This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 83
In the Matter of New York City
Asbestos Litigation.
---------------------------------
Doris Kay Dummitt, &c.,
            Respondent,
        v.
A.W. Chesterton, et al.,
            Defendants,
Crane Co.,
            Appellant.
---------------------------------
No. 84
In the Matter of Eighth Judicial
District Asbestos Litigation.
Joann H. Suttner, &c.,
            Respondent,
        v.
A.W. Chesterton Company, et al.,
            Defendants,
Crane Co.,
            Appellant.
Case No. 83:
          Caitlin J. Halligan, for appellant.
          Seth A. Dymond, for respondents.
          Business Council of New York State et al.; Pacific
Legal Foundation; New York State Trial Lawyers Association; The
Retired Enlisted Association et al.; Product Liability Advisory
Council; United Steel et al.; Environmental Working Group et al.;
General Electric; CBS Corporation, amici curiae.
Case No. 84:
          Caitlin J. Halligan, for appellant.
          John N. Lipsitz, for respondent.
          Business Council of New York State et al.; CBS
Corporation; United States Chamber of Commerce, amici curiae.
ABDUS-SALAAM, J.:
          In these appeals, we are called upon to decide when, if
ever, a manufacturer must warn against the danger inherent in
using the manufacturer's product together with a product designed
and produced by another company.   Consistent with our decision in
Rastelli v Goodyear Tire & Rubber Co. (79 NY2d 289 [1992]), we


                              - 1 -
                               - 2 -                 Nos. 83 & 84

hold that the manufacturer of a product has a duty to warn of the
danger arising from the known and reasonably foreseeable use of
its product in combination with a third-party product which, as a
matter of design, mechanics or economic necessity, is necessary
to enable the manufacturer's product to function as intended.    We
further conclude that, given the proof of defendant Crane Co.'s
affirmative steps to integrate its valves with third-party
asbestos-laden products and other relevant evidence, the courts
below properly applied this principle to the instant cases and
correctly resolved the remaining legal issues.
                                I.
Matter of New York City Asbestos Litigation (Dummitt v A.W.
Chesterton, et al.)
          There was evidence that, during World War II and
thereafter, defendant Crane Co. (Crane) sold valves to the United
States Navy for use in high-pressure, high-temperature steam pipe
systems on Navy ships.   As far as the record shows, Crane's
valves did not contain asbestos or other hazardous materials.
However, Crane's valves could not practically function in a high-
pressure, high-temperature steam pipe system without gaskets,
insulation and packing for the valve stems, and Crane's technical
drawings for the valves specified the use of asbestos-based
sealing components.   Accordingly, when Crane supplied the valves
to the Navy, it packaged the valves with bonnet gaskets, each of
which consisted, in essence, of an asbestos disc sealed by a


                               - 2 -
                                 - 3 -                   Nos. 83 & 84

layer of rubber.    Crane also packaged the valves with braided
asbestos-based stem packing.    Crane's provision of asbestos-based
components comported with Navy specifications, which called for
gaskets, valves and insulation that contained asbestos.
            As Crane knew, because the high temperatures and
pressures in the steam pipe systems at issue caused asbestos-
based gaskets and packing to wear out, Crane's customers,
including the Navy, had to replace those components with similar
ones.   Thus, during the period in which Crane sold these valves
and related parts, the company marketed a material called
"Cranite," an asbestos-based sheet material that could be used to
produce replacements for the asbestos-containing gaskets and
packing originally sold with Crane's valves.      In catalogs issued
between 1923 and 1962, Crane recommended Cranite gaskets, packing
and insulation for use in high-temperature, high-pressure steam
services.    The catalogs noted that gaskets and packing composed
of other materials were available.       The catalogs did not indicate
the temperature or pressure ratings for some of those alternative
products, and it rated others only for low-temperature services,
low-pressure services or both.
            A few years after Crane started supplying the valves at
issue here and the associated asbestos-bearing components to the
Navy, the Navy revised a manual entitled "Naval Machinery."      The
revised manual specified that Navy employees should install
asbestos-based gaskets on the relevant valves on Navy ships.      The


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                               - 4 -                 Nos. 83 & 84

manual further noted that "insulation" generally "[wa]s essential
to economical operation" of a ship's steam pipe systems, and the
manual included diagrams of the attachment of asbestos-based
gaskets, packing and insulation to valves of the kind supplied by
Crane.1   In the acknowledgments section, the manual stated that
"valuable assistance" in the revision of the manual "was rendered
by the manufacturers named herewith" and that "[m]any of the
figures in the book were made from illustrations furnished by
these manufacturers."   The manual listed Crane among the
manufacturers who assisted in the revision.
           Meanwhile, starting in the 1930s, certain trade
associations, including associations to which Crane executives
and employees belonged, issued publications describing the
hazards of exposure to dust from asbestos-based products.     In the
late 1960s, one such trade group published an article summarizing
the growing evidence of a connection between asbestos exposure
and a type of cancer called mesothelioma.   By Crane's admission
in this litigation, its executives became aware of the dangers of
exposure to breathable asbestos dust in the early 1970s.     From



     1
        At trial, there was testimony indicating that the Navy
used gaskets that did not contain asbestos. However, the
testimony did not indicate whether those gaskets were used, or
could be used in high-temperature, high-pressure steam pipe
systems. The Navy manual stated that one could use non-asbestos
materials to make packing, gaskets and insulation for valves, but
it did not specify whether those materials were appropriate for
use in steam pipe systems that moved steam at both high pressures
and high temperatures.

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                                - 5 -                 Nos. 83 & 84

the time of Crane's sale of valves to the Navy in the 1930s until
at least 1980, Crane never provided warnings about the hazards of
exposure to asbestos dust resulting from the combined use of its
valves and asbestos-based products.
           From 1960 to 1977, plaintiff Dorris Kay Dummitt's
husband, decedent Ronald Dummitt (Dummitt), was a Navy boiler
technician, and during part of his Navy career, he also acted as
the liaison between the commanding officers and the boiler room
staff on various ships.   As staff liaison, Dummitt often received
manufacturers' warnings about the perils of using their products
and passed along those warnings to the boiler room technicians
under his supervision.    Throughout his time in the Navy, Dummitt
frequently consulted manuals and instructional pamphlets for
boiler room equipment, reading any safety warnings contained
therein.
           In the course of his duties in maintaining naval steam
pipe systems, Dummitt worked on Crane's valves, on which were
installed asbestos-based gaskets, packing and insulation.     Those
asbestos-bearing products were designed and manufactured by
companies other than Crane.   Dummitt regularly changed the
gaskets and packing on the valves by removing lagging pads from
each valve, pulling back the packing, scraping off the gaskets,
blasting the assembly with compressed air and installing a
replacement set of third-party sealing and insulating parts.
Because those components contained friable asbestos, the routine


                                - 5 -
                                 - 6 -                Nos. 83 & 84

replacement process, which Dummitt completed numerous times,
exposed him to carcinogenic asbestos dust.
          In April 2010, Dummitt was diagnosed with pleural
mesothelioma, which he had evidently contracted as a result of
his exposure to asbestos dust.    In June 2010, Dummitt and
plaintiff commenced this negligence and strict products liability
action by filing a complaint in Supreme Court against Crane and
67 other defendants who manufactured the asbestos-based gaskets,
packing and insulation.2   As relevant here, Dummitt and plaintiff
alleged that Crane had "acted negligently in failing to warn
Dummitt of the hazards of asbestos exposure for the components
used with its valves, and that such negligence was a proximate
cause of his injuries."
          Supreme Court granted Dummitt and plaintiff an
accelerated trial preference under CPLR 3403 and consolidated the
case with, among others, Matter of New York City Asbestos
Litigation (Konstantin v 630 Third Avenue Associates) (__NY3d__,
2016 NY Slip Op ___ [decided today]).3   At the joint jury trial,
Crane called as a witness Admiral David Putnam Sargent, an expert
in Navy procurement practices.    Admiral Sargent, who had worked
on procurement for the Navy starting in 1988, testified about


     2
        Plaintiff commenced suit on her own behalf for loss of
consortium, and after Dummitt's death following the trial, she
also prosecuted Dummitt's claims as the executor of his estate.
     3
        By the time of trial, only Dummitt and Konstantin
remained consolidated.

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                               - 7 -                 Nos. 83 & 84

Navy specifications for valves and gaskets.   He also opined that,
generally, valve manufacturers have no role in determining
whether, and with what materials, the Navy will choose to
insulate the valves after the Navy has received them.   When Crane
sought to elicit Admiral Sargent's opinion as to whether Navy
practices and specifications at the time of Dummitt's exposure to
asbestos would have prevented warnings about the perils of
asbestos dust released by the valves and sealing parts from
reaching Dummitt, plaintiff objected, and the court sustained the
objection on the ground that Admiral Sargent's proposed testimony
was speculative.
          After the parties rested at trial, Crane moved for a
directed verdict, positing, among other things, that plaintiff
had failed to present legally sufficient proof that Crane had an
applicable duty to warn.   Crane also argued that, because there
was no evidence that Crane had acted recklessly in failing to
warn the users of its valves about the release of asbestos dust
from the combined use of the valves and third-party asbestos-
laden sealing components, the court could not instruct the jurors
on the potential applicability of the recklessness exception to
CPLR 1601's provision for equitable allocation of liability among
joint tortfeasors.   The court denied Crane's motion for a
directed verdict, overruled its objection to the court's proposal
to issue a charge on the recklesness exception to the rule of
CPLR 1601 and, later, instructed the jurors on that exception.


