Is Safety Equipment Ever Optional?
Kenneth Ross, one of the more discerning authors
in the product liability defense bar, has authored a thoughtful piece titled, Is There Anything Optional About Safety? in the August '09 DRI Product Liability Committee Newsletter--"Strictly Speaking". As manufacturers design new products and update the design of old products, many times they sell and offer for sale differing levels of safety and quality. Ken's article explores the legal and practical risks in selling products with these differences and provides advice to manufacturers about minimizing risk. As one law professor notes, the case law is "muddled and quite sparse". There are cases on both sides--those that hold that safety devices can be optional and those that hold that not installing a safety device establishes a basis for liability. Ken discusses several important considerations that should be weighed in performing this delicate balancing act.
product innovation. Mr. Crovitz compares the American legal culture behind the Court's decision to the Luddites that smashed mechanized looms in England at the beginning of the Industrial Age in 19th century England. He also suggests that the decision's logic may lead product manufacturers to "carry 50 different warnings, one for each state, updated by local juries from time to time." Despite his misgivings about the decision, it is not likely that any product manufacturers, drug makers or otherwise, are likely to start tailoring their warning on a state by state basis. As a practical matter, products are sold nationally, often through distributors, and it would be virtually impossible to ensure that product warnings for Texas purchasers ended up in Texas and that product warnings intended for California purchasers ended up in California. Moreover, from a jury standpoint, nothing would please a plaintiff's lawyer more than to be able to argue that the manufacturer provided a less strict warning for the product in the jurisdiction where his client's accident occurred. 