Product Liability Question

[seaseadee]

I was reading the Scubapro computer thread and I thought of something that may be best asked in a separate thread.
Imagine you work for the service department of a manufacturer of Scuba Equipment. A customer sends you a piece of equipment that she purchased used from another owner and the item is a few years out of Warranty.
You discover that the item is unfixable, but is dangerous if used. Do you have a liability if the product is shipped back to the user with the clear explanation that is dangerous to use, but they use it anyway and get hurt? Perhaps a personal injury attorney can tell us what they think?

 

[Wookie]

The option would be, What? Confiscate their property? You already said it was unfixable. Personal injury attorneys would say anything to get 30% of something that has insurance. And anyone can sue anyone else for damn near anything.

 

[seaseadee]

I suppose the better question would be: "if I am sued, do I have a better than reasonable chance of winning"

 

[Wookie]

I suppose the better question would be: "if I am sued, do I have a better than reasonable chance of winning"

And that goes back to whether you have great insurance or poor insurance, and if your insurance company believes you can win or whether you should settle, and if the plaintiff will be satisfied with what your insurance company throws at them.

That's why we pay such ungodly insurance rates.

 

[H2Andy]

the item is out of warranty.

you return it with a letter stating that fact, and that the item can not be used as it is inoperable.

there's no contractual (warranty) or negligence (tort) claim that can survive those facts

however, they can still file suit, so like everybody else said, you need to pass the problem over to your insurance company to defend

 

[cool_hardware52]

the item is out of warranty.

you return it with a letter stating that fact, and that the item can not be used as it is inoperable.

there's no contractual (warranty) or negligence (tort) claim that can survive those facts

however, they can still file suit, so like everybody else said, you need to pass the problem over to your insurance company to defend

Tell that to the manufacturer of general aviation aircraft. OEMs have been found liable for aircraft built 30-40 years ago, crashed, rebuilt multiple times by various A&P's……...

This problem was / is so severe that specific legislation has been introduced to limit the liability of the OEM aircraft manufacturers. https://en.wikipedia.org/wiki/General_Aviation_Revitalization_Act

Tobin

 

[H2Andy]

um, that's a statute of repose issue. we're talking about warranties

(think strict liability vs. warranty/negligence)

 

[cool_hardware52]

um, that's a statute of repose issue. we're talking about warranties

(think strict liability vs. warranty/negligence)

Would you expect a 30 + year old aircraft to be still be under warranty?

Tobin

 

[SFLScubapro]

I suppose the better question would be: "if I am sued, do I have a better than reasonable chance of winning"

This is not to be construed as legal advice:
Fl law: In this state, anyone can sue for any reason... simple: It does not matter the "chance" of winning. In Fl, most of these types of cases settle long before anyone "proves anything." We also have a concept of contributory negligence, meaning who contributed how much to the injury. It was disclosed it was unfixable... it does not stop the suit or cost of defense. Thus, there will be a suit and hopefully, you have coverage for it. Worse, you don't have a choice: You must return the item or it could be construed as civil theft or conversion. If I was doing this: I'd use a BRIGHT RED font, with REALLY BIG LETTERS: DESTROY THIS ITEM: Do not under any circumstances dive with it. YOU COULD DIE. Of course, some idiot will still use it... and likely without any training too! The defense counsel might prepare a Fl. Stat. 57.105 notice (no valid cause of action), but it would likely still be settled at mediation. It's not worth the risk of a trial (just in case).

 

[H2Andy]

Would you expect a 30 + year old aircraft to be still be under warranty?

Tobin

depends on the terms of the express or implied warranties at issue, but probably not.

however, strict liability would still apply under common law, which is why GARA capped liability at 18 years for small aircraft manufacturers (this happened in the early 1990's)

scuba equipment doesn't get used for nearly as long as GA planes, and accidents are much rarer, so strict liability has not been much of an issue. also, generally speaking, for strict liability to apply the item has to be used "without substantial change" and if it is clearly broken and the manufacturer refuses to fix it (as in the scenario here) the item has clearly "substantially changed" as in that it no longer works.

of course, they could still be sued, so they need to be able to pass the cost of defending the suit to an insurer.