ExpertLaw.com Forums

When Is A Wholesaler or Retailer Liable For A Defective Product

Printable View

  • 01-21-2007, 11:55 AM
    Learning
    When Is A Wholesaler or Retailer Liable For A Defective Product
    First off, I am 15-years-old & currently interested in pursuing a career in law. Yesterday, I found a website within the Cornell Law School database dealing with legal information (the website is called LII / Legal Information Institute). Not knowing where to get started, I clicked the Accidents & Injuries link which directed me to 5 articles pertaining to accidents & injuries. As I read through the articles, I came across the product liability law. Through my reading, I found that the liability for the damage caused by a product spreads through all parties along the chain of manufacture. Including the manufacturer of component parts, the assembling manufacturer, the wholesaler, & the retail store owner. Now, while I understand how the manufacturer of component parts & the assembling manufacturer could be held liable for any damages caused by a product, I am not understanding in what circumstances the wholesaler or the retail store owner would be held liable. Granted, I realize that there are three types of product defects that would constitute liability in both manufacturers & suppliers (design defects, manufacturing defects, & defects in marketing), the only defect I see would relate toward the wholesaler or retail store owner would be the defect in marketing. & this is where I lose my understanding of the product liability law.

    So, what I am asking is if someone can list circumstances in which the wholesaler and/or the retail store owner would be held reliable for damages caused by a product? & it would be appreciated if there was some sort of in-depth explanation for the circumstance(s) listed. Thanks in advance.
  • 01-21-2007, 12:38 PM
    deadlock
    Re: In what cirumstances?
    Quote:

    Quoting Learning
    View Post
    First off, I am 15-years-old & currently interested in pursuing a career in law. Yesterday, I found a website within the Cornell Law School database dealing with legal information (the website is called LII / Legal Information Institute). Not knowing where to get started, I clicked the Accidents & Injuries link which directed me to 5 articles pertaining to accidents & injuries. As I read through the articles, I came across the product liability law. Through my reading, I found that the liability for the damage caused by a product spreads through all parties along the chain of manufacture. Including the manufacturer of component parts, the assembling manufacturer, the wholesaler, & the retail store owner. Now, while I understand how the manufacturer of component parts & the assembling manufacturer could be held liable for any damages caused by a product, I am not understanding in what circumstances the wholesaler or the retail store owner would be held liable. Granted, I realize that there are three types of product defects that would constitute liability in both manufacturers & suppliers (design defects, manufacturing defects, & defects in marketing), the only defect I see would relate toward the wholesaler or retail store owner would be the defect in marketing. & this is where I lose my understanding of the product liability law.

    So, what I am asking is if someone can list circumstances in which the wholesaler and/or the retail store owner would be held reliable for damages caused by a product? & it would be appreciated if there was some sort of in-depth explanation for the circumstance(s) listed. Thanks in advance.

    15 years old and studying law- good for you. It is difficult enough for me to understand then try to figure out how it is applicable, too.

    It is about spreading risk; burden of proof (who knows what & when); in order to identify who has the liability and how much (suing for damages).

    So here is a case on the web that might be helpful to start reading about application to situations:
    http://lawprofessors.typepad.com/med...ct_court_.html
    Once you start reading you get more information to try to figure out. There is also Law Articles link on the bottom of this page.

    It can become addictive, so beware. Good luck.
  • 01-21-2007, 02:12 PM
    Learning
    Re: In what cirumstances?
    Although the article breaks down why the products liability claim was dismissed, I am going to type out a summary so as to assure that I am understanding the article & its contents in their entirety, & throughout, I will ask questions as they arise.

