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For industrial equipment (such as a tractor), who is liable for injuries if the equipment is repaired or modified by a 3rd party and it goes to court later? ht

by shagie 5y ago

For industrial equipment (such as a tractor), who is liable for injuries if the equipment is repaired or modified by a 3rd party and it goes to court later? https://www.biren.com/blog/2020/september/defective-machinery-products-liability-litigatio/ https://www.biren.com/blog/2020/september/defective-machiner... In particular https://www.justia.com/trials-litigation/docs/caci/1200/1245/ https://www.justia.com/trials-litigation/docs/caci/1200/1245... > The [misuse/ [or] modification] was so highly extraordinary that it was not reasonably foreseeable to [name of defendant], and therefore should be considered as the sole cause of [name of plaintiff]’s harm. So, if it was foreseeable that a 3rd party may modify some equipment in some way, the manufacturer must specifically warn the purchaser about "don't do that." With software, this becomes a much more difficult challenge. Additionally, https://www.justia.com/trials-litigation/docs/caci/1200/1244/ https://www.justia.com/trials-litigation/docs/caci/1200/1244... > [Name of defendant] claims that [he/she/nonbinary pronoun/it] is notresponsible for any harm to [name of plaintiff] based on a failure to warn because [name of plaintiff] is a sophisticated user of the [product]. To succeed on this defense, [name of defendant] must prove that, at the time of the injury, [name of plaintiff], because of [his/her/nonbinary pronoun]particular position, training, experience, knowledge, or skill, knew or should have known of the [product]’s risk, harm, or danger. So with software, either the user is a sophisticated user and aware of the implications of installing their own patches on the system and what that could do (over fertilize a field because of an incorrect setting on the gps calibration)... or they aren't. If they aren't a sophisticated user of the system, then it should be locked down sufficiently to prevent those changes. > “The sophisticated user defense concerns warnings. Sophisticated users ‘arecharged with knowing the particular product’s dangers.’ ‘The rationale supporting the defense is that “the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.” So are we expecting farmers to be software engineers too?

mistrial9 5y ago
ok - "you are too stupid to own this equipment" and "we know what is best for you" basically?
heavyset_go 5y ago
Any idiot who tinkers with cars can flash custom firmware on their car's ECU without a problem, and cars can very easily maim or kill users and the people around them. I don't buy this argument.
- shagie 5y ago
  Cars are not industrial equipment though and the insurance liabilities on those are different. https://www.mcguirewoods.com/news-resources/publications/us-automotive-products-liability.pdf https://www.mcguirewoods.com/news-resources/publications/us-... It has similar Misuse or Alteration of Product defense... but... https://ggrmlawfirm.com/blog/personal-injury/car-customization-and-liability-risk/ https://ggrmlawfirm.com/blog/personal-injury/car-customizati... > A hobbyist who does his or her own customization work often assumes the risk that some part of the work wasn’t completed correctly. Making changes to a car in a way that renders the car unsafe could expose the hobbyist to liability for any resulting injuries. Absent insurance that specifically covers it, the hobbyist could be left bearing all of the cost of the ensuing litigation and compensation to injured parties. It is the hobbyist that has the liability. So if you change your car's ECU its you that are liable when it gets in a wreck, not the car company for having a faulty product. For industrial equipment, that doesn't exist. If you can make a change to the industrial equipment and the equipment manufacturer doesn't try to stop you, the equipment manufacturer is likely liable for damages. There's a powerpoint (awkward to read in a web browser - "Product Liability Law in the Farm Equipment Industry" from agrability.org also as part of a recorded webinar at https://youtu.be/NdN577BbnSY https://youtu.be/NdN577BbnSY ). 11:33 talks about Strict Liability and 19:24 talks about farm equipment being "reasonably safe". The case studies are also interesting - pay attention at 42:23 where it points out who is paying for the injury.
  - pessimizer 5y ago
    > For industrial equipment, that doesn't exist. If you can make a change to the industrial equipment and the equipment manufacturer doesn't try to stop you, the equipment manufacturer is likely liable for damages. So put it into the agreement? I don't see how this is an onerous barrier; if companies can force arbitration based on the sales agreement, they should be able to (within reason) dodge liability for the effects of modifications they didn't approve.
Rygian 5y ago
No, we're not expecting farmers to be software engineers. But we expect they can hire actual software engineers other than Deere's.
- shagie 5y ago
  According to existing product liability law (if I'm reading this correctly, I am not a lawyer), if John Deer allows a farmer to insert an SD card with different firmware or settings or whatever, John Deer is still liable for the tractor even if it was changes that were made by the developer. If that 3rd party firmware overapplied fertilizer - JD would be liable. If the auto driving feature was modified and ran out into the road and killed someone, JD would be liable. Product liability for industrial equipment falls in different category than other product liabilities and all industrial equipment (including tractors) are classified as "unreasonably dangerous" and it is the responsibility of the manufacturer to prevent 3rd party modifications that may result in damages that could have been foreseen with the existing setup. If John Deer allows someone to change the software, then it is foreseeable that anything that is software controlled may be changed and behave in a way that is unintended... and John Deer is liable unless they prevent that software change.
  - pessimizer 5y ago
    > all industrial equipment (including tractors) are classified as "unreasonably dangerous" and it is the responsibility of the manufacturer to prevent 3rd party modifications that may result in damages that could have been foreseen with the existing setup. This is not necessary. We can choose to not do this. Also "could have been foreseen" carries a lot of water here. These products shouldn't be unsafe to make minor repairs on any more than they should be unsafe to operate.
    - shagie 5y ago
      The Brush Hog case that I mentioned elsewhere had a protective plate removed (it was apparently commonly removed by farmers) and attached to an older tractor. When the operator (not the owner who made the change) was mutilated from the mower, Brush Hog was liable because it wasn't harder to remove that safety plate.