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                                 - 8 -               Nos. 83 & 84

          Additionally, the court instructed the jury, over
Crane's objection, as follows:
          "A manufacturer has a duty to warn against
          latent dangers resulting from foreseeable
          uses of its product of which the manufacturer
          knew or should have known. Thus, a
          manufacturer's duty to warn extends to known
          dangers or dangers which should have been
          known in the exercise of reasonable care of
          the uses of the manufacturer's product with
          the product of another manufacturer if such
          use was reasonably foreseeable. Crane's
          dut[y] to warn hinges, in part, on whether it
          was foreseeable that asbestos containing
          gaskets, lagging and/or insulation and
          packing would be used with Crane's valves and
          whether it was foreseeable that routine
          maintenance and repair of the valves would
          create a dangerous condition by exposing a
          worker to asbestos in the dust created during
          such work."
The court also instructed the jurors on causation, stating:
          "Ronald Dummitt alleges that Crane's and
          Elliott's failure to warn was a substantial
          factor in causing his mesothelioma. Mr.
          Dummitt contends that he would have heeded
          warnings and not have been injured. Mr.
          Dummitt is entitled to the presumption that
          had proper and adequate warnings been given
          regarding the use of the product, the
          warnings would have been heeded and injury
          avoided."
At a sidebar, Crane objected to this charge, asserting that the
court should have instructed the jurors that any presumption that
Dummitt would have heeded warnings was rebuttable.   The court
agreed with Crane and thereafter told the jurors that the
presumption was rebuttable.
          Following deliberations, the jury found Crane 99%
liable and awarded $32 million in damages.   Crane moved to set

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                                  - 9 -               Nos. 83 & 84

aside the verdict pursuant to CPLR 4404.    Crane contended that,
under Rastelli v Goodyear Tire & Rubber Co. (79 NY2d 289) and
related case law, it had no duty to warn the users of its valves
of asbestos-related hazards arising from the use of the valves in
conjunction with third-party products containing asbestos.
Consequently, Crane argued, the court had erroneously instructed
the jurors that it had such a duty, and the evidence was legally
insufficient to support the jury's verdict in the absence of any
cognizable duty.    Crane renewed its argument that Admiral Sargent
should have been allowed to testify that, in his opinion, even if
Crane had issued warnings regarding the hazardous release of
abestos dust during the process of replacing the gaskets and
packing on its valves, Dummitt would never have received those
warnings.    Crane also asserted, inter alia, that the jury's
allocation of liability was against the weight of the evidence
and that the damages award was excessive.
            In a comprehensive written decision, Supreme Court
granted Crane's motion to set aside the verdict only to the
extent of remitting for a new trial on damages or a stipulated
reduction in damages, and it otherwise denied the motion.
Subsequently, the parties stipulated to a reduced damages award
of $5.5 million for past pain and suffering and $2.5 million for
future pain and suffering, and the court entered judgment
accordingly.    Crane appealed.
            A divided panel of the Appellate Division affirmed the


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                              - 10 -                  Nos. 83 & 84

judgment (see Matter of New York City Asbestos Litigation
[Dummitt v A.W. Chesterton, et al.], 121 AD3d 230, 235-256 [1st
Dept 2014]).   The Appellate Division decided that, although Crane
had not manufactured, designed or sold the asbestos-containing
products that Dummitt had installed on its valves, Crane had a
duty to warn the users of its valves that the use of the valves
with third-party asbestos-based products could result in exposure
to hazardous asbestos particles (see id. at 248-252).
Distinguishing Rastelli, supra, on its facts, the Appellate
Division concluded that Crane's specification of asbestos-laden
gaskets, packing and insulation, its promotion of the use of such
asbestos-based replacement parts via its marketing of Cranite,
and its contribution to the "Naval Machinery" manual mandating
the use of such asbestos-containing products "'strengthened the
connection'" between Crane's products and the other
manufacturers' asbestos-laden products, and therefore, the
Appellate Division ruled, Crane's "substantial interest" in the
installation of asbestos-based products on its valves created a
duty to warn of the dangers of that practice (id. at 251-252,
quoting Surre v Foster Wheeler LLC, 831 F Supp 2d 797, 801 [SDNY
2011]).   The Appellate Division also declined to reverse the
trial court's judgment based on Crane's remaining complaints
about the trial court's instructions to the jury, the preclusion
of Admiral Sargent's proposed opinion testimony and the jury's
verdict (see id. at 246-248, 252-255).


                              - 10 -
                              - 11 -                 Nos. 83 & 84

          Two Justices dissented, voting to reverse and order a
new trial (see id. at 256-263 [Friedman, J., dissenting]).    In
the dissent's view, the trial court's preclusion of Admiral
Sargent's testimony and the court's jury instructions on an
alleged heeding presumption, individually and cumulatively,
constituted reversible error (see id. at 260-262).   Crane
appealed as of right pursuant to CPLR 5601 (a), and we now
affirm.


Matter of Eighth Judicial District Asbestos Litigation (Suttner v
A.W. Chesterton, et al.)
          As the evidence at trial showed, in the 1930s, Crane
sold its valves to General Motors (GM) for use in the high-
pressure, high-temperature steam pipe systems in GM's factories.
By Crane's own admission, it may have supplied GM with valves
accompanied by asbestos-based gaskets and packing.   In fact,
Crane's schematics for the valves specified the use of asbestos-
based packing and gaskets.
          In 1936, a Crane catalog encouraged customers to
install Cranite gaskets on its valves, noting that "Cranite
gaskets are used on all Crane valves for high pressure, saturated
or superheated steam."   Crane's 1955 catalog recommended the use
of Cranite packing for systems that, like GM's, featured high
pressures and temperatures up to 750 degrees.   As reflected in
the testimony of plaintiff's material science expert, in the


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                              - 12 -                 Nos. 83 & 84

1960s and 1970s, steam pipe systems that operated within the
temperature and pressure range of GM's systems typically featured
asbestos-laden gaskets.   According to Crane's interrogatory
responses, in the late 1970s or early 1980s, Crane sought a
substitute for the asbestos-based sealing components often
included with its valves, but Crane "encountered difficulty
locating suitable substitute components."   In 1943, a Crane
document entitled "Piping Pointers for Industrial Maintenance"
stated that metal gaskets could be installed on Crane's valves,
but it observed that "[t]his [metal] type gasket [wa]s used only
in very high pressure-temperature services" in excess of 750
degrees -- a temperature range above that of GM's steam pipe
systems.
           From 1960 to 1979, plaintiff Joann Suttner's husband,
decedent Gerald Suttner (Suttner), worked as a pipe fitter at
GM's Tonawanda Engine Plant, which had a steam pipe system
featuring Crane valves with third-party gaskets and packing
materials.   Specifically, the gaskets, packing and surrounding
insulation were not manufactured or designed by Crane, and they
all contained asbestos.   Suttner changed gaskets on Crane valves
hundreds of times during his tenure at the plant, tearing open
the asbestos-laden packing and insulation on each gasket,
grinding the gasket in the manner recommended by Crane, scraping
pieces of the gasket off the valve, cleaning the valve surface
with an air hose, replacing the gasket, cutting new asbestos-


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                               - 13 -                 Nos. 83 & 84

based packing and installing that packing along with a new
asbestos-bearing gasket.   The grind aspect of this process was
recommended by the "Piping Pointers" document.   This process
released substantial amounts of friable asbestos into the air,
exposing Suttner to the carcinogenic asbestos fibers.
          In September 2010, Suttner was diagnosed with pleural
mesothelioma.   In December 2010, Suttner and plaintiff commenced
this action by filing a complaint in Supreme Court against Crane
and 37 other defendants who manufactured the asbestos-bearing
products that Suttner had used while he was employed at the
Tonawanda Engine Plant.    Suttner and plaintiff asserted a cause
of action for, among other things, failure to warn of the perils
of the combined use of Crane's valves with the asbestos-
containing third-party products.
          After his pretrial deposition, Suttner died in 2011,
prompting plaintiff to amend her complaint to include a wrongful
death claim brought in her capacity as executor of his estate.
Thereafter, plaintiff settled or discontinued the action against
all defendants except Crane, against whom she proceeded to trial.
At trial, the parties presented evidence reflecting the facts
recited above, and the jury viewed a video recording of Suttner's
deposition.
          At the end of trial, the court, over Crane's objection,
instructed the jurors about the duty of a manufacturer, such as
Crane, to warn of the dangers of certain uses of its products.


