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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 138
Manuel Reis, &c.,
           Respondent,
        v.
Volvo Cars of North America, et
al.,
          Appellants.
(And a Third-Party Action.)




             Roy L. Reardon, for appellants.
             Steven R. Pounian, for respondent.




SMITH, J.:
             The standard jury charge in malpractice actions tells
the jury that a defendant who has or claims to have "special
skills" in a trade or profession is required to use the same
degree of skill and care that others in the same trade or
profession would reasonably use in the same situation (New York
Pattern Jury Instructions [PJI] 2:15).    Here, the trial court

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erred by giving this charge in a case alleging not malpractice,
but defective design of a product.     We hold that in the situation
presented here the error requires reversal and a new trial.
                                 I
          On May 24, 2002, plaintiff's friend, Americo Silva, was
showing plaintiff a 1987 Volvo station wagon that Silva had
recently bought.   The car had a manual transmission.   As the two
stood in front of the car, looking under the hood, Silva asked
plaintiff if he would like to see the engine running.    Plaintiff
said he would, and Silva walked to the driver's side door, leaned
into the car and turned the key in the ignition.    The car lurched
forward, pinning plaintiff against a wall and causing him to lose
his left leg.
          Plaintiff brought this action claiming that the car's
manufacturer, Volvo, was at fault for the accident.     (We use
"Volvo" to refer collectively to both defendants-appellants,
which are affiliated corporations.)    There was evidence that,
when the car was manufactured, it was well known in the
automobile industry that a manual transmission car could, if left
in a forward gear when it was parked, lurch as this one did when
the engine was turned on.   Plaintiff asserted that Volvo should
have equipped the car with a "starter interlock," which would
have made it impossible to start the engine while the car was in
gear, or at least should have warned users of the car about the
danger.


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             Volvo moved for summary judgment.   Supreme Court denied
the motion, Volvo appealed to the Appellate Division, and the
case went to trial while the appeal was pending.
             Much of the proof at trial concerned the practices of
other car manufacturers at the time the car that injured
plaintiff was made.    Plaintiff presented evidence that General
Motors, Ford and Toyota used starter interlocks on their manual
transmission cars in the 1987 model year (though Chrysler did
not), and that as a result most 1987 manual transmission cars
sold in the United States had starter interlocks.     Volvo
presented evidence that many other manufacturers did not use an
interlock, and defended its own decision not to do so: According
to Volvo's witnesses, the chance of an accident like the one that
happened here was extremely small, and the interlock had possible
disadvantages.    In some situations, they said, the ability to
start a car in gear might help avoid an accident.
             At plaintiff's request, and over Volvo's objection, the
court included PJI 2:15 ("Common Law Standard of Care - Defendant
Having Special Knowledge") and PJI 2:16 ("Common Law Standard of
Care -- Customary Business Practices") in its charge to the jury.
It also gave the jury a verdict sheet, to which Volvo made no
objection.    The verdict sheet presented plaintiff's two theories
of liability -- absence of an interlock and failure to warn --
both as negligence and as design defect claims.     As to the
absence of an interlock (our main concern here), the jury was


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asked, "Was the defendant Volvo negligent in failing to use a
starter interlock device in its vehicle?"   and also "Was
defendant Volvo's vehicle not reasonably safe in that it was
defective without a starter interlock device?".    Our decision in
Denny v Ford Motor Co., 87 NY2d 248, 258 [1995]) had strongly
implied, and our decision in Adams v Genie Indus., Inc. (14 NY3d
535, 542-543 [2010]) later confirmed, that these two questions
were redundant, because claims for negligent design and for
defective design are essentially identical.   However, no party
pointed out the redundancy to the trial court.
          The jury answered "yes" to the question of whether
Volvo was negligent in omitting the interlock, but "no" to the
question of whether the product was "not reasonably safe" and
thus "defective" without the device.   No party complained of the
inconsistency in the verdict before the jury was discharged.    The
jury also found for plaintiff on his failure to warn claims.    It
awarded damages totaling, after the addition of interest, roughly
$10,000,000.
          After the verdict was rendered, but before judgment was
entered, the Appellate Division decided Volvo's appeal from
Supreme Court's order denying summary judgment.    It modified the
order by dismissing the failure to warn claims, holding that
"there is no evidence that any such failure was a proximate cause
of the injury," and otherwise affirmed (Reis v Volvo Cars of N.
Am., Inc., 73 AD3d 420, 423 [1st Dept 2010]).     The trial court


