By William A. Ruskin
Courts have long struggled with hybrid fact scenarios that involve both a product and a service. When a corporate defendant is sued for personal injury, is it more advantageous for the defendant to be characterized as a service provider rather than a product manufacturer? The knee jerk reaction of some defense lawyers is that they would prefer their client to be cast as service providers. After all, who wants their client to be subjected to a strict liability product claim if it could be avoided, right? Not so fast. The answer to this question may be more complicated that it appears at first blush.
In an article titled, "The Shirt Off My Back: Using the Relationship Between a Product and a Service to Your Advantage," Brigid M. Carpenter and Caldwell G. Collins, lawyers at Baker Donelson Bearman Caldwell & Berkowitz, P.C., weigh the product versus service dilemma in a thoughtful article that appeared in the IADC Product Liability Committee Newsletter (November 2012).
Carpenter and Collins point out that there are many reasons why a plaintiff or defendant might want to fall within or avoid the products liability statutory schemes that exist in many jurisdictions. On the one hand, strict liability is liability without fault. In those cases, plaintiff has to prove the product is defective and unreasonably dangerous, but there is no burden of proving fault on the part of the manufacturer or seller.
On the other hand, depending upon the circumstances, the authors point out that it might be easier for a plaintiff to prove a defendant breached the duty of reasonable care with regard to its behavior than to proffer credible expert testimony about the defective nature of a product. One factor to be considered is that in negligence actions, sellers and manufacturers may have the advantage of certain defenses not available in product liability cases, such as contributory negligence. However, another consideration is that product liability statutes often carry different damages caps and statutes of limitations, depending upon the jurisdiction.
Equally important, the authors provide a valuable discussion of how courts tend to resolve the product versus service issue. Their litigation tip: based upon their survey of the case law, courts tend to focus on the relationship between the product and service in question. Therefore, in the Hathaway v. Cintas Corporate Services [enhanced version available to lexis.com subscribers] case involving a plaintiff burn victim who alleged that the defendant uniform rental company was responsible for his injuries, either as a service provider or a product seller, the authors analyze how the Indiana federal district trial court, in denying summary judgment, focused on the "service" aspects of the uniform rental company's contract, which provided for the cleaning and maintenance of uniforms provided.
For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
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