In this diversity products liability action, plaintiffs-appellants alleged, in separate causes of action for strict liability and for breach of warranty, that defendants-appellees manufactured and sold a defective roasting pan that injured one of the appellants. The United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge ) rejected appellants' request to charge the jury separately on each cause of action and, instead, instructed the jury only on the strict liability charge. The jury found for appellees and the court denied appellants' motion for a new trial. This appeal followed. We hold that, under New York law, the jury should have been instructed separately on each charge, and, accordingly, reverse and remand for a new trial on the breach of warranty claim.

In early November 1993, appellee QVC Network, Inc. ("QVC"), operator of a cable television home-shopping channel, advertised, as part of a one-day Thanksgiving promotion, the "T-Fal Jumbo Resistal Roaster." The roaster, manufactured by U.S.A. T-Fal Corp. ("T-Fal"), was described as suitable for, among other things, cooking a twenty-five pound turkey.1 Appellant Loyda Castro bought the roasting pan by mail and used it to prepare a twenty-pound turkey on Thanksgiving Day, 1993.

Mrs. Castro was injured when she attempted to remove the turkey and roasting pan from the oven. Using insulated mittens, she gripped the pan's handles with the first two fingers on each hand (the maximum grip allowed by the small size of the handles) and took the pan out of the oven. As the turkey tipped toward her, she lost control of the pan, spilling the hot drippings and fat that had accumulated in it during the cooking and basting process. As a result, she suffered second and third degree burns to her foot and ankle, which, over time, has led to scarring, intermittent paresthesia, and ankle swelling.

It is uncontested that in their complaint appellants alleged that the pan was defective and that its defects gave rise to separate causes of action for strict liability and for breach of warranty. Moreover, in the pre-charge conference, appellants' counsel repeatedly requested separate jury charges on strict liability and for breach of warranty. The district court, nevertheless, denied the request for a separate charge on breach of warranty. Judge Wexler stated that "you can't collect twice for the same thing," and deemed the warranty charge unnecessary and "duplicative." The court, therefore, only gave the jury the New York pattern strict products liability charge.

The jury returned a verdict for appellees QVC and T-Fal. Judgment was entered on September 14, 1995. Appellants subsequently moved, pursuant to Federal Rule of Civil Procedure 59, that the jury verdict be set aside and a new trial be ordered for various reasons including that the court had failed to charge the jury on appellants' claim for breach of warranty. By order dated July 10, 1996, the district court denied appellants' Rule 59 motion, reasoning that the breach of warranty and strict products liability claims were "virtually the same." This appeal followed.

We review a district court's denial of a new-trial motion for abuse of discretion. See Luciano v. Olsten Corp., 110 F.3d 210, 217 (2d Cir.1997). A failure to give a required charge to the jury, if not harmless, constitutes abuse of discretion. See id. at 218 ("[A] jury charge is erroneous if the instruction ... does not adequately inform the jury of the law."); Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994) ("An erroneous instruction, unless harmless, requires a new trial.").

A. Two Definitions of "Defective" Product Design

Products liability law has long been bedeviled by the search for an appropriate definition of "defective" product design.2 Over the years, both in the cases and in the literature, two approaches have come to predominate. The first is the risk/utility theory, which focuses on whether the benefits of a product outweigh the dangers of its design.3 The second is the consumer expectations theory, which focuses on what a buyer/user of a product would properly expect that the product would be suited for.4

Not all states accept both of these approaches. Some define design defect only according to the risk/utility approach. See, e.g., Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo.1992); Radiation Tech., Inc. v. Ware Constr. Co., 445 So. 2d 329, 331 (Fla.1983); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843, 846 (1978). Others define design defect solely in terms of the consumer expectations theory. See, e.g., Rojas v. Lindsay Mfg. Co., 108 Idaho 590, 701 P.2d 210, 212 (1985); Ritter v. Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255, 263 (1971); Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis. 2d 326, 230 N.W.2d 794, 798 (1975).5

One of the first states to accept both approaches was California, which in Barker v. Lull Engineering Co., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978), held that "a product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests"--consumer expectations and risk/utility. Id. at 430-32, 143 Cal.Rptr. at 237, 573 P.2d at 455.6 Several states have followed suit and have adopted both theories. See Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884 (Alaska 1979); Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 709 P.2d 876, 879-80 (1985); Ontai v. Straub Clinic & Hosp., Inc., 66 Haw. 237, 659 P.2d 734, 739-40 (1983); Lamkin v. Towner, 138 Ill. 2d 510, 150 Ill. Dec. 562, 563 N.E.2d 449, 457 (1990); Knitz v. Minster Mach. Co., 69 Ohio St. 2d 460, 432 N.E.2d 814, 818 (1982).

Prior to the recent case of Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995), it was not clear whether New York recognized both tests. In Denny, the plaintiff was injured when her Ford Bronco II sports utility vehicle rolled over when she slammed on the brakes to avoid hitting a deer in the vehicle's path. See Denny v. Ford Motor Co., 42 F.3d 106, 108 (2d Cir.1994), certifying questions to Denny, 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730. The plaintiff asserted claims for strict products liability and for breach of implied warranty, and the district judge--over the objection of defendant Ford--submitted both causes of action to the jury. See id. The jury ruled in favor of Ford on the strict liability claim, but found for the plaintiff on the implied warranty claim. See id. at 109-10. On appeal, Ford argued that the jury's verdicts on the strict products liability claim and the breach of warranty claim were inconsistent because the causes of action were identical. See id. at 107.