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then set aside the verdict on the failure to warn claims, but it
entered judgment on the design defect claim in plaintiff's favor.
             Both parties appealed the judgment to the Appellate
Division, which modified it in a way not relevant here and
otherwise affirmed, with two Justices dissenting (Reis v Volvo
Cars of N. Am., 105 AD3d 663 [1st Dept 2013]).     The Appellate
Division held, among other things, that "[t]he trial court
properly set aside the jury's verdict on plaintiff's failure to
warn claim" (id. at 663), but that the court "did not commit
error by charging the jury on special knowledge (PJI 2:15) and
customary business practices (PJI 2:16) as tailored to the facts
of this case" (id. at 664).     The dissenting Justices would have
remanded for a new trial on the ground that PJI 2:16 was given in
error.   The dissenters found "no evidence of a customary
procedure or policy that was 'reflective of an industry standard
or a generally-accepted safety practice'" (id. at 665
[Abdus-Salaam, J., dissenting, quoting 1A PJI3d 2:16 at 260
[2013]).
             Volvo appeals to this Court as of right, pursuant to
CPLR 5601(a).    Plaintiff also sought to appeal as of right, but
we granted Volvo's motion to dismiss plaintiff's appeal (21 NY3d
1051 [2013]).
             It may be useful to explain briefly what is and is not
before us.    CPLR 5601(a) allows an appeal as of right from an
Appellate Division order only where there is a two-Justice


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dissent "in favor of the party taking such appeal."   We dismissed
plaintiff's appeal from so much of the Appellate Division order
as dismissed his failure to warn claims because the Appellate
Division dissent was not in plaintiff's favor.   Plaintiff did not
move for permission to appeal under CPLR 5602(a), and therefore
the part of the order unfavorable to plaintiff is now beyond our
review.   Plaintiff suggests that his failure to warn claims may
furnish an alternative ground for affirming the Appellate
Division's order, but the suggestion is incorrect.    The failure
to warn claims have been dismissed, and may not be reinstated in
the absence of a properly taken appeal from the dismissal.
            On the other hand, an appeal properly taken under CPLR
5601(a) brings up for review all issues that the Appellate
Division decided adversely to the appellant, even those on which
no Appellate Division justice dissented (Holtslander v C.W.
Whalen & Sons, 69 NY2d 1016 [1987]; Karger, Powers of the New
York Court of Appeals § 6:6 at 207-208 [3d ed revd 2005]).    This
rule benefits Volvo here, because while we do not agree with the
Appellate Division dissenters that PJI 2:16 was improperly given,
we do find error in the court's decision to charge PJI 2:15.    We
therefore reverse and remit the case for a new trial.
                                 II
            The court gave PJI 2:15 to the jury in the following
language:
                 "A manufacturer like Volvo that has
            special training and experience in designing

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          and manufacturing automobiles, when acting in
          that capacity, has a duty to use the same
          degree of skill and care that others in the
          business of manufacturing and selling
          automobiles in the United States would
          reasonably use in the same situation.
              "Volvo has special skills in designing
          and manufacturing automobiles. If you decide
          that Volvo did use the same degree of skill
          and care that other manufacturers selling
          automobiles in the United States would
          reasonably use in the same situation, then
          you must find that Volvo was not negligent,
          no matter what resulted from defendant's
          conduct.
               "On the other hand, if you decide that
          Volvo did not use the same degree of skill
          and care, then you must find that Volvo was
          negligent."
          This charge should not have been given in this case.
It was designed for malpractice cases.   As the Committee on
Pattern Jury Instructions says:   "The principle stated in the
pattern charge is the underlying basis of malpractice actions"
(1A NY PJI3d 2:15 at 259 [2014]).   The Committee goes on to say
that "[t]he principle extends to skilled trades and to
professions not generally thought of in connection with
malpractice" (id.), but we know of no basis for including
automobile manufacturers in that category.   This is not a
malpractice case, but a negligent design or (what amounts to the
same thing) a design defect case.
          PJI 2:15 is reserved for malpractice cases because the
standards of care applicable to malpractice cases and to other
negligence cases are different.   In a malpractice case against,


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for example, a doctor or a lawyer, the defendant is generally
held to the level of skill and care used by others in the
community who practice the same profession (see Spensieri v
Lasky, 94 NY2d 231, 238 [1999] ["Generally, the standard of care
for a physician is one established by the profession itself"];
Toth v Community Hosp., 22 NY2d 255, 262 [1968] [same]; Riley v
Wieman, 137 AD2d 309, 314 [3d Dept 1988] [holding that in some
cases national, rather than local, standards may be applicable]).
In negligence cases generally, by contrast, the jury must compare
the defendant's conduct to that of a reasonable person under like
circumstances (Restatement [Second] of Torts § 283; Bethel v New
York City Tr. Auth., 92 NY2d 348, 353 [1998]).   In negligent
design/design defect cases, the reasonable-person standard has
been given more specific form: the question is whether the
product is one as to which "if the design defect were known at
the time of manufacture, a reasonable person would conclude that
the utility of the product did not outweigh the risk inherent in
marketing a product designed in that manner" (Voss v Black &
Decker Mfg. Co., 59 NY2d 102, 108 [1983]).
          The difference between the "community" and "reasonable
person" standards is a subtle one, and in some cases an error
like the one that the trial court committed here might not
require reversal.   So long as the charge as a whole adequately
explains general negligence principles, a reviewing court may
feel confident in concluding that an isolated mistake in


