“It’s New to Me!” Making the Case for Why Strict Liability Applies to “Repurposed” or “Remanufactured” Products

When an entity in the business of selling “repurposed” or “remanufactured” products puts one of those products into the stream of commerce, the question becomes whether such a product—one that is “like new”—can be subject to strict liability? Are these products new? Are they used? Or are they really something in between? What is the best way to go about convincing a trial judge that strict liability should apply to them?

That fundamental question became much more than a mere intellectual exercise for us.

On the Friday night of Memorial Day Weekend, we sat at the courthouse, passing the time by packing up boxes with sets of deposition notebooks and tire fragments, throwing away wrappers from lunches gone by, and dreaming of the day we would sleep again.

As day turned into night, we stared outside the courthouse windows into the darkness, choking down one last smashed protein bar with a warm Diet Coke chaser, pacing the halls as we waited for the jury to return with its verdict.

At around 8:30 P.M., the bailiff announced that the jury had reached its verdict. We sat waiting, hearts racing, surreptitiously glancing into the jury box. We tried to read the judge’s face as he silently perused the completed verdict form. With fingers crossed and our clients’ heads bowed, the clerk read the first question:

1. Was National Truck Center, Inc. the “manufacturer” of a new Pumper Truck?

YES X NO______ [1]

The “X” in the “YES” box made us quiver with delight. The affirmative answer meant that the jury agreed with us, finding that the product at issue—the pumper truck—that National Truck had tried so vociferously to convince the jury was “used,” was actually found by the jury to be “new.”

Thus, even though the pumper truck had been built on a 7-year-old chassis that had already traveled 617,000 miles as a semi-tractor, the many substantial modifications National Truck made to it (detailed below), led the jury to find the pumper truck was essentially a “new” product, and therefore, subject to the tentacles of strict liability.

The question for our jury (and soon, for a Florida appellate court), was whether strict liability applied to a product that was “repurposed,” “remanufactured” or “rebuilt?”

This article makes the case for why current law allows strict liability to be applied to those products which have been given a new or different life, notwithstanding whether or not the state’s law applies the doctrine to purely “used” products.

A. The rationale underlying strict liability buttresses the argument for also applying it to “repurposed” or “remanufactured” products.

In the early 1900s, New York’s highest court was the first to address the responsibility of a product seller that caused injuries to a victim due to a defectively manufactured wheel. [2] Explaining that the defendant owed a duty of care and vigilance even to those not in privity with the retailer or manufacturer, Justice Cardozo wrote:

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.[3]

The American Law Institute (ALI) later crystallized the common law rules of strict liability, drafting the Restatement (Second) of Torts § 402A (1965), which provides in pertinent part:

(1) One who sells any product in a defective condition unreasonably dangerous to the user 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 consumer without substantial change in the condition in which it is sold.

(Emphasis added).

Over the years, courts around the country have expanded the doctrine of strict liability to include others in the manufacturer’s marketing chain, e.g., retailers, dealers, distributors, importers, processers, assemblers, leasors, and other entities similarly situated in the distribution of products.[4]

In explaining the rationale for holding non-manufacturer suppliers to the same liability standard as actual manufacturers, the Allenberg court observed that: (1) retailers are also engaged in the business of distributing goods to the public; (2) such entities are integral to the overall producing and marketing enterprise, and should bear the cost of injuries resulting from defective products; (3) the retailer may be the lone member in the marketing chain reasonably available to the public; and (4) the retailer may help insure that the product is safe, or be in a position to exert pressure on the manufacturer to make the product safer.[5]

Despite its detailed belief that strict liability could apply to certain remanufactured or reconditioned products, the undisputed facts of Allenberg led that court to conclude that the doctrine did not apply to the sale of the subject bus in that case.[6] Allenberg found that any alleged defect had been created by the manufacturer, were things like changing the oil and/or tires, and that the retailer’s changes did not “warrant, recondition, change, alter, modify, or rebuild” the product before selling it.[7]

Courts around the nation are split as to whether strict liability applies to purely “used” products. In Malen v. MTD Prod.,[8] the product at issue was a remanufactured riding lawnmower that had been sold at Home Depot with a full manufacturer’s warranty.[9] Malen distinguished “reconditioning” or “remanufacturing,” from “servicing” or “repairing,” and ruled that strict liability applied to the defect in the product there, because—in large part—it had been advertised to be like new.[10]

In 1979, the Oregon Supreme Court in one of the first cases involving strict liability as applied to purely used products, ruled that the doctrine did not apply.[11] The Tillman court did not believe that either the satisfaction of reasonable expectations, or the impetus to manufacture better products, applied in the same way to the sellers of used products as they did to sellers of new products.