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                              - 14 -                 Nos. 83 & 84

The instructions incorporated concepts of foreseeability,
knowledge, reasonableness and other pertinent matters.   At
the end of its deliberations, the jury returned a verdict finding
that Crane had rendered its valves defective by failing to warn
of the dangers of the joint use of the valves and the other
manufacturers' products and that the pertinent defects in the
valves were a substantial factor in causing Suttner's injuries
and death.   The jury apportioned 4% of the liability to Crane and
awarded a total of $3 million in damages.
           Crane moved to set aside the verdict under CPLR 4404
(a), asserting that the court had erroneously instructed the jury
to find that Crane had a duty to warn of any foreseeable use of
its product that would cause harmful asbestos exposure via the
use of replacement gaskets it did not manufacture.   Along those
lines, Crane challenged the sufficiency of the evidence based on
the lack of proof that would support any duty to warn on Crane's
part.   In support of these arguments, Crane contended that this
Court's decision in Rastelli, supra, precluded liability for a
defendant's failure to warn of the dangers of third-party
replacement parts if the defendant, like Crane here, did not
place the parts into the stream of commerce or exercise any
control over the production of the parts.   Crane similarly
asserted that the "component parts" doctrine articulated in
Appellate Division case law and the Restatement (Third) of Torts
shielded it from liability arising out of its failure to warn of


                              - 14 -
                                - 15 -               Nos. 83 & 84

the pertinent asbestos-related hazard.   Crane further claimed
that the proof of causation was insufficient to support the
verdict.   In a thorough written decision, Supreme Court denied
Crane's motion, and it later entered judgment on the verdict in
plaintiff's favor.   Crane appealed.
           The Appellate Division unanimously affirmed Supreme
Court's judgment (see Matter of Eighth Jud. Dist. Asbestos
Litigation [Suttner v A.W. Chesterton], 115 AD3d 1218, 1218 [4th
Dept 2014]).   Specifically, the Appellate Division summarily
affirmed on the decision below (see id.).   We granted Crane leave
to appeal, and we now affirm.
                                 II.
           In accordance with a longstanding and evolving common-
law tradition, a manufacturer of a defective product is liable
for injuries caused by the defect (see Liriano v Hobart Corp., 92
NY2d 232, 237 [1998]; Denny v Ford Motor Co., 87 NY2d 248, 254-
259 [1995] Codling v Paglia, 32 NY2d 330, 338 [1973]; MacPherson
v Buick Motor Co., 217 NY 382, 385 [1916]; Devlin v Smith, 89 NY
470, 476-479 [1882]; see also Restatement [Third] of Torts:
Products Liability § 2; Michael Weinberger, New York Products
Liability 2d § 1:02; 63 Am Jur 2d Products Liability § 10;
Salmond on the Law of Torts, 571 [10th ed 1945]).   Under New
York's modern approach to products liability, a product has a
defect that renders the manufacturer liable for the resulting
injuries if it: (1) "contains a manufacturing flaw"; (2) "is


                                - 15 -
                                - 16 -                Nos. 83 & 84

defectively designed"; or (3) "is not accompanied by adequate
warnings for the use of the product" (Liriano, 92 NY2d at 237;
see Hoover v New Holland, Inc., 23 NY3d 41, 53-54 [2014]; Speller
v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]; Robinson v.
Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 478-479
[1980]; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, Inc.,
39 NY2d 376, 384-387 [1976]).    While claims based on the third
category of defect, a lack of adequate warnings, can be framed in
terms of strict liability or negligence, failure-to-warn claims
grounded in strict liability and negligence are functionally
equivalent, as both forms of a failure-to-warn claim depend on
the principles of reasonableness and public policy at the heart
of any traditional negligence action (see Martin v Hacker, 83
NY2d 1, 8 n1 [1993]; Enright v Lilly & Co., 77 NY2d 377, 387
[1991]; Wolfgruber v Upjohn Co., 72 AD2d 59, 62 [4th Dept 1979],
affd on opn below 52 NY2d 768 [1980]; see also Restatement
[Third] of Torts: Products Liability § 1, comment a; cf. Bolm v
Triumph Corp., 33 NY2d 151, 159 [1973]).
          Given that failure-to-warn cases are governed by
negligence principles, it is incumbent on the court in such
cases, as in any case featuring a claim of negligence, to decide
whether an applicable legal duty exists.    Our decisions yield the
general principle that the court must decide whether there is any
proof in the record that might support the recognition of a duty
to warn owed by the manufacturer to the injured party (see Darby


                                - 16 -
                              - 17 -                 Nos. 83 & 84

v Compagnie Nat'l Air France, 96 NY2d 343, 347 [2001]; Palka v
Servicemaster Management Servs. Corp., 83 NY2d 579, 585 [1994];
Waters v New York City Housing Authority, 69 NY2d 225, 229
[1987]; De Angelis v Lutheran Medical Ctr., 58 NY2d 1053, 1055
[1983]).   To discern whether a duty exists, the court must not
engage in a simple weighing of equities, for a legal duty does
not arise "when[ever] symmetry and sympathy would so seem to be
best served" (De Angelis, 58 NY2d at 1055; see Waters, 69 NY2d at
229; Tobin v Grossman, 24 NY2d 609, 619 [1969]).   Rather, the
court must settle upon the most reasonable allocation of risks,
burdens and costs among the parties and within society,
accounting for the economic impact of a duty, pertinent
scientific information, the relationship between the parties, the
identity of the person or entity best positioned to avoid the
harm in question, the public policy served by the presence or
absence of a duty and the logical basis of a duty (see Peralta v
Henriquez, 100 NY2d 139, 144-145 [2003]; Hamilton v Beretta
U.S.A. Corp., 96 NY2d 222, 232 [2001]; Di Ponzio v Riordan, 89
NY2d 578, 583 [1997]; Palka, 83 NY2d at 586; Tobin, 24 NY2d at
614-615; Palsgraf v Long Island R. Co., 248 NY 339, 344 [1928]).
Furthermore, the court cannot recognize a duty based entirely on
the foreseeability of the harm at issue, though foreseeability
defines the scope of a duty once it has been recognized (see
Hamilton, 96 NY2d at 232; Palka, 83 NY2d at 585; Pulka v Edelman,
40 NY2d 781, 785 [1976]).


                              - 17 -
                               - 18 -                Nos. 83 & 84

          Although the appropriate balance of the factors
pertinent to duty must often be appraised on a case-by-case basis
because "the existence and scope of . . . a duty [to warn] are
generally fact-specific" (Liriano, 92 NY2d at 240), our prior
decisions in this area provide some broader guidance on the types
of cases in which a manufacturer must warn of the jeopardy
springing from certain uses of its products.   Under our
precedent, "[a] manufacturer has a duty to warn against latent
dangers resulting from foreseeable uses of its product of which
it knew or should have known" (Liriano, 92 NY2d at 237; see
Rastelli, 79 NY2d at 297; McLaughlin v Mine Safety Appliances
Co., 11 NY2d 62, 68 [1962]).   Additionally, the manufacturer must
warn of dangers arising from the product's "intended use or a
reasonably foreseeable unintended use" (Lugo v LJN Toys, Ltd., 75
NY2d 850, 851 [1990]; see Liriano, 92 NY2d at 237; see also
Magadan v Interlake Packaging Corp., 45 AD3d 650, 652 [2d Dept
2007]; cf. Micallef, 39 NY2d at 385-386).   The manufacturer's
duty also includes a legal obligation to issue warnings regarding
hazards arising from foreseeable uses of the product about which
the manufacturer learns after the sale of the product (see Adams
v Genie Indus., Inc., 14 NY3d 535, 544 [2010]; Liriano, 92 NY2d
at 240; Cover v Cohen, 61 NY2d 261, 274-277 [1984]; see also
Restatement [Third] of Torts: Products Liability § 10; 63A Am Jur
2d Products Liability § 1066 ).   The duty "extends to the
original or ultimate purchasers of the product, to employees of


                               - 18 -
                              - 19 -                   Nos. 83 & 84

those purchasers and to third persons exposed to a foreseeable
and unreasonable risk of harm by the failure to warn" (McLaughlin
v Mine Safety Appliance Co., 11 NY2d 62, 69 [1962] [internal
citations omitted]; see Levczuk v Babcock & Wilcox Co., 10 NY2d
830, 831 [1961], revg 12 AD2d 483 [1st Dept 1960]).
           In Rastelli (79 NY2d 289), we outlined certain
considerations relevant to the determination of whether a
manufacturer has a duty to warn of the hazards that arise when a
person attaches the manufacturer's product to a product made by
another company.   In that case, a truck, which was owned by the
plaintiff's decedent's employer and used by the decedent,
featured a non-defective Goodyear truck tire placed around a
defective multi-piece rim assembly, which was designed and built
by another company (see Rastelli, 79 NY2d at 293).    Goodyear's
tire was compatible with this particular rim assembly and with
many, but not all, other multi-piece rim assemblies (see id. at
294).   Other than this compatibility, Goodyear had no connection
to the rim assembly; Goodyear had "never . . . been a
manufacturer or marketer of the RH5 rim assembly model or its
component parts" (id.).   When the decedent filled the truck's
tire with air, the rim assembly essentially exploded, causing a
piece of it to strike and kill him (see id. at 293).    Thereafter,
the plaintiff sued Goodyear, asserting that it had negligently
failed to warn users of its tires of the inherent dangers of
using its tires in conjunction with defective multi-piece rims


                              - 19 -
                             - 20 -                  Nos. 83 & 84

(see id. at 294-295).
          On appeal, we concluded that Goodyear could not be held
liable for the plaintiff's injuries based on its failure to warn
of the perils of the combined use of its tire and the multi-piece
rim made by another company (see id. at 297-298).   In reaching
this conclusion, we cited a number of significant "circumstances
of th[e] case," including the following: (1) "Goodyear had no
control over the production of the multipiece rim"; (2) Goodyear
"had no role in placing that rim in the stream of commerce"; (3)
Goodyear "derived no benefit from [the rim's] sale"; and (4)
"Goodyear's tire did not create the alleged defect in the rim
that caused the rim to explode" (id. at 297-298).   We further
noted that "[t]his [wa]s not a case where the combination of one
sound product with another sound product create[d] a dangerous
condition about which the manufacturer of each product ha[d] a
duty to warn," and we reiterated that "Goodyear had no duty to
warn about the use of its tire with potentially dangerous
multipiece rims produced by another where Goodyear did not
contribute to the alleged defect in the product, had no control
over it, and did not produce it" (id. at 298).
          In the instant appeals, Crane primarily relies on
Rastelli to assert that it had no duty to warn the end users of
its valves that they could be exposed to carcinogenic asbestos
dust released by the installation and replacement of third-party
asbestos-based gaskets, packing and insulation on Crane's valves.


