Key Points

  • The Appellate Division, Third Department, unanimously reversed a judgment for plaintiff Richard Janof against BMW and ordered a new trial.
  • The court held that legally sufficient evidence supported the jury's finding that the MINI Cooper's untethered, deflector-equipped airbag was defectively designed, and that the finding was not against the weight of the evidence.
  • The court held that the jury's findings that the airbag design was not reasonably safe and not fit for its ordinary purpose, but that BMW was not negligent in choosing it, were irreconcilable on this record and required a new trial under CPLR 4111(c).
  • The court directed that the verdict sheet on retrial account for the substantial factual overlap among the strict liability, negligent design and implied warranty claims.
  • The court instructed that evidence of other incidents drawn from the National Automotive Sampling System requires a foundation showing substantially similar airbag systems and injuries caused by the same alleged defect.

A New York appeals court on Oct. 22 threw out a jury verdict against BMW in a lawsuit brought by a driver who lost an eye in a MINI Cooper crash, ordering a new trial because the jury's answers on the verdict sheet contradicted one another.

A unanimous five-justice panel of the Appellate Division, Third Department, held that the jury's finding that the car's driver-side airbag was defectively designed could not be reconciled with its finding that BMW was not negligent in selecting that same design. Justice Ryba wrote for the court, joined by Presiding Justice Garry and Justices Fisher, Powers and Corcoran.

The ruling sends the case brought by Richard Janof back to the trial court in Ulster County for a second trial. The panel rejected BMW's argument that the evidence could not support a finding of defect, so Janof's claims remain alive. But the court directed that the next verdict sheet be structured to account for the overlap among his claims.

Janof was driving a 2008 MINI Cooper Clubman S that veered off the road and struck a utility pole, according to the opinion. He alleged that BMW of North America, LLC and Bayerische Motoren Werke AG designed the car with an untethered driver-side airbag that was unreasonably dangerous and worsened his injuries, "ultimately resulting in the loss of his eye."

His complaint pleaded three claims: strict products liability, negligent design and breach of the implied warranty of merchantability.

BMW was the only defendant left by the time of trial. The jury found for Janof on the strict liability and implied warranty claims and for BMW on the negligent design claim. Supreme Court Justice Kevin Bryant denied BMW's motions to set aside the verdict or order a new trial and entered judgment on June 5, 2025. BMW appealed, and Janof cross-appealed.

The appeals court first upheld the jury's view of the evidence. The airbag used a deflector rather than a tether to direct the flow of gas and control its shape as it inflated. Janof's expert testified that a tether would have reduced the inflation distance and the likelihood of an eye injury, and that the deflector design was uncommon in the industry. The deflector airbag's maximum inflation distance was about six inches longer than the tethered alternative's, the expert said.

BMW offered competing expert testimony about the development, testing and performance of the system. Justice Ryba wrote that "the resolution of conflicting expert opinions presents a question for the jury," and the panel declined to call the verdict "utterly irrational."

The verdict sheet was a different matter. Before the case went to the jury, BMW objected to separate questions for each claim, warning that they could produce inconsistent findings. It proposed a single question asking whether the airbag was "defectively or negligently designed." Janof opposed the request, "expressly stating that he was 'willing to accept the risk of an inconsistent verdict,'" the court wrote. Justice Bryant submitted the claims separately.

A provision of New York's Civil Practice Law and Rules, CPLR 4111(c), requires a trial judge who receives inconsistent answers to send the jury back to reconsider them or to order a new trial. The panel cited Barry v Manglass, a 1981 decision, for the rule that an inconsistency occurs "only when a verdict on one claim necessarily negates an element of another cause of action." It cited Reis v Volvo Cars of N. Am., a 2014 decision, for the point that a verdict sheet asking separately whether a design was "negligent" or "not reasonably safe" is essentially "redundant."

Applying those decisions, the Third Department found that Janof's strict liability and negligence claims both rested on BMW's choice of the deflector airbag over a tethered design, and that the same evidence supported both. "Under these circumstances, the separate interrogatories unnecessarily divided what was in essence a single design inquiry and permitted the jury to reach divergent findings without a discernible factual basis for doing so," Justice Ryba wrote.

The court acknowledged that the two theories "may permissibly yield different results under certain circumstances," but held that "the evidence here supplied no factual basis for such a distinction." Janof, the opinion said, "identified no negligent conduct by BMW apart from its selection of the very airbag design that the jury found to be defective."

The same evidence also went to whether the airbag was fit for its ordinary purpose under the implied warranty claim, the panel said. The jury thus found the design neither reasonably safe nor reasonably fit for its ordinary purpose, yet found BMW not negligent in choosing it, "without any evidentiary basis upon which to reconcile those findings."

The panel rejected a second inconsistency argument from BMW. The jury had at first assigned 35% of the fault to Janof while finding that his negligence was not a substantial factor in causing his injuries. Justice Bryant clarified the instructions on a revised verdict sheet, and the jury resolved the conflict in a second verdict, which the appeals court called an appropriate response.

The court also addressed evidence for the retrial. Before admitting other incidents identified through the National Automotive Sampling System, the trial court must require proof that those incidents "involved substantially similar airbag systems and that the injuries sustained were caused by the same alleged defect." An expert relying on otherwise inadmissible hearsay must show that the material is "the type of material commonly relied on in the profession," the court wrote.

Lawyers for BMW included Peter M. Durney of Smith Duggan Cornell & Gollub LLP. Janof was represented by Austin T. Osborn of McCartney Stucky LLC.

The panel reversed the judgment on the law, without costs, and sent the matter back to Supreme Court in Ulster County for a new trial. It said its ruling made the parties' remaining arguments academic.