Thursday, May 2, 2019

Product Liability Down on the Farm – Modifications


If a farmer or rancher buys a product and the product turns out to be defective, can the manufacturer be held liable on a product liability claim for defective product?  In general, the answer is “yes.”  However, there are some exceptions to that general rule.  One of those may involve an acetylene tank and a torch. 

A limitation on the ability to sue a manufacturer on a product liability claim – that’s the topic of today’s post.

Manufacturer’s Liability – In General

Historically, a manufacturer or seller of defective chattels was not liable to persons injured using the product unless a contractual relationship existed.  This rule limited a manufacturer's liability to immediate purchasers if a product turned out to be defective, dangerous or hazardous to health.   This rule, known as the “privity limitation,” dates back to the 1843 English case of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402 (Ex. 1842). In Winterbottom, the plaintiff purchased a ticket to ride the stage and as the stage was being driven, a wheel with rotten spokes collapsed.  The ensuing crash injured the plaintiff.  The plaintiff sued the defendant who had undertaken to provide a mail coach to carry the mail bags.  The English court ruled that the plaintiff could not sue the defendant because the plaintiff did not have a contract with the defendant.

Winterbottom became a leading case, not only in England, but also in the United States.  The requirement of privity of contract in product liability cases continued in the United States until 1916.  In a 1916 case, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), the plaintiff bought a Buick from a retail dealer.  The plaintiff was injured while driving the car when the wooden spokes on one of the wheels crumbled into fragments.  The defective wheel had been supplied to Buick Motor Co. by a parts manufacturer.  There was evidence tending to show that a reasonable inspection by Buick would have disclosed the defective wheel, but that Buick failed to make such an inspection.  Buick defended on the basis that the plaintiff purchased the car from a retail dealer and, therefore, did not have privity of contract with Buick.  The New York Court of Appeals upheld the trial court and rejected Winterbottom v. Wright.  The Court held that Buick owed a duty of care to the plaintiff as the ultimate purchaser of the automobile from an independent distributor.   Precedent drawn from the days of stagecoach travel no longer squared with the needs of a modern commercial society.

The MacPherson decision marked the beginning of the consumer movement.  Consumers could now sue manufacturers and hold them accountable for negligence in manufacturing faulty products as well as negligence in design.  For the first several years after MacPherson, the question was limited to negligence in manufacturing.  More recently, the focus has expanded to include negligence in design.  Both come within the rule.  No longer is privity of contract required before a manufacturer can be sued.

MacPherson spawned a great deal of products liability litigation.  Much of the early litigation dealt with food and beverage products.  See, e.g., Pillars v. R.J. Reynolds Tobacco Company, 117 Miss. 490 (1918); Coca-Cola Bottling Company v. Burgess, 195 S.W.2d 392 (Tex. Ct. Civ. App. 1946). 

Since the early 1960s, manufacturer's liability law has changed greatly.  The recent trend is away from a negligence approach and toward strict liability.  In many instances, an injured party is not required to show that the manufacturer was negligent.  While a strict liability approach is not the same as absolute liability, in many instances, manufacturer's liability has become so favorable for plaintiffs that many manufacturers have complained of the inability to afford liability insurance coverage.

Under the modern approach, the injured party is required to prove five elements in order to recover from a manufacturer on a product liability claim. 

  • First, the injured party must show that the defendant sold the product and was engaged in the business of selling the product. This requirement is typically easy to satisfy. 
  • Second, the injured party must show that the product was in a defective condition. See, e.g., Russell v. Deere & Co., 61 P.3d 955 (Or. Ct. App. 2003). This, likewise, is not usually very difficult to establish.
  • Third, the injured party must show that the defective condition was unreasonably dangerous to an ordinary user during normal use. Normal use includes all intended uses and foreseeable misuses of the product. See, e.g., Ellis v. Weasler Engineering, Inc., 258 F.3d 326 (5th Cir. 2001)This requirement is somewhat more difficult to satisfy than the first two, and a few courts do not require this element.  If this element is required, a product may be deemed to be unreasonably dangerous if the manufacturer fails to warn of dangers inherent in the product's normal use that is not obvious to an ordinary user. If the product bears an adequate warning, the product is deemed not to be in defective condition in those states whose product liability act follows Comment j of the Restatement (Second) of Torts § 402A.  However, some states follow Comment i of the Restatement (Third) of Torts § 2, which provides that an adequate warning does not foreclose a finding that a product is defectively designed.  See, e.g., Delaney v. Deere and Company, 268 Kan. 769, 999 P.2d 930 (2000), rev’d, 219 F.3d 1195 (10th Cir. 2000).  In these states, a manufacturer cannot simply warn of open and obvious dangers. The belief in these states is that Comment j allows an adequate warning to absolve the manufacturer of its duty to design against dangers when a reasonably safer design could have been adopted that would have reduced or eliminated the risk remaining after a warning is provided.  But, under either approach, foreseeable misuse of the product remains an issue.  See, e.g., Mallery v. International Harvester Company, 690 So. 2d 765 (La. Ct. App. 1996). 
  • The fourth element that an injured party must prove to recover from a manufacturer on a product liability claim is that the product was expected to reach the user without substantial change in condition and, in fact, did so.
  • The fifth requirement is that the product defect was the proximate cause of the plaintiff's injury or damage. This requirement is the most difficult to show and involves proving one of the elements of negligence.

Preemption Possibilities

There are at least three situations that a particular farmer or rancher may face in which they will be limited in their ability to sue a manufacturer on a product liability claim.  One involves the situation when purchased equipment is altered or when multiple component parts are purchased individually, but are then later combined to make a complete system.  If the component parts are not defective, but when combined produce a defective system, the manufacturers of the component parts do not have a duty to warn or properly instruct about the use of the system. See,e.g., Shaffer v. A.O. Smith Harvestore Products, Inc., 74 F.3d 722 (6th Cir. 1996).  When purchased equipment is altered, the manufacturer is generally released from liability unless the manufacturer could have reasonably foreseen that purchasers would alter the equipment in the manner that resulted in injury.  For example, in Hiner v. Deere & Co., 340 F.3d 1190 (10th Cir. 2003), rev’g, 161 F. Supp. 2d 1279 (D. Kan. 2001), the farmer altered a front-end loader resulting in injury.  The court determined that the farmer’s alterations presented a fact issue for the jury to sort out on the plaintiff’s strict liability claim as to whether the defendant could have reasonably foreseen the alteration.  See, also, Brinkman v. International Truck and Engine Corp., 351 F. Supp. 2d 880 (W.D. Wisc. 2004). 


So, when you buy a product and take it home to the farm or ranch, or have it delivered, sometimes the tendency is to modify the item to fit the specs of the situation.  But, once an alteration is made (perhaps by cutting and welding) and the product fails to operate as expected, that alteration can remove the ability to recover from the manufacturer on a defective product claim. 

Just something else to think about on the farm or ranch from the world of agricultural law.

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