                             - 20 -
                               - 21 -                 Nos. 83 & 84

Crane contends that, like Goodyear in Rastelli, it had no control
over the production of the other companies' asbestos-bearing
products and did not place those products in the stream of
commerce.   Therefore, Crane urges, it had no duty to warn anyone
of the perils of combining its valves with third-party asbestos-
based products in the high-pressure, high-temperature steam
systems in which the valves were meant to be used.    In response,
plaintiffs in these cases contend that Crane's strong interest in
its customers' use of third-party asbestos-based products and its
valves' close connection to those other products bound Crane to
warn of the dangers of using its valves and those other products
together.   As will be explained, we conclude that Rastelli and
our other precedents, as well as sound public policy, support the
recognition of a duty to warn under these circumstances.
                                III.
            In deciding whether a manufacturer has a duty to warn
certain users of its product about the hazards of using that
product with another company's product, we must consider whether
the manufacturer is in a superior position to know of and warn
against those hazards, for in all failure-to-warn cases, this is
a major determinant of the existence of the duty to warn (see
Liriano, 92 NY2d at 240-241; Cover, 61 NY2d at 274-277; see also
Rekab, Inc. v Frank Hrubetz & Co., 261 Md 141, 146-149 [MD 1971];
Tibbetts v Ford Motor Co., 4 Mass App Ct 738, 741 [App Ct Mass
1976]; see also Restatement [Third] of Torts: Products Liability


                               - 21 -
                             - 22 -                   Nos. 83 & 84

§ 10 [b]; 63A Am Jur 2d Products Liability § 1039).   As we have
previously recognized, "[c]ompared to purchasers and users of a
product, a manufacturer is best placed to learn about post-sale
defects or dangers discovered in use[,] . . . modifications made
to or misuse of a product" (Liriano, 92 NY2d at 240-241).   A
manufacturer's superior ability to "garner information" about
dangerous uses of its product extends to combined uses with other
manufacturers' products (id. at 241).
          Furthermore, where one manufacturer's product is a
durable item designed for continuous use with the other
manufacturer's fungible product, which by contrast deteriorates
relatively quickly and is designed to be replaced, the
manufacturer of the durable product typically is in the best
position to guarantee that those who use the two products
together will receive a warning; the end user is more likely to
interact with the durable product over an extended period of
time, and hence he or she is more likely to inspect warnings on
that item or in associated documentation, than to review warnings
supplied by the maker of the "wear item" (cf. Bich v General
Electric Co., 27 Wn App 25, 32-33 [Ct App Wash 1980] [in a strict
liability failure-to-warn action, manufacturer had duty to warn
of danger of replacing the fuses on its product with third-party
fuses]; Victor E. Schwartz & Christopher E. Appel, Effective
Communication of Warnings in the Workplace: Avoiding Injuries in
Working with Industrial Materials, 73 Mo L Rev 1, 7-9 [2008]


                             - 22 -
                              - 23 -                 Nos. 83 & 84

[noting that, because fungible industrial materials are generally
quickly replaced and repackaged by users, warnings from the
manufacturers of such products are unlikely to be received by
most end users]).4   Accordingly, because a manufacturer who
learns that its product is used in conjunction with another
company's product has the knowledge and ability to warn of the
dangers of the joint use of the products, especially if the other
company's product is a "wear item," the manufacturer's superior
position to warn is a factor -- though by no means dispositive --
supporting the recognition of a duty to warn under certain
circumstances.
          Recognition of a manufacturer's duty to warn against
the certain perils of using its product with another company's
product will likely have a balanced and manageable economic


     4
        When the "wear item" is used by itself or with another
product, the duty of the manufacturer of the durable product does
not eliminate the obligation of the other manufacturer to provide
warnings of the hazards caused by the deterioration of its
product that does not result from ordinary wear and tear known to
the user (see Gary T. Schwartz, Symposium: The Passage of Time:
The Implications for Product Liability: New Products, Old
Products, Evolving Law, Retroactive Law, 58 NYUL Rev 7096, 839
[1983]; Parsons v Honeywell, Inc., 929 F2d 901, 906-907 [2d Cir
1991] [producer of gas had duty to warn of dangerous
deterioration of odorant in gas]; Chysky v Drake Bros. Co., 192
AD 186, 193-194 [1st Dept 1920] [a manufacturer is "chargeable
with negligence where the manufacturer knew or should have known
that the product was liable to deteriorate and become dangerous
to health, either by time, climate or temperature or by the
manner in which it was kept, if it failed to affix to the package
the date of manufacture and the time during which the ingredients
might safely be used, or the manner in which they should be
handled and preserved to prevent deterioration"]).

                              - 23 -
                              - 24 -                 Nos. 83 & 84

impact.   The manufacturer incurs a relatively modest cost from
complying with the duty because the cost of issuing a warning
about combined uses of its product and another product under
certain circumstances is not significantly more burdensome than
the manufacturer's pre-existing duty to warn of the dangers of
using the manufacturer's product separately -- a well-established
cost that is itself relatively low (see Liriano, 92 NY2d at 239-
240; see also Anderson v Hedstrom Corp., 76 F Supp 2d 422, 440
[SDNY 1999]; May v Air & Liquid Sys. Corp., 129 A3d 984, 993 [MD
2014]).
           Nor is the cost of liability and litigation likely to
become unreasonable.   Prior judicial recognition of a
manufacturer's duty to warn of the perils of reasonably
foreseeable uses of its product has not imposed extreme or
unreasonable financial liability on manufacturers (see Schwartz,
58 NYUL Rev at 811-812; cf. Joanna M. Shepard, Products Liability
and Economic Activity: An Empirical Analysis of Tort Reform's
Impact on Businesses, Employment, and Production, 66 Vand L Rev
257, 268-314 [2013] [noting that, while tort litigation costs in
general rose greatly over the 20th century, certain judicial and
legislative limits on product liability suits have made costs
manageable for businesses]), and there is no evidence before us
that judicial approval of a duty to warn about the hazards of the
combined use of two manufacturers' products, if sensibly
confined, would saddle manufacturers with an untenable financial


                              - 24 -
                              - 25 -                 Nos. 83 & 84

burden, especially given that they can obtain insurance coverage
for this type of liability (see Appalachian Ins. Co. v General
Elec. Co., 8 NY3d 162, 166-167 [2007]).
           The endorsement of a manufacturer's duty to warn
against certain combined uses of its product and a third-party
product comports with the longstanding public policy underlying
products liability in New York.   As we observed long ago,
"[t]oday as never before the product in the hands of the consumer
is often a most sophisticated and even mysterious article," and
given the practical inability of the users of modern products to
detect the dangers inherent in their operation, "from the
standpoint of justice as regards the operating aspect of today's
products, responsibility should be laid on the manufacturer,
subject to the limitations we set forth" (Codling, 32 NY2d at
340-341; see Sprung v MTR Ravensburg, Inc., 99 NY2d 468, 472-473
[2003]).   Where two products are used together, the user has even
less ability to comprehend the risk without a warning from the
manufacturers because he or she rarely has access to sufficient
technical information about both products to anticipate the
perils of their joint use.5
           However, as mentioned above, a duty to warn must have a



     5
        Of course, this does not hold true in cases where the
danger inherent in the combined use of two products is obvious to
the user. In such situations, a manufacturer cannot be liable
for failing to warn of that danger (see Gebo v Black Clawson Co.,
92 NY2d 387, 395 [1998]; Liriano, 92 NY2d at 241-242).

