Product Liability and the Element of Control

How important is control? If you ask Mario Andretti about control, he would respond, “If everything seems under control, you’re just not going fast enough.”

Ask Nicole Kidman and she will tell you, “When you relinquish the desire to control your future, you can have more happiness.” Ask a lawyer defending a window product defect claim, and he or she will tell you— control can be everything.

Control over the product is an essential element of any product defect case. The method, manner and extent of control exercised by a manufacturer over a product as it moves into service impacts not only interaction with the customer, but also potential legal actions that can later be asserted. This basic truth of all product defect claims certainly applies to those against window and door manufacturers and resellers.

That said, we know your concern— “I can control things at the manufacturing level, but when I sell my window to someone else, who sells it to someone else, who installs it into a home later owned by someone else, how am I supposed to control that?” This is the reality in most of the fenestration marketplace. The inherent lack of control by the manufacturer was recently addressed by a Texas appellate court in Allstate Lloyds Co. v. Marvin Lumber and Cedar Co.

The suit concerned an insurer’s effort to recover for claims paid to one of its insured based upon alleged leaky windows manufactured by Marvin. In response, Marvin moved for summary judgment (a way to win prior to trial) arguing that Allstate did not have legally sufficient evidence to support its lawsuit. The trial court granted Marvin’s motion. Allstate appealed.

Among the issues raised on appeal were: 1) whether Marvin was negligent under the legal theory of res ipsa loquitur,” and 2) whether the allegation of strict liability should have been decided in Marvin’s favor by the judge. The concept of negligence with which we are most familiar requires affirmative proof of “fault” by the defendant. Strict liability is a type of product claim that may not require a finding of fault. It can be satisfied by the existence of criteria related to a product itself, principally concerning the level of danger associated with its use.

In the Marvin case, the ultimate holding of the Texas Court of Appeal was to affirm the judgment dismissing Allstate’s claim of negligence, but reverse and reinstate the strict liability claims. The issue of the manufacturer’s control underpinned both determinations.

RES IPSA LOQUITUR

With regard to negligence, Allstate argued that its mere possession of evidence that the windows leaked was sufficient to maintain the action, because the windows were manufactured wholly in Marvin’s control. In “legalese,” this argument is known by the Latin phrase res ipsa loquitur; i.e., “a thing that speaks for itself.” The argument is that because an event occurs, and such event does not usually occur unless someone is negligent, it is up to the defendant to prove his or her innocence—an uncomfortable prospect, especially in the context of a window case.

The court “got it right” and recognized that in this archetypical window case an essential element of the res ipsa loquitur doctrine is missing— control. In order for the theory to apply, a defendant must have had exclusive control over the “instrumentality of harm” through the time it caused the alleged damage. Obviously, when it comes to windows or doors in the field, exclusive control is not reasonable or realistic.

The involvement of the contractor, installer and the security company— in addition to the use of the home by the homeowner for over six years before the discovery of the water intrusion—establish that Marvin did not exercise the control necessary for res ipsa loquitur to apply.

Allstate had argued that the sealing of the windows at the factory, and “unaltered” arrival at the home, were sufficient evidence of control. The court’s recognition of the importance of the activity of the contractor, the installer and the use by the homeowner was critical. Finding that evidence of factory work was nothing “more than a scintilla of evidence that the windows allegedly caused the injury were under the management and control of Marvin Lumber,” the court easily dismissed this legal contention regarding control.

The next contention was not so easily addressed. On Allstate’s claim for product liability, the court found that, although it was based upon circumstantial evidence, it should not have been dismissed. The court observed that while the disparate parties who exercised control over the window would limit a legal theory of negligence, it was not fatal to the design and manufacturing defect claims under strict liability theories. Again, the issue turned on control.

While Marvin did not have control during installation and the years the windows were in service, it did control the original design and production that went into making the windows. Therefore, if Allstate wanted at trial to present a claim based upon evidence that the window’s design or manufacture itself caused damage, it was entitled to do so. Marvin, in turn, will be entitled to dispute the existence of any defect in design/manufacture and present evidence of how interceding parties—those exercising subsequent control—along with the passage of time changed the condition of the window after it left the factory.

Though in the unusual setting of a “res ipsa” claim, the Allstate decision illustrates that the courts can be educated about, and will react to, the legal implications arising from the fate of windows and door products after they leave the control of the manufacturer. It should never be automatically concluded that poor infield performance has to be the responsibility of the manufacturer. As an industry, we have been saying this for a long time—it is good to see that the message can be heard.

Paul R. Gary is principal of the Gary Law Group, a law firm based in Portland, OR, emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.

*Previously published in the Window and Door Magazine