Finding middle ground: reconciling the disparate approaches courts have taken in determining liability when a purchaser declines optional safety equipment.

• Author: Stuhan, Richard G.

EVERYBODY IS familiar with the sight of a truck chugging down the freeway, pulling a trailer. But most people fail to notice that the trailer is not evenly balanced on its wheels. To the contrary, the front of the trailer extends considerably beyond the front wheels. As long as the trailer is tethered to the truck or resting against the loading dock, this cantilevered design is not a problem. When, however, the trailer is neither attached to the truck nor positioned at the loading dock, it can tip forward if the front load is heavier than the rear load. Recognizing this risk, virtually all trailer manufacturers offer a retractable front leg for use when the trailer is in its freestanding position. But this device is customarily offered as optional equipment because some purchasers never load or unload the trailer in a freestanding position and, hence, have no need for this device.

Why does this matter? Suppose a freestanding trailer tips forward as it is being un loaded from the back, seriously injuring the trailer owner's employees. Suppose further that, at the time of purchase, the owner had the option of ordering a front support device from the trailer manufacturer, but declined to exercise that option. Should the trailer manufacturer be absolved of liability because it offered an optional safety device that would have prevented the injury, but the owner declined to purchase it? Or should the trailer manufacturer be held liable for not installing the device as part of the basic package?

One of the authors confronted this precise problem in a negligence and strict liability action tried to verdict a few years ago. In that case, plaintiff workers were injured while unloading solar panels from a freestanding trailer that tipped forward. While the defendant trailer manufacturer prevailed at trial, a defense verdict was by no means a foregone conclusion. When a product causing an injury could have been purchased with an optional safety device that likely would have prevented the injury, courts have arrived at vastly different conclusions about where liability should lie. One line of cases holds that, where the manufacturer notifies the purchaser of the availability of the optional safety device and the purchaser declines it, the manufacturer is absolved of liability for an injury that would have been prevented by the optional safety device. For brevity's sake, we will refer to this view as the "buyer's choice" position. Another line of cases holds that the manufacturer cannot delegate its duty to produce a reasonably safe product, irrespective of the availability of optional safety devices. We will call this view the "seller's duty" position. (1) Interestingly, the leading jurisdictions for each respective position stare at each other across the Hudson River: New York has emerged as the leading proponent for the "buyer's choice" position, while New Jersey is the state that pioneered the "seller's duty" position. Both positions subsequently have been adopted by other jurisdictions across the nation. (2)

While the competing positions were articulated nearly thirty years ago, the jurisprudence has neither changed nor developed much in the interim. By and large, courts confronted with the issue have adopted one position or the other, finding the viewpoint adopted "well-reasoned." Few decisions even discuss the competing line of cases, much less discuss why the position adopted is better reasoned than the opposing point of view. None of the decisions critically examine whether the policies underlying the rule adopted remain valid decades later. Courts confronted with this issue have not attempted to reconcile these competing schools of thought.

In this article, we review both lines of cases and discuss the public policy arguments supporting both positions. We recommend a standard to govern situations where a purchaser declines an optional safety device and is subsequently injured in a manner that could have been prevented if the optional safety device had been in place. The standard we propose draws from both schools of thought and attempts to reconcile society's interest in promoting consumer safety with the economic realities of today's marketplace.

1. The "Buyer's Choice"

   Courts adhering to the "buyer's choice" position impose responsibility on the purchaser for failing to obtain optional safety equipment that likely would have avoided--or, at least, mitigated--injury if it had been in place. The manufacturer who wishes to benefit from this position must make a two-fold showing. First, the manufacturer must show that it notified the purchaser about the optional safety device. Second, the manufacturer must demonstrate that the purchaser made an informed decision to decline the optional safety device. |(3)

