Post-Sales Duties

The current Brooklyn Law Review contains this article by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts:  Products Liability.

The article

provides an overview of the Restatement (Third)’s post-sale duty sections. In addition, it discusses relevant case law and the impact of the Restatement (Third) on developing case law. Part II provides a background of the post-sale duty sections of the Restatement (Third). Parts III-IX look back to case law prior to the Restatement (Third) and analyze how courts at that time dealt with post-sale duty issues including negligence standards, post-sale knowledge, defect timing questions, identification of product users, the duty to inform of safety improvements, and the duty to recall. Part X examines case law decisions that post-date the Restatement (Third)’s drafting, divided according to whether the court accepted, rejected, or adopted some variation of the Restatement sections. And lastly, Part XI provides a brief discussion of regulatory post-sale duties.

In Footnote 121, the article mentions two cases from Tennessee that hold that Tennessee does not recognize a post-sale duty to warn.  It is interesting, however, that the article does not cite the 2008 opinion in Flax v. DaimlerChrysler Corp.   Here  the language from Chief Justice Holder’s majority opinion

Unlike plaintiffs in post-sale duty to warn cases, the plaintiffs in this case do not allege that DCC discovered problems with the seatbacks after the time of sale. On the contrary, the theory of the plaintiffs’ case was that DCC had knowledge that the seats were defective and unreasonably dangerous as early as the 1980s. Furthermore, DCC does not deny that it had knowledge of the performance of its seats at the time of sale but argues that the seats functioned in a non-defective and reasonably safe manner. There is therefore no dispute regarding DCC’s knowledge at the time of sale of the Caravan. Although the plaintiffs allege that DCC continued to receive notice that its product was dangerous after the sale, they do not allege that DCC received any new information during this period. Accordingly, this case does not present the facts necessary to allow us to consider the merits of recognizing post-sale failure to warn claims. Rather, the plaintiffs’ allegation that DCC was negligent in failing to warn the plaintiffs after the sale is an attempt to impose liability a second time for what is essentially the same wrongful conduct. If a defendant negligently fails to warn at the time of sale, that defendant does not breach any new duty to the plaintiff by failing to provide a warning the day after the sale. Instead, the defendant merely remains in breach of its initial duty. For these reasons, we conclude that the trial court erred by adopting and applying the post-sale failure to warn claim in this case. We express no opinion, however, as to the merits of recognizing that cause of action in an appropriate case.

Justice Clark concurred with these words:

The plaintiffs do not contend that the manufacturer of their minivan discovered problems with the seats after they purchased the vehicle. Thus, the case simply does not present facts necessary for us to consider the viability of a true post-sale failure to warn cause of action. For us to resolve that issue in the context of this case would be tantamount to giving an advisory opinion. See State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (noting that courts are not to render advisory opinions). In order to have a justiciable controversy, a real question rather than a theoretical or hypothetical one must be at stake. Id. If the rule were otherwise, the “courts might well be projected into the limitless field of advisory opinions.” Story v. Walker, 404 S.W.2d 803, 804 (Tenn. 1966) (internal citation
omitted). It follows that deciding whether Tennessee common law should recognize a post-sale failure to warn claim must await another day.

Justice Wade would have recognized the theory under the facts of the case:

I part with my colleagues who join in the lead opinion only as to the viability of a
cause of action based upon the post-sale duty to warn. By way of explanation, I would acknowledge the Restatement (Third) of Torts: Products Liability § 10 (1998) as authority, as did the trial court. I believe, therefore, that the trial court (which, of course, could not have known prior to the verdict that the jury would ultimately sustain the pre-sale duty to warn claim) properly admitted testimony about similar accidents taking place after the sale of the 1998 Dodge Grand Caravan for the limited purpose of establishing that the Defendant had notice of the defective seat design, which contributed to the death of Joshua Flax.

My point:  the article should have included a discussion, or a least a mention, of this case.

Thanks to Torts Prof for alerting me about this article.