Does a product manufacturer has a nondelegable duty to design a safe product or can they kick that can down to the end-user?
Said differently, can a product manufacturer shift the responsibility for making safety choices to the end-user of that product?
Okay, this is looking a little bit like a push poll, right? I’m trying to lead you to the answer that I want. So maybe the question, phrased least generously to the plaintiff, is does a manufacturer have an obligation to install optional safety equipment?
The Bexiga v. Havir Manufacturing View
In Bexiga v. Havir Manufacturing, a New Jersey Supreme Court case decided in 1972, the plaintiff’s hand was crushed in a punch press. The plaintiff was not without fault. He accidentally hit the foot control while adjusting a piece of metal beneath the ram. He filed a product liability lawsuit against the manufacturer of the punch press, alleging it was defective in design because it lacked a guard or other safety device. In other words, the punch press was unguarded. In remanding the case for a new trial, the court found
Where a manufacturer places into the channels of trade a finished product which can be put to use and which should be provided with safety devices because without such it creates an unreasonable risk of harm, and where such safety devices can feasibly be installed by the manufacturer, the fact that he expects that someone else will install such devices should not immunize him. The public interest in assuring that safety devices are installed demands more from the manufacturer than to permit him to leave such a critical phase of his manufacturing process to the haphazard conduct of the ultimate purchaser. The only way to be certain that such devices will be installed on all machines—which clearly the public interest requires—is to place the duty on the manufacturer where it is feasible for him to do so.
The court’s thinking was who is in the best position to that the Supreme Court of New Jersey ruled that the manufacturer was in a better position to make the call on whether a safety device is needed? Of course, it is the manufacturer. So the court concluded that product makers should bear the responsibility rather than trusting the buyers to educate themselves on what is needed. This makes sense, right? Does the purchaser even know what safety
The Verge v. Ford Motor View
Six years after Bexiga, the bad guys struck back in Verge v. Ford Motor Co. In Verge, a mostly Ford-built garbage truck without a back-up buzzer ran over a garbage man. I say mostly because the truck had been assembled by a company that installed a compactor unit on a multi-purpose flat-bed truck cab and chassis it bought from Ford. The jury hit Ford with a $75,000 verdict.
At trial, the plaintiff’s lawyer asked the plaintiff’s expert whether it was the trade custom that back-up buzzer is installed by the company that manufactured the cab and chassis or the company that installed the compactor units onto the chassis. Good question to ask. Unfortunately, the expert never answered on direct or when asked about it again on cross (why is the defense lawyer asking that question at that point?).
So the court applied the two other factors it believed was critical to the analysis:
- Relative experience: which party is most familiar with the design problems and safety techniques in questions, and
- Practicality: at what stage is installation most feasible
Looking at these factors, the court found that as a matter of law the assembler was the only one responsible for the selection and installation of appropriate safety equipment on the finished product.
Biss v. Tenneco Is Also Unhelpful
In the same year Verge was decided, the New York high court decided Biss v. Tenneco. In Biss, a man driving a loader drove off the road and struck a telephone pole, and died. The owner of the vehicle, the victim’s employer, purchased it for his logging business. His family sued the manufacturer of the logger, claiming it was defectively designed because it was not equipped with a ROPS (rollover protection). But the defendant did offer a ROPS, albeit manufactured by another vendor, as optional equipment.
The court found that giving this option fulfilled the manufacturer’s obligations because it is possible that not all purchasers would need the rollover option. It found:
If knowledge of available safety options is brought home to the purchaser, the duty to exercise reasonable care in selecting those appropriate to the intended use rests upon him. He is the party in the best position to exercise an intelligent judgment to make the trade-off between cost and function, and it is he who should bear the responsibility if the decision on optional safety equipment presents an unreasonable risk to users.
Which Way Are Courts Going?
My take on is that most courts are following Bexiga and New York and New Jersey have softened these pro-manufacturer opinions over the years. One commentator offered the view that these competing doctrines are moving toward a unified determination that manufacturers “can only offer safety features as optional if there is no standard safety feature that will allow each function to operate unimpeded.” But this logic does not apply to products that essentially have one function (which is the case I have that precipitated this research).