Welcome the Sophisticated User Doctrine: A Complete Defense to Unjustified Products Liability Claim
Florida tort law is currently ill-equipped to protect innocent manufacturers from the ravages of unjustified products liability claims. Many products liability claims originate when an employee’s misuse of a product causes injury to the employee or to a third person. Oftentimes, the manufacturer provides legally sufficient warnings for the safe and effective use of the product, but the employer fails to integrate these warnings into the training given to employees or the employees simply ignore the provided training. Due to the courts’ rigorous enforcement of sovereign and workers’ compensation immunity, the damages recoverable in these cases are inadequate when compared to the injury.1 For this reason, plaintiffs’ attorneys often file suit against the manufacturer under negligent and strict products liability theories even though it should be obvious that the manufacturer is not at fault. At present, there is a dearth of established products liability defenses to terminate these types of unjustified claims pretrial. Hence, manufacturers are compelled to expend exorbitant litigation and settlement costs which ought to be borne by others.
The sophisticated user doctrine addresses these concerns and provides a sound legal basis for eliminating these types of unfair products liability claims pretrial. This products liability defense permits manufacturers to discharge their duty to third persons by providing adequate warnings for the reasonably safe and effective use of their product to a sophisticated entity whom the manufacturer reasonably believes will pass the warnings to the product’s ultimate user. Under these circumstances, the duty to warn and supervise the product’s ultimate user and protect the third persons should be shifted in its entirety to the sophisticated user of the manufacturer’s product.
Threshold Question
The threshold question in sophisticated user cases should be whether a product is more appropriately characterized as an “unreasonably dangerous product” or as a “chattel known to be potentially dangerous for its intended use.”
Although often overlooked, the answer to this question is essential to the proper adjudication of many products liability cases. The reason is that, especially when a sophisticated user or purchaser of a manufacturer’s product is involved, the respective duties and standards of conduct owed toward a personal injury plaintiff can be vastly dissimilar. Indeed, the answer to this question may determine whether a product manufacturer owes any duty toward an injured party at all. These assertions will be supported by a discussion of established Florida products liability law and how these principles have evolved to the point where the next logical step is the acceptance of the sophisticated user defense and the Slavin rule’s extension to a narrow class of products liability cases.
In West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976), the Florida Supreme Court officially adopted the Restatement (Second) of Torts §402A’s approach toward strict products liability. That restatement section provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product or entered into any contractual relation with the seller.
In application, the relevant inquiry is whether the product was reasonably safe for its intended use, as manufactured and designed, when it left the plant of the manufacturer.2
In order to establish strict liability pursuant to West, a plaintiff must plead and prove: 1) the manufacturer’s relationship to the subject product; 2) the defect; 3) the unreasonably dangerous condition of the product; and 4) the existence of proximate causation between the condition and the user’s injuries or damages.3 A product is fairly characterized as defective if it is unreasonably dangerous and placed in the hands of a consumer without warning.4 In contrast, a product is not considered unreasonably dangerous, irrespective of warning, when the hazards associated with its use are obvious, reasonably apparent, or as well known to the product’s user as the manufacturer.5
In Cohen v. General Motors Corp., 427 So. 2d 389 (Fla. 4th DCA 1983), the court of appeals affirmed the trial court’s summary judgment order where the plaintiff manually released his car’s emergency brake while the car was running, and was injured. In doing so, the court reasoned:
A duty to warn arises where a product is inherently dangerous or has dangerous propensities. Thus, a warning of a known danger in a non-defective machine is required in the exercise of reasonable care. Further, a supplier of a product who knows or has reason to know that the product is likely to be dangerous in normal use has a duty to warn those who may not fully appreciate the possibility of such danger.6
In this passage, the court of appeals identifies a class of nondefective products which can be dangerous for their intended use. The court associates the duties required of manufacturers of this class of products with the Restatement (Second) of Torts §388, titled “Chattel Known to be Dangerous for Intended Use.”7
The Cohen case is significant for two reasons. First, it directs attention to the legal principles which should properly define a manu- facturer’s obligations when a product is known to be potentially dangerous for its intended use. Second, it provides doctrinal support for the application of §388 of the Restatement (Second) of Torts, the genesis of the sophisticated user doctrine.
Acceptance of Doctrine
When initially accepting the restatement’s approach to products liability in West, the Florida Supreme Court explained:
It is apparent that Florida courts in many instances have imposed strict liability in tort upon a manufacturer for placing a product on the market knowing that it is to be used without inspection for defects which cause injury to a human being.8
The court emphasized that “it is unreasonable to require the noncommercial consumer to make any sort of detailed or expert inspection.”9 Hence, the court distinguishes between two classes of users. The first class consists of noncommercial users which a manufacturer cannot reasonably expect to professionally inspect its product. The second class comprises sophisticated users of a manufacturer’s product.
