Warning: You're More Liable Than You Think

March 1, 2001
DID you get the wake-up call? That's what Alvin S Weinstein was wondering as he made his third consecutive appearance at the convention. In between the

DID you get the wake-up call? That's what Alvin S Weinstein was wondering as he made his third consecutive appearance at the convention. In between the 2000 convention and this one, the Bridgestone/Firestone tire-recall drama rocked the business world and resulted in the Transportation Recall Enhancement, Accountability, and Documentation Act of 2000. It creates new rules for early-warning reporting to the Department of Transportation when there is the possibility that injury or property damage could arise.

That's because Bridgestone/Firestone and Ford apparently had information about defective treads that they didn't act upon, turning an escalating problem into a legal nightmare. In 1999, Ford replaced the Firestone tires being used on SUVs in Saudi Arabia, and repeated that a year later in Thailand, Malaysia, and South America. And yet, even though Ford apparently was aware of potential problems, it allegedly did nothing to inform consumers in the US, where the majority of those tires are used.

Although the TREAD Act of 2000 does not apply to trailers and motor homes, Weinstein said, “It doesn't take much of a stretch in the imagination to recognize that if a problem begins to arise with trailers, the DOT will extend the TREAD Act into your area.”

Weinstein's session coincided with the announcement that the NATM is developing a program in which it will issue warning labels for placement on trailers. All labels will be made of maximum-longevity material and meet the requirements of ANSI Z535, in size and in wording. Weinstein said there will be no need for a member to develop separate labels because all significant hazards will be addressed.

The NATM is seeking comments on the labels and will test them on a group of people representing the association's users.

“Once they've been tested and refined, they can become the industry standard,” said Weinstein, an emeritus professor at Carnegie Mellon University who has been involved in product safety and injury prevention for over 30 years. “Nobody can challenge them as being inadequate.”

Documentation Tools

Weinstein's presentation — “Documentation, Standards, and Safety Labels” — was designed to help members anticipate how they would respond to the DOT if an injury or property-damage claim arose, giving them the necessary tools to provide the documentation that will help them understand what their products should be doing.

He said the initial responsibility is to create a product that meets the intended purpose, but also to understand how it might interact adversely with the user.

The design should include: hazard identification and risk assessment, including reasonably foreseeable misuse; rationales for critical design specifications; identification of safety-critical components; and recognition of whose expertise you rely on — yours, the suppliers, or the dealers?

In purchasing (transferring the risk to the supplier), the responsibilities are to create specifications for safety-critical, sourced components and to have a written reliance on the supplier's expertise.

Management should create a product safety and reliability program and set up an early-warning system for potential problems that analyzes: injury and damage reports; customer communications, complaints, and responses; warranty and claims data (“Is there a potential problem? Why am I selling these fasteners more frequently than I had hoped? Is there something going on in the field?”); quality-assurance procedures and reports on safety-critical components; dealer activities; and field-use data.

Transferring the risk to the dealer involves identifying safety considerations for all dealer installations and service procedures, and asking if there is training/certification or service and sales personnel.

Express Warranty

There also is a responsibility for express warranty and misrepresentation, which tests the performance of the products against the explicit representations made by the manufacturer and/or seller.

Weinstein used the example of the Ford Motor Co in the 1920s, when it advertised its “shatterproof windows” and had to go to court to defend itself after a driver was seriously injured by broken glass. Ford's defense was that shatterproof glass hadn't been invented. The court ruled that shatterproof glass was a measurable characteristic — as opposed to a company claiming it had the “greatest” product — and Ford had to be accountable for its claim.

“You have to recognize that if you make false promises that can be construed as a promise of performance or safety, that can come back to haunt you,” Weinstein said. “Even though the back of your sales form disclaimed all possible liability, if the part of the basis of the bargain was that promise, you're going to be held to that promise.

“A dealer should understand that if he oversells and commits your product to a condition it can't fulfill, that is express warranty and misrepresentation. An example: A fellow comes in to buy a trailer that is rated 10,000 GVW, but he only has a Yugo to pull it. He wants the trailer and the dealer wants to sell him a trailer, and so it bypasses the issue of whether the vehicle is capable of hauling the trailer. And in an attempt to sell the trailer, he says, ‘Oh, yeah, this is OK.’

“But the first time the buyer takes it out, the brakes won't hold and he can't drive it up hills. He comes back and says, ‘You expressly warranted to me that this trailer could be hauled by my vehicle. I want my money back.’ Or if there was an accident, ‘Support my claims.’”

Safety-critical Items

Weinstein also said that all safety-critical items should be in place and functional before the sale and after service, and the use and safety considerations should be demonstrated to the owner.

Transferring the risk to the user involves: written responses to all communications and complaints from owners; complete warranty and claims data; instruction manuals; and safety labels.

The language on the labels “has to indicate what the hazard is likely to be.” For example: “Coupler MUST NOT be able to LIFT from ball. Ball must be same SIZE and RATING as coupler. Clamp coupler to the ball, lift trailer to separate.”

Weinstein presented three case studies, the most contentious of which was Harris vs Great Dane Trailers:

In 1996, Harris was seriously injured when his car struck the rear of a Great Dane trailer stopped at night on I-55 in Arkansas. Harris alleged that the trailer was defective because it lacked additional reflective tape to make its rear end more visible and conspicuous at night. The trailer was manufactured in 1991, when FMVSS 108 required that “… each vehicle shall be equipped with at least the number of lamps, reflective devices, and associated equipment specified … no additional lamp, reflective device or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard.”

As of December 1, 1993, FMVSS 108 was amended to require all trailers manufactured after that date to provide additional and a specific reflective pattern along sides and rear using reflectors or reflective tape.

Great Dane argued that since it complied with the FMVSS 108 requirements in place in 1991 when the trailer was manufactured, not only did it have no duty to add the additional reflective tape that the plaintiff argued it should have had, but that the FMVSS 108 prevented Great Dane from doing any more than the standard required.

Weinstein said the court ruled that Great Dane couldn't hide behind that standard and should have added tape or reflectors. When some NATM members argued that the ruling seemed nebulous, Weinstein agreed, but warned them that it is reality.

“It's up to you,” he said. “They've thrown the ball back into your court. Do an analysis. How severe is the harm likely to be? Unfortunately, the law, in some respects, requires you to be a crystal-ball gazer.”

About the Author

Rick Weber | Associate Editor

Rick Weber has been an associate editor for Trailer/Body Builders since February 2000. A national award-winning sportswriter, he covered the Miami Dolphins for the Fort Myers News-Press following service with publications in California and Australia. He is a graduate of Penn State University.