by shagie 5y ago

mistrial9 5y ago

ok - "you are too stupid to own this equipment" and "we know what is best for you" basically?

heavyset_go 5y ago

Any idiot who tinkers with cars can flash custom firmware on their car's ECU without a problem, and cars can very easily maim or kill users and the people around them. I don't buy this argument.

shagie 5y ago
Cars are not industrial equipment though and the insurance liabilities on those are different. https://www.mcguirewoods.com/news-resources/publications/us-automotive-products-liability.pdf https://www.mcguirewoods.com/news-resources/publications/us-... It has similar Misuse or Alteration of Product defense... but... https://ggrmlawfirm.com/blog/personal-injury/car-customization-and-liability-risk/ https://ggrmlawfirm.com/blog/personal-injury/car-customizati... > A hobbyist who does his or her own customization work often assumes the risk that some part of the work wasn’t completed correctly. Making changes to a car in a way that renders the car unsafe could expose the hobbyist to liability for any resulting injuries. Absent insurance that specifically covers it, the hobbyist could be left bearing all of the cost of the ensuing litigation and compensation to injured parties. It is the hobbyist that has the liability. So if you change your car's ECU its you that are liable when it gets in a wreck, not the car company for having a faulty product. For industrial equipment, that doesn't exist. If you can make a change to the industrial equipment and the equipment manufacturer doesn't try to stop you, the equipment manufacturer is likely liable for damages. There's a powerpoint (awkward to read in a web browser - "Product Liability Law in the Farm Equipment Industry" from agrability.org also as part of a recorded webinar at https://youtu.be/NdN577BbnSY https://youtu.be/NdN577BbnSY ). 11:33 talks about Strict Liability and 19:24 talks about farm equipment being "reasonably safe". The case studies are also interesting - pay attention at 42:23 where it points out who is paying for the injury.
- pessimizer 5y ago
  > For industrial equipment, that doesn't exist. If you can make a change to the industrial equipment and the equipment manufacturer doesn't try to stop you, the equipment manufacturer is likely liable for damages. So put it into the agreement? I don't see how this is an onerous barrier; if companies can force arbitration based on the sales agreement, they should be able to (within reason) dodge liability for the effects of modifications they didn't approve.

Rygian 5y ago

No, we're not expecting farmers to be software engineers. But we expect they can hire actual software engineers other than Deere's.

shagie 5y ago
According to existing product liability law (if I'm reading this correctly, I am not a lawyer), if John Deer allows a farmer to insert an SD card with different firmware or settings or whatever, John Deer is still liable for the tractor even if it was changes that were made by the developer. If that 3rd party firmware overapplied fertilizer - JD would be liable. If the auto driving feature was modified and ran out into the road and killed someone, JD would be liable. Product liability for industrial equipment falls in different category than other product liabilities and all industrial equipment (including tractors) are classified as "unreasonably dangerous" and it is the responsibility of the manufacturer to prevent 3rd party modifications that may result in damages that could have been foreseen with the existing setup. If John Deer allows someone to change the software, then it is foreseeable that anything that is software controlled may be changed and behave in a way that is unintended... and John Deer is liable unless they prevent that software change.
- pessimizer 5y ago
  > all industrial equipment (including tractors) are classified as "unreasonably dangerous" and it is the responsibility of the manufacturer to prevent 3rd party modifications that may result in damages that could have been foreseen with the existing setup. This is not necessary. We can choose to not do this. Also "could have been foreseen" carries a lot of water here. These products shouldn't be unsafe to make minor repairs on any more than they should be unsafe to operate.
  - shagie 5y ago
    The Brush Hog case that I mentioned elsewhere had a protective plate removed (it was apparently commonly removed by farmers) and attached to an older tractor. When the operator (not the owner who made the change) was mutilated from the mower, Brush Hog was liable because it wasn't harder to remove that safety plate.