                              - 25 -
                               - 26 -                  Nos. 83 & 84

logical basis and scope that "limit[s] the legal consequences of
wrongs to a controllable degree" (Tobin, 24 NY2d at 619; see
Hamilton, 96 NY2d at 232), and therefore, we must draw a
commonsense line at which duty ends based on the closeness of the
connection between the manufacturer's product, the other product
and their uses.   In ascertaining the contours of the requisite
close connection, we look to the factors reflected in the
circumstances that we found decisive in Rastelli, which is our
most significant prior examination of the duty to warn of the
perils of synergistic product uses.     The balance of those factors
supports the following rule: the manufacturer of a product has a
duty to warn of the danger arising from the known and reasonably
foreseeable use of its product in combination with a third-party
product which, as a matter of design, mechanics or economic
necessity, is necessary to enable the manufacturer's product to
function as intended.
          In that regard, as we implicitly recognized in
Rastelli, a manufacturer's duty to warn of combined use of its
product with another product depends in part on whether the
manufacturer's product can function without the other product
(see Rastelli, 79 NY2d at 293, 297-298), as it would be unfair to
allow a manufacturer to avoid the minimal cost of including a
warning about the perils of the joint use of the products when
the manufacturer knows that the combined use is both necessary
and dangerous.    And, the justification for a duty to warn becomes


                               - 26 -
                              - 27 -                 Nos. 83 & 84

particularly strong if the manufacturer intends that customers
engage in the hazardous combined use of the products at issue,
for we have long regarded a manufacturer's intent to have its
customers operate its product in a dangerous fashion as a
significant cornerstone of its liability for injuries caused by
its product (see Rosebrock v General Electric Co., 236 NY 227,
238 [1923]; MacPherson, 217 NY at 387-388; see also 63A Am Jur 2d
Products Liability § 1046; cf. Rastelli, 79 NY2d at 297).
           It is true that, in every case involving the
synergistic use of a manufacturer's product and another company's
product, one of the Rastelli factors, the manufacturer's lack of
control over the production of the other company's product,
militates against recognition of a duty to warn (see Rastelli, 79
NY2d at 298).   But, the remaining factors delineated in Rastelli
support the recognition of a manufacturer's duty to warn in cases
like the ones now before us, especially insofar as they highlight
the manufacturer's intention that its customers carry out the
perilous combined use of the manufacturer's product and the
third-party product.   In that regard, where a manufacturer
creates a product that cannot be used without another product as
a result of the design of the product, the mechanics of the
product or the absence of economically feasible alternative means
of enabling the product to function as intended, the manufacturer
has a substantial, albeit indirect, role in placing the third-
party product in the stream of commerce (cf. id. [emphasizing


                              - 27 -
                              - 28 -                  Nos. 83 & 84

that Goodyear "had no role in placing th(e) (third-party) rim in
the stream of commerce"]).   Specifically, when the manufacturer
produces a product that requires another product to function, the
manufacturer naturally opens up a profitable market for that
essential component, thereby encouraging the other company to
make that related product and place it in the stream of commerce.
          The manufacturer also derives a benefit from the sale
of the essential third-party product, as the manufacturer is able
to sell its own product to customers precisely because the third
party has sold to those customers another item that is essential
to the product's function (cf. id. [observing that Goodyear
"derived no benefit from (the) sale" of the other company's
product]).   Additionally, because the manufacturer's product is
critical to the dangerous joint use of the two products, it does
substantially create a defective condition insofar as both
products combine to generate a defective and dangerous condition
(cf. id. [relieving Goodyear from any duty to warn in part
because its tire "did not create the alleged defect in the rim
that caused the rim to explode"]).6    Accordingly, we recognize a


     6
        It is for this reason that the standard of duty
articulated in the instant decision fully comports with our
conclusion in Rastelli that mere "compatib[ility]" between a
manufacturer's product and another company's product cannot
subject the manufacturer to a duty to warn of the perils of the
combined use of the two products (Rastelli, 79 NY2d at 298).
Today's decision, like Rastelli, appropriately limits liability
by declining to recognize a duty based on simple compatibility,
for, here, we base the standard for the imposition of a duty to
warn not on compatibility, but instead on the multiple elements

                              - 28 -
                               - 29 -                  Nos. 83 & 84

manufacturer's duty to warn of the peril of a known and
foreseeable joint use of its product and another product that is
necessary to allow the manufacturer's product to work as
intended.
            Our adoption of this principle is no radical
innovation.    Decades ago, in Levczuk v Babcock & Wilcox Co., we
implicitly laid the foundation of a manufacturer's duty to warn
of the perils of using the manufacturer's product with items
constructed by another company (see Levczuk, 10 NY2d at 831).
There, in summarily reversing a grant of summary judgment to the
defendant, which had manufactured a boiler that exploded, we
approved the plaintiff's claim that, because the defendant
manufacturer had acquiesced in another company's construction of
a safety-device bypass that the other company installed on the
manufacturer's boiler to enable the boiler to function properly,
the manufacturer might be responsible for negligently failing to
warn the plaintiff that the use of the two products together
"created new dangers" (id. at 830).     Likewise, in Sage v



outlined above, including, importantly, necessity. Indeed, while
countless modern products are mutually compatible and frequently
used in combination, very few products must be used together, as
a matter of design, mechanics or economics, to function as
intended. That being so, the necessity element of the standard
set forth in this decision plays an important role in cabining
liability to a sensible degree. Of course, beyond the necessity
element, the other essential elements of the standard articulated
in this decision ensure that we remain faithful to Rastelli and
other precedents which confine liability to a manageable level.


                               - 29 -
                              - 30 -                 Nos. 83 & 84

Fairchild-Swearingen Corp. (70 NY2d 579 [1987]), we recognized a
parallel principle in the somewhat related design defect
context,7 ruling that a company which designed and manufactured
an airplane and a hook on the plane's ladder could be held liable
for injuries caused by a replacement hook made by someone else in
accordance with the original manufacturer's unsafe design (see
Sage, 70 NY2d at 586-588).
          Furthermore, for years, Appellate Division decisions
have held that a manufacturer has a duty to warn about the
dangers resulting from the combined use of its product with
another product that is essential to the intended function of the
manufacturer's product (see Baum v Eco-Tec, Inc., 5 AD3d 842, 845
[3d Dept 2004]; Berkowitz v. A.C. & S., Inc., 288 AD2d 148, 149
[1st Dept 2001]; Rogers v Sears, Roebuck & Co., 268 AD2d 245, 246
[1st Dept 2000]; Village of Groton v Tokheim Corp., 202 AD2d 728,
729-730 [3d Dept 1984]; cf. Hess v Mack Trucks, 159 AD2d 557, 558
[2d Dept 1990]).   Thus, our decision here adds but a note to a

     7
        In New York, a claim of design defect sounds primarily in
strict liability rather than negligence, whereas a negligence
claim based on the manufacturer's failure to warn and a strict
liability claim based on its failure to warn are doctrinally and
functionally interchangeable (see Martin, 83 NY2d at 8 n1;
Enright, 77 NY2d at 387). Nonetheless, there is considerable
overlap in the policy considerations underlying the recognition
of a duty to warn under negligence principles and the imposition
of liability for a design defect (see Enright, 77 NY2d at 386;
Denny, 87 NY2d at 257-258; Restatement [Third] of Torts: Products
Liability § 1, comment a), and therefore, it is sometimes
appropriate to analogize design defect cases to failure-to-warn
cases as a matter of logic while still maintaining the doctrinal
distinctions between them.

                              - 30 -
                               - 31 -                Nos. 83 & 84

familiar anthem in failure-to-warn jurisprudence.8
           Crane mostly concedes as much, but it maintains that
the duty to warn arises only if the manufacturer's product, as
designed, is physically incapable of working as intended without
the other company's product.   In Crane's view, as long as the
manufacturer's product could still technically work without the
other product, it does not matter that the manufacturer's
customers cannot afford to maintain the intended operation of the
product for any reasonable period of time with any alternative
product.   But we see no reason to ground the duty to warn purely
in mechanical necessity while ignoring financial necessity.
           After all, the determination of whether a duty exists
turns to a substantial degree on a reasonable and fair allocation
of costs and burdens, and Crane's proposed rule with respect to
duty would impose an unreasonable monetary cost and an
inappropriate burden exclusively on manufacturers' customers.     In

     8
        Contrary to Crane's suggestion, our decision is
consistent with the "component parts" doctrine outlined in the
Restatement (Third) of Torts, which indicates that a manufacturer
of a component part of another company's product should be liable
only if, as relevant here: (1) "the seller or distributor of the
component substantially participates in the integration of the
component into the design of the product"; (2) "the integration
of the component causes the product to be defective"; and (3)
"the defect in the product causes the harm" (Restatement [Third]
of Torts: Products Liability § 5 [b]; see Gray v R.L. Best Co.,
78 AD3d 1346, 1349 [3d Dept 2010]). In virtually every situation
triggering the duty to warn under today's decision, the elements
of the component parts doctrine will be met because it will be
the exceedingly rare case in which the necessary proof of intent
will exist in the absence of the participation, integration and
defect elements of the component parts doctrine.

