out of hand? No. There is a duty but [t]he purpose of the duty to warn is to inform the audience of a product's non-obvious risks. What risks are non-obvious depends on the audience - risks that may not be obvious to a layman may be obvious to the skilled professional. The sophisticated user doctrince is thus not an exception to the duty to warn, but an application of it."

The winch in question had been in use on the ship for 55 years and plaintiff had been working aboard her for several years when the accident occurred. Nevertheless he could point to no other accidents in which it, or even one of similar make on some other ship, had ever caused an injury. His only possible evidence of risk (with himself as the sole data point) was that it extremely small. And by testifying that he knew (from prior experience and training) that moving the switch on the winch control panel would cause it to begin the operation of a device used to moor with 7/8 inch steel cables a 767 foot freighter the plaintiff put himself in the category of persons for whom what followed was the opposite of "non-obvious". The winch-maker accordingly prevailed.