Who decides when a product is not safe enough for the public?

Who decides when a product is not safe enough for the public?

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By Lisa Benedetti

Washington State has strong legal protections for people who are injured by a defective product. The law holds manufacturers responsible when their products are not reasonably safe due to how they were designed or constructed, or because adequate warnings or instructions were not provided. One of the measures of whether a product is not reasonably safe is what’s called the “ordinary user” test – is the product unsafe beyond what would be contemplated by the ordinary user or ordinary consumer?

But who is the “ordinary user” protected by State law? The answer seems simple when talking about a defective product you bought for your own personal use. But what about your neighbor’s lawnmower that had a blade fly off? The bus you boarded that had defective tires? Or the crane towering above you on your commute to work that dropped a load of pipes?

Time and again, manufacturers argue the “ordinary user” protected under Washington law means something narrow, as in only the person or entity that actually purchased the product. The tire manufacturer would argue that a bus fleet operator is sophisticated enough to expect the risk of defective tires. The crane manufacturer would argue that only experts operate cranes, and therefore the product is safe unless a defect is unforeseeable to a crane expert. This is despite common sense dictating that safe tires do not simply explode and safe cranes do not simply fracture. 

In the Ride the Ducks case, the manufacturer (Ride the Ducks International) argued that the “ordinary users” of Duck boats were not the passengers who were injured and killed – those who justify the entire existence and purpose of amphibious tour vehicles – but rather the company that operated the Ducks (Ride the Ducks of Seattle).  Because the Duck operator was “sophisticated,” the manufacturer argued, the axle-fracturing defect was not beyond the operator’s expectations, and the Duck was therefore safe to place on public roadways – despite the fact that the axle fractured mid-tour, causing the Duck to careen across oncoming traffic and collide with a bus on the Aurora Bridge.  

That is not the law in Washington. Just last year, in Rublee v. Carrier Corp., 428 P.3d 1207 (2018), the Washington Supreme Court rejected a “sophisticated purchaser” approach as “inconsistent with Washington law.” In Rublee, the injured person had been exposed to asbestos products from 1966 to 1980 while working as a machinist at Puget Sound Naval Shipyard, including Quigley products called “Insulag” and “Panelag.” In 1968, Pfizer acquired Quigley, and the packaging materials for Insulag and Panelag were reconfigured to include reference to Pfizer. Pfizer argued that they could not be held liable because the actual purchaser of the products – the injured person’s employer – would not have believed that Pfizer (as opposed to Quigley) was the manufacturer of the product, and both the trial court and Court of Appeals agreed.

The Washington Supreme Court soundly rejected this argument and any “sophisticated purchaser” approach to manufacturer liability (outside of the arena of pharmaceuticals or medical devices used or prescribed by doctors):

We have long recognized that consumer protection is the touchstone of Washington’s product liability law. Zamora v. Mobil Oil Corp., 104 Wash.2d 199, 206, 704 P.2d 584 (1985) (describing the “primary policy justification” for extending strict liability to remote sellers as the provision of “ ‘maximum of protection’ ” to consumers). For that reason, the focus of our product liability jurisprudence has always been on the ordinary product consumer. More generally, we do not differentiate between types of users or consumers for purposes of liability. For example, Washington courts have uniformly rejected a sophisticated user defense, under which product distributors are not required to instruct or warn sophisticated users about certain risks because such users are presumably already aware of the risks due to their expertise or sophistication.

….

Pfizer’s sophisticated purchaser/informed user approach to apparent manufacturer liability is inconsistent with our consumer-focused product liability law….

The ordinary user need not have acquired the product directly from the seller, or even have purchased the product at all. The user may be any employee of the purchaser, a member of their family, a guest their table, or the recipient of a gift. The ordinary user includes not just the person or company actively using the product (like Ride the Ducks of Seattle used and operated its Ducks), but also those passively enjoying the benefits of the product (like passengers).

The following are just a few examples of other cases that have applied the “ordinary user” or “ordinary consumer” test, without considering who actually purchased the product or their sophistication:

·         Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989): injured person was exposed to asbestos insulation products during his service in the Navy.

·         Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 971 P.2d 500 (1999): child was injured when he fell from the window of his family’s apartment complex.

·         Bruns v. PACCAR, Inc., 77 Wn. App. 201, 890 P.2d 469 (Div. 1), review denied, 126 Wn.2d 1025 (1995): injured people exposed to chemicals in newly manufactured trucks they were employed to transport to the purchasers of those trucks.

·         Higgins v. Intex Recreation Corp., 123 Wn. App. 821, 99 P.3d 421 (Div. 3 2004): bystander was injured when struck by the purchaser/rider of a snow tube.

None of these cases narrowed the “ordinary user” test to a “sophisticated user” or “actual purchaser” test, and neither did the Court in the Ride the Ducks case.

So who is the “ordinary user”? You are. I am. All of us are. Whether you bought the product or not. Whether you were using it actively, enjoying it passively, or were not even the person using it at all. This test is as straightforward as it sounds.