Liability Question [OT]
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Posts: 46,084
Good afternoon,
I dont have any stories, but I am finishing up an MBA
and we were required to take a course or two in
business law, and I can say that you as the developer
of *any* product, and potentially others in the
process of taking a product to market, **could** be
held liable under Strict Liability and Product
Liability.
I recommend that you grab a business law text and give
those sections a read. Common sense stuff that any
independent inventor-type person should be aware of,
because it could affect you. I will copy below the
info from that particular chapter, hopefully it can
give you a good overview of what to expect, if it
doesnt paste over well, email me off list and I can
send you the Power Point file. Have a good one.
Ross
***************************************************
from West's Legal Environment of Business by Cross,
Miller, 5th Ed.
Chapter 13
Strict Liability and Product Liability
§1: Strict Liability
Theory of strict liability started with Rylands v.
Fletcher (1868 England).
Defendant’s liability for strict liability is without
regard to: Fault, Foreseeability, Standard of Care or
Causation.
Liability is based on abnormally dangerous activities.
Abnormally
Dangerous Activities
Defendant is strictly liable for an “abnormally
dangerous activity” if:
§ Activity involves serious potential harm;
§ Activity involves high degree of risk that cannot be
made safe; and
§ Activity is not commonly performed in the community
or area.
Wild Animals
Persons who keep wild animals are strictly liable for
injuries caused by the beast.
Persons who keep domestic animals are liable if the
owner knew or should have known that animal was
dangerous.
§2: Product Liability
Product Liability is not a new tort.
Liability can be based on:
§ Negligence;
§ Misrepresentation; or
§ Strict Liability;
§ Warranty Theory.
Product Liability
(Negligence)
Negligence-based product liability is based on a
manufacturer’s breach of the reasonable standard of
care and failing to make a product safe.
Case 13.1: Jarvis v. Ford Motor Co. (2002)
Product Liability
(Negligence)
Manufacturer must exercise “due care” in:
§ Designing products;
§ Manufacturing and Assembling Products;
§ Inspecting and Testing Products; and
§ Placing adequate warning labels.
Product Liability
(Negligence)
Manufacturers who violates state or federal law in the
manufacture or labeling of a product, may be negligent
per se.
No privity of contract required between Plaintiff and
Manufacturer. Liability extends to any person’s
injuries caused by a negligently made (defective)
product.
Product Liability
(Misrepresentation)
Occurs when fraud committed against consumer or user
of product.
Fraud must have been made knowingly or with reckless
disregard for safety.
Plaintiff does not have to show product was defective.
§3: Strict Product Liability
Manufacturers liable without regard to fault based on
public policy:
§ Consumers must be protected from unsafe products;
§ Manufacturers should be liable to any user of the
product;
§ Manufacturers, sellers and distributors can bear the
costs of injuries.
Strict Product Liability
Requirements for strict liability:
§ Product is unreasonably dangerous when sold
Defendant sells the product;
§ Plaintiff injured by use or consumption of product
and defective condition is the proximate cause of
injury.
Case 13.2: Greenman v.Yuba Power Products (1962).
Requirements for
Strict Product Liability
Plaintiff must show product was so “defective” it
was “unreasonably dangerous”:
§ Product must be in defective condition when sold.
§ Defendant is in the business of selling the product.
§ Product must be unreasonably dangerous.
§ Plaintiff must be physically harmed
§ Defective condition must be proximate cause of
injury.
§ Good are in substantially same condition.
Unreasonably Dangerous Products
Plaintiff must only show that the product was so
“defective” as to be “unreasonably dangerous” which
means:
§ Product was dangerous beyond the expectations of the
ordinary consumer, OR
§ A less dangerous alternative was economically
feasible for the manufacturer but the manufacturer
failed to produce it.
Strict Liability: Product Defects
Three types of product defects:
§ Manufacturing defects.
§ Design defects.
§ Warning Defects.
Manufacturing Defects
Occurs when a product “departs from its intended
design even though all possible care was exercised in
the preparation and marketing of the product.”
Design Defects
Occurs when the “foreseeable risks of harm posed by
the product could have been reduced or avoided by the
adoption of a reasonable alternative . . . and the
omission of the alternative design renders the product
not reasonably safe.”
Warning Defects
A product may be defective because of inadequate
warnings or instructions.
Liability based on foreseeability that proper
instructions/labels would have made the product safe
to use.
Case 13.3: Liriano v. Hobart Co. (1999).
Warning Defects
There is no duty to warn about obvious or commonly
known risks.
Seller must also warn about injury due to product
misuse. Key is whether misuse was foreseeable.
Market Share Liability
Theory of liability when multiple Defendants
contributed to manufacture of defective product.
Liability of each Defendant is proportionate to the
share of the market held by each respective Defendant.