Conversely, in Thompson v. Rockford Mach. Tool Co.,[12] a Washington appellate court determined that strict liability under section 402A for design and manufacturing defects should be imposed on a dealer of used goods.[13] Thompsonnoted the policy considerations at issue in applying section 402A, articulately explaining:

The paramount policy to be promoted by the rules of strict liability is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them. The theoretical foundation of strict liability is that manufacturers who place their products in the stream of commerce impliedly represent their goods as safe for intended use.[14]

States that have actually codified their product liability laws, have also taken opposing positions on whether strict liability applies to used products.[15]

The defense argument is that even remanufactured or repurposed products are simply “used,” and therefore strict liability should not apply. Insisting that there is more to the analysis than the rudimentary “new” vs. “used” dichotomy, is one of the keys to making this argument, especially in those states—like Florida—where courts have decided that strict liability does not apply to purely “used” products.[16]

B. Strict liability should apply to “hybrid” products, that have been “re-manufactured,” “re-built” or “re-purposed” and are sold “like” new.

Many products do not fall so easily into either one of the clear-cut categories; i.e., classically new or classically used. Those products, where manufacturers have assembled used components, but have completely repurposed/remanufactured/redesigned those components or parts into the creation of a new product; i.e., a product that did not exist before the “repurposing” took place, seem to warrant the application of strict liability.

In our case, Werner Letterman, the single father of 14-year-old Tyler Letterman was killed while on his way home from work. He was driving his employer’s pumper truck on a Friday afternoon in rush hour traffic, when a front tire blew out on his vehicle. Because of the defects that arose in the way National Truck had manufactured this “repurposed” pumper truck, Mr. Letterman could not control his vehicle, and was killed in this single vehicle crash.

The defendant, National Truck Center, Inc. was “in the business” of assembling and converting truck chasses into substantially modified, “new” trucks. It had created a sewage pumper truck, from a related, but substantially different, semi-tractor chassis.

Letterman did not involve the usual incomplete vehicle chassis cab, where defendant manufacturers purchase “new” vehicles for upfitting, modification and sale of a new truck (as was the case in Cunningham v. Lynch-Davidson Motors, Inc.[17]). Instead, in Letterman, National Truck, Inc. had actually purchased a “used” tractor that had 617,000 miles on it, and had been used in fleet operations for seven years. National Truck acquired it in order to convert it into a “new” pumper truck for resale.

National Truck made substantial changes and modifications to this tractor chassis, and in the process, converted the tractor into a “new” pumper truck, undertaking the following modifications:

• Changing the tractor from a semi-tractor to a straight truck;

• Doubling the weight from 15,259 lbs. to 31,445 lbs.;
• Changing the gross vehicle weight rating from 52,000 lbs., to 54,000 lbs.;
• Lengthening the frame by 5 ½ feet;
• Adding a double frame;
• Discarding the fifth wheel;
• Moving the rear axles/wheels back five feet;
• Adding longer brake lines;
• Replacing the drive shaft with a longer unit;
• Discarding the original front steer axle 6,000 lb. springs and added 9,000 lb. springs;
• Adding a 4,000 gallon tank;
• Adding a hydraulic pumping system;
• Adding larger steer axle tires;
• Adding larger steer axle rims.

Cunningham, supra., supported that National Truck created a “new truck.” There, the defendant had purchased a new truck cab and chassis from Ford, and then sent the cab and chassis to a different manufacturer to install a dump body on the cab and chassis.[18] The “new” dump truck was sold, then resold to another driver—the victim—less than a year later. Cunninghammost closely addressed the factual scenario in Letterman, holding:

We conclude that, under the particular facts of this case, Lynch-Davidson is, for all practical purposes, the manufacturer of this dump truck and subject to liability under the doctrine enunciated in West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976).

It is well-established in Florida that the assembler of a product, which includes a component part manufactured by another, who sells the completed product as its own and thereby represents to the public that it is the manufacturer is also considered the manufacturer of the component part. While there is no evidence that Lynch-Davidson represented the completed dump truck as being its own particular product, such as the Ford Motor Company might represent that one of its cars is a Ford car, despite the fact that numerous component parts are manufactured by others, we find this to be a distinction without a difference. The more important test is whether Lynch-Davidson may be considered to have “assembled” the finished product. While it did not do so itself, it did furnish the cab and chassis to and arrange, set the specifications for, and pay for the assembly of the completed product by the Rogers Manufacturing Company. Thus, since the finished product was done at Lynch-Davidson’s behest, Lynch-Davidson must be considered the manufacturer of the completed dump truck. (Emphasis added; citations omitted). [19]

National Truck argued that because Cunningham involved a brand-new cab and chassis, it was not on point with a case where the chassis was used. That argument begs the question about whether such products—repurposed or remanufactured with used parts—can be seen as “new” for strict liability purposes. We think they do.

C. Cases around the country buttress the application of strict liability to cases involving “used” products that become “like new.’

In the Florida case of Cataldo v. Lazy Days R.V. Center, supra., the court addressed the distinction between products that an entity refurbishes, versus products that get “remanufactured” or “repurposed.” In Cataldo, an RV dealer sold a used—but refurbished—motor home to the plaintiffs.[20] As the court explained, the motor home underwent several walk-thru inspections which had resulted in some “reconditioning” of the vehicle (presumably, new floor mats, spruced up upholstery, etc.) but did not involve or affect the retractable steps that ultimately caused the plaintiff’s injuries.[21]

The clear message from Cataldo and Allenberg, supra., is that when a vehicle gets a “face lift,” and undergoes some rudimentary repairs as part of a reconditioning or refurbishment process, that is not the same thing as remanufacturing or repurposing a product.[22] (“By used products we do not refer to products rebuilt by a manufacturer….”).

Crandell went on to write:

We believe, however, that those used-product merchants who rebuild or recondition goods are subject to the strict liability doctrine. The application of strict liability to sellers of used products, who rebuild or recondition those products, helps to protect the reasonable expectations of consumers.[23] (Emphasis added).

Similarly, in Anderson v. Olmstead Utility Equipment, Inc.[24], the court found strict liability applied to a “rebuilt” product. There, a city had acquired a truck with an aerial device from a supplier.[25]

After using it for many years, the city contracted with a utility equipment company to “replace the truck with a new truck and to ‘remanufacture’ or ‘rebuild’ the aerial device.”[26] The contract provided that the aerial device was to be totally remanufactured, which included a 100% tear-down, inspection and rebuild, and all replacement parts were to be original equipment parts. The court found the defendant entity had totally “remanufactured” the hydraulic aerial device.

Like the Florida court in Cunningham found, “[w]hen a product is totally remanufactured or rebuilt, it becomes, for all intent and purposes, a new product.”[27] Just because the prefix “re” is attached to the word “manufactured” does not alter the true meaning of the word, and “to find that a remanufacturer is anything but a manufacturer would be illogical.”[28]

The Seventh Circuit in Malen,[29] also drew an important distinction between products undergoing significant transformation, versus those getting a cosmetic overhaul. As that court wrote, “reconditioning or remanufacturing a product” is different from servicing or repairing the item.[30] The Seventh Circuit explained, “Reconditioning extends the useful life beyond what was contemplated at the point of manufacture and effectively creates a new product.”[31]

Malen was the case where a riding lawn mower that had been advertised as “reconditioned power equipment” with a “full manufacturer’s warranty,” malfunctioned.[32] The court addressed the Restatement (Third) of Torts,[33] which underscores that consumers expect remanufactured or reconditioned products to present no greater risk of a defect than if new.[34] The court further observed that the Third Restatement—which has been adopted by the Seventh Circuit—posits that strict product liability is appropriate for “remanufactured” products.[35]

Malen then cited courts in other states which have previously recognized that “rebuilding or reconditioning a used product” is “akin to first manufacture” and thus the “commercial sale of a reconditioned product can give rise to a claim of strict liability” (relying on cases from California, Kansas, New Jersey, Ohio and South Dakota).[36]

In yet another decision, Michalko v. Cooke Color & Chemical Corp.[37] the court was faced with the question of whether a rebuild of part of a machine according to the specifications of the owner, can be subject to strict liability. The New Jersey Supreme Court held that it could.[38]

In Michalko, the injured victim worked for a company making airport lightning transformers. At one point, the engineering department at plaintiff’s employer, drew up plans to “rebuild and redesign” certain parts, sending the defendant a purchase order requiring it conform to the employer’s drawing and specifications.[39] The defendant then disassembled each machine, but “remachined” and “reused” some of the parts.[40]

Michalko opined that principles of strict liability should apply with similar force to the rebuilding of machines or the manufacturing of component parts.[41] Further, merely because the product is built according to the plans and specifications of the owner, does not give the manufacturer of a defective product a defense to a strict liability claim (an argument National Truck also tried to make in Letterman).[42]

The key to Michalko, which tipped the scales for the court, was that the defect had existed when the product was distributed by and was under the control of the defendant.[43]

D. Conclusion

As the Letterman case makes its way through Florida’s appellate courts, it does seem apparent that more courts will be called upon to address the issue of whether strict liability applies to repurposed products which are “like new.” As the case law reflects, courts continue to address the issue on a case-by-case basis, sometimes requiring factual resolution by a jury. Until the courts adopt the Restatement (Third) of Torts on this topic, or a court issues a definitive opinion, it appears that we as litigants representing injured victims will need to keep working to develop the common law on this issue in favor of our injured clients.

In litigating these cases, we must accentuate the depth and breadth of a product’s modifications, along with showing that the defendant created something different from what existed before. These factors will be the key to convincing courts that strict liability should apply to defective products which are “new” to the injured victim.

*This article was originally published by American Association for Justice (AAJ) Sections in the Products Liability: Fall 2018 Newsletter. It was written by Julie H. Littky-Rubin and Donald R. Fountain, Jr., partners in the West Palm Beach, Florida law firm of Clark, Fountain, La Vista, Littky-Rubin & Whitman.

________________________________________

[1] This was the first question on the verdict form in a case the firm recently tried called Letterman v. National Truck Center, Inc., Case No. 2015-CA-001204 Div. AF, litigated in the Circuit Court of the 15th Judicial Circuit, in and for Palm Beach County, Florida. The case started out with a number of different defendants, including the Chinese manufacturer of the subject tire which blew out, but after multiple settlements, proceeded to trial only against the defendant National Truck Center, Inc. The jury found that National Truck Center, Inc. was both negligent and strictly liable, and awarded Susan Letterman–the personal representative and grandmother of a 14-year-old boy who lost his single father in this fatal single vehicle accident–$15,502,880, ultimately apportioning 5% responsibility to the non-party Chinese tire manufacturer.

[2] See, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916).
[3] MacPherson, 217 N.Y. at 389.
[4] See, e.g., Allenberg v. Bentley Hedges Travel Serv., Inc., 2001 OK 22, 22 P.3d 223, 227, 228; Cunningham v. Lynch-Davidson Motors, Inc., 425 So. 2d 131, 133 (Fla. Dist. Ct. App. 1982).
[5] Id. at 228 (citations omitted).
[6] Id. at 230.
[7] Id. at 230.
[8] Malen v. MTD Prod., Inc., 628 F.3d 296 (7th Cir. 2010).
[9] Id. at 290–99.
[10] Id. at 306–07.
[11] See, Tillman v. Vance Equip. Co., 286 Or. 747, 596 P.2d 1299 (1979).
[12] Thompson v. Rockford Mach. Tool Co., 49 Wash. App. 482, 744 P.2d 357 (1987).
[13] Id. at 360.
[14] Hall v. Armstrong Cork, Inc., 103 Wash. 2d 258, 692 P.2d 787 (1984).
[15] See, e.g., Gaumer v. Rossville Truck & Tractor Co., 292 Kan. 749, 257 P.3d 292 (2011) (Holding that under both common law and the Kansas Product Liability Act that sellers of used products are subject to strict liability); but compare, e.g.,Peterson v. Superior Court, 10 Cal. 4th 1185, 899 P.2d 905, 915 (1995) (En banc) (Rejecting plaintiff’s attempts to impose strict liability on used product sellers).
[16] See, e.g., Cataldo v. Lazy Days R.V. Ctr., Inc., 920 So. 2d 174 (Fla. Dist. Ct. App. 2006).
[17] 425 So.2d 131, 133 (Fla. Dist. Ct. App. 1982).
[18] Id. at 132.
[19] Id. at 133.
[20] Id. at 175.
[21] Id. at 176; See also, Allenberg, supra. (Court noted that other than changing the oil and/or tires, the seller of a shuttle bus did not warrant, recondition, change, alter, modify, or rebuild the bus before selling it to its co-defendant).
[22] See also, Crandell v. Larkin & Jones Appliance Co., 334 N.W.2d 31, 33 (S.D. 1983) (“By used products we do not refer to products rebuilt by a manufacturer….”).
[23] Id. at 34.
[24] Anderson v. Olmsted Util. Equip., Inc., 60 Ohio St. 3d 124, 573 N.E.2d 626 (1991).
[25] Id. at 627.
[26] Id.
[27] Id.
[28] Id.
[29] Malen v. MTD Prod., Inc., 628 F.3d 296, 304 (7th Cir. 2010).
[30] Id. at 306.
[31] Id. (Emphasis added).
[32] Id. at 298.
[33] Unlike the Restatement (Second) of Torts § 402 (1965), the Third Restatement has not achieved such wide acceptance. That said, the Restatement (Third) of Torts § 8 entitled “Liability of Commercial Seller or Distributor of Defective Used Products,” imposes strict liability on one engaged in the business of selling or distributing used products and explains the circumstances under which the doctrine will be applied to used products.
[34] Id. at 307.
[35] Id.
[36] Id. at 307.
[37] Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 451 A.2d 179 (1982).
[38] Id.
[39] Id.
[40] Id.
[41] Id. at 183.
[42] Id. at 183.
[43] Id. at 184.