PLAINTIFFS

The doctrine of strict liability applies “when harm befalls a foreseeable bystander who comes within range of the danger”.¹ Privity of contract is no longer a requirement, as it was before Florida adopted strict liability, so not only buyers, but any foreseeable user or bystander is a proper plaintiff if they have been injured by a defective product.

Thus, a plaintiff in a products liability case can be any injured party in the “range of danger” in a strict liability case or in the “zone of risk” in a negligence case.² From this broad list of potential plaintiffs, it is necessary to select who will be the actual plaintiffs in your case. As is the case with any personal injury case, it is not always beneficial to your client(s) to allow all potential plaintiffs to join your case. For example, if there are potential plaintiffs whose interests are not aligned with your clients’ interests, or who have some quality likely to taint the opinion of the jury against all the plaintiffs, you may choose to file your clients’ case without joining those parties, allowing them to file their own lawsuits. In most instances, one or more defendants will move to have the cases of all potential plaintiffs consolidated. At that point, you should make a strong effort to limit consolidation of the cases to the discovery phase based on the unfair prejudice to your client that would result from having all of the plaintiffs’ claims before one jury.

In an action for personal injuries, the potential plaintiffs will include persons actually injured as well as family members who may have loss of consortium claims. In an action for wrongful death, the Florida Wrongful Death Act permits recovery from parties who would not necessarily be entitled to consortium damages in a personal injury case. Under the statute, surviving spouses, minor children, adult children, parents or minor children, parents of adult children, persons wholly dependent on the decedent and the decedent’s estate are potential plaintiffs (assuming they meet the conditions of the statute).³

Unlike a consortium claim which requires there to be a relationship between spouses that is harmed by a personal injury, the Florida Wrongful Death Act allows any spouse to recover for “mental pain and suffering” due to the death of a spouse, regardless of whether the spouses enjoy a marital relationship. Thus, for example, an estranged spouse is a proper plaintiff under the Act. Should you find yourself in a situation in which you represent a minor child in a wrongful death case and, an estranged spouse has joined the case as a plaintiff, you should establish a special needs trust for your minor client and make sure the jury knows any award for the child will flow into the trust for use in accordance with the purposes of the trust and not be squandered by the estranged spouse. The use of a special needs trust is also a good idea when the minor child is under the care of other persons who could be in a position to misuse funds intended by a jury to be used for specific needs of the child).

DEFENDANTS

The elimination of the privity requirement not only opened the door for additional plaintiffs, it expanded the group of potentially liable parties from manufacturers only to any other party in the chain of distribution. Some parties in the chain of distribution will be liable for either strict liability or negligence, but not both. Some parties will be liable under both negligence and strict liability theories. Because privity of contract is still an element of a warranty action, only defendants who are in privity with the plaintiff are proper defendants in a cause of action based in warranty. As a practical matter, this means either the plaintiff purchased the product from the defendant or he falls under one of the exceptions contained in F.S. §672.318. Florida Statutes §672.318 extends warranty protection to persons in the family or household of the purchaser, guests, employees, servants and agents so long as it is reasonable for the seller to expect those persons will use the product.

Thus, the seller of a product may be liable under a strict liability theory because it sold a defective product, but if that seller used reasonable care to assure the product it was selling was safe and/or properly warned his customer about the dangers of the product, it would not be liable in negligence. On the other hand, a party who is not in the chain of distribution of a product, such as a hospital that inserts a defective medical device in a patient, may not be strictly liable for a product defect, but could still be liable in negligence if they knew or should have known the product would cause injury. That hospital could also be liable for negligent failure to warn about the dangerous nature of the device.

Entities considered to be in the chain of distribution of a party include marketers, distributors, wholesalers, retailers and commercial lessors.⁴ Thus, in an action for strict products liability, each defendant in the chain of distribution is equally culpable with all other parties in the chain. On a claim for negligent products liability, the duties of each member of the distributive chain will be different based on their role in bringing the product to market, the standards of care applicable to their particular industry, their knowledge of the defect, their relationship to the consumer and unique opportunities to prevent the injuries, to name a few distinguishing features.