Over time, the distinction recognized by the West court has developed into a body of law, which, depending upon the context and jurisdiction, is referred to interchangeably as either the “sophisticated user,” “bulk supplier,” or “learned intermediary” doctrine. Increasingly, courts are applying the principles embodied in the Restatement (Second) of Torts §388 to insulate product manufacturers from negligent or strict products liability when the manufacturer provides adequate warnings of its product’s potentially dangerous propensities to a sophisticated third party upon whom the supplier can reasonably rely to communicate the warnings to the product’s ultimate user. O’Neal v. Celanese Corp., 10 F.3d 249 (4th Cir. 1993) (affirming judgment notwithstanding the verdict based on the sophisticated user defense). The sophisticated user defense “is available not only when the supplier actually warned the intermediary, but also when the supplier shows that it was reasonable to believe that a warning was unnecessary because the intermediary was already well aware of the danger.”10
Section 388, titled “Chattel Known to be Dangerous for Intended Use” provides:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which it is supplied if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Courts and commentators, when advocating for the application of the sophisticated user doctrine, focus on language from comment n to §388, “Warnings given to third person,” which, in part, states “a supplier’s duty to warn is discharged by providing information about a product’s dangerous propensities to a third person upon whom it can reasonably rely to communicate the information to the ultimate users of the product or those who may be exposed to its hazardous effects.” Portelli v. I.R. Construction Products, Inc., 554 N.W.2d 591, 600 (Mich. App. 1996) (affirming summary judgment in supplier’s favor when the products were marketed to construction experts, the user’s employer received detailed instructions, and the supplier could reasonably “presume mastery of basic operations by experts or skilled professionals in [the construction industry]”); Carpenter v. Rust Engineering Co., 25 F.3d 1047 (6th Cir. 1994) (affirming summary judgment when the manufacturer supplied a crane in accordance with the general contractor’s specifications along with the applicable warnings); Phillips v. Green, 630 A.2d 874, 882 (Pa. Super. 1993).11 These cases are significant not only because they outline the parameters of the sophisticated user doctrine, but also because they demonstrate this affirmative defense’s amenability toward summary disposition.
In Phillips,12 the plaintiff steel workers brought suit against the supplier of silica-containing products used by the plaintiffs’ employer, U.S. Steel. Although the evidence established that U.S. Steel possessed full knowledge of the potential dangers associated with silica and was in the best position to warn its employees of the product’s potential hazards, the trial court denied the defendant’s motions for summary judgment and judgment notwithstanding the verdict.13 Based upon the sophisticated user doctrine, the appellate court reversed, vacating the jury verdict against the defendant/supplier. The court articulated the rationale for discharging the supplier’s duty in the context in which the employer of the product’s ultimate user is aware of the product’s potential hazards:
The extension of workplace warnings liability unguided by practical considerations has the unreasonable potential to impose absolute liability in those situations where it is impossible for the manufacturer to warn the product user directly. In the workplace setting, the product manufacturer often cannot communicate the necessary safety information to product users in a manner that will result in reduction of risk.Only the employer is in a position to ensure workplace safety by training, supervision and use of proper equipment. Designating the manufacturer an absolute insurer of its product removes the economic incentives that encourages employers to protect the safety of their employees.14
Phillips is instructional because it explains the reasoning behind application of the sophisticated user doctrine.
The Phillips court’s rationale for the sophisticated user doctrine reflects advancements in the fields of ergonomics and human factors engineering. Increasingly, warnings and human factors engineers conclude that “warnings and instructions on a product used in an occupational setting are best integrated into the training given to employees for the use of that product.”15 Indeed, industrial engineering Professor Richard F. Krenek of the University of Oklahoma explains that once provided with proper instructions for the safe and effective use of a manufacturer’s product, an employer should be under a legal and ethical obligation to design and implement policies which ensure adherence to those instructions.16 It is not enough for an employer to assume that an employee’s professed competence with a class of products obviates the need for proper training in the safe use of any specific product.17 The manufacturer’s duty should, therefore, be discharged by providing a sophisticated user with proper instructions for the safe use of its product. At that point, the legal obligation and incentive to implement procedures to protect workers and third persons should pass, in their entirety, to the sophisticated user.
