WARNING!! — A Post-Sale Duty?

A team of Gentry Locke litigators recently reached a settlement for $8 Million Dollars on behalf of a factory worker who was severely injured when her hair became entangled in the drive shaft and roller of the glue spreading machine she operated. The machine spun her hair around the shaft and roller, ultimately completely scalping her from eyebrows to the back of her neck and from ear to ear. Her life was saved by the Duke Medical Center but her injuries are permanent and debilitating.

The claim we asserted on our client’s behalf was initially focused on the way the machine was designed, manufactured, and shipped by the European manufacturer, and how it was installed at the furniture factory by a U.S. company. We developed evidence to support our contention that the machine was not equipped with appropriate guarding on the roller and the shaft. As we dug deeper into the evidence, we learned that the manufacturer had specified certain wall panels for the machine. Those panels would have been a barrier between the operator and the danger zone. While the manufacturer maintained that the panels were shipped in the same crate with the machine, the installer testified by deposition that the panels were not on the machine or with the machine when it arrived in the U.S and that nothing about the machine or its documentation alerted the installer that the panels were a part of the design. The manufacturer conceded that the panels were not attached to the machine during shipment and its documentation did not clearly confirm that the panels ever made it into the shipping container for the transatlantic voyage. This resulted in the manufacturer and the installer blaming one another for the fact that the machine was commissioned into operation at the furniture factory without these important safety components. Of course, both manufacturer and installer blamed our client for being in the danger zone.

The above description of the case is an interesting fact pattern, but it falls within the typical framework of a commercial product liability case. Manufacturer with the duty to avoid placing an unreasonably dangerous product into the stream of commerce, and the installer with a duty to use reasonable care in the installation and commissioning of the machine. Here’s what made this case different. Just 30 days before our client was injured, a sales representative for the manufacturer visited the plant and the inspected the glue spreader. He concluded that it was in need of replacement and hoped to sell a new machine. During the visit, he took photos of the machine on the factory floor and sent them back to the manufacturer in Europe. Those photos clearly revealed the absence of the wall panels from the location where they were supposed to have been attached to the machine. Yet, no one notified the furniture factory that the machine was not equipped with an essential safety component.

We immediately recognized that this omission could put serious pressure on the manufacturer, and its insurer, to avoid a jury trial if the law of Virginia recognizes a duty to warn after the sale and commissioning of a product. Our research led us to several federal court opinions in Virginia which forecast that the Supreme Court of Virginia would recognize such a duty. Those courts in most cases cited with approval a section of the Restatement of Torts—Product Liability which describes when the duty arises and how a product seller can satisfy its duty to warn. In essence, the duty arises when a seller learns that its product has a dangerous defect, has the ability to inform those who are affected by it, and has reason to believe that without a warning the user of the product will not appreciate the danger and protect herself from harm.

There are many unanswered questions that must be considered by those who would make a claim for failure to warn and those who would need to defend such a claim. Does an unequivocal disclaimer of warranty in connection with the sale defeat a claim for post-sale duty to warn? Does the claim “sound” exclusively in tort or do both contract and tort law principles apply? When does the statute of limitation begin to run? Does the rule differ for commercial versus consumer products?

If the attorneys at Gentry Locke can be of assistance in this developing area of the law, please contact us.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.