    Jody Gorran, the plaintiff, made the claim that his use of the Atkins Diet was synonymous with the health problems he experienced after just two months on the diet. In particular, a rise in cholesterol, severe chest pains, & an eventual angioplasty¹. Suing for products liability, negligent misrepresentation, & deceptive conduct under Florida law, Gorran claimed the diet is dangerous because it calls for a high-fat, high-protein, low-carbohydrate diet, increasing the risks of coronary heart disease, diabetes, stroke, & certain types of cancer. Further making the claim that the books, food products & nutritional supplements are defective & unreasonably dangerous. Now, as I understand it, if this claim were to have passed, the spreading of risk would have been spread through the entire manufacturing chain, granted each party knew of its defects, correct? Although, the amount of liability would most likely be less severe as you went down the chain. Nevertheless, the defendants after reviewing the claim asked the judge to dismiss in accordance to Rule 12(c) of the FRCP². Following this dismissal, the defendant's found that the plaintiff's books & food products are not defective or dangerous products, thus irrelevant within the meaning of products liability law. The Atkin Diet calls for the consumption of pastrami & cheesecake, which Gorran admitted to consuming large amounts of. & while the consumption of pastrami & cheesecake in mass will undeniably present risks, they are risks the consumer is aware of, or should be aware of. This is where I found the claim ironic. As Gorran was suing for negligent misrepresentation, he himself was establishing negligent acts, failing to exercise the care a reasonable, prudent person would exercise under the same circumstances. Further yet, the book contains not only a disclaimer on its copyright page stating that the book is not intended to substitute the advice & counsel of a dietary physician, Gorran failed to present facts that would conclude that the food products sold by the defendants were defective as defined by the products liability law. Additionally, the products the plaintiff had consumed &/or bought were not in an altered condition otherwise anticipated by the average consumer, as the average consumer would most likely anticipate the high-fat, high-protein diet would inflate the chances of high cholesterol & the risk of heart disease, as it is what I would believe to be common sense. This next part is what I found the most interesting. The article states that Gorran's claim was deficient to the extent that although the book's tangible qualities would give rise to a products liability action (which I understand, as in my previous post I stated I understood the three areas of defect, design being one of them), the book's intangibles (its ideas & expressions) are not relevant to products as defined by the products liability law.

    Under Florida law, a plaintiff must allege that:
    • The defendant made a misrepresentation of material fact.
    • The defendant was negligent in making the statement because he should have known the representation was false.
    • The defendant intended to induce the plaintiff to rely on the misrepresentation.
    • Injury resulted to the plaintiff by his justifiable reliance on the misrepresentation.

    Gorran claimed the defendants misrepresented the risks of the diet, which I found interesting, as there was already proof that the book contained a disclaimer & that the risks are easily anticipated by average consumers. Further, Gorran claimed the book & website served as advertisements, where I believe the claim would give rise to a defect in marketing, although apparently overlooked by Gorran, & either way the book was found to be noncommercial speech³, rather than an advertisement; a guide rather, to leading a controlled carbohydrate lifestyle, & that the website was purely opinion. Also, the website contains information on how to follow the diet and recommendations for optimizing health and nutrition, thusly negating the defendants misrepresented the risks of the diet, as the information surely was written with the risks in mind, lenient on the idea that with the recommendations, the risks would be lessened. With all this in mind, the plaintiff's claim was dismissed, & the defendant's motions on the pleading was granted. Now, @ the end of the article, it states that the claim was dismissed in its entirety, with prejudice and costs but without fees. The italicized text is what I am not understanding, so would someone please clear this up for me. Conclusively, I find that the plaintiff was bound to fail from the get go. Certainly after reviewing the claims & the information given from both parties.


    ¹I Googled this term & found that an angioplasty was a surgical procedure in which a balloon-tipped catheter (thin tube) is inserted into a diseased, narrowed blood vessel; inflation of balloon stretches vessel opening, improving blood flow through it.

    ²Again, I Googled this phrase & found that the dismissal was called in order for both parties to collect materials relevant to the the motion.

    ³I was not able to find the meaning of this term. So, it would be appreciated if someone could define it for me.
  • 01-21-2007, 03:35 PM
    deadlock
    When did 15 year olds get so smart!!!
    Quote:

    Quoting Learning
    View Post
    Although the article breaks down why the products liability claim was dismissed, I am going to type out a summary so as to assure that I am understanding the article & its contents in their entirety, & throughout, I will ask questions as they arise.

