In Bernier v. One World Technologies, Inc., -- F. Supp. 2d ----, 2010 WL 3927765 (D. Mass. Sept. 29, 2010), plaintiffs were injured while using a table saw that “kicked back” causing their hands to make contact with the blade. The saw was not equipped with a new flesh-detection technology called “StopSaw” which automatically stops the blade when it first touches flesh. Neither did the saw incorporate an independent riving knife, which reduces “kickbacks.” Plaintiffs sued the saw’s manufacturers and retailer in the United States District Court for the District of Massachusetts, alleging negligence and breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) on the ground that the saw was defectively designed and defendants failed to warn of its dangers. The retailer moved for partial summary judgment with respect to the negligence claims, arguing it had no duty to warn potential users of any alleged defects in the saw.

In analyzing whether the retailer could be held liable in negligence, the court first turned to its own precedent in a similar case tried by different plaintiffs earlier in the year. In that case, the court held that a retailer that is not also the product’s manufacturer cannot be held liable in negligence for latent defects in the product. However, a retailer that puts out a product as its own, even if not the manufacturer, may be held liable under the “apparent manufacturer” doctrine. The rationale for the doctrine is that when a seller causes the public to believe it is the manufacturer -- whether through labeling, advertising or otherwise -- the consumer will rely on the company’s reputation and care in making products so the seller should be estopped to disclaim liability simply because it was not in fact the manufacturer. For the doctrine to apply, there must be evidence that the product’s labeling or advertising is “likely to cause a consumer to rely on the retailer’s reputation.”

Here, the court found there was no such evidence. The retailer’s name was not on the saw or its packaging, and plaintiffs put forth no evidence that they believed the retailer manufactured the product. Accordingly, the court allowed the retailer’s motion for summary judgment.