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“The Buck Stops Here”—Section 5 of the Restatement (Third) of Torts: Products Liability—Will Florida Subscribe to the Component Seller Doctrine?

December, 2004 Featured Article

T he component seller doctrine, embraced by §5 of the Restatement (Third) of Torts: Products Liability (hereinafter “§5” or “Third Restatement”), contemplates that the seller of a nondefective raw or component material,2 w hich supplies the material to a manufacturer that combines it with other materials to produce a finished product, will not be held liable in strict liability for a defective finished product or for failure to warn of the dangers associated with the finished product. In other words, under §5, unless the seller of a nondefective component substantially participates in the integration of the component into an end product, liability arising from a defective end product generally will not attach to the component seller and the component seller does not have a duty to warn the end product consumer or intermediate manufacturer.

This article provides a brief background of the component seller doctrine and discusses §5 of the Third Restatement, including application of its underlying principles by Florida courts. The article continues by addressing potential arguments for and against §5, and concludes that the component seller doctrine of §5 should be adopted by the Florida courts and recognized in Florida jurisprudence as a legitimate ground for limiting the liability of component sellers, while ensuring that responsibility for defective or unreasonably dangerous end products is placed on those entities properly held accountable for such products.3

Background of the Component Seller Doctrine
Traditionally, there have been four general circumstances under which courts impose liability on the supplier of a component part: 1) where the component supplier also designs the ultimate product; 2) where the component supplier supplies a product that only has one use; 3) where the component has multiple uses, but is dangerous for most of those uses; and 4) where the component is produced pursuant to specific design criteria for use in the ultimate product, and the component seller knows that the design is unreasonably dangerous.4 The component seller doctrine arose in response to the question concerning the circumstances in which a component seller should be held liable for a defective end product containing the component, as well as when the component seller has a duty to warn the consumer or manufacturer of the end product regarding the dangers associated with the use of the product.

An early manifestation of the component seller doctrine appeared in Mayberry v. Akron Rubber Machinery Corp., 483 F. Supp. 407 (N.D. Okla. 1979). In Mayberry, the Northern District of Oklahoma held that the defendant supplier of component parts of a rubber mixing mill was not liable to an employee who was injured while operating the mill.5 In reaching its decision, the Mayberry court reasoned that because there was no evidence that the component seller helped construct the mill, integrate its parts into the mill, or that it had been furnished with the design plans for the mill, the component seller should not be deemed responsible for a defect in the finished mill.6 A subsequent court succinctly stated the rationale for the component seller doctrine as follows:

[T]he duty to avoid injury to another which is reasonably foreseeable does not. . . extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another.7

The component seller doctrine subsequently evolved as a recognition that many courts “have been reluctant to hold raw material or component sellers liable for failure to warn or to protect against flaws in the finished product.”8 As one commentator points out, courts have “regularly and consistently granted summary judgment for component suppliers where the component itself was not defective and where the suppliers really had no control over the design, end-use testing, or manufacture of the final product with respect to how that component was going to be incorporated.”9

Section 5 of The Restatement (Third) of Torts: Products Liability
In recognition of the special considerations applicable to component sellers in products liability law, including that end product manufacturers may be more properly held accountable as experts regarding their finished products, the American Law Institute developed §5 of the Third Restatement.10

Language and Commentary of §5

Section 5 of the Third Restatement, entitled “Liability of Commercial Seller or Distributor of Product Components for Harm Caused by Products Into Which Components are Integrated,” states:

One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
(a) the component is defective in itself, as defined in this chapter, and the defect causes the harm; or
(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
(b)(2) the integration of the component causes the product to be defective, as defined in this chapter; and
(b)(3) the defect in the product causes the harm.11

Although the text of §5 identifies the circumstances under which a component seller can be held liable, the comments to §5 provide the important caveat that “[a]s a general rule, component sellers should not be liable when the component itself is not defective.”12

Defining “product components” as including “raw materials, bulk products, and other constituent products sold for integration into other products,”13 the comments further state that “component sellers who do not participate in the integration of the component into the design of the product should not be liable merely because the integration of the component causes the product to become dangerously defective.”14 In this way, §5 recognizes that to impose a duty to warn on the component seller under such circumstances “would require the seller to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control. Courts uniformly refuse to impose such an onerous duty to warn.”15

