[ See id. ] Negligence of Intermediate Sellers Regardless of the type of defect involved, an intermediate seller of the injurious product—a wholesaler, distributor, retailer, or any other non-manufacturer supplier of the product— will seldom be held liable in products liability on negligence grounds. Limited Duty of Inspection Many jurisdictions hold that the intermediate seller has no duty to inspect the product for defects. [ See Shuras v. Integrated Project Servs., Inc. , 190 F. Supp. 2d 194 (D. Mass. 2002); Restatement (Second) of Torts §§ 399, 402] When Duty of Care Arises Nevertheless, an intermediate seller must inspect for defects, provide reasonable warnings, and take other reasonable steps to avoid harm to foreseeable product users if the seller knows or has reason to know that there is a defect in the product. [ See Shuras v. Integrated Project Servs.. Inc. , 190 F. Supp. 2d 194 (D. Mass. 2002); Restatement (Second) of Torts §§ 399, 402] Proximate Cause Issues Interesting proximate cause issues arise in cases involving negligence in products liability.
Intermediate Seller’s Negligence The fact that an intermediate seller negligently sells a defective product does not absolve the initial manufacturer of liability under proximate cause principles. However, if the intermediate seller knowingly sells a defective product, this might constitute a superseding cause if such action was unforeseeable on the part of the manufacturer. [ See Miller Industries, Inc. v. Caterpillar Tractor Co. , 473 F. Supp. 1147 (S.D. Ala. 1979)] Unforeseeable Misuse The plaintiff’s unforeseeable misuse of a product may constitute a superseding cause that relieves the defendant of liability. [ See Collins v. Li , 933 A.2d 528 (Md. Ct. Spec. App. 2007)] Defenses The defenses to negligence in products liability are the same as in any other negligence case. Standing to Sue: No Privity Required There was a time when courts required a relationship of privity (a direct or indirect contractual relationship) between the plaintiff and the defendant before the plaintiff could recover against the defendant in products liability. In tort actions (strict liability, negligence, etc.), privity is generally no longer required. Any reasonably foreseeable user/victim of a defective product may sue. [ See Moorman Mfg. Co. v. Nat’l Tank Co. , 435 N.E.2d 443 (Ill. 1982); MacPherson v. Buick Motor Co. , 111 N.E. 1050 (1916) ; Restatement (Second) of Torts § 402A (with comments)] Damages The particular types of harm for which the plaintiff can recover in products liability will depend on the theory under which the plaintiff proceeds, such as one of the tort-based theories, like negligence and strict liability, or one of the contract-based theories in the contracts outline ( e.g. , breach of the warranties mentioned in Article 2 of the Uniform Commercial Code). Tort-Based Theories: No Recovery for Purely Economic Harm A plaintiff proceeding under one of the tort-based theories may recover for personal injury or damage to property other than the defective product itself , but in most jurisdictions may not recover for purely economic loss. [ Moorman Mfg. Co. v. Nat’l Tank Co. , 435 N.E.2d 443 (Ill. 1982)]
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