    Jody Gorran, the plaintiff, made the claim that his use of the Atkins Diet was synonymous with the health problems he experienced after just two months on the diet. In particular, a rise in cholesterol, severe chest pains, & an eventual angioplasty¹. Suing for products liability, negligent misrepresentation, & deceptive conduct under Florida law, Gorran claimed the diet is dangerous because it calls for a high-fat, high-protein, low-carbohydrate diet, increasing the risks of coronary heart disease, diabetes, stroke, & certain types of cancer. Further making the claim that the books, food products & nutritional supplements are defective & unreasonably dangerous. Now, as I understand it, if this claim were to have passed, the spreading of risk would have been spread through the entire manufacturing chain, granted each party knew of its defects, correct? Although, the amount of liability would most likely be less severe as you went down the chain. Nevertheless, the defendants after reviewing the claim asked the judge to dismiss in accordance to Rule 12(c) of the FRCP². Following this dismissal, the defendant's found that the plaintiff's books & food products are not defective or dangerous products, thus irrelevant within the meaning of products liability law. The Atkin Diet calls for the consumption of pastrami & cheesecake, which Gorran admitted to consuming large amounts of. & while the consumption of pastrami & cheesecake in mass will undeniably present risks, they are risks the consumer is aware of, or should be aware of. This is where I found the claim ironic. As Gorran was suing for negligent misrepresentation, he himself was establishing negligent acts, failing to exercise the care a reasonable, prudent person would exercise under the same circumstances. Further yet, the book contains not only a disclaimer on its copyright page stating that the book is not intended to substitute the advice & counsel of a dietary physician, Gorran failed to present facts that would conclude that the food products sold by the defendants were defective as defined by the products liability law. Additionally, the products the plaintiff had consumed &/or bought were not in an altered condition otherwise anticipated by the average consumer, as the average consumer would most likely anticipate the high-fat, high-protein diet would inflate the chances of high cholesterol & the risk of heart disease, as it is what I would believe to be common sense. This next part is what I found the most interesting. The article states that Gorran's claim was deficient to the extent that although the book's tangible qualities would give rise to a products liability action (which I understand, as in my previous post I stated I understood the three areas of defect, design being one of them), the book's intangibles (its ideas & expressions) are not relevant to products as defined by the products liability law.

    Under Florida law, a plaintiff must allege that:
    • The defendant made a misrepresentation of material fact.
    • The defendant was negligent in making the statement because he should have known the representation was false.
    • The defendant intended to induce the plaintiff to rely on the misrepresentation.
    • Injury resulted to the plaintiff by his justifiable reliance on the misrepresentation.

    Gorran claimed the defendants misrepresented the risks of the diet, which I found interesting, as there was already proof that the book contained a disclaimer & that the risks are easily anticipated by average consumers. Further, Gorran claimed the book & website served as advertisements, where I believe the claim would give rise to a defect in marketing, although apparently overlooked by Gorran, & either way the book was found to be noncommercial speech³, rather than an advertisement; a guide rather, to leading a controlled carbohydrate lifestyle, & that the website was purely opinion. Also, the website contains information on how to follow the diet and recommendations for optimizing health and nutrition, thusly negating the defendants misrepresented the risks of the diet, as the information surely was written with the risks in mind, lenient on the idea that with the recommendations, the risks would be lessened. With all this in mind, the plaintiff's claim was dismissed, & the defendant's motions on the pleading was granted. Now, @ the end of the article, it states that the claim was dismissed in its entirety, with prejudice and costs but without fees. The italicized text is what I am not understanding, so would someone please clear this up for me. Conclusively, I find that the plaintiff was bound to fail from the get go. Certainly after reviewing the claims & the information given from both parties.


    ¹I Googled this term & found that an angioplasty was a surgical procedure in which a balloon-tipped catheter (thin tube) is inserted into a diseased, narrowed blood vessel; inflation of balloon stretches vessel opening, improving blood flow through it.