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referring to the skill and care of others in the field did not
affect the jury's verdict.    But here, we have no such confidence.
The verdict was, as we have said, inconsistent: The jury found
for plaintiff on the negligent design claim and for Volvo on the
design defect claim, though the claims were in substance
identical.    And it did so after hearing extensive evidence about
the practices of other manufacturers, and after hearing a charge
that said, erroneously, "If you decide that Volvo did not use the
same degree of skill and care [as other manufacturers selling
automobiles in the United States], then you must find that Volvo
was negligent" (emphasis added).    Thus while Volvo may not
complain of the inconsistency in the verdict, because it failed
to object to it before the jury was discharged (Grzesiak v
General Elec. Co., 68 NY2d 937, 938-939 [1986]), that
inconsistency leads us to believe that the error in the charge --
to which Volvo did make a timely objection -- may have confused
the jury.
                                  III
             While the error in giving PJI 2:15 requires reversal,
we will, for the guidance of the court at a retrial, also discuss
Volvo's objection to PJI 2:16.    The court gave PJI 2:16 to the
jury as follows:
                  "You have heard evidence of the
             practices of other manufacturers selling
             automobiles in the United States. This
             evidence is to be considered by you in
             determining whether the conduct of Volvo was
             reasonable under the circumstances.

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                "Volvo's conduct is not to be considered
           unreasonable simply because someone else may
           have used a safer practice.
                "On the other hand, a general custom,
           use or practice by those in the same business
           or trade may be considered some evidence of
           what constitutes reasonable conduct in that
           trade or business.
                "You must first decide from the evidence
           presented in this case whether there was a
           general custom or practice by automobile
           manufacturers selling manual transmission
           vehicles in the United States in 1987.
                "If you find that there was a custom or
           practice, you may take that general custom or
           practice into account in considering the care
           used by defendant Volvo in this case.
                "However, a general custom or practice
           is not the only test. What you must decide
           is whether, taking all the facts and
           circumstances into account, defendant Volvo
           acted with reasonable care or failed to act
           with reasonable care."

           We conclude that this charge was properly given.     It
differs from PJI 2:15 in the amount of leeway it gives the jury.
PJI 2:15, as given here, told the jurors flatly that "Volvo has
special skills in designing and manufacturing automobiles," and
said that if Volvo failed to meet community standards the jury
"must find that Volvo was negligent."   But PJI 2:16 told the jury
that it should "decide from the evidence . . . whether there was
a general custom or practice," and that if it found there was it
"may take that general custom or practice into account" (emphasis
added).   While the issue of custom and practice was disputed


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here, there was evidence from which the jury could find that a
large majority of the 1987 manual transmission cars sold in the
United States had starter interlocks.   This was enough to permit
a finding of custom and practice, though not to require it.
           We agree with the courts below that the record here
furnishes no basis for a comparative negligence charge (PJI
2:36).   Volvo's remaining arguments need not be considered in
light of our decision.
           Accordingly, the order of the Appellate Division should
be reversed, with costs, and a new trial ordered.




                              - 11 -
Reis v Volvo Cars of North America, Inc.
No. 138




GRAFFEO, J.(dissenting):
          Plaintiff Manuel Reis was grievously injured when a
1987 manual transmission station wagon, designed and manufactured
by the Volvo defendants, unexpectedly lurched forward after the
ignition was started, pinning him against a building.
Plaintiff's left leg was crushed and subsequently amputated.
Undisputedly, this accident and plaintiff's resulting injuries
would not have occurred if Volvo had designed the station wagon
with a starter interlock device.
          Throughout the lengthy trial of plaintiff's negligence
and strict liability causes of action for design defect and
failure to warn, both sides presented extensive evidence bearing
upon the reasonableness of Volvo's decision not to use a starter
interlock device in its automotive design.   Plaintiff's proof
included expert testimony establishing that the starter interlock
device was a feasible safety feature available in 1987 that would
have cost Volvo approximately $5 per vehicle, and which was, in
fact, incorporated in many manual transmission automobiles of
other manufacturers that year.    According to plaintiff's experts,
the automobile industry was generally aware of the risk to
motorists and pedestrians inherent in vehicles designed without