                               - 31 -
                              - 32 -                   Nos. 83 & 84

that regard, in some circumstances, a manufacturer's product
might be able to function as intended with either an
unsustainably costly third-party product, which does not create
any danger when joined with the manufacturer's product, or an
affordable third-party product, which combines with the
manufacturer's product to create a hazardous condition.    In such
instances, under Crane's rule, the customer would face an
untenable choice between spending unsustainable amounts of money
to make the manufacturer's product operate safely and trying to
discover the dangers inherent in using the cheaper product with
the manufacturer's product and then warning the users of the two
products about that danger.   In doing so, Crane's rule would
either shift the burden of issuing a warning exclusively to
consumers in contravention of our law's general aversion to such
an allocation of the duty to warn (see Codling, 32 NY2d at 340-
341; Sprung, 99 NY2d at 472-473) or punish consumers who do not
incur potentially ruinous financial costs via the installation of
the alternative component to prevent a danger that could be more
efficiently managed by a low-cost warning from the manufacturer
of the primary product.   We decline to adopt such an unduly
narrow and insensible view of the duty to warn.
          To be clear, while economic necessity plays a role in
establishing a duty to warn under certain circumstances, we do
not mean to suggest that a manufacturer has a duty to warn
whenever there is a version of an essential third-party product,


                              - 32 -
                              - 33 -                 Nos. 83 & 84

related to its own, which is cheaper and more hazardous than the
alternatives. Nor do the principles pronounced in this decision
support any kind of cost/utility analysis that turns on a
balancing of the relative cost and value of a variety of third-
party products that might allow the manufacturer's product to
operate as intended.   Practical necessity, not relative
affordability, is the key.   Thus, where all the other relevant
circumstances outlined above are present, if the evidence
supports an inference that the third-party product is the only
product that both enables the intended function of the
manufacturer's product and is available at a cost that is
reasonably sustainable for the average individual or entity that
purchases the manufacturer's product for the use at issue, the
manufacturer has a duty to warn of the perils of the economically
necessary and foreseeable combined use of its product with the
third-party product.
          As Crane observes, the federal courts, as well as the
courts of our sister states, have not universally embraced this
approach, but the decisions of the courts disfavoring recognition
of a duty to warn in this context do not persuade us to follow a
different path.   Initially, some of those courts are in
jurisdictions that, unlike New York, impose strict liability
without fault based on a manufacturer's failure to warn of the
inherent dangerousness of a particular use of the manufacturer's
product, and therefore those courts' decisions place stricter


                              - 33 -
                              - 34 -                 Nos. 83 & 84

limits on the existence and scope of the duty to warn to avoid
the injustice of widespread application of true strict liability
in the failure-to-warn context (see Niemann v McDonnell Douglas
Corp., 721 F Supp 1019, 1028-1030 [SD Ill 1986]; O'Neil v Crane
Co., 266 P3d 987, 994-1005 [CA 2012]; Simonetta v Viad Corp., 197
P3d 127, 129-134 [Wash 2008]; Braaten v Saberhagen Holdings, 198
P3d 493, 494-496 [Wash 2008]; see generally 63 Am Jur 2d Products
Liability § 208).   The concern animating those decisions,
however, simply does not arise under New York's failure-to-warn
doctrine, which is a doctrine of reasonableness and negligence
rather than absolute strict liability (see Martin, 83 NY2d at 8
n1).   Other decisions declining to recognize a duty to warn are
uninformative because they do not specify whether the
manufacturer's product could function, as a mechanical, design or
economic matter, without the third-party product at issue (see
Baughman v General Motors Corp., 780 F2d 1131, 1132-133 [4th Cir
1986]; cf. Surre, 831 F Supp 2d at 801-804 [finding that Crane
was not liable for injuries caused by third-party insulation
because there was no proof that the use of such insulation was
foreseeable and observing that the result would be different if
"additional circumstances strengthen(ed) the connection between
the manufacturer's product and the third party's defective
one"]).
           In declining to endorse a manufacturer's duty to warn
of the hazards of jointly using its product and another company's


                              - 34 -
                                - 35 -                Nos. 83 & 84

product, some courts have relied in part on the fact that a
manufacturer has no control over the third-party product and in
fairness cannot be expected to inspect for the dangers of the
synergistic use (see Walton v Harnischfeger, 796 SW2d 225, 226-
227 [Tex Ct App 4th Dist 1990]; Baughman, 780 F2d at 1133; see
also Restatement [Third] of Torts: Product Liability § 5, comment
a).   But we engender no comparable unfairness in requiring a
manufacturer to issue warnings where, as here, it "substantially
participates in the integration of the two products" (Restatement
[Third] of Torts § 5 [b]) in a manner consistent with the
principles outlined in this decision.    In that particular
scenario, the manufacturer gains the same knowledge of the peril
as it would have acquired via inspection or testing, and there is
no reason to relieve the manufacturer of the obligation to
provide warnings about that peril to those who might foreseeably
use the products together (see Hoffeditz v. AM Gen., LLC [In re
Asbestos Products Liability Litigation], 2011 US Dist LEXIS
110282, *10-*11 [EDPA 2011]).    Indeed, a company that
"substantially participates in the integration" of the two
products in a manner that creates the necessity of a hazardous
joint use and evinces the requisite intent, knowledge and
foreseeability can surely be expected to learn of and warn of the
relevant dangers (Restatement [Third] of Torts § 5 [b]).      In any
event, to the extent other courts have adopted the cramped view
of duty advanced by Crane, we have already explained at length


                                - 35 -
                              - 36 -                 Nos. 83 & 84

why we, like many other courts, disagree with that approach (see
May, 129 A3d at 988-996; see also Osterhout v Crane Co., 2016 US
Dist LEXIS 39890, *33-*40 [NDNY 2016]; Schwartz v Abex Corp., 106
F Supp 3d 626, 628 [EDPA 2015]) .
                                IV.
                                A.
           Beyond its disagreement with the standard of duty set
forth above, Crane contends that the trial court in Dummitt
erroneously instructed the jurors on the nature of the duty to
warn.   As Crane correctly observes, in Dummitt, the trial court
gave erroneous instructions to the jurors regarding the nature of
Crane's duty to warn.   Specifically, because the court told the
jurors that Crane had a duty to warn based purely on the
reasonable foreseeability of the hazardous combined use of its
valves with third-party asbestos-based products, the court
improperly suggested that the existence of a duty to warn turns
on foreseeability alone, thereby running afoul of our clear
precedent to the contrary (see Hamilton, 96 NY2d at 232; see also
Martino v Stolzman, 18 NY3d 905, 908 [2012]; Pulka, 40 NY2d at
785).   Plaintiff posits that the error in the court's
instructions on duty could not have affected the outcome of the
trial because the jurors had no role in deciding whether Crane
had a duty to warn.   Specifically, plaintiff insists that,
because the question of whether a duty existed was to be resolved
solely by the court, not the jurors, the court's instructions


                              - 36 -
                                - 37 -                Nos. 83 & 84

were entirely irrelevant to the jury's deliberations and verdict.
We agree that the error was harmless, though not exactly for the
reasons asserted by plaintiff.
          It is true that, because the court alone decides
whether a duty exists in the first instance before permitting the
jury to deliberate on liability, the court's instructions on
whether and to what extent a duty exists in a particular case
have a limited impact on the outcome of the trial insofar as the
jury has no role in deciding the threshold legal question of
whether there is minimally sufficient evidence showing that the
defendant has a duty to warn.    But it does not follow that the
court's instructions on duty have absolutely no bearing on the
jury's task.   After all, since the jury still must decide, at a
minimum, whether the evidence persuades it of disputed threshold
facts relating to duty, such as the fact that the defendant in a
particular case did actually manufacture, design or distribute a
product relevant to the existence of the duty to warn, the
court's instructions on duty may have some effect on such a
determination in a given case.    And, because the jury must decide
whether the quality of the evidence is sufficiently convincing to
show that the defendant has committed a breach within the scope
of the relevant duty, the court's instructions on the source and
nature of the duty impact the jury's deliberations depending on
the facts of the case (see Heller v Encore of Hicksville, Inc.,
53 NY2d 716, 718 [1981]; Palsgraf, 248 NY at 345; Condran v Park


                                - 37 -
                             - 38 -                   Nos. 83 & 84

& Tilford, 213 NY 341, 346 [1915]; see also Weinberger, New York
Products Liability 2d § 17:12).    As a result, a trial court can
commit a significant error in issuing an incorrect or confusing
instruction on the issue of duty (see generally Weinberger, New
York Products Liability 2d § 23:01).
          Nonetheless, here, the court's error was harmless
because there was "no view of the evidence under which appellant
could have prevailed" (Marine Midland Bank v John E. Russo
Produce Co., 50 NY2d 31, 43 [1980]; see Kuci v Manhattan & Bronx
Surface Transit Operating Authority, 219 AD2d 486, 487 [1st Dept
1995], affd 88 NY2d 923 [1996]).   In that regard, Crane did not
significantly contest the critical evidence demonstrating that
Crane had a duty to warn Dummitt under the standard we have
articulated based on the dangers flowing from the release of
asbestos dust during the synergistic use of Crane's valves and
other companies' asbestos-based gaskets, packing and insulation.
          Specifically, the essentially undisputed proof showed
that Crane endorsed the use of asbestos-based sealing components
in high-pressure, high-temperature systems in the specifications
for its valves and packaged the valves with such components when
it sold them to the Navy, thereby inviting the Navy to continue
using asbestos-based gaskets and packing with the valves by
replacing the asbestos-laden parts supplied by Crane with nearly
identical asbestos-based products provided by other companies.
This was reinforced by Crane's efforts to market asbestos-based