Under §5(b)(1), a component seller likely will be deemed to have reached the threshold for liability due to its “substantial participation” with the integration of the component into the end product if the component seller 1) designs the component according to a specific design for a designated use in the finished product, or assists the manufacturer in modifying the finished product’s design to enable integration of the component; or 2) chooses which component would best meet the final product specifications.16

Florida Case Law Anticipating §5

At least one Florida decision predating §5 recognized the sound rationale underlying the component seller doctrine. In Shell Oil Co. v. Harrison, 425 So. 2d 67 (Fla. 1st DCA 1982), rev. denied, 436 So. 2d 989 (Fla. 1983), the plaintiffs sued Shell and Kerr-McGee Chemical Corporation (“Kerr”) for negligence, strict liability, and breach of implied warranty with regard to the manufacturing and marketing of a chemical product known as Fasco Nemagon 70EC.17 Shell was the bulk supplier of a component chemical product called 1, 2-Dibromo-3-Cholopropane (“DBCP”), which it sold in 30-gallon containers under the trade name Nemagon.18 Shell included warnings on its Nemagon containers.19

Kerr purchased the component Nemagon from Shell, reformulated it, and then sold a reformulated finished product, under the trade name Fasco Nemagon 70EC (“Fasco Nemagon”), in one-gallon jugs containing 70 percent DBCP and 30 percent inert ingredients.The plaintiffs subsequently purchased Fasco Nemagon from a retailer, and were exposed to vapors from the product when the glass container broke in their garage.20

The Shell Oil court addressed the issue of the duty of a bulk supplier of the component material Nemagon (Shell) to the ultimate user of Fasco Nemagon (the plaintiffs). Holding that the trial court committed reversible error in not directing a verdict for Shell prior to submission of the case to the jury, the court reasoned: “[D]id Shell, as the manufacturer and bulk supplier of a dangerous toxic component, have a nondelegable duty to warn ultimate users of the hazards of commodities containing the toxic component when the commodities were formulated, packaged, labeled, and distributed by others? We think not.21

The Shell Oil court’s reasoning fits squarely within the underlying rationale for recognition of the component seller doctrine as framed by §5.

Early Application of §5

One of the first cases to apply §5 was Zaza v. Marquess & Nell, Inc., 675 A.2d 620 (N.J. 1996). In Zaza, the plaintiff sued a sheet metal fabricator that had manufactured a quench tank to requested specifications calling for the fabricator to cut holes for inclusion of safety devices. The quench tank was subsequently integrated into a regeneration system without the safety devices installed. The plaintiff alleged that the fabricator had a duty to make sure the quench tank was properly integrated into the regeneration system with safety devices, and that the fabricator had a duty to warn of the dangers associated with using the tank without safety devices. The Zaza court disagreed, finding that it was not reasonable for the sheet metal fabricator, as the component supplier, to attach safety devices to the quench tank or to provide warnings to the regeneration system user about the dangers involved in using the end product without safety devices.22

Component Seller Doctrine of §5 Should Be Adopted As Florida Law
Florida Courts Have Applied Other Sections of the Third Restatement

Although the Florida Supreme Court has not yet expressly adopted §5, the court has favorably cited to the Third Restatement on at least one occasion.23 Additionally, several of Florida’s intermediate appellate courts have applied the Third Restatement.24 In Warren v. K-Mart Corp., 765 So. 2d 235 (Fla. 1st DCA 2000), the court deemed the case before it as one “suggested by the [Third] Restatement, where fairness requires the consumer to bear appropriate responsibility for proper product use in order to prevent careless users and consumers from being subsidized by more careful users.”25

Additionally, in Scheman-Gonzalez v. Saber Manufacturing Co., 816 So. 2d 1133 (Fla. 4th DCA 2002), the Fourth District Court of Appeal26 noted that “liability of a component part manufacturer for a defective product is recognized under some circumstances,” and quoted §5 of the Third Restatement in its rationale for reversing a summary judgment that had been entered in favor of a component seller at trial.27 Moreover, Florida courts have long looked to the Restatement of Torts as an influential guide in products liability law, including the Florida Supreme Court in the cornerstone Florida products liability case, West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976), where the court adopted §402A of the Restatement (Second) of Torts: Products Liability.

