Product Liability in Engineering Design Key Legal Concepts This - - PowerPoint PPT Presentation
Erik B. Anderson Senior Attorney, Corporate Legal Liberty Mutual Group May 19, 2009 Product Liability in Engineering Design Key Legal Concepts This presentation is for general education purposes only and not to be construed as legal advice.
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Erik B. Anderson Senior Attorney, Corporate Legal Liberty Mutual Group May 19, 2009
This presentation is for general education purposes only and not to be construed as legal advice.
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– May also be a criminal act, but not always. – Typically, an intentional or negligent act or omission which causes harm to the person or property of another.
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– Oral contract (evidenced by the receipt) – Return policy is probably part of your contract. – If you’ve complied with the return policy (i.e. receipt, original packaging, within certain time period, etc.), you can probably return it.
– The retailer will return the unit to the manufacturer, depending on the terms of the contract between those parties.
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warranty from the manufacturer.
for which they are used.
that buyer is relying on seller’s expertise in selecting the goods.
bear the burden of loss than the consumer. However, a properly written limited warranty can usually disclaim all implied warranties.
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– capable of delivery either as an assembled whole or as a component part or parts, and – produced for introduction into trade or commerce.
– a “product seller” who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer. – also includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer (e.g. store brands).
– Any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption. – Includes a manufacturer, wholesaler, distributor, or retailer of the relevant product.
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– Friend who helped you mount the TV? – Installer service hired through the retailer? – Electrician who did your wall re-wiring? – Retailer who sold you the TV manufactured by Plazmatron, but repackaged it under its own name as Big Box Plazmatraz? – Component supplier who sold component part that overheated? – Extension cord company that manufactured the power supply cord you bought separately?
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because the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
– The power cord of your unit is nicked when it moved down the assembly line. – The plans specified the wrong semi-conductors. – An experienced assembler called in sick, and the substitute didn’t quite follow the assembly plans. – The Parts Department ran out of the specified semi-conductors, so a lower grade substitute was used.
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– A product is not reasonably safe as designed if at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product.” – In other words:
diminished utility of alternative design.
– Example: Automatic Transmission Fluid Machine
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expectations of the consumer.
– Snow tube (consumer would expect tube to rotate, but not continue backwards). – Baby walker (mobility held an obvious danger). – Trampoline (no evidence that trampoline was more dangerous than ordinary consumer would expect).
– Your Plazmatron fire was caused by an inadequate metal oxide varistors in your power cord. Two years later, the power cord manufacturer develops a safer design. – Your Plazmatron fire was caused by a loose wire connection, contrary to specs. – Your Plazmatron fire could have been avoided if the manufacturer had used a higher grade semi-conductor available at the time, but that would have cost another $10.99 per unit. – Your Plazmatron cord couldn’t reach the outlet, so you used an old two-prong extension cord.
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instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings
adequate.
warnings/instructions inadequate + adequate warnings could have been provided.
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product, or reasonably should have learned, it has a duty to use reasonable efforts to issue warnings or instructions about the danger.
alerts, bulletins, or even product recalls.
– Your Plazmatron fire occurred after you plugged it into a two-pronged extension cord. – Your Plazmatron fire is one of ten units to be involved in a fire out of 400,000 units sold, though the cause of those fires remains to be determined. – Your Plazmatron fire was three units to be involved in a fire. Plazmatron determined that each of the three fires were caused by substitution of a low- grade wire, contrary to specifications.
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cause.
fire damages yacht).
contrary to clear instructions and warnings.
defense if the modification/alteration caused the harm.
fault on a percentage basis to each party at fault.
include “empty chair” defendants.
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(employer, custodian of product, seller, manufacturer).
relating to design, manufacture, and distribution.
Ford Explorer cases).
theories in cases involving other accidents.
etc.).
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– Design & Manufacture: Keep warranty and product liability issues in mind throughout design; anticipate misuse of the product as well as reasonably foreseeable uses; develop appropriate instructions and warnings in light of potential misuse; and establish appropriate QA procedures to ensure manufacturing process complies with design. – Litigation: Work with defense counsel to identify and produce documentation of product design and manufacture; explain design process and considerations through testimony; serve as witnesses to testify regarding designs and manufacturing processes for jury.
– May possess expertise on particular types of products or designs (e.g. trailer dynamics expert); inspect products following accident to document condition and determine cause; establish design or manufacturing defects, alternative feasible designs, etc.