Sellers of Used Goods

Sellers of used products may not be held strictly liable on a products theory,⁵ unless they have made some representation of quality beyond the sale or had a special relationship or special position with someone else in the distributive chain,⁶ at least with respect to latent defects, such as a design flaw. Florida courts have not ruled on the issue of whether sellers of used goods would be proper defendants if the defects in the product were patent or if the seller had actual knowledge of the defect. Used sellers may, however, be liable under a negligence theory, and therefore, could be a proper defendants in such an action. In such a case, the plaintiff would have to prove the defendant did more than sell the product. Used sellers are often sued on the basis that they failed to inspect a product to detect a defect or failed to warn of a known danger.

Product Consultants

Entities whose only role was to consult with the manufacturer are not proper defendants under present Florida law. Thus, in Siemens Energy & Automoation, Inc. v. Median, 719 So.2d 312 (Fla. 3rd DCA 1998), the Third District held the trial court should have directed a verdict for a defendant who had consulted with the manufacturer and acted as a conduit of information because those activities did not insert the defendant into the chain of distribution.

Component parts manufacturers and Product Assemblers

A manufacturer of a component integrated into a product and sold under the name of the final product is a proper defendant under certain circumstances. According to one Florida case, a component manufacturer can be liable for injuries caused by the completed product if:

1. The component itself was defective;
2. The seller of the component substantially participates in the integration of the component into the design of the completed product;
3. The integration of the component caused the product to be defective; and
4. The defect in the completed product causes injury.

Scheman-Gonzales v. Saber Manufacturing Co., 816 so.2d 1133 (Fla. 4th DCA 2002).⁷ A supplier of a component part would not be a proper defendant in a situation in which it was simply following plans and specifications of the manufacturer. Id.

The assembler of a product that includes a component part manufactured by another who sells the assembled product as its own is considered the manufacturer of the product for strict liability purposes. Cunningham v. Lynch-Davidson Motors, Inc., 425 So.2d 131 (Fla. 1st DCA 1983). Likewise, the manufacturer of a product containing components who holds the finished product out as its own, and represents to the public that it is the manufacturer of the finished product, is liable as the manufacture of both the component part and the finished product. Id. Thus, the manufacturer of the finished product is always a proper defendant, even in cases in which the defect in the product is contained solely within a component part manufactured by another.

Owners and Users

Finally, it is proper to include claims in a products liability action against negligent users and consumers of defective products. Thus, the driver of a defective vehicle who negligently caused an accident would be a proper defendant in an action against entities in the distributive chain, the claim against such party being for negligent operation. In the case of vehicles, the owner of the vehicle may also be a proper defendant under the dangerous instrumentality doctrine, for negligent entrustment, or for negligent maintenance.

The next installment in this Products Liability Primer series will be on the subject of discover in a products liability action.

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¹ West v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla. 1976)
² McCain v. Florida Power Corp., 593 So.2d 1067 (Fla. 1992).
³ Florida Statutes 768.21 Paragraphs (1) through (4).
⁴ As to commercial lessors, see, Samuel Friedland Family Enterprises v. Amoroso, 630 So.2d 1067 (Fla. 1994). However, a sale by a person not
ordinarily engaged in the business of leasing such products would not be a proper defendant. Id.
⁵Knipp v. Weinbaum, 351 So.2d 1081(Fla. 3rd DCA 1977).
⁶Keith v. Russell T. Bundy & Associates, 495 So.2d 1223 (Fla. 5th DCA 1986)
⁷ It should be noted that the Court in Scheman-Gonzales cited the Restatement (THIRD) of Torts for this conclusion, while the Florida Supreme
Court has adopted the Restatement (SECOND) of Torts. Therefore, Scheman-Gonzales court may not have used be the proper test for finding
liability on the part of a component part manufacturer.