Florida Recognizes Related Notion of Learned Intermediary Doctrine

Florida also recognizes the related concept of the learned intermediary doctrine. A learned intermediary is “one who has knowledge of the danger and whose position, vis-à-vis the manufacturer and consumer, confers a duty to convey the requisite warnings to the consumer.”28 The interconnectivity between the component seller doctrine and the learned intermediary doctrine is illustrated by In re Silicone Gel Breast Implants Products Liability Litigation, 996 F. Supp. 1110 (N.D. Ala. 1997).

In Silicone Gel, the court granted summary judgment in favor of the defendant supplier of a raw/component material for breast implants. The Silicone Gel court reasoned that the supplier, which supplied silicone to sophisticated users that substantially changed the material during the manufacture of breast implants, did not owe a duty to the manufacturers or ultimate users of the implants to warn of any hazard associated with the supplier’s product.29 Citing (the then-proposed) §5 of the Third Restatement, the Silicone Gel court reasoned that since the component supplier sold the material to sophisticated users, who were “in a far superior position to determine the risks and provide appropriate warnings” regarding the ultimate product (breast implants), and the material supplied underwent substantial changes during the incorporation process into the finished breast implants, the component supplier should not be held liable for failure to warn an ultimate purchaser of the breast implants.30

Policy Argument Supporting Adoption of §5 of the Third Restatement

A persuasive policy argument supporting adoption of the component seller doctrine is that it is unfair to saddle a component seller with strict liability for a defective end product, or a duty to warn the consumer of an end product of the dangers associated with the use of the finished product, when that product consists of various component materials altered by the product’s manufacturer, only one of which is the material sold by the component seller. The component seller doctrine recognizes that when a component seller does not substantially participate in the integration or design of the finished product, it would be “far more burdensome for that supplier to improve the safety of the finished product than it would be for the assembler or designer of the product to do so.”31 Comment c of §5 supports this policy consideration, noting that “[t]o impose a duty to warn would require the seller to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control.” As stated in Crossfield v. Quality Control Equipment Company, 1 F.3d 701, 704 (8th Cir. 1993), to impose liability on a component supplier would require suppliers to hire “design experts to scrutinize. . . systems that the supplier had no role in developing. Suppliers would be forced to provide modifications and attach warnings on [end products] that they never designed nor manufactured. Mere suppliers cannot be expected to guarantee the safety of other manufacturers’ [products].”

Imposing liability on a component seller in the absence of actual defect of the component, or substantial participation as contemplated by §5, would force component sellers to maintain their own stables of experts and engineers to independently evaluate and test any manufacturer’s finished product containing a supplier’s component. To meet the substantial costs of such extensive safety testing, component sellers would be forced to raise prices to such an extent that they would be priced “right out of the market.”32 Recognizing the possibility of such an irrational result, the Third Restatement is designed to preclude the imposition of unrealistic and excessive economic burden on component sellers. Indeed, the comments to §5 indicate that its drafters “were heavily influenced by this economic consideration.”33

Likely Counter Argument to Adopting §5

Opponents of Florida’s adoption of §5 are likely to raise as a warning flag that §5 inhibits victims’ ability to obtain full redress for injuries suffered due to unreasonable product defects or designs. A nightmare scenario from this perspective might occur if an injured end product user sues the product manufacturer and the component seller, only to have the component seller avoid liability under §5, and find out that the end product manufacturer has filed for bankruptcy protection or otherwise has insufficient resources to fully compensate the injured user. However, this risk is present to some degree in most products liability lawsuits and is not a convincing basis for rejecting §5. Additionally, the practice of including a component part seller in a lawsuit simply as another potential deep pocket “when the manufacturer of the product into which the component has been integrated is insolvent”34 is not something to be encouraged.

Section 5 opponents might also seek to portray the Third Restatement as a loophole in the law that allows component sellers to wash their hands of the production chain and remain willfully ignorant of intermediate manufacturers’ integration of component parts into end products. Proponents of §5 could reply that there are other safeguards protecting against such head-in-the-sand shirking of responsibility. For instance, if a component seller has inherently superior knowledge of the risks associated with a particular integrated use of the component product, or it is clear that the end product manufacturer is ignorant of the risks involved, the component supplier may not sidestep liability regardless of §5’s protection.35