§4: Defenses to
Product Liability
Assumption of Risk.
Product Misuse (Plaintiff does not know the product is
dangerous for a particular use).
Contributory/Comparative Negligence.
§ Case 13.4: Smith v. Ingersoll-Rand Co (2000).
Commonly known dangers.
Statutes of Limitation.
Law on the Web
American Law Institute.
Tobacco Product Liability.
Law.com “Products Liability” website.
Legal Research Exercises on the Web.
--- Brian E Boothe <subrian@m...> wrote:
>
> When u develop an entire project around the Basic
> stamp, and possibly
> market it, or resale the device, what kind of
> liability on the developer
>
> Is involved, or any ,,, I'd like to hear stories
> ,,,
>
>
>
>
>
>
> To UNSUBSCRIBE, just send mail to:
> basicstamps-unsubscribe@yahoogroups.com
> from the same email address that you subscribed.
> Text in the Subject and Body of the message will be
> ignored.
>
> Yahoo! Groups Links
>
>
> basicstamps-unsubscribe@yahoogroups.com
>
>
>
>
__________________________________
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New and Improved Yahoo! Mail - 100MB free storage!
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I dont have any stories, but I am finishing up an MBA
and we were required to take a course or two in
business law, and I can say that you as the developer
of *any* product, and potentially others in the
process of taking a product to market, **could** be
held liable under Strict Liability and Product
Liability.
I recommend that you grab a business law text and give
those sections a read. Common sense stuff that any
independent inventor-type person should be aware of,
because it could affect you. I will copy below the
info from that particular chapter, hopefully it can
give you a good overview of what to expect, if it
doesnt paste over well, email me off list and I can
send you the Power Point file. Have a good one.
Ross
***************************************************
from West's Legal Environment of Business by Cross,
Miller, 5th Ed.
Chapter 13
Strict Liability and Product Liability
§1: Strict Liability
Theory of strict liability started with Rylands v.
Fletcher (1868 England).
Defendant’s liability for strict liability is without
regard to: Fault, Foreseeability, Standard of Care or
Causation.
Liability is based on abnormally dangerous activities.
Abnormally
Dangerous Activities
Defendant is strictly liable for an “abnormally
dangerous activity” if:
§ Activity involves serious potential harm;
§ Activity involves high degree of risk that cannot be
made safe; and
§ Activity is not commonly performed in the community
or area.
Wild Animals
Persons who keep wild animals are strictly liable for
injuries caused by the beast.
Persons who keep domestic animals are liable if the
owner knew or should have known that animal was
dangerous.
§2: Product Liability
Product Liability is not a new tort.
Liability can be based on:
§ Negligence;
§ Misrepresentation; or
§ Strict Liability;
§ Warranty Theory.
Product Liability
(Negligence)
Negligence-based product liability is based on a
manufacturer’s breach of the reasonable standard of
care and failing to make a product safe.
Case 13.1: Jarvis v. Ford Motor Co. (2002)
Product Liability
(Negligence)
Manufacturer must exercise “due care” in:
§ Designing products;
§ Manufacturing and Assembling Products;
§ Inspecting and Testing Products; and
§ Placing adequate warning labels.
Product Liability
(Negligence)
Manufacturers who violates state or federal law in the
manufacture or labeling of a product, may be negligent
per se.
No privity of contract required between Plaintiff and
Manufacturer. Liability extends to any person’s
injuries caused by a negligently made (defective)
product.
Product Liability
(Misrepresentation)
Occurs when fraud committed against consumer or user
of product.
Fraud must have been made knowingly or with reckless
disregard for safety.
Plaintiff does not have to show product was defective.
§3: Strict Product Liability
Manufacturers liable without regard to fault based on
public policy:
§ Consumers must be protected from unsafe products;
§ Manufacturers should be liable to any user of the
product;
§ Manufacturers, sellers and distributors can bear the
costs of injuries.
Strict Product Liability
Requirements for strict liability:
§ Product is unreasonably dangerous when sold
Defendant sells the product;
§ Plaintiff injured by use or consumption of product
and defective condition is the proximate cause of
injury.
Case 13.2: Greenman v.Yuba Power Products (1962).
Requirements for
Strict Product Liability
Plaintiff must show product was so “defective” it
was “unreasonably dangerous”:
§ Product must be in defective condition when sold.
§ Defendant is in the business of selling the product.
§ Product must be unreasonably dangerous.
§ Plaintiff must be physically harmed
§ Defective condition must be proximate cause of
injury.
§ Good are in substantially same condition.
Unreasonably Dangerous Products
Plaintiff must only show that the product was so
“defective” as to be “unreasonably dangerous” which
means:
§ Product was dangerous beyond the expectations of the
ordinary consumer, OR
§ A less dangerous alternative was economically
feasible for the manufacturer but the manufacturer
failed to produce it.
