Product Liability Today: Dealer Beware

By Jackie Rosselli

Anytime a police officer or firefighter dons a blouse coat or dress coat, he or she is putting on an air of authority.

When you see a police officer wearing a uniform, your impression immediately becomes one of Heres an authoritative person – a man who should command your respect, says Bob Lazar, president of Artcraft Blazers in Pittsburgh, Pa. Any kind of uniform has an authoritarian impression.

Its almost like a military bearing, notes Ed Brandes, owner of Romart in Scranton, Pa.

A tailored coat is neat and trim and makes the individual seem a lot more professional than when they are in khaki pants and a golf shirt or just a pair of trousers, shirt and tie, Brandes says.

The color blue makes a difference in lending the garment the appearance of authority, notes Fred Belverio, vice president of Hope Uniform in Columbia, N.J.

It is a person-friendly color, he says. Its dressy and gives authority, but its not rough and tumble like a heavy leather jacket. This is more like a gentleman in a suit.

Add piping, stripes, patches and buttons and that accentuates the look, says Paul Brateman, CEO of Bratemans in Fort Wayne, Ind.

Tiffani Stott, co-owner of Crescent Work & Outdoor in Modesto, Calif., echoes that. The accoutrements lend the blouse coats an air of authority, Stott notes.

The double-breasted coats, the braid, the wool fabric blend, the buttons added for specific agencies or departments and the departmental insignia, whether it be patches, hash marks, or chevrons all contribute she says.

According to an article by Richard Johnson for PoliceOne.com, police uniforms have a distinct psychological influence on those who view it.

Research has also suggested that even slight alterations to the style of the uniform will change how citizens will perceive the officer, Johnson writes.

According to Johnson, the first standard police outfit was developed in 1829 by the London Metropolitan Police. The police were issued a dark blue, paramilitary-style uniform to distinguish them from the red and white uniforms of the British military during that period.

New York City was the first official police force established in the United States in 1845; the city adopted the London police officers uniform style.

The dark colors continue to be worn to this day, valued for their ability to conceal those who wear it during tactical situations they also dont show dirt as readily as lighter colors. Also, officers are less likely to be harmed when in uniform than in street clothes, Johnson notes.

Depending on the background of the citizen, the police uniform can elicit emotions ranging from pride and respect to fear and anger, writes Johnson. Research has revealed that alterations to the traditional, paramilitary police uniform can result in changes in perceptions by the public, Johnson adds. The style of the clothes, the type of hat worn, the color of the material and even the condition of the clothes and equipment have an influence on how citizens perceive the officer. The selection of a uniform style, regulations on the proper wear of the uniform, how well uniforms are maintained, and policies on when officers may wear plain clothes should all be taken very seriously.

The construction of todays blouse coats or dress coats focuses on a 55% Dacron polyester and 45% wool, such as those manufactured by Fechheimer Brothers in Cincinnati, Ohio, and is typically single breasted or double breasted.

Belverio points out that wool or wool blends tend to hold up better.

Artcraft also offers a 100% texturized polyester.

The word polyester has a bad connotation for older people; younger people, not so, Lazar says. If we put the 55 Dacron/45 worsted wool and polyester on two mannequins and stand 10 feet away, only one in 10 people might know the difference because they look the same.

Artcraft makes fully-lined garments. Lazar notes there are some blouse coats being made partially-lined, though they dont seem to gain as much acceptance.

A tailored, lined garment seems to be more acceptable, he says.

Brandes, whose company also manufactures blouse coats in 55% Dacron polyester and 45% wool fabric, says, The trimmings we put into the garment are high quality, so that makes a difference in the overall appearance of the garment, he says. You can put all of the money into trimming you want, but if you dont press it right or sew it right, its not going to be right.

American companies can be sued at any time. Its a fact of doing business in todays overly litigious world. If you think youre insulated from litigation, think again lawyers in the United States too often turn the legal system into a weapon against the guilty and innocent alike. A sampling of cases cited by Overlawyered.com, a watchdog group that tracks the rise of lawsuits, illustrates the point.

Item: The widow of an artificial-heart recipient sued the maker of the device, the hospital where it was implanted and the patient advocate who helped the husband decide to have the surgery. Why? The widow said that she and her husband did not know what they were getting into when they joined the clinical trial. They thought the machine would save his life and that it should have been made more clear just how experimental the device was.

Item: Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway, caused an explosion, were burned badly, sued and won $8 million.