                             - 38 -
                              - 39 -                  Nos. 83 & 84

Cranite as an appropriate material from which to construct
replacement sealing parts.   Certainly, Crane's direct
distribution and marketing of asbestos-based products were
powerful signs of its intent that these products be used with its
valves.   Likewise, Crane's promotion of asbestos-containing
packing and gaskets as suitable for use in high-temperature,
high-pressure systems showed that Crane endorsed, as a matter of
practical necessity, the joint use of its product and asbestos-
laden products that it had promoted.    Indeed, having recommended
such a dangerous use in the valve's specifications and originally
supplied the asbestos-based components needed to carry out that
perilous activity, Crane could hardly deny that it was readily
foreseeable under the circumstances that Navy employees like
Dummitt would install and replace asbestos-bearing gaskets,
packing and insulation on the valves.
           Furthermore, after distributing the valves to the Navy,
Crane knew that the Navy was using the valves with asbestos-based
products in the manner prescribed by Crane.    By helping to
revise, after the sale of the valves to the Navy, a Navy manual
that directed Navy personnel to install asbestos-based packing
and gaskets on valves of the kind produced by Crane, Crane
exhibited its knowledge of that practice.    And, as a Crane
representative testified at his deposition, Crane continued to
market and sell asbestos-based products for decades after it
originally sold such products to the Navy.    Consequently, Crane's


                              - 39 -
                              - 40 -                 Nos. 83 & 84

ongoing post-sale promotion of asbestos-based sealing components,
viewed in light of the company's vigorous efforts to encourage
the Navy to use asbestos-containing gaskets and packing on its
valves, demonstrated the highly significant affirmative steps
that Crane took to ensure that the Navy's employees would
continue to replace the gaskets and packing with new asbestos-
laden parts.   In addition, Crane's representative acknowledged
that, by the time of Dummitt's exposure to asbestos dust as a
result of this practice, Crane knew that such exposure could
occur and lead to serious illness, as indicated in several trade
association articles published during the relevant period.
          With respect to practical necessity, there was proof
that Crane's valves could not function as intended in a high-
pressure, high-temperature steam pipe system without asbestos-
based gaskets, packing and insulation.   In that regard, the Crane
representative's testimony, Crane's specifications and the Navy
manual demonstrated that Crane's valves could not transport steam
under high temperatures and high pressures without gaskets,
packing and insulation.   And, there was unrebutted proof that
asbestos-based gaskets were routinely used to facilitate this
essential function in the Navy's high-pressure, high-temperature
steam pipe systems, as Crane was well aware.   Plaintiff's
asbestos exposure expert similarly testified that, although a
valve could theoretically function in some services with sealing
components made of non-asbestos materials, it was "absolutely not


                              - 40 -
                             - 41 -                  Nos. 83 & 84

true" that gaskets composed of alternative materials could be
used in steam services, such as high-pressure, high-temperature
systems, for which asbestos-based parts were specified.
Tellingly, too, Crane promoted asbestos-based gaskets and packing
as appropriate for high-pressure, high-temperature services, but
it never suggested to its customers that other materials could be
used to seal its valves in such services.   Based on this
evidence, the jurors could only have concluded that the design
and mechanics of Crane's valves prevented the valves from
operating properly without asbestos-bearing components in the
high-pressure, high-temperature steam service for which the Navy
had purchased them.
          Moreover, even if Crane's valves were mechanically
capable of functioning without asbestos-laden gaskets and
packing, it was indisputable that asbestos-containing sealing
components were economically necessary to allow Crane's valves to
work in a high-pressure, high-temperature steam pipe system.
Crane promoted only the use of asbestos-based components as an
affordable and mechanically viable means of enabling its valves
to work in such systems, the Navy and other industrial consumers
universally employed asbestos-laden parts in such systems in a
manner suggesting that they provided the only financially
feasible sealing method, and nothing indicated that alternative
gaskets were an economically viable option for such systems.    In
other words, there was no question of fact presented to the jury


                             - 41 -
                             - 42 -                   Nos. 83 & 84

regarding the existence of a financially workable alternative to
asbestos-bearing sealing and insulation products.
          Lastly, to the extent Crane insinuates that there was
legally insufficient evidence in Suttner that could support the
jury's verdict that it had breached the applicable duty to warn,
there is no merit to such a claim.    Briefly, there was evidence
that: (1) Crane's valves had no mechanical ability to function as
intended in a steam pipe system without gaskets, packing and
insulation; (2) Crane's valve schematics called for asbestos-
based gaskets and packing; (3) Crane admitted that it could not
find any suitable replacement for asbestos-based gaskets at the
time of Suttner's work in the GM plant; (4) plaintiff's material
science expert believed that Crane had probably originally sold
valves to GM with asbestos-laden gaskets and packing; (5) Crane
produced a document called "Piping Pointers for Industrial
Maintenance," in which it declared that "many plants, having need
for numerous gaskets of rubber and asbestos, find it economical
to buy these materials in sheet form and cut gaskets as
required"; (6) although the "Piping Pointers" document deemed
metal gaskets to be compatible with Crane valves and suitable for
most services, it also stated that metal valves are primarily
used for steel pipe systems and not the kind of systems used by
GM; and (7) Crane recommended the removal of gaskets via the
technique employed by Suttner.   From this evidence, it was
readily inferable that Crane intended, affirmatively recommended


                             - 42 -
                             - 43 -                  Nos. 83 & 84

and could have reasonably foreseen that the users of its valves
would install asbestos-containing sealing components on the
valves, that Crane learned that its customers were engaging in
this practice post sale, and that no non-asbestos products were
suitable as a matter of economic or mechanical necessity to allow
the valves to function in high-pressure, high-temperature steam
pipe systems.
                                B
          Contrary to Crane's further contention, plaintiff in
Dummitt carried her burden of proving that Crane's failure to
issue warnings about the dangers of asbestos dust exposure
resulting from the joint use of its valves and asbestos-based
sealing components proximately caused Dummitt's exposure to
carcinogenic asbestos fibers (see Doomes v Best Transit Corp., 17
NY3d 594, 608 [2011]; Burgos v Aqueduct Realty Corp., 92 NY2d
544, 550 [1998]; see also Kosmynka v Polaris Industries, Inc.,
462 F3d 74, 79-80 [2d Cir 2006]).   In his deposition, Dummitt
testified that: he would have read and heeded any warnings about
the hazardous release of asbestos as a result of replacing the
components on Crane's valves; he would have worn a mask to
protect himself from that hazard; he had read pamphlets and
manuals associated with the equipment that he encountered on the
job; and he was the officer responsible for ensuring that his
coworkers took adequate safety precautions in the workplace.     In
light of Dummitt's past practice of reviewing relevant safety


                             - 43 -
                               - 44 -                 Nos. 83 & 84

warnings, his duty to ensure that appropriate action was taken in
response to such warnings and his claim that he would have taken
additional precautions had he seen warnings in this case, the
jury could have inferred that Dummitt would have heeded warnings
by taking steps to avoid exposure to the asbestos dust that
caused his cancer.    Therefore, plaintiff's proof sufficed to show
that Crane's failure to issue warnings proximately caused
Dummitt's injuries.
          Alternatively, Crane argues that, even if plaintiff
presented legally sufficient evidence of proximate causation, the
court deprived Crane of the chance to rebut that evidence and
abused its discretion as a matter of law by refusing to allow
Admiral Sargent to testify that, in his opinion, Navy procurement
practices and specifications would have prevented any warnings
from reaching Dummitt.   Crane maintains that, because Admiral
Sargent's proposed opinion testimony was relevant evidence
pertaining to the critical issue of proximate causation, the
court had no grounds for excluding that evidence. But, in our
view, while the proposed testimony was relevant, the trial court
did not abuse its discretion in refusing to admit the testimony
into evidence because, at the time Crane sought to elicit the
testimony, it did not adequately set forth the factual foundation
for the proposed testimony (cf. Werner v Sun Oil Co., 65 NY2d
839, 840 [1985]).
          In particular, although Admiral Sargent had ample


                               - 44 -
                              - 45 -                 Nos. 83 & 84

experience with Navy procurement practices, he gained personal
knowledge of those practices only once he started working on
procurement for the Navy more than a decade after Dummitt's work
on Crane's valves ended and several decades after the Navy bought
the valves.   As a result, Admiral Sargent had no personal
knowledge of the effects of the Navy procurement practices that
existed when Crane might have tried to provide warnings to
Dummitt and similarly situated workers, and hence Admiral Sargent
could opine on that issue only if he acquired an adequate factual
foundation for such an opinion by, for example, reviewing
documents or scholarly materials discussing the procurement
practices in effect in that prior era (see generally Admiral Ins.
Co. v Joy Contrs., Inc., 19 NY3d 448, 457 [2012]).   Since Crane
never suggested to the court that Admiral Sargent had acquired
such a factual basis for his proposed testimony, the court did
not abuse its discretion as a matter of law in precluding the
testimony.
          In its final claim relating to the issue of proximate
causation, Crane asserts that the trial court incorrectly
instructed the jurors to apply a presumption that, if Crane had
issued warnings, Dummitt would have heeded them.   In Crane's
view, any form of this presumption, whether rebuttable or not,
improperly shifts the burden of proof on causation to the
defendant, and therefore the court here erred in instructing the
jurors on the presumption.   However, at trial, Crane did not