Florida courts advance these legal and ethical principles in at least two contexts. First, when a pharmaceutical company provides a physician with an adequate warning of the dangers associated with the use of its product, the duty to warn the product’s ultimate user is transferred, in its entirety, to the physician; this rule is referred to as the “learned intermediary” defense. Upjohn Company v. MacMurdo, 562 So. 2d 680 (Fla. 1990) (“The manufacturer’s duty to warn of the drug’s dangerous side effects is directed to the physician rather than the patient.”); Christopher v. Cutter Laboratories, 53 F.3d 1184 (11th Cir. 1995) (under the Florida “learned intermediary” rule, a drug manufacturer discharges its duty to warn the ultimate user of its product if it either 1) adequately warns the prescribing physician; or 2) reasonably believes that the physician has independent knowledge of the product’s dangerous characteristics).
Second, Florida courts have applied an equivalent rule of law as §388’s “sophisticated user” defense in products liability cases in which the supplier fully informs the ultimate user’s employer of the dangers associated with the product’s operation. In Pranther v. Upjohn Co., 797 F.2d 923 (11th Cir. 1986), the court of appeals affirmed the trial court’s directed verdict in the manufacturer’s favor in which, albeit the user of the defendant’s product never received an adequate warning, the user’s employer 1) received a 40-page reference manual highlighting the product’s hazards, and 2) possessed independent knowledge of those hazards. Similarly, in Zunck v. Gulf Oil Corp., 224 So. 2d 386 (Fla. 1st DCA 1969), and Shell Oil v. Harrison, 425 So. 2d 67 (Fla. 1st DCA 1982), the court required entry of judgments in a gas supplier’s favor, as a matter of law, when the respective purchasers possessed actual knowledge of the product’s dangerous propensities, yet failed to properly warn the product’s ultimate users.
These two lines of cases mirror the principles underlying the Restatement (Second) of Torts §388 sophisticated user defense. Although not referred to as such, these controlling rules of law are, in operation, the sophisticated user doctrine’s functional equivalent. Accordingly, whenever applicable, Florida courts should adjudicate products liability cases pursuant to §388’s established parameters.
Use of Slavin Rule
Florida’s Slavin rule, commonly referred to in other jurisdictions as the “acceptance doctrine,” should be extended to those products liability cases in which a sophisticated purchaser requests a manufacturer to build a product in accordance with the sophisticated purchaser’s specifications. If the sophisticated purchaser is afforded an opportunity to inspect the completed product and accepts it as manufactured in accordance with the requested specifications, the manufacturer should be wholly discharged from products liability.
The acceptance doctrine generally operates to shield contractors from tort liability due to patent defects in construction which should be visible upon inspection. Currently, the acceptance doctrine in Florida, as articulated in Ed Ricke & Sons, Inc. v. Green, 609 So. 2d 504 (Fla. 1992), only applies in the construction context. There, the Florida Supreme Court held that an owner’s acceptance of a contractor’s work in accordance with the owner’s specifications insulated the contractor from liability to the plaintiff, who was injured because of patent defects in the project. Relying on its earlier decision in Slavin v. Kay, 108 So. 2d 462 (Fla. 1958), the court reasoned:
occupying and resuming possession of the work the owner deprives the contractor of all opportunity to rectify his wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author. When he accepts work that is in a dangerous condition, the immediate duty devolves upon him to make it safe, and if he fails to perform his duty, and a third person is injured, it is his negligence that is the proximate cause of the injury.18
To date, Florida courts have failed to apply Slavin in the products liability context. Conversely, the Missouri Court of Appeals embraces the acceptance doctrine when a sophisticated purchaser requests that a manufacturer build a product in accordance with the sophisticated purchaser’s specifications. In Bloemer v. Art Welding Company, 884 S.W.2d 55 (Mo. Ct. App. 1994), a sophisticated purchaser/detergent producer requested the defendant-manufacturer to build a “cyclone machine” in accordance with precise specifications provided by the detergent producer. The defendant manufactured the machine and the detergent producer accepted it. Thereafter, two of the detergent producer’s employees who were injured while cleaning the “cyclone” brought products liability claims against the manufacturer. The trial court granted the manufacturer’s motion for summary judgment based upon the acceptance doctrine.
On appeal, the plaintiffs argued that the acceptance doctrine is limited to the construction context and has no application to actions based upon products liability.19 The court of appeals disagreed, reasoning instead that failure to afford the benefits of the acceptance doctrine to manufacturers when a chattel is custom manufactured and installed in accordance with a customer’s specifications “would amount to holding a non-designer liable for defective design.”20 In affirming the summary judgment order, the court held that, absent a glaring deficiency in the sophisticated user’s specifications, a manufacturer’s compliance with those specifications constitutes a complete defense to strict liability and negligence claims based upon defective design.21
Bloemer stands for the proposition that the sophisticated user doctrine and the Slavin rule are parallel theories whose application is necessary for the just determination of many products liability cases. Manufacturers should be afforded the same legal shield as contractors in cases in which the negligence of sophisticated user or purchaser of their product unfairly exposes the manufacturer to burdensome tort liability.
