Torts 1978 Survey of New York Law: Part Five: Miscellaneous

The principal torts decisions this Survey year, especially in the products liability area, seemed to leave as many questions unanswered as they resolved. The Court of Appeals held that a noncontracting user\u27s claim for injuries from a defective product sounded in tort for limitations purposes, but the Court did not decide what limitation period would be applicable if a statutory breach of warranty claim were also asserted. The contributory negligence defense to a strict products liability claim was upheld by a reference to the appellate division\u27s opinion in a second-collision case. The analytically suspect sales - service distinction was reaffirmed in an enigmatic opinion by the Court.\u27 And the abnormally dangerous activity formulation of the Restatement (Second) of Torts was cited favorably in an opinion which appeared to give no weight at all to the context in which the activity was being conducted. Elsewhere, the appellate divisions gave little encouragement to malpractice countersuits ; a well-publicized, but questionable, decision of the Second Circuit further extended first amendment protections to the media by barring pretrial discovery of New York Times malice ; and the United States Supreme Court may have opened the floodgates by withdrawing municipalities\u27 immunity from section 1983 suits