Practical Application
Counsel for component sellers defending products liability claims should be cognizant of practical considerations when raising §5 as a defense. One such consideration entails establishing that, in comparison to the end product manufacturer, the component seller did not have superior knowledge of the dangers associated with the integration of the component part into the contemplated end use product. Closing the door to this plaintiffs’ portal for potentially circumventing §5’s liability barriers, particularly early in litigation, may considerably facilitate insulating the component seller from exposure.36 Likewise, early assessment of the component seller’s level of involvement with the integration of the component into the end product will enable counsel to determine the optimal strategy for invoking §5 in litigating a defense.37

Another important practical consideration for counsel is endeavoring to establish, through expert testimony, that regardless of the danger associated with the use of the end product, the supplier’s particular component part was not, in and of itself, defective. Such expert testimony can go a long way toward avoiding liability pursuant to §5, particularly where counsel is comfortable that the seller did not substantially participate in integrating the component into the end product. A good illustration of the importance of eliciting such testimony is Bostrom Seating, Inc. v. Crane Carrier Co., 2004 WL 1301930 (Tex. June 11, 2004). In Bostrom, the plaintiff sued Crane Carrier Co. (“Crane”) after he was injured in a rollover accident while driving a garbage truck manufactured by Crane that contained, as a component part, a driver’s side seat manufactured by Bostrom Seating (“Bostrom”). Crane brought a third-party action against Bostrom and the manufacturer of the driver’s side seatbelt, Beams Industries, Inc. (“Beams”), seeking indemnification from both companies. After the trial court granted a directed verdict for Bostrom and Beams, Crane appealed the directed verdict as to Bostrom.38

On appeal, the Texas Supreme Court acknowledged that it had not previously decided the issue of whether strict liability for a component seller is limited when the component part has been integrated into an end product. The court agreed with two Texas intermediate appellate courts that, pursuant to §5 of the Third Restatement, “if the component-part manufacturer does not participate in the integration of the component into the finished product, it is not liable for defects in the final product if the component itself is not defective.”39 The court emphasized that under §5 “if no evidence exists to indicate that the component part was itself defective,” then the component supplier should not be deemed liable for a defect in the final product.40 Turning to the facts before it, the Bostrom court emphasized that the plaintiff’s expert witness had testified repeatedly that the seat itself was not defective, and that the parties agreed that Crane designed the garbage truck and chose which seat it would use.41 Since no evidence was presented to prove that the component seat was defective “in and of itself,” the court held that Crane could not obtain indemnification from Bostrom.42

Conclusion
limiting liability for a defective product containing component parts to those manufacturers that reasonably may be deemed to have sufficient knowledge about the finished product to be able to foresee its potential dangers, the component seller doctrine strikes the proper balance between holding responsible parties accountable and ensuring an avenue of redress for the injured consumer. To optimize achievement of these seemingly competing goals, and to ensure that the buck stops with the party in the chain of production properly held accountable for the end product, the component seller doctrine encompassed by §5 of the Third Restatement should be adopted and applied by the Florida courts.43 q

