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Followup question on Doug's product liability post.(21 posts)

Followup question on Doug's product liability post.Len J
Dec 9, 2003 9:43 AM
Question for all of you attorneys out there.

I re-read the thread Doug posted yesterday and noticed something I missed on the first read. There seems to be a difference between the law and common sense in product liability law. Why is that?

If Doug's (and others) description of the law is correct, a manufacturer can market a product with a stated life of 15,000 km that lasts for 50,000 km (30,000 mi)before failure, provide literature to both his distributor and the LBS that states this limitation, have the product sold to an experienced cyclist who (it would seem) is too lazy to check his equipement and since the LBS doesn't communicate the limited lifetime of the product to the consumer, the Manufacturer is liable for selling a defective product. Does this make sense to anyone?

I don't get it.

I'm not trying to start a ranting thread on the legal system in the US, rather, I am trying to understand what the law is trying to accomplish. Is it a case where the original intent has been skewed over time or is there a real world reason why the law forces erring so far away from a balance?

I'm genuinely interested.

cross claimsDougSloan
Dec 9, 2003 10:14 AM
The law took a huge divergence from the common law when strict products liability was introduced. You need not show fault, which essential lack of due care or mental state of the defendant. Likewise, in many states, then, the mental state of the injured party is not relevant, either. It's purely a matter of whether there was a defect, by design or manufacture, *or* failure to warn, and damages. The legislatures intentionally shifted the burden of paying for injuries to sellers. Right or wrong, that's clearly what they did. We could discuss that issue for days.

Essentially, the lawmakers determined that doing this would cause sellers to make and sell safer products, and if consumers were required to prove negligence each time, far too few injured parties would prevail, and sellers could make a conscious decision (Pinto) to risk the few lawsuits that might result in large verdicts. It's not purely a matter of the sellers having more money. It's also an incentive/punishment system.

To answer you first question, the law intentionally makes all sellers in the stream of commerce responsible to the injured party. In some states, the retailer can escape liability if it was merely a conduit and it can show that the manufacturer/distributor is in the suit and can pay the potential judgment. The goal over all is to ensure that there are defendants who can satisfy the judgment. Again, it was a conscious decision to bias the law toward compensation, with a mind toward encourage the selling of safer products, too.

Also, the various defendants might be able to cross claim against each other for contribution or indemnity. It may well be that the injured party can collect from the manufacturer, but then the manufacturer can try to collect from the retailer. This can ultimately allow justice to be done and "fault" to be allocated fairly, while still foremost allowing the injured party to be fully compensated.

Product liability is not unique in these types of changes from common law. Workers' compensation is probably the best example. If an employee is injured on the job, he only need prove his injuries and the fact that it was job related. Contrary to common law, he need not prove that the employer or fellow employee was negligent. State of mind is again irrelevent. This is to ensure that all employees are compensated for their job injuries, and also really streamlines the system and reduces litigation costs. The trade-off is that damages are limited and scheduled, and attorneys' fees are capped.

We've now covered about 2 weeks of torts class... ;-)

Thanks.............Len J
Dec 9, 2003 10:22 AM
so wha you're saying is that (essentially) frivilous lawsuits are the cost of safer products. (and user idiocy doesn't count). I suppose it's a sociatal question.

In your clients case, I understand the desire to get his medical claims paid for, it obviously was a horrendous accident, but I'm not sure that I could feel good about myself suing under these circumstances. I know you can't answer this (being in the middle of a case and all) but I have to believe that, late at night, when he's laying awake thinking, that he knows he is as much at fault as anyone in this suit.

For me, I gotta be able to live with myself.

Thanks for the lessons, both in tort law as well as the reminder to change out lightweight stuff regulaly.

societal benefitsDougSloan
Dec 9, 2003 10:36 AM
Since this accident, here locally handlebar sales have gone through he roof. One LBS suggests replacement to nearly every owner of a bike that comes through the door for repairs. I guess that's not a bad thing.

This rider sincerely believes that this bar should not have broken, and had he been warned that it had a fairly limited lifespan, and that he could die if he used it beyond that, he never would have bought the bars. Unless those of us here on this site, who may be intimately familiar with specs, warnings, etc., from the internet, this rider spent all his time *riding*, not reading and typing on these forums. Thus, he really did not know of the warnings and limitations. To the contrary, he expected that buying one of the most expensive bars at the time would mean he had a quality, durable product.

