In Hatch v. Trail King Industries, Inc., 2011 U.S. App. LEXIS 18000 (1st Cir. Aug. 29, 2011), plaintiff was paralyzed after a hydraulically operated drop gate on the trailer he operated fell on him, trapping him underneath. The trailer and its gate were manufactured by defendant according to the exact specifications of plaintiff’s employer. Plaintiff sued the manufacturer in the United States District Court for the District of Massachusetts for negligence and breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), alleging the trailer gate was defective and that the addition of a safety pin or chain would have prevented the accident.

After the district court instructed the jury that a defendant who manufactures a product according to the buyer’s specifications could not be liable under either a negligence or implied warranty theory, unless the design defect was so obvious it would have been unreasonable for defendant to manufacture according to the design, the jury returned a defense verdict. Plaintiff appealed, and the United States Court of Appeals for the First Circuit affirmed.

On appeal, plaintiff argued defendant was improperly attempting to disclaim its implied warranties. The court held defendant had made no such attempt, but rather the issue was whether an implied warranty of merchantability even arises where the manufacturer of a defective product simply followed the specifications of another. Finding no clear Massachusetts precedent, the court looked to the principles expressed in the Restatement (Second) of Torts, § 402A and § 404. Under § 402A, which Massachusetts substantially follows in an implied warranty personal injury case, a seller is strictly liable when it sells any product in a defective condition unreasonably dangerous to the consumer. Under § 404, “an independent contractor [who] negligently makes, rebuilds, or repairs a chattel for another is subject to the same liability as that imposed upon negligent manufacturers of chattels.” Comment a to the section, however, notes that “[t]he contractor is not subject to liability if the specified design or material turns out to be insufficient to make the chattel safe for use, unless it is so obviously bad that a competent contractor would realize that there was a grave chance that his product would be dangerously unsafe.”

The court first rejected plaintiff’s argument that § 404 was inapplicable by its terms because defendant was a manufacturer, not an independent contractor. Terming the purported distinction unhelpful, the court noted that the real issue was the respective roles played by defendant and plaintiff’s employer in designing the defective product. Here, where the product was built to the employer’s exact specifications, the court adopted the rationale of another court in a similar case that “to hold [defendant] liable for defective design would amount to holding a non-designer liable for design defect. Logic forbids any such result.” Moreover, the rationale for strict liability did not apply because the manufacturer did not launch its product into the general stream of commerce; indeed, where a product is built to the consumer’s specifications, the manufacturer is in no better position than the consumer to assume the costs of design safety. Finally, the court noted that although both sides had made lengthy policy arguments, in the absence of controlling Massachusetts case law the court had no authority to extend Massachusetts product liability law beyond the provisions of the Restatement (Second), which Massachusetts generally follows.