The answer to the question: "what is a product manufacturer’s duty" relative to its products once they leave the plant, is not one that is easily answered. In Illinois, a manufacturer has no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control. To the contrary, in Massachusetts, its negligence-based product liability law subjects manufacturers to a continuing duty to warn purchasers of risks discovered following the sale of the product at issue. While this does not extend to "remote" second-hand purchasers, it is a substantial obligation. To confuse the issue even more, in Minnesota, a post-sale duty to warn arises only in "special cases," such as where the product has a long life span and is sold "used" to other consumers; where the manufacturer continues to advertise and sell components for the product; where the manufacturer is aware of the defect; where the product defect is hidden; where the manufacturer has previously warned of dangers; or, where potential injuries are "severe".
Many states have not addressed the issue at all, and given the wide array of approaches in the states that have, the only thing that is clear is that there is no hard and fast rule that addresses the product manufacturer’s obligations in every state uniformly. The best approach may be to learn from the experiences of those companies that have confronted the issue.
In a Minnesota case involving a rotary press, plaintiff sustained an injury when she became entrapped in the press while pushing a corrugated box into the roller assembly. The evidence indicated that the machine had been shipped in March, 1973. The date of accident was some twenty-five (25) years later in November, 1998. Further, the evidence indicated that the product manufacturer had worked a change to the design in 1979 to apply an interlock switch to a guard which would shut the machine down if the guard were removed. Importantly, the manufacturer sent notice of this product improvement to all of its known customers via certified mail. The case was tried to a jury, which found the manufacturer not guilty, in part based upon the manufacturer's efforts to alert all of its current and past customers to this safety improvement.
In a New York case involving a box manufacturing machine, a plaintiff was injured while removing a jam at a material feeding area when the machine was started by the machine operator while the plaintiff was still in the process of clearing the jam. The machine had been manufactured in 1977, and the accident took place in 1995. The evidence also showed that the owner of the machine at the time of the accident had purchased it "used" from a used machinery dealer. The owner had also modified the machine to run a product size that was larger than allowed for by the machine’s original design. The evidence showed that the second-hand owner did not consult the original equipment manufacturer or update the machine guarding to the current standards. This allowed the original equipment manufacturer to successfully defend itself against plaintiff’s claims of defect.
So, what message can manufacturers take away from these examples?
Manufacturers must understand that there is no hard and fast rule that applies to each of these usually unique situations. However, manufacturers can employ some basic, fundamental practices in order to help minimize or avoid potential liability as best as possible when it comes to older equipment in the field.
Among other things, take all steps possible to maintain a current information database of all known past and current customers. As advancements in safety that might apply to old equipment still functioning in the field are achieved, take every reasonable measure to alert customers to the advancement, and to make that advancement reasonably available to the customer. Notification of those advancements should be in writing, and should be followed up with reasonable attempts to communicate with a representative of the customer personally, either by telephone or in person. Then, the manufacturer’s file for each such machine at issue should be documented with the efforts to alert the customer to the advancement, and the customer's response to same.
The same practice should be employed in the event that the manufacturer discovers a defect in design in a current line where equipment is already in the field. All possible efforts to alert the customer to the suspected defect should be undertaken, and all reasonable efforts to correct the defect in the field should likewise be undertaken. Those efforts must be documented to the manufacturer’s file for the product or machine. This is especially true in a situation where the customer declines to accept the proposed correction.
This brings to mind the question of recalls. True recalls of the type we read and hear about in the news are typically confined to automobiles and consumer goods such as household appliances, toys and the like. It is unlikely that any particular government regulation requires such a recall of industrial machines or the like. Nevertheless, discovery by a manufacturer of a design or manufacturing defect in a product that has already shipped would undoubtedly be documented within the company in some fashion. Thus, a failure to take any action to correct it could expose a manufacturer to punitive damages in the event someone is injured as a result of that defect. Thus, again, the best course in that circumstance is for the manufacturer to take all reasonable steps to alert its customers to the defect and to correct it.
Manufacturers also often purchase a product line from another manufacturer. Any such product line acquisition should be accompanied by thorough insurance and indemnification provisions whereby the former manufacturer retains financial responsibility for any liabilities incurred as a result of defects in products manufactured and shipped prior to the date of acquisition of the product line. In addition to obtaining indemnity, the acquiring manufacturer should insist that the product line seller provide adequate insurance coverage sufficient to provide the acquiring company with a full defense and indemnification against any such claims. To properly assess expected product performance in the field, and to properly assess current and future liability risk, the design of any such line a company acquires should be thoroughly vetted by the acquiring company’s engineering staff to determine whether or not the design is sound. In other words, acquisition of a product line from another manufacturer should trigger a thorough Risk Assessment and Hazard Analysis of the design, which should be thoroughly documented and which should result in the correction of any unreasonable hazards uncovered by the assessment.
Finally, manufacturers often undertake to maintain their customers’ machines once they are sold. Manufacturers with a maintenance or service staff that is servicing the company’s equipment in the field should be trained to do a thorough examination of any machine that they service, regardless of the issue that triggered a service call in the first place. Any deficiencies, such as other malfunctions, or any safety related issues such as a malfunction or removal of a guard or interlock, should be completely documented in a service report. A copy of the service report should be given to the customer, and another copy retained in the manufacturer’s machine file. A follow-up communication with the customer with an offer to repair the deficiency should be made and documented to the file. That way, should someone later become injured as a result of that deficiency, the manufacturer will have evidence critical to its defense that it undertook reasonable steps to correct the problem. In this context, it is important to remember that a manufacturer cannot force the owner of the machine to take any steps to remedy a problem that did not exist when the machine left the manufacturer’s control. However, that will not stop an injured party from suing the manufacturer. Taking these simple steps will help the manufacturer mount a defense should that happen.
Many of today’s machine manufacturers have older equipment in the field still performing for their customers. The safety features of some of this older equipment may have been eclipsed by advancements in technology and the like. By implementing some simple procedures to keep customers abreast of changes or developments in guarding and safety, and to make those changes available to customers, manufacturers can help to assure that older equipment in the field will continue to serve their customers safely.