                              - 45 -
                              - 46 -                 Nos. 83 & 84

raise this argument; Crane objected to the court's failure to
specify that the presumption was rebuttable, prompting the court
to tell the jury that the presumption could be rebutted, but
Crane never asserted, as it does now, that the court could not
instruct the jury on any heeding presumption, even if the
presumption was rebuttable.   As a result, Crane's current
complaint about the court's instructions on the presumption is
unpreserved.   Of course, our rejection of Crane's claim on
preservation grounds should not be taken as an acceptance or
rejection of the trial court's heeding instructions on the
merits, and regardless of the propriety of those instructions,
trial courts must continue to ensure that their jury instructions
honor the principle that the burden of proving proximate
causation, which in a case like this one includes the burden of
demonstrating that the injured party would have heeded warnings,
falls squarely on plaintiffs (see Doomes, 17 NY3d at 608; see
also Sosna v American Home Prods., 298 AD2d 158 [1st Dept 2002]).
                                 C
          In Dummitt, Crane also posits that the court should not
have instructed the jurors on the recklessness exception to the
principle of equitable allocation of liability among joint
tortfeasors, which is set forth in CPLR 1601, because plaintiff
presented no evidence that Crane "acted with reckless disregard
for the safety of others" (CPLR 1602 [7]).   But, assuming,
without deciding, that the court should not have allowed the jury


                              - 46 -
                             - 47 -                    Nos. 83 & 84

to consider the applicability of the recklessness exception to
CPLR 1601, any error was harmless.    Where, as here, the jury
finds that the defendant's liability exceeds 50% of the total
liability of all tortfeasors, CPLR 1601's equitable limitation
does not apply in the first instance (see CPLR 1601 [1]), and
thus, here, regardless of whether the court correctly told the
jurors that they could rely on the recklessness exception to hold
Crane responsible for more than its equitable share of
plaintiff's loss, the jurors were ultimately authorized to render
the verdict that they did, holding Crane liable to plaintiff for
99% of the loss without equitable limitations.9   Finally, we
cannot review Crane's claims that the verdict was against the
weight of the evidence with respect to liability and
recklessness, nor can we review its contention that the damages
award was excessive (see Rios v Smith, 95 NY2d 647, 654 [2001];
Vadala v Carroll, 59 NY2d 751, 752 [1983]; Gutin v Frank Mascali
& Sons, Inc., 11 NY2d 97, 99 [1962]).
                               V.
          The courts below properly determined that Crane had a
duty to warn the reasonably foreseeable users of its valves that
the synergistic use of the valves and third-party asbestos-


     9
        Crane also asserts that the language of the court's
instruction on the recklessness exception deviated from the
principles articulated in Maltese v Westinghouse Electric Corp.
(89 NY2d 955 [1997]). However, because Crane never objected to
the terms of the disputed charge as given, it failed to preserve
this claim.

                             - 47 -
                             - 48 -                  Nos. 83 & 84

containing products could expose them to carcinogenic asbestos
dust, and the evidence was legally sufficient to support the
jury's finding of Crane's liability in each case.   Crane's
remaining claims are either unreviewable, meritless or
insufficient to warrant reversal.   Accordingly, in each case, the
order of the Appellate Division should be affirmed, with costs.




                             - 48 -
In the Matter of New York City Asbestos Litigation
Dorris Kay Dummitt v A.W. Chesterton, et al., and Crane Co.
No. 83
In the Matter of Eighth Judicial District Asbestos Litigation
Joann H. Suttner v A.W. Chesterton, et al., and Crane Co.
No. 84




GARCIA, J.(concurring):
          I am in agreement with the majority's recitation of the
facts, its holding that Crane had a duty to warn, and its
determination regarding the trial court's instructions on
proximate cause and recklessness.    I part company with the
majority over the articulation of the test we should apply to
determine when a manufacturer has such a dut-y to warn of the
dangers arising from the use of its product in conjunction with a
product manufactured by a third party.
          The majority holds that a manufacturer has a duty to
warn of the danger "arising from the known and reasonably
foreseeable use of [a manufacturer's] product in combination with
a third-party product which, as a matter of design, mechanics or
economic necessity, is necessary to enable the manufacturer's
product to function as intended" (majority op. at 1-2).    I
believe this test opens too broad an avenue of potential
liability and that, in line with our precedent in this area, any
standard must focus on the affirmative action taken by the
manufacturer in placing the harmful product containing asbestos
into the stream of commerce.

                               -1-
                                 - 2 -               Nos. 83 & 84

          As the majority notes, in Rastelli v Goodyear Tire &
Rubber Co. (78 NY2d 289 [1992]), this Court considered a
manufacturer's duty to warn of hazards arising from the
combination of its product with a product made by another company
(see majority op. at 19).   In concluding that the failure to warn
was not unreasonable in that case, we focused on whether the
defendant: (1) had control over the production of the second
product; (2) had a role in placing that product in the stream of
commerce; (3) derived a benefit from the sale; (4) contributed to
the alleged defect in some way; and (5) created the dangerous
condition related to the second product (see 79 NY2d at 298).
Such actions constitute circumstances which "strengthen the
connection between the manufacturer's product and the third
party's defective one" (Surre v Foster Wheeler LLC, 831 F Supp 2d
797, 801 [SD NY 2011]).   In Rastelli, absent any finding of those
affirmative acts, this Court held the manufacturer had no duty to
warn (see 79 NY2d at 297-298).
          The same analysis applied to the facts of this case
yields a different conclusion; namely, Crane had a duty to warn.
Here, Crane originally sold its valves with the asbestos-
containing internal parts; marketed asbestos-containing
replacement parts under its own brand name; and generally
recommended and promoted the use of asbestos-containing
replacement parts for use with its valves in the high-heat
conditions at issue in this case (see majority op. at 2-4, 11-


                                  -2-
                                - 3 -                  Nos. 83 & 84

13).   Those actions justify imposing a duty to warn in the
instant case involving the placement of asbestos-containing parts
into the stream of commerce (Osterhout v Crane Co., 2016 US Dist
LEXIS 39890, *44 [ND NY, Mar. 21, 2016, No. 5:14-CV-208
(MAD/DEP)]; May v Air & Liquid Sys. Corp., 446 Md 1, 19, 129 A3d
984, 994 [2015]).
           This approach, in addition to being more consistent
with our precedent, has also been followed by other courts in
similar cases.   For example, the Court of Appeals of Maryland, in
a case involving pumps that contained asbestos material when
originally placed into the stream of commerce by the
manufacturer, held as one part of its test for imposing duty to
warn liability that "asbestos is a critical part of the pump sold
by the manufacturer" (May, 446 Md at 19, 129 A3d at 994; see also
Quirin v Lorillard Tobacco Co., 17 F Supp 3d 760, 769-770 [ND Ill
2014]).   That Court also stressed that the duty to warn could be
found only in the "limited circumstances" outlined in its test
(May, 446 Md at 19, 129 A3d at 994).
           We need not decide which of the actions taken by Crane
are essential to the imposition of a duty to warn.   Crane sold a
product containing asbestos, marketed replacement parts
containing asbestos, and generally recommended and promoted
asbestos replacement parts.   Given the circumstances of this
asbestos-related litigation, we need not go beyond grounding the
duty to warn in such actions.   Rather than basing liability on


                                 -3-
                               - 4 -                   Nos. 83 & 84

the defendant's actions here, the majority, in my view, focuses
on forces acting upon the product downstream from the
manufacturer.   While "design" does suggest some affirmative step,
under the majority's test liability may also be premised, in the
alternative, on "mechanics" -- undefined -- or, most troubling,
"economic necessity" (majority op. at 2).    What level of
necessity is required and when it may arise, or what "mechanics"
means in this context, will assuredly become questions for future
juries in an expanding pool of litigation.
          The risk of the majority's approach is further
demonstrated by the jury charge in Dummitt, where the court
instructed the jury, over Crane's objection, that "a
manufacturer's duty to warn extends to known dangers or dangers
which should have been known in the exercise of reasonable care
of the uses of the manufacturer's product with the product of
another manufacturer if such use was reasonably foreseeable"
(majority op. at 8).   This is the "'mere foreseeability'" test
rejected by many courts considering the duty to warn (Osterhout,
2016 US Dist LEXIS 39890, *44; see Quirin, 17 F Supp 3d at 769).
We should, as the Appellate Division did below, disavow that test
to prevent a further expansion of the standard (see 121 AD3d 230,
252, 258 [1st Dept 2014]).
          Consistent with our existing precedent, liability under
these circumstances should attach where use of asbestos parts was
"for some . . . reason so inevitable that, by supplying the


                                -4-
                                - 5 -                     Nos. 83 & 84

product, the defendant was responsible for introducing asbestos
into the environment at issue" (Quirin, 17 F Supp 3d at 769; see
Osterhout, 2016 US Dist LEXIS, *34).        I would hold that, at a
minimum, some action by the manufacturer in originally marketing
the product with asbestos and promoting or recommending asbestos-
containing replacement parts is necessary to impose a duty to
warn.
*   *   *   *   *   *   *   *    *      *     *   *   *   *   *   *   *
In Each Case: Order affirmed, with costs. Opinion by Judge
Abdus-Salaam. Judges Pigott, Rivera, Stein and Fahey concur.
Judge Garcia concurs in result in a separate concurring opinion.
Chief Judge DiFiore took no part.

Decided June 28, 2016




                                 -5-