   The "buyer's choice" line of decisions appears to arise from Biss v. Tenneco, Inc. (4) In that case, the court affirmed the dismissal of a suit brought against a machine manufacturer by the spouse of an individual who was killed when the loader he was operating collided with a telephone pole. (5) An optional rollover protection structure was offered for the loader, but was not purchased. (6) The court held that, if the purchaser is told of the availability of an optional safety device, he has the duty to exercise reasonable care in deciding whether to buy that device. (7) The court concluded that the purchaser was "in the best position to exercise an intelligent judgment to make the trade-off between cost and function, and it is he who should bear the responsibility if the decision on optional safety equipment presents an unreasonable risk to users." (8) The court reasoned that to hold otherwise would turn the manufacturer into an insurer, who would be liable to injured parties if the purchaser decided against obtaining the optional safety device for any reason. (9)

   Similar reasoning informed the New York Supreme Court in Scarangella v. Thomas Built Buses, Inc., which arose when the plaintiff-employee was struck by her employer's bus while it was being driven in reverse. (10) A back-up alarm could have been installed on the bus, but the plaintiff's employer chose not to buy this optional safety device. (11) In granting the defendant manufacturer' s motion for a directed verdict, the court held that where:

   (1) the purchaser is knowledgeable about the product and knows of the availability of the optional safety device; (12)

   (2) there exist normal circumstances of use where the product is not unreasonably dangerous in the absence of the optional safety device; (13) and

   (3) the purchaser is able to evaluate the risks and benefits of not having the optional safety device, given the purchaser's specific use of the product, the purchaser, rather than the manufacturer, "is in the superior position to make the risk-utility assessment, and a well-considered decision by the [purchaser] to dispense with the optional safety equipment will excuse the manufacturer from liability." (14) In the years following Scarangella, courts have continued to uphold this basic conditional "buyer's choice" rationale. (15)

   The purchaser's ability to make a cost/benefit analysis was also central to the decision in Davis v. Caterpillar Tractor Co., a case brought by a farmer who was severely injured when he ran into a dead tree while driving a tractor manufactured by the defendant. (16) At the time of sale, the plaintiff had declined to purchase either a rollover protective structure or a falling object protective structure. (17) The Colorado Court of Appeals reversed the judgment of the trial court that had found in favor of plaintiff on theories of negligence and strict liability. (18) The court noted that, because the plaintiff chose to purchase a tractor without the optional safety device, he should have expected that the tractor he bought was less safe than it would have been had it been equipped with the protective structures. (19) "Since [the] plaintiff was in the best position to evaluate and eliminate the danger by purchasing an overhead protective safety option, he should accordingly bear the loss resulting from his failure to do SO." (20)

2. The "Seller's Duty"

   The progenitor of the "seller's duty" line of case law, Bexiga v. Havir Manufacturing Corp., (21) represents the opposite end of the spectrum. The New Jersey Supreme Court concluded in that case that absolving a manufacturer of liability when a customer opts not to purchase equipment necessary to prevent injury essentially shifts the duty to produce a reasonably safe product from the manufacturer to the customer. The court held that the manufacturer may not delegate this duty--even in situations where the manufacturer notifies the purchaser of the availability of an optional safety device and the purchaser knowingly declines to buy the safety device.

   In Bexiga, the plaintiff's hand was crushed by the ram of a power punch press that was purchased and maintained by the plaintiff's employer. (22) The evidence showed that power punch presses of this type generally were sold without any safety devices. (23) Although it was industry custom for the purchaser later to install safety devices on the punch press, Bexiga's employer did not install any safety devices on the press that caused his injury. (24) The trial court dismissed plaintiff's claims, but the New Jersey Supreme Court reversed. (25) The court held that, where a manufacturer produces a "finished product which ... should be provided with safety devices because without such it creates an unreasonable risk of harm, and where such safety devices can feasibly be installed by the manufacturer," the manufacturer should not be immunized by the "buyer's choice" not to obtain the safety devices. (26) The court reasoned that "[t]he only way to be certain that [safety] devices will be installed on all machines--which clearly the public interest requires--is to place the duty on the manufacturer where it is feasible for...