Item: Hurling for the Pittsfield, Ill. High School baseball team, a player put one over the plate to a batter from opponent Calhoun High School, who smacked the ball in a line drive straight at the pitchers mound where it hit the pitcher on the head. Now he is suing. Who? The maker of the baseball bat.

In our own industry, the ongoing controversy surrounding bullet-resistant vests and their manufacture has once again brought the issue of product liability to the forefront of concerns.

Numerous lawsuits have been filed against Second Chance Body Armor, alleging serious problems with Zylon, the material used to make many of the companys bullet-resistant vests. Toyobo America Inc., which makes Zylon, has acknowledged the material loses 10% to 20% of its durability within two years of manufacture, but contends the material works well in properly constructed body armor. It has blamed some of the vests failure on manufacturers. Toyobo, too, has been named in many lawsuits, and the controversy forced Second Chance to file for bankruptcy protection last fall.

But the fallout doesnt end there. Now comes word that dealers, too, are being named in these body armor lawsuits. Made to Measure has learned of one such case, and we are confident, given the nature of litigation in the United States today, that there are others.

How can todays store owners reduce their chances of being hauled into court? Can a dealer ever fully insulate him or herself from being named in a lawsuit? Is it worth it to sell a product that might potentially destroy your business down the line? Are manufacturers actually motivated to produce a better and safer product because of the threat of litigation? After all, Ford doesnt make the Pinto anymore, the infamous car that exploded when struck from behind. Many credit the legal profession and its barrage of lawsuits with getting the dangerous vehicle off the road.

Before we answer these questions, it is important to understand the nature of product liability law today. If the end user has been injured by a product – whether because it was defective or because it was inherently dangerous – he or she may be eligible for compensation from the manufacturer, retailer, wholesaler, distributor or any other entity involved with the product. This obligation, called product liability, is a division of personal injury law and is governed by product liability law.

It is important to note, however, that a product need not be defective for its manufacturer to be found liable under product liability law. For example, if an infant is injured by a pin lodged in a jar of baby food, all corporations affiliated with the distribution of the product can be held responsible for any injuries incurred. However, the baby food, though it contains a dangerous item, is not technically defective; rather, it is unsafe to consumers. This holds true for all non-defective items, as long as they were used in the manner intended. If the end user uses a product inappropriately, he or she may not have a legitimate product liability claim on which to build a case.

In the past, buyer beware was the prevailing legal notion. Current law, however, imposes strict liability on corporations or individuals who make defective products. It assumes that manufacturers and sellers must reasonably try to protect consumers. Failure to do so can result in their being slapped with a product liability lawsuit.

There are numerous Web sites devoted to the topic of product liability. The following information was compiled from such sites, including those of the American Bar Association and the law firm of Monheit, Silverman & Fodera.

According to the experts, there are four legal means for establishing liability in product liability lawsuits involving defective or dangerous products. These are negligence, breach of warranty, misrepresentation and strict liability. Each can hold the manufacturer, seller or distributor responsible for the harm caused.

Any person or entity that does not provide reasonable care when it has the legal responsibility to do so can be found guilty of negligence. This includes inaction as well as careless and malicious action.

Breach of warranty takes place when a seller fails to uphold a claim or promise about a product. The law expects companies to stand by their assertions and fulfill any obligations made to customers.

Misrepresentation refers to advertising claims that lead consumers to believe that a product is safer than it really is or that distract them from potential risks inherent in the use of a product. Misrepresentation can be argued under breach of warranty or under strict liability. Misrepresentation is the grounds for a number of product liability claims.

As in many product liability cases, strict liability makes the manufacturer or seller of a defective product responsible for all relevant injuries sustained. If the victim can show that the product was defective, that the defect was the cause of the personal injury, and that it rendered the product excessively hazardous, then strict liability holds the manufacturer or seller responsible regardless of fault or intent.

Unlike products sold in the consumer market, many items in the uniform industry, particularly those for the police, industrial and fire markets, must meet rigorous standards set by the government before being approved for sale. Items must not only comply with regulations, but they must be certified by the proper federal or state agency. And while some bemoan regulations as being cumbersome or too intrusive on businesses, they have also been rightly viewed as an opportunity for the industry to sell more product.

But as the bullet-resistant vests lawsuits show, opportunity has its price. Government approval doesnt necessarily shield a dealer or any business from liability. The Zylon vest situation is particularly frustrating, because you have a legitimate product sanctioned by the government and National Institute of Justice (NIJ)-approved, but that doesnt seem to matter, said Tom McCauley, president of Kentucky Uniforms, whose store is a regonal distributor of industrial and public safety uniforms. As a business owner, you know that youre going to be somewhat vulnerable to these things – its just something you face everyday. And the lawyers know that theyre not going to get anywhere suing the government, so what do they do? They take the shotgun approach and go after everybody, no matter who is actually responsible.

