Litchfield Cavo Attorney Wins Appeal in Alternative Liability Case

Litchfield Cavo partner Christopher A. McLaughlin recently won an important appeal in the Appellate Division, Second Department of New York, on behalf of the Firm’s client, a retail store. The case involved a claim for serious injuries sustained as the result of the use of a Wego Kite Tube, an inflatable tube that is pulled behind motor boats. The product has been banned and pulled from the shelves due to numerous serious injuries occurring during its use.

The Appellate Division in its decision 2015 NY Slip Op 06232 affirmed the lower court’s denial of summary judgment for two distributors and the granting of condition indemnity in favor of the retailer against the distributors, applying the theory of Alternative Liability to the two distributors involved.

The undisputed facts of the case established that the retailer only purchased this product form two distributors who were both named in the suit. No one, from the purchaser plaintiff to the distributors, could tell from which of the two distributors the actual Kite Tube involved in the accident came from.

For one of the first times in New York, the Court applied the theory of Alternative Liability in a products liability case to the two distributors, holding them each jointly and severally labile since neither could prove it did not distribute the one Kite Tube involved in the accident. The court reversed the normal burden of proof and stated “where the conduct of two or more defendants is tortuous, and it is proven that harm has been caused to the plaintiff by only one of them, but it is not clear which one, the burden is placed on the defendants to prove that they did not cause the harm.”