Masonry Magazine November 2003 Page. 41
Manufacturer and Retailer Issues
Many product distributors and retailers erroneously believe that they bear less liability for defective products than do manufacturers who design, test and produce the products. Generally, the law imposes the same degree of liability upon all in the stream of commerce, and thus, the mom and pop corner store retailer may be held as liable for the sale of a defective product sold in a sealed container as the remote manufacturer who made and packaged the product. In short, if you make, market or sell a defective product, you are potentially liable to an injured party. Under certain circumstances, however, many retailers may seek reimbursement from the product manufacturer, but such recovery may be protracted and costly.
Many manufacturers and product sellers endeavor to limit their liability through use of "warranty forms" which deny liability, exclude most warranties, or preclude or limit the recovery of damages. Many such forms are no defense to product liability claims based on negligence, strict liability or fraud. Nevertheless, some courts will enforce these warranty exclusions and limitations, and as such, product buyers should "read and beware," before purchase.
In the hundreds of product liability claims I have handled, perhaps the most common manufacturer failure is the lack of product testing. Time and again manufacturers market their products for specific uses, or claim that a product is suitable under many conditions, and yet, they have done little, if anything, to verify or test the product for those uses or under those conditions. Many standardized testing protocols have been established by scientific organizations and trade groups to analyze virtually any product. Manufacturers would be well served to pursue such testing, and document that they evaluated the foreseeable environments in which their products will be used. This testing not only supports their marketing claims, but provides a defense to future liability claims.
Finally, any product producer or retailer is advised to review their insurance coverage and confirm that they have adequate protection for claims involving their products. Many insurance policies contain exclusions that, to the average reader, might not appear to deny coverage, but in reality, support the insurer's decision to deny coverage.
Product Purchaser Issues
Product buyers should evaluate factors in addition to price, particularly if the product should serve a particularly important function. Among other things a prospective purchaser should review any written warranty to determine what exclusions and limitations apply. In some instances the purchaser may be able to negotiate modification of warranty terms.
Further, a purchaser should ask what testing and product evaluations have been performed to substantiate marketing claims. For the same reasons that manufacturers should test and evaluate their products, buyers should scrutinize product claims and ask the seller what has been done to adequately test the product for its touted uses. Where the product involved is particularly expensive or serves a vital role, the buyer should consider contacting the manufacturer directly, requesting written confirmation of test results and document the oral representations of the manufacturer. In other words: buyer beware. Don't rely solely on flashy marketing materials to determine the suitability of a product for your critical needs.
Warren Lutz, Esq., is a Director with the Washington, D.C. law firm of Jackson & Campbell, P.C. He specializes in product liability, toxic torts and construction litigation, He may be reached at wlutz@jackscamp.com.
This article is not intended to provide legal advice, but to raise issues bearing on legal matters. You should consult with an attorney regarding your legal issues, as the advice you may receive will depend upon your facts and the laws of your jurisdiction