1 The phrase, “The Buck Stops Here,” became famous from its use by former President Harry S. Truman, who employed the phrase in several public speeches, and often displayed the phrase on a sign on his desk in the White House. See “The Buck Stops Here,” at www.trumanlibrary.org/buckstop.htm. The phrase “derives from the slang expression ‘pass the buck’ which means passing the responsibility on to someone else.” See id. (citing I A Dictionary of Americanisms on Historical Principles (Mitford M. Mathews, ed.) 198-99 University of Chicago Press 1951)).
2 The “raw material” and “component seller” doctrines are intertwined to such a degree that courts often consider them to be one and the same. See In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 n.6 (8th Cir. 1996) (“We believe it makes no difference whether [the product] is characterized as a ‘component part’ or a ‘raw material.’”) (citations omitted); see also Restatement (Third) of Torts: Prods. Liab. §5, cmt. a (“The refusal to impose liability on sellers of nondefective components is expressed in various ways, such as the ‘raw material supplier defense’ or the ‘bulk sales/sophisticated purchaser rule.’”).
3 Section 5 has been heralded as being “enormously influential” on the courts. See James A. Henderson, Jr. & Aaron D. Twerski, The Products Liability Restatement in the Courts: An Initial Assessment, 27 Wm. Mitchell L. Rev. 7, 23 (2000).
4 See David A. Fischer, Product Liability: A Commentary on the Liability of Suppliers of Component Parts and Raw Materials, 53 S.C. L. Rev. 1137, 1144 (2002) (listing four common fact patterns where courts impose liability on component part suppliers).
5 Mayberry v. Akron Rubber Machinery Corp., 483 F. Supp. 407 (N.D. Okla. 1979).
6 See Mayberry, 483 F. Supp. at 412–13.
7 Davis v. Komatsu Am. Indus. Corp., 42 S.W.3d 34, 39–40 (Tenn. 2001) (citation omitted).
8 Fischer, supra note 4, at 1139.
9 Hildy Bowbeer, Component Suppliers: Drawing Common Sense Boundaries for Liability, Kan. J.L. & Pub. Pol’y 110, 110 (Fall 2000) (citations omitted).
10 See M. Stuart Madden, Component Parts and Raw Materials Sellers: From the Titanic to the New Restatement, 26 N. Ky. L. Rev. 535, 539–40 (listing six practical considerations applicable to component parts and raw materials that justify different treatment of such products). As an illustration of the “longstanding nature” of the question of how to treat component sellers, this author recalled a newspaper article that “speculated that the reason the iceberg damaged the Titanic so mortally was because the rivets employed to bind together the hull plates had a level of internal metallurgical imperfections far exceeding what would be expected even in that era.” Id. at 571.
11 Restatement (Third) of Torts: Products Liability §5.
12 Id. at cmt. a.
13 Id.
14 Id. at cmt. a.
15 Id. at cmt. c. It has been said that §5 “represents a great improvement” over its predecessor, §402A of the Restatement (Second) of Torts. See Fischer, supra note 4, at 1148.
16 See Restatement (Third) of Torts: Products Liability §5, cmt. e.
17 See Shell Oil Co. v. Harrison, 425 So. 2d 67, 68 (Fla. 1st D.C.A. 1982).
18 See id.
19 See id.
20 See id.
21 Id. at 70. Other courts came to the same conclusion. In Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998), the Fifth Circuit Court of Appeals became perhaps the first jurisdiction to expressly follow §5. In Cimino, the defendant Asbestos Corporation, Limited (“ACL”) supplied asbestos to another defendant, which blended the asbestos to form finished insulation products. See id. at 329. Holding that ACL could not be liable to the plaintiffs for injuries caused by the asbestos-containing products, the Cimino court reasoned that “ACL had no role in the design, manufacture, sale, or distribution of the insulation products at issue. . . there is no practical way ACL could have warned plaintiffs of the risks posed by [the co-defendant’s] insulation products. These factors dictate a finding of no liability on the part of ACL to plaintiffs.” Id. at 335.
22 See Zaza, 675 A.2d at 634–35.
23 See Standard Jury Instructions—Civil Cases, 872 So. 2d 893 (Fla. 2004) (citing §2 of the Third Restatement).
24 See Scheman-Gonzalez v. Saber Mfg. Co., 816 So. 2d 1133 (Fla. 4th D.C.A. 2002) (applying Restatement (Third) of Torts: Products Liability to determine issues regarding manufacturer’s duty to warn); Warren v. K-Mart Corp., 765 So. 2d 235 (Fla. 1st D.C.A. 2000) (applying Restatement (Third) of Torts: Products Liability).
25 Warren, 765 So. 2d at 238.
26 On June 23, 2004, the Fourth District Court of Appeal issued its opinion in Union Carbide Corp. v. Kavanaugh, 2004 WL 1393537, 29 Fla. L. Weekly D1501 (Fla. 4th D.C.A. June 23, 2004), wherein the court found that a bulk material supplier had a duty to warn the end user of a product containing the material and could not meet its duty by warning the manufacturer of the finished product. A motion for rehearing of the appeal was denied by the Fourth DCA on August 25, 2004, as was a petition for certification of the case to the Florida Supreme Court. Notably, the Union Carbide decision does not address the applicability of the Third Restatement, and the opinion does not reference the Third Restatement, either favorably or unfavorably.