Strict Liability: Product Defects
Three types of product defects:
§ Manufacturing defects.
§ Design defects.
§ Warning Defects.
Manufacturing Defects
Occurs when a product “departs from its intended
design even though all possible care was exercised in
the preparation and marketing of the product.”
Design Defects
Occurs when the “foreseeable risks of harm posed by
the product could have been reduced or avoided by the
adoption of a reasonable alternative . . . and the
omission of the alternative design renders the product
not reasonably safe.”
Warning Defects
A product may be defective because of inadequate
warnings or instructions.
Liability based on foreseeability that proper
instructions/labels would have made the product safe
to use.
Case 13.3: Liriano v. Hobart Co. (1999).
Warning Defects
There is no duty to warn about obvious or commonly
known risks.
Seller must also warn about injury due to product
misuse. Key is whether misuse was foreseeable.
Market Share Liability
Theory of liability when multiple Defendants
contributed to manufacture of defective product.
Liability of each Defendant is proportionate to the
share of the market held by each respective Defendant.
§4: Defenses to
Product Liability
Assumption of Risk.
Product Misuse (Plaintiff does not know the product is
dangerous for a particular use).
Contributory/Comparative Negligence.
§ Case 13.4: Smith v. Ingersoll-Rand Co (2000).
Commonly known dangers.
Statutes of Limitation.
Law on the Web
American Law Institute.
Tobacco Product Liability.
Law.com “Products Liability” website.
Legal Research Exercises on the Web.
--- Brian E Boothe <subrian@m...> wrote:
>
> When u develop an entire project around the Basic
> stamp, and possibly
> market it, or resale the device, what kind of
> liability on the developer
>
> Is involved, or any ,,, I'd like to hear stories
> ,,,
>
>
>
>
>
>
> To UNSUBSCRIBE, just send mail to:
> basicstamps-unsubscribe@yahoogroups.com
> from the same email address that you subscribed.
> Text in the Subject and Body of the message will be
> ignored.
>
> Yahoo! Groups Links
>
>
> basicstamps-unsubscribe@yahoogroups.com
>
>
>
>
__________________________________
Do you Yahoo!?
New and Improved Yahoo! Mail - 100MB free storage!
http://promotions.yahoo.com/new_mail
Comments
(If you don't know what that means, quit reading right now.)
But, I know some lawyers, and we talk about this kind of stuff.
I think that Klutch is unduly alarmist. And, as he said, he's not a
lawyer.
First, very few small developers make things that could hurt people in
normal usage.
Second, the laws for any device that includes computer software are
different than what he cites. The controlling document is usually the
license agreement. In the license agreement, the developer normally
disclaims ALL liability. In some states (MD, VA), these clauses are in
accordance with state laws, so you're probably off the hook. In other
states, those clauses are not in accordance with state law, so you may
have a problem if your device hurts someone. Or not. It all depends.
Third, this is the good old US of A. Anyone can sue anyone for
anything. Whether they win or not is often just a crapshoot. Small
developers lose just by getting sued, because the defense costs are so
high. The only way to avoid this is to not play the game. You can't
protect yourself completely. Either you play the odds and do the best
job you can and hope, or you don't play the game. Just like sitting
down at the blackjack table. Or driving on the highway.
Anyway, since Klutch is NAL,and IANAL, you should probably pay no
attention to either one of us.
Pat
On Thursday, July 8, 2004, at 12:54 PM, Klutch wrote:
> Good afternoon,
> I dont have any stories, but I am finishing up an MBA
> and we were required to take a course or two in
> business law, and I can say that you as the developer
> of *any* product, and potentially others in the
> process of taking a product to market, **could** be
> held liable under Strict Liability and Product
> Liability.
<snip>
I dont at all feel that I am being unduly alarmist,
rather a realist. Granted, I am not a lawyer (IANAL),
however I am an engineer/MBA and like many on this
list I am a part time inventor/widget maker. I also
have several attempted patents, so this particular
topic I am more familiar with than most perhaps.
It was not my intention to doomsay, but to inform of a
very real risk. The size of that risk of course
depends on the nature of the "product".
The original post described an entire "product" built
around the Stamp, which likely could include
interfacing to real world devices (pneumatics, saws,
high voltage switches, power supplies, motors, etc)
which could potentially harm. So I feel your
statments that "very few small developers make things
that could hurt people in normal usage" and "the
developer normally disclaims ALL liability" are vast
overstaments. At any rate, your Blackjack analogy is
bang on.
Oh well, just my thoughts so enough from me on this
issue. Back to Stamping, got my first BS2P the other
day and I am anxious to test drive it!!!!! Have a
great day!!