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these devices.   Plaintiff's experts further opined that the
station wagon in question was dangerous as designed without a
starter interlock.
            Volvo conceded feasibility, but contended that the
station wagon was reasonably safe as designed.   To that effect,
Volvo presented expert testimony contradicting plaintiff's proof
regarding the extent to which other manufacturers used the device
in 1987.    Volvo asserted that it had reasonably decided to omit
starter interlock devices from its vehicles because the risk of
an accident such as the one that occurred here was minimal and,
without the device, a vehicle could be moved for a short period
of time in an emergency situation if the engine was not
functioning properly.
            At the close of proof, the trial court charged the jury
with the principles of negligence reflected in PJI 2:125
(Products Liability - Negligence), PJI 2:15 (Common Law Standard
of Care - Defendant Having Special Knowledge), and PJI 2:16
(Common Law Standard of Care - Customary Business Practices) with
respect to plaintiff's negligent design claim.   The PJI 2:15
charge, in essence, instructed the jury that Volvo, possessing
special training and experience, owed a duty to use the same
degree of skill and care as other manufacturers in the automobile
industry.   Typically, the community standard of care embodied in
PJI 2:15 applies to claims grounded in malpractice (see 1A NY
PJI3d 2:15 at 259 [2014]).   Liability in negligent design cases


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turns more properly -- not on this community standard of care --
but on whether "if the design defect were known at the time of
manufacture, a reasonable person would conclude that the utility
of the product did not outweigh the risk inherent in marketing a
product designed in that manner" (Voss v Black & Decker Mfg. Co.,
59 NY2d 102, 108 [1983]; see Adams v Genie Indus., Inc., 14 NY3d
535, 543 [2010]; Denny v Ford Motor Co., 87 NY2d 248, 257 [1995],
rearg denied 87 NY2d [1996]). It follows then, that PJI 2:15
should ordinarily not be charged in relation to negligent design
claims.   As the majority points out, however, the difference
between these two standards of care is a subtle one and, in some
cases, this type of slight misstep may not require reversal (see
majority op. at 8-9).   I believe that this is such a case.
           The trial judge charged PJI 2:15 in the context of its
instructions to the jury on the general principles of negligence
set forth in PJI 2:125.   Significantly, the PJI 2:125 charge
instructed the jury that the degree of care owed by Volvo was
that of a "reasonably prudent manufacturer."   The propriety of
this instruction is beyond our review, having been submitted to
the jury at Volvo's request (see Bradley v Earl B. Feiden, Inc.,
8 NY3d 265, 272 [2007]; Barry v Manglass, 55 NY2d 803, 805-806
[1981], rearg denied 55 NY2d 1039 [1982]; Rupert v Sellers, 50
NY2d 881, 882-883 [1980]).   Viewed in this light, the PJI 2:15
charge, in effect, merely repeated a similar standard of care as
that which was charged to the jury at Volvo's insistence.


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           Moreover, PJI 2:16 was charged to the jury after PJI
2:15.1   This later charge explained to the jury that, when
considering the trial evidence pertaining to the practices of
other automobile manufacturers, Volvo's conduct was "not to be
considered unreasonable simply because someone else may have used
a safer practice" and, further, that it must take into account
"all the facts and circumstances" when determining whether Volvo
acted reasonably in designing the station wagon without a starter
interlock device.   PJI 2:16 therefore dispelled any notion that
the jury's determination should be based solely on the conduct of
other manufacturers.   Viewing the contested jury instructions as
a whole and "as tailored to the facts of this case," I agree with
the Appellate Division majority that the PJI 2:15 charge does not
warrant reversal under these circumstances (Reis v Volvo Cars of
N. Am., 105 AD3d 663, 664 [1st Dept 2013]; see generally Wild v
Catholic Health Sys., 21 NY3d 951, 955 [2013]; Nestorowich v
Ricotta, 97 NY2d 393, 401 [2002]).
           As the courts below held and the majority of this Court
concedes, Volvo failed to preserve any challenge to the
consistency of the negligent design and strict liability design
defect verdicts (see Bradley, 8 NY3d at 272 n 2; Barry, 55 NY2d
at 806).   But the majority relies exclusively on this claimed
inconsistency in concluding that PJI 2:15 confused the jury.     In

     1
        I agree with the majority that sufficient evidence was
presented to justify submitting the customary business practices
charge to the jury.

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my view, under these unique facts, the majority's holding allows
Volvo to evade the well-settled preservation requirement and
benefit from its failure to provide the trial court with the
opportunity to cure any inconsistency before discharging the
jury.   Because ample evidence supported the jury's negligent
design verdict and I find Volvo's other arguments for reversal
unpersuasive, I would uphold the jury verdict.
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order reversed, with costs, and a new trial ordered. Opinion by
Judge Smith. Chief Judge Lippman and Judges Read, Pigott and
Rivera concur. Judge Graffeo dissents and votes to affirm in an
opinion. Judge Abdus-Salaam took no part.

Decided July 1, 2014




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