    ²Again, I Googled this phrase & found that the dismissal was called in order for both parties to collect materials relevant to the the motion.

    ³I was not able to find the meaning of this term. So, it would be appreciated if someone could define it for me.


    Very Good.

    Commercial speech is about our first amendment right that has been debated and the Supreme Court has given some room to interpret it's meaning.
    This is complex so take some time with it.
    http://www.abuse.net/commercial.html

    Basically, (in terms of the issue of Adkins tort by Gorran) the court decided that his statements in his book, about a diet with low carbs and low fat could improve someone's heart condition, including lowering cholesterol, giving them more energy, improve depression, on and on.

    The claim against Adkins was that if you buy his products, because of what he promises in his book, you will acheive the results of improved cardiovascular health. Gorram said it is not true, and the information in his books then is false (the books are a misrepresentation of fact).

    The plaintiff has the burden of proof according to Florida law, as you listed. Do you see how he couldn't prove his case?

    Look at the information about commercial speech.

    Then take the case and consider applying those principles to a distributor of Adkins books and products; then to the store where they are sold.
  • 01-22-2007, 06:45 PM
    Learning
    Re: In what cirumstances?
    As I read the article you linked me to, I summarized what I was reading and/or jotted down notes & questions as they came to me. The following is what I had written down.

    To begin, the governmental regulations pertaining to commercial speech may either have an indirect relation to freedom of expression, or may impose on that freedom, although the initial purpose of the particular regulation is to not affect the content of the message.

    The Court's treatment of "commercial speech" has undergone various alterations, spanning from absolute non-protection under the First Amendment to qualified protection. Expression proposing a commercial transaction is a different order of speech and was arrived at in Valentine v. Chrestensen¹, in which the court upheld a city ordinance prohibiting the distribution of "commercial & business adverstising matter" on the street, applying to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city's refusal of certain docking facilities. The doctrine (which I initially believed was referring to the leaflets) was in any event limited to promotion of commercial activities; regardless if the expression was spread for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free.

    Admittedly, I was unaware of the definition of doctrine, so naturally I looked it up & found that it was a body of principles presented for acceptance or belief, as by a religious, political, or philosophic group or a statement of official government policy, especially in foreign affairs. Derived from the Latin word, doctrīna. & even through this definition, I was unable to decide whether or not the term "doctrine" was referring to the leaflets, as they expressed a body of principles presented for acceptance, at least on one side (the protesting of the city's refusal of certain docking facilities), or whether it was referring to a statement of official government policy. Taking into consideration the context of the entire article, I am going to lean more toward doctrine referring to a statement of official government policy, but apparently it's flown over my head. Also, in the article, I came along the word disseminated, which I found the definition to be to spread or to become spread; diffuse. Derived from the Latin word, dissēmināre.

    Anyways, commercial speech is protected from unwarranted governmental regulation, although the nature of commercial speech makes such communication subject to greater limitations than can be imposed on expression not solely related to the economic interests of the speaker and its audience; in other words, non-commercial speech. Sustaining the application of a city's ban on employment discrimination to bar sex-designated employment advertising in newspapers, Justice Powell found the process of placing want-ads in newspapers to be examples of commercial speech, lacking expression of opinion with respect to issues of social policy; stating the ad was nothing more than a proposal for a commercial transaction, but that the facilitating of employment discrimination via newspaper want-ads was in itself illegal. The Court then overturned a conviction making it illegal, by sale of circulation of any publication encouraging or prompting the obtaining of an abortion, initially being applied toward an editor of a weekly newspaper who published advertisements drawing attention to the obtaining of a legal and safe abortion in another state, detailing the assistance provided to State residents who were intending to go an obtain an abortion in the other state. The Court ruled that the advertisements conveyed information of other than purely commercial nature, stating that they related to services being offered legally in another jurisdiction, and that the State could not prevent its residents from obtaining abortions in the other state, nevertheless punish them for doing so.

