One of the most intractable problems facing manufacturers is where the product is used in a workplace environment. Many times, it is the employer that created an unsafe work condition that contributed to the accident. And, because the employer is usually not a party to the lawsuit, such cases can be very difficult to defend.
Worker’s compensation laws, which were created in the early 1900s, were based on absolute liability against the employer without the need to prove negligence. In exchange for this absolute liability, the laws provided a fairly low financial recovery for injuries or death from workplace incidents.
However, the law also provided generally that employers could not be sued either directly by the injured party or by the manufacturer as a third party defendant. And, the manufacturer, in most jurisdictions, could not blame the employer for the accident by showing that they were negligent and violated OSHA regulations. This put manufacturers at a huge disadvantage in that they couldn’t blame the main culprit and had to, instead, try to blame the employee who many times was coerced into using the product unsafely.
Manufacturers, of course, did not have the protection of worker’s compensation laws. And, worker’s compensation insurance carriers were bringing lawsuits in the name of the employee to recover the money they paid that employee for worker’s compensation benefits.
In addition to worker’s compensation laws, OSHA laws and regulations also had an effect on product liability litigation despite the fact that OSHA cannot make a manufacturer design a product that is compliant with OSHA.
This division of liability between product liability, OSHA and worker’s compensation creates an awkward interplay between employers and manufacturers that can result in employers who are not fully encouraged to provide a safe workplace.
Some states have allowed OSHA regulations to be admitted to argue that the product was not defective. However, most states do not allow evidence of OSHA standards to be admitted for such a purpose. And, manufacturers can frequently use compliance with OSHA regulations to help show that the product is not defective and that the product is not unreasonably dangerous. However, some courts hold that evidence of OSHA safety standards is inadmissible because such evidence could be confusing and misleading.
For those familiar with OSHA standards, it is certainly possible to comply with these standards and still have a defective product since such standards could be considered a minimum requirement. Therefore, its relevance in a particular case may be very fact specific and subject to the whim of a judge to decide whether or not to allow that evidence.
In addition, violations of OSHA standards can occur without a product being defective or unreasonably dangerous. Therefore, the fact that an employer or even a worker’s compensation carrier believes that the product violates OSHA does not mean that the manufacturer needs to do anything about it. Since the manufacturer cannot generally be fined for violating OSHA, they may have no liability to OSHA if they did nothing.
However, if the carrier or the employer demands that the manufacturer make changes in the product, especially if they have received an OSHA violation, this has to be handled very carefully by the manufacturer to be sure that doing so is not an admission that its other products are unsafe and have to be upgraded or retrofitted.
What to do?
Given the above, what should a responsible manufacturer do when dealing with these kinds of problems? Manufacturers should consider OSHA requirements when designing and manufacturing their product. However, they should not fully rely on these requirements as a defense in the event of a future accident. They should consider exceeding the requirements in order to provide a reasonably safe product.
Manufacturers should encourage the employer to follow OSHA requirements and create good documentation to prove this compliance. They should provide enough information to the employer on what OSHA requires in the equipment’s design and during operation and maintenance but not be so specific as to safety procedures on the job that the employer believes that they can rely on the manufacturer’s advice to ensure compliance.
Manufacturers should carefully deal with requests for safety improvements or upgrades as a result of OSHA or insurance carrier activities and try to convince OSHA or the carrier that the product was reasonably safe when it was sold and that any safety problem was created by the employer or employee. The requests and the manufacturer’s response must be carefully documented in case there is a future accident.
If the manufacturer becomes aware of an employee removing safety devices or otherwise using the machine unsafely, it should communicate in writing to the employer pointing out the problem and requesting that the safety hazard be rectified. In an extreme situation, the manufacturer can submit an anonymous report to OSHA suggesting that they investigate a possible safety violation at the employer’s site or even tell the worker’s compensation carrier.
Manufacturers cannot ignore OSHA requirements when designing and manufacturing products.However, manufacturers should not assume duties that they do not have.
Analyzing potential liability for both themselves and the employer can be helpful in protecting everyone involved.Preventing accidents is the only sure way to prevent liability.The last thing you want to do is have an accident and be in conflict with an employer who is also your customer as this can not only result in liability for the manufacturer, but also impair your relationship with this customer and past and future customers.
About the Author
Kenneth Ross is a former partner and now Of Counsel in the Minneapolis, Minnesota office of Bowman and Brooke LLP where he provides legal and practical advice to manufacturers and other product sellers in the area of design, warnings, instructions, safety communications, recalls and all areas of product safety and product liability prevention. Ken can be reached at 952-933-1195 or [email protected]. Other articles on these subjects can be accessed at www.productliabilityprevention.com.
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