Woodworker's Journal 1985-9-3, страница 14

ALL-PURPOSE CONTOUR

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Workshop Income (cont'd.)

as loose screws, faulty component parts and so on, and design defects such as instability, flammability, toxicity, tendency to shatter and the like.

Liability for Mechanical Defects

The usually scrupulous attention to detail that is characteristic of handcrafted goods almost precludes the possibility of a mechanical defect. If there is a mechanical defect it will most likely occur in a component produced by someone else.

Example: a wooden lamp might contain a faulty electrical circuit that could cause serious injury to a user. Obviously, such a defect would be virtually impossible to detect. But under the current rule of "strict liability" followed by a majority of the states, you can be held liable for defects that could not have been discovered or prevented by human skill, knowledge or foresight. Your only protection is insurance.

Many defects are detectable before an accident occurs if the right tests are made. And, as pointed out, the courts have held that manufacturers have a duty to inspect and test their goods. Failure to adequately test has been held reason enough to impose large awards of punitive damages on top of the actual damages awarded.

Tests and Records

How much testing is adequate? Sophisticated testing might prove to be too expensive for a craftsperson. My advice is to design the best test you can for whatever you make, even if it's only a good tug here and there and, most importantly, to keep a record of it. This may serve to prove that you attempted to fulfill your duty to test the product. While this precaution might not protect you from product liability, it may result in reducing, if not eliminating, punitive-damage awards against you.

It is rare for an injured plaintiff to be able to prove that a defect was present when a product was purchased. The plaintiff frequently must rely on inferences drawn from the accident itself. If the jury is convinced that there is better than a fifty-fifty chance that the defect was there when the product was bought, the plaintiff will probably win. But if you come into court with a record of tests on your product, the odds might shift in your favor.

Besides keeping records of your tests, you should also keep records of your purchases of materials and devise some method of identifying the components in your product. That way, if you are sued for a defect in a component part you can pass the liability on to the party really at fault. For example, if a toy wooden wagon collapses because the wheels are inferior, you might be able to pass your liability on to the manufacturer of the defective wooden wheels. Wvj

Editor's Note: Next issue, in Part II, Mr. DuBojf discusses design liability, liability insurance, and some of the federal laws that apply to craftspersons.

Our thanks to Madrono Publishers for permission to excerpt this article from Mr. DuBojf s book. The Law (In Plain English) For Craftspeople. It can be ordered from your local bookstore or by writing to: Madrona Publishers, P. 0. Box 22667, Seattle' WA 98122. The cost is $8.95, postpaid.

Leonard D. DuBojf is a professor of law, a practicing attorney, and past president of the Oregon Volunteer Lawyers for the Arts. He is one of a handful of recognized experts on law and the arts, and is author of several books including The Deskbook of Art Law, Book Publishers' Legal Guide, and Art Law in a Nutshell.