Under the law of product liability, which applies in all states including New York, a manufacturer or distributor of a product that is defective and unreasonably dangerous to the intended user, is strictly liable in tort to the injured user for personal injuries. That is the rule of strict liability that generally is applied in most product liability cases for damages suffered from a defective product. An injured plaintiff can also allege negligence and breach of warranty theories in such suits, but as a general proposition, strict liability is usually easier to prove and provides a stronger platform from which a settlement can be extracted.

Recently, a product liability case in another state was settled for an undisclosed sum. The complaint had asked for $7.4 million, alleging the plaintiff's paralysis and loss of use of both legs. He alleged that he fell from a zip line device that he was testing for his grandchildren. A zip line allows the rider to be suspended from a wheeled trolley that travels on a cable and is strung between two trees.

The complaint against the Oregon company alleged that the 71-year-old plaintiff fell when an inch-wide rope that held a wooden seat together came undone, causing him to fall 13 feet to the ground and suffer a crushed spine. When the case was filed, the company, Zip Line Gear, responded with a slew of defenses, mainly accusing the man of being negligent himself and in knowing the dangers of the product. The answer also alleged that the plaintiff accepted the terms of use for the product, which limited liability to the $375 purchase price.

It's highly unlikely that the waiver and limitation of liability would hold up in a New York court or any other state court. Such limitations on liability are generally held to be against public policy and unenforceable. Under the strict liability principles applying to a product liability case, the plaintiff must prove mainly that the product was defective for its intended use and that the defect caused the injury to the consumer user.