27 Scheman-Gonzalez, 816 So. 2d at 1141 (citation omitted).
28 Brito v. County of Palm Beach, 753 So. 2d 109, 111 n.1 (Fla. 4th D.C.A. 1998). The sophisticated user variation of the learned intermediary doctrine is sometimes referred to as the “sophisticated intermediary.” In Gray v. Badger Mining Corp., 676 N.W. 2d 268 (Minn. 2004), the court discussed how “some courts have held that a product supplier has no duty to warn the ultimate user where either of two situations is present: (1) the end user’s employer already has a full range of knowledge of the dangers, equal to that of the supplier or (2) the supplier makes the employer knowledgeable by providing adequate warnings and safety instructions to the employer.” Id. at 277–78 (citations omitted). The Gray court also pointed out that the sophisticated intermediary defense, while similar to the learned intermediary defense, “is generally only available where the supplier can show that it used reasonable care in relying upon the intermediary to give the warning to the end user.” Id. at 278.
29 In re Silicone Gel Breast Implants Products Liability Litigation, 996 F. Supp. 1110, 1117 (N.D. Ala. 1997).
30 Id. at 1115–16. Accord Jacobs v. E.I. Du Pont De NeMours & Co., 67 F.3d 1219, 1222 n.2 (6th Cir. 1995) (stating that bulk or raw material suppliers “are entitled to rely upon sophisticated purchasers, informed of potential dangers of the product, who resell the raw material after repackaging it or incorporating the raw material into another product.”) (citations omitted); Byrd v. Brush Wellman, Inc., 753 F. Supp. 1403, 1413 (E.D. Tenn. 1990) (granting summary judgment for defendant beryllium supplier on grounds supplier had no duty to warn plaintiff where purchaser of beryllium product, plaintiff’s employer, was knowledgeable about the dangers associated with beryllium products and “was the only party in a position to effectively warn the plaintiff and guard against those dangers.”).
31 Fischer, supra note 4, at 1148.
32 Bowbeer, supra note 9, at 112. See also Henderson & Twerski, supra note 3, at 23 (“Placing such a duty on component part manufacturers is not practically feasible and would result in enormous economic inefficiency.”).
33 Fischer, supra note 4, at 1148 (citation omitted). The component seller doctrine provides a means of satisfying the “corrective justice” and “economic efficiency” schools of tort philosophy. For a detailed discussion of this issues, see Madden, supra note 10, at 555–70.
34 Henderson & Twerski, supra note 3, at 23.
35 See Henderson & Twerski, supra note 3, at 8 (contending that “unlike the dire prediction of the plaintiff’s bar that the [Third] Restatement would be utilized exclusively as a tool for defendants to stifle legitimate claims, in reality plaintiffs have aggressively relied upon a host of Restatement positions and have often prevailed where they would clearly have failed under the jurisprudence of §402A.”).
36 See Gray v. Badger Mining Corp., 676 N.W. 2d 268, 218 n.8 (Minn. 2004) (noting, as an important question as-yet unresolved regarding §5, “whether, in combination, factors such as the component purchaser’s lack of expertise and ignorance of the risks of integrating the component into the purchaser’s product, and the component supplier’s knowledge of both the relevant risks and the purchaser’s ignorance thereof, give rise to a duty on the part of the component supplier to warn of risks attending integration of the component into the purchaser’s product.”)
37 See Henderson & Twerski, supra note 3, at 24 (“The mere provision of technical support and general processing advice does not sufficiently implicate the component part seller in the design process” so as to subject the component seller to liability under §5.) (citing §5, cmt. e).
38 See Bostrom, 2004 WL 1303930 at *1.
39 Id. (citations omitted).
40 Id. (emphasis supplied).
41 See id. at *2–3.
42 See id. at *3.
43 One commentator seems to suggest that §5 of the Third Restatement should not be adopted by the Florida courts because it “emphasizes product design over product warnings and the obviousness of the danger.” Spencer Silvergate, The Restatement (Third) of Torts, Fla. B.J. 10, 17 (Dec. 2001). However, another commentator recently emphasized that “[s]ince §5 was published, every court that has considered it has concluded that it is an appropriate statement of the law with respect to component supplier liability. The leading commentators have agreed. Section 5 got it right.” Bowbeer, supra note 9, at 112 (citations omitted).

Joseph J. Ward is a litigation associate in the West Palm Beach office of Holland & Knight LLP. His practice includes representing manufacturers and distributors in products liability cases alleging strict liability and negligence claims for manufacturing defect, design defect, and defective warning. Prior to entering private practice, Mr. Ward served as a judicial clerk at the Fourth District Court of Appeal. He is a 1998 graduate from The Florida State University College of Law. The views expressed in this article are solely those of the author.