Doug, societal benefitswspokes
Dec 9, 2003 10:59 AM
See, now this helps me a bit Doug. You state that he spent his time "riding" and thus wasn't as net knowledgable regarding the fact these breakages can happen. It sheds a little more understanding.

Doug, if you have some law knowledge in the area of copyright violations, could you email me.
you have a valid point!wspokes
Dec 9, 2003 10:17 AM
The legal system in the states has been injected with the adrenalin junky lawyers who seek to profit from EVERYTHING. Once they let those take hold, it gave a bad name to the reliable lawyers and actual cases.

I remember in State College, Pa. A kid's front brake cable snapped. He endo'd over the handlebars after the straddle cable caught the tread of the tire and pitched him into the ground. He was paralyzed. He sued a bike shop, they are no longer around now I have been told. He sued the bike company, either miyata or yokota?, one of them...He won millions of dollars. The ultimate argument was Crappe though. The kid had some riding experience. He removed all the reflector's from the bike. Therefore the front reflector which normally would have caught and prevented the straddle from falling into the didn't work. And somehow, this brainy decision was the bike shop and manufactures fault. Sheer Crappe. I remember the cop out sell out bike industry DORK John Howard helped the bike manufactures lose that case by getting paid to argue that it was negligent of the bike shop and company...what, are they supposed to go to this kid's home and teach him not to be stupid?

Just sad...there was a great deal more to that case but the overall point is there.
More to it...lyleseven
Dec 9, 2003 10:24 AM
I am sure there was "a great deal more to the case" for the kid to prevail...When the injury happens to you your attitude will dramatically change I suspect!

Doug's analysis was very thorough and on point. Also, remember, even in products liability law if the consumer has notice of the problem, or was warned, comparative fault will be assessed against him.

Whatever is wrong with our legal system, it is miles ahead of any other country's.
More to it...wspokes
Dec 9, 2003 10:51 AM
Hello again
First, I just thought the suit was crappe...there was more to it. but mainly the other info was in regards to not killing the LBS and the bike company and seeking out the responsibility factor. I agreed. I also said in my post, very sad. I don't really criticize the kid. I did not agree with his family. I did agree with him. He spoke out of court about how he wanted some compensation but never at the expense his family pushed it. He loved cycling and he knew the risks.

So what happens now? There are still a ton of those old straddle systems out there jamming around. Are they manufactures still at fault? How about the 2nd hand bike that fails? Do they go back to the LBS and bike company? There has to be a line drawn somewhere. You are correct, we are ahead of the game in many a place!
reflector purpose?DougSloan
Dec 9, 2003 10:26 AM
So, the purpose of a reflector is to catch the brake stradle cable if he main cable breaks? I never would have thought that in a million years, and I doubt any kid would have been expected to. Doesn't sound like assumption of risk nor an unforseeable modification/misuse. Sounds like a perfectly valid products suit to me.

Also, just because there are some frivolous suits or some legitimate suits with excessive damage awards, that does not make all suits frivolous. Anecdotal examples of a few questionable suits can't be used to condemn the whole system or any other particular suit.

Also, I'd bet that every single one of us on this forum has benefitted directly from safer products resulting from product liability laws. Without enforcement of those laws, they would be meaningless.

reflector purpose?wspokes
Dec 9, 2003 10:46 AM
Hi Doug

Reflector purpose...That is what they claimed. When I went to college. I worked in my parent's shop and other bike shops and I remember being told to make sure the straddle was above the reflector for those reasons. I remember my dad telling me and another boss told me in Hershey.

If it was a product suit...take it back to the product. The product was an invention of shimano or whoever came up with that idea in the 70s/80s or whenever they began using those braking systems...this wasn't a new thing and I am sure others were hurt long ago. I gotta agree that as a result. We no longer use the old straddles and have improved systems so in some way, it paved the way for innovation. I just think it was brought back unfairly on the LBS and Bike company. It should be taken to the source, or the maker of the item. Then improvements can be made.

My only other gripe that pops into mind is a suit against Derby some years ago because the bike didn't come equipped with a headlight and even though there were stickers on the bike and mention in the book...they were found liable.
any mtb made prior to 1995 had the same issuelaffeaux
Dec 9, 2003 11:14 AM
If you rode a mountain bike prior to 1995 you had a bike that had the potential to endo if the front brake cable broke. You can argue that the reflector is there to stop this from happening, but in reality, any rider that rode off-road either removed the reflectors, or unintentionally littered the trail with broken reflectors.

It was no secret, nor did it require a lot of common sense, to see the fault of ALL cantilever brakes. As a rider you hope the front cable does not snap, much the same as when you drive your car you hope the brake lines don't spring a leak.

Until v-brakes came out (actually u-brakes and roller cams didn't have the same issue) all MTB riders were at potential risk.

I still use cantis on my CX bike, and it has the same issue. If the front cable breaks, there's a good chance I'm going to crash. However, I choose to ride anyway.
rivendell sells a thingy that prevents such endos!colker1
Dec 9, 2003 11:58 AM
it actually resembles a reflector and it's fixed like a freflector on the fork.
no need to risk your neck
the direction we are going..rdbike
Dec 9, 2003 10:32 AM
What we will end up with is LBS having to generate the same type of document I see in"a permit or informed consent". The language can cover just about everything. As far as the implants I sell, (steel, ti, CF, just like bikes)it can be diclosed that they can possibly bend, brake,or dislodge. If I owned a LBS, I can assure you that I would have some type of document that decribed the dangers of riding a bike and the limited life span of bike componentry.
or at least pass on what the manufacturer provides... nmDougSloan
Dec 9, 2003 10:42 AM
Doubt anybody can answer the question as asked.dzrider
Dec 9, 2003 10:18 AM
Looks to me like a result of a series of small decisions. Each one m makes sense in the contest they were made, but lead someplace that makes no sense at all. We see this fairly often in personnel matters where I work. No resaon it can't happen to the law. Both are attempts to codify human behavior which, of course, seldom makes sense.
Doubt anybody can answer the question as asked.Jon Billheimer
Dec 9, 2003 10:37 AM
In my common sense opinion, cross-filing to satisfy Len's observation about shared liability simply promotes more lawsuits and enriches more lawyers. Hypothetically if the manufacturer designes a product with a certain lifespan, purposely understates those limits in its literature, circulates the literature to the retailers, and the retailers don't advise the customer or pass on the literature I fail to understand the justice in assigning equal liability to the manufacturer and the retailer with the provision that the two parties can then cross-file and generate more expensive litigation. Rather than promoting end-user biased "justice" this seems to me to promote the economic interests of the stakeholders in the justice system.
with all due respect to my friend Doug, I don't believe thatbill
Dec 9, 2003 2:59 PM
liability for the retailer's failing to provide the warnings supplied by the manufacturer or distributor extends to the manufacturer. Strict liability for a dangerous instrumentality or defective product isn't quite that strict. That one is on the retailer, with a possible exception if, for example, the manu/distr keeps the warnings sort of a double secret warning -- "this is bad, but don't tell the consumer," which is not so impossible to imagine if you consider that issuing a circular or something that is not attached to the product isn't likely to be conveyed to the consumer.
Now, it does go the other way -- if the manufacturer creates a dangerous product that the retailer sells, liability is shared, on the theory that the retailer who makes money on stuff should know what the hell it's selling.
The law makes a lot more sense than what people think/assume. Sometimes wacko cases are plain wacko, but more often there is more to the story than conveys in the Readers Digest version.
with all due respect to my friend Doug, I don't believe thatHood Rider
Dec 9, 2003 4:03 PM
Even if retailer purposefully kept the written warning from the plaintiff, you could still have a case for failure to adequately warn. Manufacturers should print the warning directly on the product in plain view in order to prevent the warning from being separated from the product. And the warning should be as explicit as possible. (At least that's what my torts prof tells me.)
Merely "home improvement", that's all -Leroy
Dec 9, 2003 1:03 PM
This is a socio-economic project to provide plaintiffs' lawyers, insurance defense lawyers, and insurance companies with nice livings, and large estates.
Yea, let Darwinism cull the herdContinental
Dec 9, 2003 2:54 PM
Screw those lawyers and insurance companies. Screw government regulation. Lassez faire! Caveat emptor! If cyclist don't understand the risk and don't take approriate precautions, they desrve to die and society is better off without them. And if the product is really bad, the company will go out of business after a few thousand people are killed or maimed.
Yea, let Darwinism cull the herdlyleseven
Dec 9, 2003 3:56 PM
Just as long as you are one of the victims of the defect and I am not, I would agree... but, of course, you are about 150 years behind the time. If your bike is that old, you better check the handlebars......