Conclusion
The acceptance of the sophisticated user doctrine is necessary to protect the rights of the innocent manufacturer in Florida. When a manufacturer can demonstrate that it provided a sophisticated user with adequate warnings and instructions concerning the safe use of its product, the manufacturer’s duty toward the product’s ultimate user, or third persons, should be entirely discharged. Moreover, there is no rational basis for depriving a manufacturer of the Slavin rule’s protection when a manufacturer delivers a product in accordance with a sophisticated user’s design specifications. Accordingly, Florida products liability lawyers and, if necessary, the members of the Florida Legislature, should vehemently advocate for the extension of these reasonable legal rules. q
1 See John A. Bussian, Products Liability—The “Sophisticated User” Defense, 7 Am. Jur. Proof of Facts 3d 305, 311 (1992) (albeit somewhat dated, this article is an excellent resource because it provides insight on how to structure the defense of case in accordance with the sophisticated user doctrine).
2 West, 336 So. 2d at 86.
3 Clark v. Boeing, 365 So. 2d 1226, 1229 (Fla. 3d D.C.A. 1981).
4 Thursby v. Reynolds Metal, 466 So. 2d 245, 251 (Fla. 1st D.C.A. 1984), relying upon Restatement (Second) of Torts §402A (affirming final judgment in favor of manufacturer when an employee was injured while using the manufacturer’s aluminum press).
5 Thursby, 466 So. 2d at 251; Byrnes v. Honda Motor Co., 887 F. Supp. 279 (S.D. Fla. 1994) (granting manufacturer’s motion for summary judgment concerning failure to warn when a reasonable user would appreciate a motorcycle’s obvious dangers).
6 Cohen, 427 So. 2d 389 (citations omitted).
7 Id. at 391.
8 West, 336 So. 2d at 86.
9 Id. at 92.
10 O’Neal, 10 F.2d at 252.
11 See also Jodway v. Kennametal, Inc., 525 N.W.2d 883, 889 (Mich. App. 1994) (affirming summary judgment when the defendant-manufacturer reasonably relied on purchaser/employer’s compliance with safety regulations); Newson v. Monsanto Co., 869 F. Supp. 1255, 1259 (E.D. Mich. 1994) (granting defendant/manufacturer’s motion for summary judgment when appropriate warnings were provided to the plaintiff’s commercial employer); Higgins v. E.I. DuPont de Nemours, Inc., 671 F. Supp. 1055, 1058 (D. Md. 1987) (granting defendant/manufacturer’s motion for summary judgment when the plaintiff’s employer was aware of the dangers associated with the subject product’s use); Adams v. Union Carbide Corp, 737 F.2d 1453, 1457 (6th Cir. 1984) (affirming the trial court’s summary judgment order when the defendant/supplier provided the plaintiff’s employee with a manual specifically addressing the product’s dangerous propensities which caused the plaintiff’s injuries).
12 Phillips, 630 A.2d at 874.
13 Id. at 887.
14 Id. at 883 (emphasis added).
15 Richard F. Krenek & Jerry L. Purswell, Warning Label Content Strategies: An Approach to the Integration of User Knowledge and Designer Judgment, to be published in The International Journal of Cognitive Ergonomics, 1998; see also Michael S. Wogaler, Nancy A. McKenna, and Scott T. Allison, Warning Compliance: Behavioral Effects of Cost and Consensus, Proceedings of the Human Factors Society, 32d Annual Meeting, 1988.
16 Telephone interview with Dr. Richard F. Krenek, Krenek & Associates, Inc. (March 3, 1998).
17 Telephone interview with Dr. Richard F. Krenek, Krenek & Associates, Inc. (April 8, 1998).
18 Green, 609 So. 2d at 507 (emphasis added).
19 Bloemer, 884 S.W.2d at 58.
20 Id.
21 Id. at 56.
Gene P. Kissane is a partner at Cole White & Billbrough, P.A., Miami. He graduated from the University of Miami School of Law in 1989 and served as a law clerk to Judge Thomas E. Scott at the U. S. District Court for the Southern District of Florida. A substantial part of his litigation practice is dedicated to products liability defense. Mr. Kissane also concentrates in the defense of Florida professionals from malpractice and business tort lawsuits.
Michael S. Metta is an associate at Cole White & Billbrough, P.A., Miami. He graduated magna cum laude from the University of Miami School of Law in 1997. Mr. Metta is a trial and appellate attorney who concentrates his practice upon products liability, professional negligence, and insurance coverage cases.
This article is submitted on behalf of the Trial Lawyers Section, Richard A. Gilbert, chair, and D. Keith Wickenden, editor.
