Issue link: https://read.dmtmag.com/i/279349
I DA U N I V E R S A L M a rc h -A p r i l 2 0 1 4 11 LEGAL LINE Robert W. McIntyre IDA Association Legal Counsel Continued on page 52 I n most of my articles, I try to give a "world view," as befi tting the truly interna- tional membership of the IDA. However, this month in the shadow of ConExpo, where at least half the exhibitors are from outside the United States and here to sell to this market, I am going to address a peculiarly United States problem. Most Americans and any visitors who watch the evening news have certainly seen the bar- rage of sensational commercials by local and national law fi rms telling every "harmed" person on the planet that someone else is responsible for their problems. ese cases are always taken by the lawyers on a pay-if-collected basis, and, therefore, are free for the claiming party. Here in Ohio, the king of these commercials repeats over and over, "You know who I am, and I will make them pay." In the abstract, this is an admirable concept. If someone is hurt or killed, they or their survivors should receive some compensation. However, in most modern societies, that is called medical insurance, disability insurance or life insurance, and it is the party at risk or his/her family that decides how much protection they need and buys the insurance. Unfortunately, most people would prefer to spend their money on other things, especially fun stuff , rather than on insur- ance which protects against what is by defi nition a remote and very unpleasant event: injury or death. The Liable Product For example, take this decision – $5,000 per year for life insurance OR a new kitchen, truck, car, or even funds to pay for unexpected expenses? It's a hard call if noth- ing is wrong today. However, life is never certain and accidents happen. So, if such unpleasant decisions about where to spend money can be put on the back burner, when a catastro- phe does happen, why not blame someone else and get paid that way? e litany is endless: asbes- tos exposure, doctors' mistakes, nursing home mistreatment, auto accidents, accidents at work, and for this article....bad products. In fairness, however, there are some doctors that should be kept away from farm animals, some nursing homes that make prisons seem like the Fairmont Banff , bad or drunk drivers, unnecessarily unsafe workplaces, and indeed, products that are time bombs waiting to go off and hurt inno- cent people. In this context, let's fi rst look at what U.S. law generally provides with regard to the liabil- ity of a manufacturer to an end user of a product that is injured or killed. First, was the harm (injury or death) actually caused by the product? In other words, is there a factual connection between the product, the use and the injury? Some examples are easy: the bucket li cylinder hose exploded, and the hot oil burned the operator; the liner failed, and the generator engine blew, hitting the mechanic with hot metal; the steering gear broke, and the machine overturned down a slope, killing the operator. Others are less simple. What part or assembly failed fi rst to start the domino of failures? Was the part that failed the actual cause, or was it something else? It gets even harder the farther from reality the claim strays: the per- son would not have been hurt if a diff erent design had been used, or the manufacturer changed the design to something safer a num- ber of years later. Or if the opera- tor did cause the accident, the machine or parts could have been diff erent to prevent the operator error and the accident. Adding complication, if a machine, say a vibrating roller Dynapac, is obviously made up of in-house parts and vendor parts, who is responsible if the entire machine does something that injures the operator or a bystander? First, what broke, if anything, and is that the fault of the part supplier or the machine maker, who might have under- specifi ed that part or component to save money? Taking the next step, did the machine manufacturer's engi- neer rely on the vendor's specs to choose the component that failed, or did the manufacturer test the machine independently? When more than one component