Selling Products Without Optional Safety Equipment

Or, alternatively, some products like protective helmets (e.g., motorcycle, bicycle, football, etc.) are marketed in multiple versions and, unbeknownst to most consumers, the more expensive models are designed so that they provide increased protection. Now, that's “freemium” marketing in practice.

This practice creates an inherent conflict when optional features make products safer or a more expensive version of the same product provides added protection, and is more competent to protect consumers from serious injury. While no one questions a seller offering different paint finishes or added convenience features to a TV for an additional cost, when it comes to protecting consumers from dangerous product performance, many question the wisdom of this practice.

What are the legal ramifications when a product manufacturer develops and markets a safety component, but only offers it as an option or as a standard feature with more expensive but comparable products? In other words, when an accident occurs or injuries are enhanced because a product did not include a safety feature marketed as an option or as standard equipment, but only on the more expensive version of the same product, should the injured consumer be allowed to seek reasonable compensation? This inquiry increasingly confounds courts across the United States, with no uniform answer right now.

The Legal Landscape

Ordinarily, consumers who suffer serious or catastrophic injury resulting from a faulty product can bring suit in strict liability or negligence. How do these legal principles apply to a product sold without safety components that are available, but only at an added cost?

In 2006, the Wisconsin appellate court was asked to address this question in Mahner v. New Holland North America, 726 N.W. 2d 356 (Wis. App. 2006), where the plaintiff was injured while operating a skid steer loader with a low-profile bucket purchased by his employer. The manufacturer offered this equipment with a spill guard as an option. The purchaser was unaware of this safety option because the manufacturer failed to provide any information of its availability. The plaintiff was injured when some timber fell out of the bucket and struck him. The appellate court held that the absence of the guard was sufficient evidence to allow a jury to decide the product had a defect. Further, the court stated that “the question here ' under a theory of negligent failure to inform the purchaser of the available guard ' is whether some injury was foreseeable given Rew's failure to inform its loader purchasers of an available spill guard. (See also Bexiga v. Havir Manufacturing, 290 A.2d 281 (N.J. Super. App. 1972).

An Illinois appellate court looked at the same issue from a slightly different perspective. In Robinson v. International Harvester, 358 N. E. 2d 317 (Ill. App. 1976), the manufacturer of a pay loader sold it to the plaintiff's employer without an available/optional rollover occupant protection system (ROPS). The manufacturer was sued by the plaintiff and it brought an action for indemnification based upon the employer's decision not to buy this optional safety feature. The court held that if the product was defective for not including a ROPS, then the manufacturer could not shift the responsibility of installing the necessary safety devices upon the purchaser.

The U.S. Court of Appeals for the Third Circuit considered this issue in the context of whether a plaintiff had met his burden of proof, construing Pennsylvania law in Hammond v. International Harvester, 691 F.2d 646, 651 (3rd Cir. 1982). In Hammond, the court affirmed the defect finding based upon the manufacturer's failure to include an optional ROPS. The court stated that when a manufacturer sells one of its products with one safety device but not another, the question of defect is left to the jury. Providing ROPS as standard equipment on some products “reflects the manufacturer's judgment that skid loader with a ROPS will not be unduly expensive or inconvenient to use, and that for safety's sake a loader tractor should come equipped with a ROPS. Without a ROPS, a loader tractor falls short of the optimal design; its design is legally defective and the defect is not cured because the removal of the safety device is specifically requested by the purchaser.”

In other words, evidence that a manufacturer markets optional safety features can, by the very existence of such safety options, demonstrate a defective design when the product is furnished without such features.

While there are compelling public policy reasons to allow juries to determine defect or negligence under these circumstances, not all jurisdictions follow this logic. And, because of the absence of legal consensus, it remains routine practice to market lots of consumer products with optional safety features and for manufacturers to defend these decisions with the following arguments:

• There is no legal duty;
• The purchaser is at fault; and
• There is no proximate cause.

We conclude this article next month with a look at New York law, and at possible theories of liability.

Larry E. Coben is a shareholder of Anapol Weiss. This article also appeared in The Legal Intelligencer, an ALM sibling publication of this newsletter.