    From this, I found that if an advertisement extends the boundaries of strictly commercial nature, conveying information exceeding speech primarily intended to attract business, then the advertisement is protected from "unwarranted governmental regulation." On the article, which I had printed out, I had circled commercial speech, as a reminder to look up it's definition. & prior to beginning this post, I looked it up & found that the conclusion I came to from the first 3 paragraphs was not far off from the actual definition, which I found to be defined as an expression related solely to the economic interest of the speaker and the speaker's audience; a speech done on behalf of a company or individual for the intent of making a profit. Usually having the intent of convincing the audience to partake in a particular action, often purchasing a specific product.

    I intend on attempting to decipher the rest of the article tonight, or until I finally grasp the entire concept. Until then, any help clarifying what I've written up is appreciated. I enjoy the challenge, so please do not give too much away. Oh yeah, & I intend on researching the Valentine v. Chrestensen case, which is why I had it footnoted, so once I read about it, I'll make sure to make a post about what I found. & after I grasp the concept of commerical speech, I will apply it to the Atkins case.
  • 01-22-2007, 07:03 PM
    deadlock
    Re: In what cirumstances?
    Quote:

    Quoting Learning
    View Post
    As I read the article you linked me to, I summarized what I was reading and/or jotted down notes & questions as they came to me. The following is what I had written down.

    To begin, the governmental regulations pertaining to commercial speech may either have an indirect relation to freedom of expression, or may impose on that freedom, although the initial purpose of the particular regulation is to not affect the content of the message.

    The Court's treatment of "commercial speech" has undergone various alterations, spanning from absolute non-protection under the First Amendment to qualified protection. Expression proposing a commercial transaction is a different order of speech and was arrived at in Valentine v. Chrestensen¹, in which the court upheld a city ordinance prohibiting the distribution of "commercial & business adverstising matter" on the street, applying to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city's refusal of certain docking facilities. The doctrine (which I initially believed was referring to the leaflets) was in any event limited to promotion of commercial activities; regardless if the expression was spread for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free.

    Admittedly, I was unaware of the definition of doctrine, so naturally I looked it up & found that it was a body of principles presented for acceptance or belief, as by a religious, political, or philosophic group or a statement of official government policy, especially in foreign affairs. Derived from the Latin word, doctr?na. & even through this definition, I was unable to decide whether or not the term "doctrine" was referring to the leaflets, as they expressed a body of principles presented for acceptance, at least on one side (the protesting of the city's refusal of certain docking facilities), or whether it was referring to a statement of official government policy. Taking into consideration the context of the entire article, I am going to lean more toward doctrine referring to a statement of official government policy, but apparently it's flown over my head. Also, in the article, I came along the word disseminated, which I found the definition to be to spread or to become spread; diffuse. Derived from the Latin word, diss?min?re.

    Anyways, commercial speech is protected from unwarranted governmental regulation, although the nature of commercial speech makes such communication subject to greater limitations than can be imposed on expression not solely related to the economic interests of the speaker and its audience; in other words, non-commercial speech. Sustaining the application of a city's ban on employment discrimination to bar sex-designated employment advertising in newspapers, Justice Powell found the process of placing want-ads in newspapers to be examples of commercial speech, lacking expression of opinion with respect to issues of social policy; stating the ad was nothing more than a proposal for a commercial transaction, but that the facilitating of employment discrimination via newspaper want-ads was in itself illegal. The Court then overturned a conviction making it illegal, by sale of circulation of any publication encouraging or prompting the obtaining of an abortion, initially being applied toward an editor of a weekly newspaper who published advertisements drawing attention to the obtaining of a legal and safe abortion in another state, detailing the assistance provided to State residents who were intending to go an obtain an abortion in the other state. The Court ruled that the advertisements conveyed information of other than purely commercial nature, stating that they related to services being offered legally in another jurisdiction, and that the State could not prevent its residents from obtaining abortions in the other state, nevertheless punish them for doing so.

