News and Events

That's Not How We Designed It!

June 2, 2011Ehren BilshausenRelated Practice Areas: Products Liability

When defending a manufacturer in a strict product liability action, the attorney needs to become well-acquainted with the product. He or she should sit down with the engineers who originally designed the product at issue, in order to fully comprehend the defect being alleged by the plaintiff. This is necessary not only for the attorney to understand how the incident occurred in relation to how the product was designed to function, but also to determine whether any modifications were made to the product after it left the client's control. Generally, a modification or alteration exists when a change made post-sale by another party, that affects any one of the various conditions of the product. These conditions can include design, function, or warnings. For example, an employer removing safety devices, or changes made to the original design by the operator, often become key issues in a products case. Simply identifying a post-sale modification is not the end of the analysis, however, but only the beginning. Was the modification substantial? Was it foreseeable? How does it affect causation? In other words, does the modification matter? These are questions that need to be addressed by the attorney in order to effectively defend a products liability case.  

1.  What constitutes a "substantial" alteration?  

Not just any alteration of the product will provide the manufacturer with a defense to a products claim. Courts often require that the change to the product be considered "substantial." The Restatement Second of Torts echoes this requirement, by providing that an action for strict products liability exists when the product at issue reaches the user "without substantial change in its condition." This begs the question though: what constitutes a "substantial" change? There's no universal definition, and different jurisdictions have cobbled together precedent in an attempt to craft a definition.   

One such court has ruled that a change is substantial when it: (1) increases the likelihood of a malfunction; (2) is the proximate cause of the harm; and (3) is independent of the expected and intended use to which the product is put. Cornette v. Searjeant Metal Products, Inc., 147 Ind.App. 46, 54 (2nd Div. 1970). For the practitioner defending products cases, regardless of jurisdiction, the Cornette definition is useful because it encompasses the different factors many courts utilize in determining whether an alteration is substantial. Whether a change is substantial or not often differs on a case by case basis, as courts examine the foreseeability of an alteration, or whether the change made a previously safe product unsafe, or whether the change was the proximate cause of the incident. It is for these reasons that substantiality of the change is often left to the trier of fact. See, for example, Karabatsos v. Spivey Co., 49 Ill.App.3d 217 (1st Dist. 1977).  

2. Was the alteration foreseeable?  

Generally, only alterations that are not reasonably foreseeable, by either the manufacturer or seller, are sufficient to avoid liability. Not surprisingly, whether an alteration can be considered "reasonably foreseeable" is open to interpretation, and often left to the trier of fact. Some jurisdictions have made semi-successful efforts to provide clarity, by finding "objective foreseeability" to exist when, "in light of the general experience within the industry at the time the product was manufactured, they could reasonably have been anticipated by the manufacturer." See Tuttle v. Sudenga Industries, Inc., 125 Idaho 145 (1994) and Brown v. U.S. Stove Co., 98 N.J. 155 (1984). Despite the ambiguity inherent in the definition of "foreseeability," certain manners of modification are dealt with similarly.   

One common alteration at issue in products liability cases are changes to, or the removal of, manufacturer-designed safety devices. Whether or not the alteration to a safety device is considered to be foreseeable largely depends on the design of the product and how the safety device is specifically designed into the product. As a practical matter, oftentimes the amount of work necessary to alter the device proves to be the determinative issue. For example, an employee cutting a hole through a safety device was deemed unforeseeable, Robinson v. Reed-Prentice Div. of Package Machinery Co., 49 N.Y.2d 471 (1980), while an employee simply removing a safety device that the machine's design allowed for, was found not unforeseeable. Lopez v. Precision Papers, Inc., 67 N.Y.2d 871 (1986).   

In addition to altering safety devices, alterations made in accordance with manufacture instructions, and modifications necessary to correct a design defect, can be important issues that arise when evaluating whether an alteration is foreseeable. Not surprisingly, if a product is altered in accordance with manufacturer specifications, and the alteration results in the product becoming defective, the manufacturer cannot escape liability. See Bland-in v. Marathon Equipment Co., 9 A.D.3d 574, 574-75 (2004). Similarly, if the addition of a component post-sale, which is necessary to use the product, creates a defect, the manufacturer will likely be unsuccessful in arguing that the modification was unforeseeable. See, for example, Jarrell v. Fort Worth Steel & Mfg. Co., 666 S.W.2d 828, 835.  

A potentially important aspect of determining whether an alteration is foreseeable is the party bearing the burden of proof. While, in many jurisdictions, the manufacturer bears the burden of asserting the defense of alteration, since it often possesses the most knowledge about the product, the plaintiff bears the burden of proving that the alteration was foreseeable. See, for example, Hardy v. Britt-Tech Corp., 378 N.W.2d 307, 309 (Iowa 1985). This can be a difficult burden for a plaintiff to meet, and will largely be determined on a case-by-case basis.  

Generally, a manufacturer does not have the duty to warn against altering or modifying a product, as long as the product is not unreasonably dangerous when it leaves the manufacturer's possession. If the modification is foreseeable, however, a manufacturer may possess such a duty, even if the product was reasonably safe when it left the manufacturer's possession. See Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 563 (Div. 1, 1983).  

3. Was the alteration the proximate cause of the incident? 

Implicit in the foregoing analysis is that the alteration actually resulted in the plaintiff's alleged injuries. "For a change to be considered 'substantial' for this purpose, 'the change must have some causal connection with the accident.'" Hollinger v. Wagner Mineral Equipment Co., 667 F.3d 402, 407 (3rd Cir. 1981)(applying Pennsylvania law) (citing Dennis v. Ford Motor Co., 332 F.Supp. 901, 903-04 (W.D. Pa. 1971). A subsequent change in a product, which creates a defect, will not preclude a manufacturer's liability unless the alteration constitutes a superseding cause. See, for example, Hasson v. Ford Motor Co., 32 Cal.3d 388, 405 (1982). For example, when an employee removed a manual horn from a "scooptram," and was then hit and killed by another vehicle, the manufacturer of the scooptram was not necessarily absolved from liability, when the employee's vision was also obscured by the defective design of the scooptram at the time of the incident. Hollinger, 667 F.3d at 407.  

4. Specific Fact Patterns  

While it is commonplace to find products liability cases with post-sale modification issues involving the end-user altering the product, many such cases also involve third-party modifications.  

•     Third-Party Repairs  

Generally, a manufacturer is not going to be found liable for injuries caused by a third-party's negligent repair of the product. A good example of this principle is found in Curry v. Louis Allis Co., Inc., 100 Ill.App.3d 910 (1st Dist. 1981). In Curry, the plaintiff was injured when he was struck by an electric motor that had been installed on a drop hammer. Evidence revealed that a third party had installed the motor improperly, which caused the motor to fall while in use. The court ruled that the manufacturer of the motor could not be found liable for the plaintiff's injuries, as the motor was not defective when it left the manufacturer's control, and the motor had been negligently installed by a third party.  

•       Third-Party Maintenance  

As with negligent third-party repairs, a manufacturer will not deemed liable for injuries resulting from negligent maintenance by a third-party. For example, in Ulmer v. Hartford Acc. & Indem. Co., 380 F.2d 549 (5th Cir. 1967)(applying Louisiana law), the manufacturer of a helicopter blades was absolved from liability, when the evidence proved that, after six years of maintenance, the Navy negligently failed to replace a sealer cap, which ultimately resulted in the crash of a Navy helicopter. Evidence also proved that the helicopter was not unreasonably dangerous when it left the manufacturer's possession.  

•     Component Part Manufacturers  

In complex products liability cases, it is not uncommon to find multiple component part manufacturers as defendants or third-party defendants. It can sometimes be more difficult to evaluate a products case from a component parts perspective, because the part is usually designed to interact with other component parts, in accordance with the overall design of the product. The Restatement (Third) of Torts: Products Liability, Section 5, indicates that a component-part manufacturer will not be absolved from liability if: "(a) the component is defective in itself, and the defect causes the harm; or if (b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and (b)(2) the integration of the component causes the product to be defective; and (b)(3) the defect in the product causes the harm." Thus, a component part manufacturer will not necessarily be released from liability simply because the component is integrated into a larger product by a third party. It is the plaintiff's burden to identify the manufacturer of the allegedly defective component.  

When a finished product is the result of substantial work by multiple parties, responsibility for the absence of a safety device that ultimately results in an injury to a plaintiff, is largely determined by examining several factors: "trade custom, relative expertise of the parties and practical considerations." Elliott v. Century Chevrolet Co., 597 S.W.2d 563, 564 (Tex.Civ.App. 1980). Elliot involved a beer truck with a chassis built by General Motors and initially sold by Century Chevrolet. A beer storage unit was later installed by a third party, which created a blind spot in the driver's rear view. The plaintiff was crushed by the truck while it was backing up. The plaintiff alleged that G.M. and Century should have installed a backup buzzer for safety. G.M. and Century argued that, due to the substantial changes made to the truck after it left their possession, they should be absolved from liability. Analyzing the three factors, the court agreed, finding that the company that installed the beer storage unit was best acquainted with the truck to know what its use would be. Thus, it had the obligation to install the backup buzzer.  

5.         Conclusion  

As is evident above, the existence of a post-sale modification can have a huge impact on the outcome of a products case. Thus, the practitioner needs to be aware of the multiple issues that can impact the successful presentation of such a defense at trial. The first question that should always be asked, however, is "does the modification matter?"