This court certified the Denny case to the New York Court of Appeals to answer the following questions: (1) "whether, under New York law, the strict products liability and implied warranty claims are identical"; and (2) "whether, if the claims are different, the strict products liability claim is broader than the implied warranty claim and encompasses the latter." Id. at 111-12.

In response to the certified questions, the Court of Appeals held that in a products liability case a cause of action for strict liability is not identical to a claim for breach of warranty. See Denny, 87 N.Y.2d at 251, 639 N.Y.S.2d 250, 662 N.E.2d at 731.7 Moreover, the court held that a strict liability claim is not per se broader than a breach of warranty claim such that the former encompasses the latter. See id. Thus, while claims of strict products liability and breach of warranty are often used interchangeably, under New York law the two causes of action are definitively different. The imposition of strict liability for an alleged design "defect" is determined by a risk-utility standard, see Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204, 208 (1983). The notion of "defect" in a U.C.C.-based breach of warranty claim focuses, instead, on consumer expectations. See Denny, 87 N.Y.2d at 258-59, 639 N.Y.S.2d 250, 662 N.E.2d at 736.

B. When Should a Jury be Charged on Both Strict Liability and Warranty Causes of Action?

Since Denny, then, it has been settled that the risk/utility and consumer expectations theories of design defect can, in New York, be the bases of distinct causes of action: one for strict products liability and one for breach of warranty. This fact, however, does not settle the question of when a jury must be charged separately on each cause of action and when, instead, the two causes are, on the facts of the specific case, sufficiently similar to each other so that one charge to the jury is enough.

While eminent jurists have at times been troubled by this issue,8 the New York Court of Appeals in Denny was quite clear on when the two causes of action might meld and when, instead, they are to be treated as separate. It did this by adding its own twist to the distinction--namely, what can aptly be called the "dual purpose" requirement. See Denny, 87 N.Y.2d at 263, 639 N.Y.S.2d 250, 662 N.E.2d at 738-39. Thus in Denny, the Court of Appeals pointed out that the fact that a product's overall benefits might outweigh its overall risks does not preclude the possibility that consumers may have been misled into using the product in a context in which it was dangerously unsafe. See id. at 262-63, 639 N.Y.S.2d 250, 662 N.E.2d 730. And this, the New York court emphasized, could be so even though the benefits in other uses might make the product sufficiently reasonable so that it passed the risk/utility test. See id.

In Denny, the Ford Bronco II was not designed as a conventional passenger automobile. Instead, it was designed as an off-road, dual purpose vehicle.9 But in its marketing of the Bronco II, Ford stressed its suitability for commuting and for suburban and city driving. See id. Under the circumstances, the Court of Appeals explained that a rational factfinder could conclude that the Bronco's utility as an off-road vehicle outweighed the risk of injury resulting from roll-over accidents (thus passing the risk/utility test), but at the same time find that the vehicle was not safe for the "ordinary purpose" of daily driving for which it was also marketed and sold (thus flunking the consumer expectations test). See id.

That is precisely the situation before us. The jury had before it evidence that the product was designed, marketed, and sold as a multiple-use product. The pan was originally manufactured and sold in France as an all-purpose cooking dish without handles. And at trial, the jury saw a videotape of a QVC representative demonstrating to the television audience that the pan, in addition to serving as a suitable roaster for a twenty-five pound turkey, could also be used to cook casseroles, cutlets, cookies, and other low-volume foods.10 The court charged the jury that "[a] product is defective if it is not reasonably safe[,] [t]hat is, if the product is so likely to be harmful to persons that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition." And, so instructed, the jury presumably found that the pan, because it had many advantages in a variety of uses, did not fail the risk/utility test.

But it was also the case that the pan was advertised as suitable for a particular use--cooking a twenty-five pound turkey. Indeed, T-Fal added handles to the pan in order to fill QVC's request for a roasting pan that it could use in its Thanksgiving promotion. The product was, therefore, sold as appropriately used for roasting a twenty-five pound turkey. And it was in that use that allegedly the product failed and injured the appellant.

In such circumstances, New York law is clear that a general charge on strict products liability based on the risk/utility approach does not suffice. The jury could have found that the roasting pan's overall utility for cooking low-volume foods outweighed the risk of injury when cooking heavier foods, but that the product was nonetheless unsafe for the purpose for which it was marketed and sold--roasting a twenty-five pound turkey--and, as such, was defective under the consumer expectations test. That being so, the appellants were entitled to a separate breach of warranty charge.11

In light of the evidence presented by appellants of the multi-purpose nature of the product at issue, the district court, applying New York law, should have granted appellants' request for a separate jury charge on the breach of warranty claim in addition to the charge on the strict liability claim.12 Accordingly, we reverse the order of the district court denying the motion for a new trial, and remand the case for a new trial on the breach of warranty claim, consistent with this opinion.