    From this, I found that if an advertisement extends the boundaries of strictly commercial nature, conveying information exceeding speech primarily intended to attract business, then the advertisement is protected from "unwarranted governmental regulation." On the article, which I had printed out, I had circled commercial speech, as a reminder to look up it's definition. & prior to beginning this post, I looked it up & found that the conclusion I came to from the first 3 paragraphs was not far off from the actual definition, which I found to be defined as an expression related solely to the economic interest of the speaker and the speaker's audience; a speech done on behalf of a company or individual for the intent of making a profit. Usually having the intent of convincing the audience to partake in a particular action, often purchasing a specific product.

    I intend on attempting to decipher the rest of the article tonight, or until I finally grasp the entire concept. Until then, any help clarifying what I've written up is appreciated. I enjoy the challenge, so please do not give too much away. Oh yeah, & I intend on researching the Valentine v. Chrestensen case, which is why I had it footnoted, so once I read about it, I'll make sure to make a post about what I found. & after I grasp the concept of commerical speech, I will apply it to the Atkins case.

    Sounds like you're doing a good job and learning. So when you are satisfied that you understand why Adkins book was considered freedom of speech as commercial speech, try same principles to an advertisement agency or distributor and then the store where one could puchase the products.
  • 01-26-2007, 08:47 PM
    Learning
    Re: In what cirumstances?
    I apologize for not updating. Admittedly, I've become side-tracked. I recently checked out two books I believed to be vital to establishing a solid knowledge base to develop a better understanding of constitutional law. These books both deal with the constitution, it's development, & the ideas/ideals expressed within. The first, which I am currently reading is Mortimer J. Adler's We Hold These Truths, which discusses the ideas & ideals of the constitution, & the other, which I hope to conquer (I say conquer 'cause the book is around 531 pages) is a production of Harold M. Hyman & William H. Wiecek entitled Equal Justice Under Law, which discusses the development of the constitution from 1835 through 1875. While neither deal w/ what I originally made a post about, I have however printed out both the Valentine v. Chrestensen case as well as the 44 Liquormart v. Rhose Island, both which I am sure you are aware deal w/ defining commercial speech & establishing regulations toward speech, both commercial & otherwise. Along w/ this, I have printed out the First & Fourteenth Amendment, both I believe to be vital to fully comprehending the cases in their entirety.

    Now, to show that I have extracted some knowledge from what has side-tracked me, I will summarize what I have read so far in We Hold These Truths, & while this may not peak the interest of anyone other than myself, this will help establish to myself that I have, indeed, learned a thing or two. First off, Adler established that in theory, the United States of American should have experienced two bicentennials in 1987. One bicentennial celebrating the announcement of the Declaration of Independence, as @ the time the closing paragraph of the Declaration of Independence did not represent a single nation which could be considered the "United States of America" as so stated within the paragraph, but rather 13 sovereign states, representing unity in only their resolution to fight for their independence, but otherwise not united in any other way. The second bicentennial, which would/should have been celebrated in 1989 would have been the birth of a new nation, rather than the conception, which was so established with the Declaration of Independence in 1787, as it wasn't until 1789 that the new nation could be referred to as the United States of America.

    The above is summary of just one of the key points of the first chapter. & rather than writing a 3-page report on what I've read thus far, I will leave it @ that, & if by chance you've read the book, you may ask questions so as to help me further comprehend what is being read.
  • 02-02-2007, 11:38 PM
    deadlock
    Re: In what cirumstances?
    Are we still moving in this direction?

    "circumstances in which the wholesaler and/or the retail store owner would be held reliable for damages caused by a product? .. some sort of in-depth explanation for the circumstance(s) listed"

    What did you think about 1st Amendment Speech and commercial speech as it applies to Adkins book and the implication of buying his products to achieve what he discussed in the book?

    Can you see Adkin's product becomes marketed and distributed by another entity that will profit by the sale of his books and his products?

    Check out Products Liability Law
    http://www.expertlaw.com/library/pro...ity/index.html
All times are GMT -7. The time now is 01:15 AM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved