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Caveat Venditor Why a Retailer Sells Goods at His Own Peril

Many small business owners that I've encountered are surprised to learn that under New York law, anyone in a product's chain of distribution can be held liable for injury that results from the foreseeable use of the product. This law includes a retailer, who may have just put that product on his shelf without ever opening the box, and a distributor, who merely transported the product from one destination to the other. Under this scenario, neither the retailer nor the distributor was actively at fault for the product's defect or the plaintiff's accident - and they can still be held liable. Does that sound scary from the retailer or distributor's perspective? It sure is. The Plaintiff's Burden of Proof in a Products Liability Action In very basic terms, in order to prevail in a products liability action, a plaintiff needs to prove two things: first, that the product is defective, i.

e., the product is so likely to be harmful to persons or property that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition, and, second, that the defect was a substantial factor in causing plaintiff's injuries. The plaintiff can meet this burden of proof by demonstrating one of the following: (1) this specific product was defectively manufactured; (2) the product was defectively designed; or, (3) the safety warnings accompanying the product were inadequate. At first blush, this law seems particularly tough on middlemen like the retailer and distributor, which presumably have little to no input in either the manufacture or design of the product, or the warnings that are placed on the product.

However, it bears mention that these entities reap the financial rewards from selling the product. Consequently, the courts have opined that in the interests of assuring that a plaintiff with a legitimate defective products claim has a viable and readily available party from whom he or she can be compensated (as opposed to a foreign manufacturer with no connection to the plaintiff or place of occurrence), it is fair to hold the middlemen liable for the product's failures. This law does not leave retailers or distributors without recourse; to the contrary, they are still entitled to seek indemnity and/or contribution from the responsible party (generally, the manufacturer).

On the other hand, clearing the technical and procedural hurdles necessary to get indemnity from the manufacturer is often far from simple, particularly where the manufacturer is foreign. Assumption #1: The manufacturer has the requisite minimum contacts with the forum of the claim. In order to obtain personal jurisdiction over the foreign manufacturer, you must demonstrate that the manufacturer either transacts business or has some other tangible nexus with the forum state (see, e.g.

, New York Civil Practice Law and Rules §302). Assumption #2: The manufacturer's host country is a signatory to the Hague Convention's Service of Process Rules. If Assumption #1 can be satisfied (which is uncertain at best), you will still need to assure that your legal papers are personally served on the manufacturer. This in turn requires that the manufacturer is not only readily located, but can be served under the Hague Convention's rules.

Assumption #3: The manufacturer is a viable entity with collectible assets. It goes without saying that a paper judgment against a defunct corporation is utterly worthless. So how can a domestic retailer or distributor protect itself against products liability claims? Here are a few suggestions: 3 Easy Steps to Protect Your Retail Business Against Defective Products Claims Step #1: Make sure that those entities above you in the chain of distribution carry adequate products liability insurance from a domestic, well-reputed and established insurer that specifically names your company as an additional insured on the policy.

Do not rely on the manufacturer's claim that you are named on the policy; get confirmation directly from the insurer (I have seen instances where the declaration sheet provided by the other party to the agreement was a complete fabrication). Step #2: Make sure that you have an agreement that indemnifies you against any claim of a product defect that is not of your own doing. Stated otherwise, if you are a retailer or distributor, you should be indemnified against any claims of manufacturing or design defect and/or inadequate warnings.

Step #3: Try to assure that those companies directly above you in the chain of distribution have a domestic presence, such as an office or agent for service of process. While following these rules may cost some time and money in the short run, these safeguards are indispensable, for they may ultimately save your company from needless exposure to financial ruin. Copyright (c) 2008 Law Offices of Jonathan Cooper.

Jonathan Cooper is an attorney in private practice in New York. He has represented small businesses and individuals in the trial and appellate courts for over a decade. For further information about his firm, please visit http://www.jmcooperlaw.com

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