Ross
--- Pat McGee <jpmcgee@c...> wrote:
> IANAL
>
> (If you don't know what that means, quit reading
> right now.)
>
>
> But, I know some lawyers, and we talk about this
> kind of stuff.
>
> I think that Klutch is unduly alarmist. And, as he
> said, he's not a
> lawyer.
>
> First, very few small developers make things that
> could hurt people in
> normal usage.
>
> Second, the laws for any device that includes
> computer software are
> different than what he cites. The controlling
> document is usually the
> license agreement. In the license agreement, the
> developer normally
> disclaims ALL liability. In some states (MD, VA),
> these clauses are in
> accordance with state laws, so you're probably off
> the hook. In other
> states, those clauses are not in accordance with
> state law, so you may
> have a problem if your device hurts someone. Or not.
> It all depends.
>
> Third, this is the good old US of A. Anyone can sue
> anyone for
> anything. Whether they win or not is often just a
> crapshoot. Small
> developers lose just by getting sued, because the
> defense costs are so
> high. The only way to avoid this is to not play the
> game. You can't
> protect yourself completely. Either you play the
> odds and do the best
> job you can and hope, or you don't play the game.
> Just like sitting
> down at the blackjack table. Or driving on the
> highway.
>
>
> Anyway, since Klutch is NAL,and IANAL, you should
> probably pay no
> attention to either one of us.
>
> Pat
>
>
> On Thursday, July 8, 2004, at 12:54 PM, Klutch
> wrote:
>
> > Good afternoon,
> > I dont have any stories, but I am finishing up an
> MBA
> > and we were required to take a course or two in
> > business law, and I can say that you as the
> developer
> > of *any* product, and potentially others in the
> > process of taking a product to market, **could**
> be
> > held liable under Strict Liability and Product
> > Liability.
> <snip>
>
>
>
>
> To UNSUBSCRIBE, just send mail to:
> basicstamps-unsubscribe@yahoogroups.com
> from the same email address that you subscribed.
> Text in the Subject and Body of the message will be
> ignored.
>
> Yahoo! Groups Links
>
>
> basicstamps-unsubscribe@yahoogroups.com
>
>
>
>
__________________________________
Do you Yahoo!?
New and Improved Yahoo! Mail - 100MB free storage!
http://promotions.yahoo.com/new_mail
OK, IANAL either, but as my L told me, if my small company is sued, it
is better that I don't lose my house. That is one good thing about
insurance.
Dennis
Original Message
From: Pat McGee [noparse]/noparse]mailto:[url=http://forums.parallaxinc.com/group/basicstamps/post?postID=wCTz9JAuTZ0dt3rPZo25GPSdsgCk23AFeMuJX0yNDfkGc7SqpWhE1sfawYtcSzhmYvdZwGxVXuZI]jpmcgee@c...[/url
Sent: Thursday, July 08, 2004 11:52 AM
To: basicstamps@yahoogroups.com
Subject: Re: [noparse][[/noparse]basicstamps] Liability Question [noparse][[/noparse]OT]
IANAL
(If you don't know what that means, quit reading right now.)
But, I know some lawyers, and we talk about this kind of stuff.
I think that Klutch is unduly alarmist. And, as he said, he's not a
lawyer.
First, very few small developers make things that could hurt people in
normal usage.
Second, the laws for any device that includes computer software are
different than what he cites. The controlling document is usually the
license agreement. In the license agreement, the developer normally
disclaims ALL liability. In some states (MD, VA), these clauses are in
accordance with state laws, so you're probably off the hook. In other
states, those clauses are not in accordance with state law, so you may
have a problem if your device hurts someone. Or not. It all depends.
Third, this is the good old US of A. Anyone can sue anyone for
anything. Whether they win or not is often just a crapshoot. Small
developers lose just by getting sued, because the defense costs are so
high. The only way to avoid this is to not play the game. You can't
protect yourself completely. Either you play the odds and do the best
job you can and hope, or you don't play the game. Just like sitting
down at the blackjack table. Or driving on the highway.
Anyway, since Klutch is NAL,and IANAL, you should probably pay no
attention to either one of us.
Pat
On Thursday, July 8, 2004, at 12:54 PM, Klutch wrote:
> Good afternoon,
> I dont have any stories, but I am finishing up an MBA
> and we were required to take a course or two in
> business law, and I can say that you as the developer
> of *any* product, and potentially others in the
> process of taking a product to market, **could** be
> held liable under Strict Liability and Product
> Liability.
<snip>
To UNSUBSCRIBE, just send mail to:
basicstamps-unsubscribe@yahoogroups.com
from the same email address that you subscribed. Text in the Subject
and Body of the message will be ignored.
Yahoo! Groups Links