Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/29

 were not well-known and fails to allege with sufficient specificity that the McDonalds’McDonalds [sic] products were a proximate cause of the plaintiffs’ obesity and health problems, Count III shall be dismissed.


 * B. Count IV: Failure to Warn of Unhealthy Attributes

Count IV alleges a failure to warn of the unhealthy attributes of McDonalds’ products. While the cause of action differs from Count III, McDonalds’ arguments that this claim fails because the dangers of its fare were well-known and that plaintiffs have failed to show proximate cause are nonetheless applicable.

In Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764, 700 N.E.2d 303 (1998), the New York Court of Appeals summarized the current State of New York law with regard to a manufacturer’s liability to warn in a products liability case: "“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. A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable …. [A] manufacturer may be liable for failing to warn against the dangers of foreseeable misuse of the product …. A manufacturer’s superior position to garner information and its corresponding duty to warn is no less with respect to the ability to learn of … misuse of a product ….”"

Id. at 237–41, 677 N.Y.S.2d 764, 700 N.E.2d 303.

The standard for evaluating failure to warn liability is “intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances …; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause.” Id. at 243, 677 N.Y.S.2d 764, 700 N.E.2d 303. The factual determination of whether an adequate warning was given is “often interwoven with the question of whether the defendant manufacturer has a duty to warn, and if so, to whom that duty is owed.” Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642, 644, 478 N.Y.S.2d 375, 376 (4th Dep’t 1984).

In duty to warn cases, New York recognizes two circumstances that would preclude a finding of proximate cause: (1) obviousness and (2) the knowledgeable user. Andrulonis v. United States, 924 F.2d 1210, 1222 (2d Cir.), vacated 502 U.S. 801, 112 S.Ct. 39, 116 L.Ed.2d 18, and reinstated, 952 F.2d 652 (2d Cir.1991). McDonalds alleges only the former.