Indeed, all dealers interviewed for this article agreed theres very little you can do to prevent your store from being named in such matters. But there are several important steps you can and should take to prevent your business from being held accountable in the long run.

First, stay calm. Being named in a lawsuit isnt the same as being found guilty of negligence. The first thing that happens when you get a letter from a lawyer is that you panic, says Joseph Chiusolo of Turn Out Fire and Safety, a New Jersey-based store that sells a majority of its products to the fire service. That reaction is understandable, but you have to realize that lawyers are going to go after everyone, no matter what. If youve followed the rules, however, you have a very good chance of insulating yourself from harm.

For Turn Out me, following the rules means providing a variety of protective clothing that has been National Fire Protection Association (NFPA) certified. This is the number one thing departments look for, says Chiusolo. Before an item is sold to the fire service, it is sent to an independent lab for testing by the manufacturer. If youre selling an NFPA product, youre chances of losing a lawsuit are slim, provided you are clear on the pros and cons of that product. That means you shouldnt misrepresent the products capabilities or over promise in any way. If I say that a pair of pants will fully protect a firefighter against burns and it doesnt, then Im in trouble, as any dealer would be, says Chiusolo.

It appears that many problems for dealers arise when they havent armed themselves with the necessary product information. It is vital that you investigate what youre selling before you sell it, says Chiusolo. Read all the available literature because, if youre sued, youll be put on the stand in court. And if you dont know your product, youre in trouble.

Bob Carpenter of Des Moines-Based Carpenter Uniforms believes that the education must also be extended to the end user. We incorrectly assume that the customer knows what hes buying, that he understands the threat level the product will protect against, and in some cases this simply isnt true, says Carpenter. Just because a customer asks for an NFPA or NIJ product doesnt mean its the appropriate one for the situation.

And there are some who question whether such a blind reliance on the standards could foster a false sense of security on both the dealer and end user alike. In the case of the Zylon vests, for example, many met NIJ standards when originally manufactured and sold. Over time, however, that changed. Many factors may have contributed to their deterioration, including how and where the vests were stored, and how they were maintained by the end user. You simply cant protect yourself once an item leaves your store, notes Carpenter. 

While a dealer has little control over how the end user handles a product, he or she can insure that a vest is fitted properly before it ever leaves the store. I would have to say that this is our number one responsibility, that this is the area where we can definitely protect ourselves if were selling vests. I may not be able to stop someone from naming me in a lawsuit, but I prepare my defense every day by making sure the armor fits properly, says Carpenter.

Carpenter advises against taking measurements over the phone when it comes to body armor, an on-site visit works best. Body armor has many different parts, so its much more complicated that small, medium or large, he notes. And if a vest is too small or if theres a gap, then you could be held responsible.

Knowing something about the manufacturer also is vital and could further insulate the dealer, according to Roger Heldman of Seattles Blumenthal Uniforms, a full-service uniform distributor. Choose your suppliers carefully, advises Heldman. Make sure they are responsible, well financed and have a good reputation in the market. Do a little homework, and if you find a history of problems, Id be careful.

Both Heldman and McCauley also advise that sellers purchase adequate product liability insurance as an added protection. Manufacturers of body armor also extend insurance coverage to dealers, as do some manufacturers of other industry items. Should the dealer ask for coverage on these as well?

Yes, we should, but unless youre a very good customer, you might not get the answer youre looking for, says Heldman.

Are lawsuits increasing industry-wide? No, say those interviewed for this article. In the mainstream market, most definitely, but the risk is about the same as it was years ago in this business, says Heldman.

Chiusolo agrees. The product in the consumer market is always changing, and there are new items introduced each day. In our industry, the product is basically the same, so your chances of being sued arent as high.

Still, the vest controversy has given some companies reason to rethink their products lines. Is it worth it to sell these things? I cant answer that, but I can tell you Im weighing the options, says McCauley. Another dealer, who chose not to be identified, put it this way: The risk is always there, but I have an obligation to the customer to provide the items he or she needs, and if I dont provide it, then someone else will.

What about the argument thats advanced by the legal profession – that a product liability lawsuit generates incentive for manufacturers to produce safer products. Absent the individuals right to sue, the end user must resort to reliance on the government and the good will of manufacturers to produce reasonably safe products. According to the lawyers, such a situation simply creates more money for manufacturers and dealers, and more injured end users.

But those in the uniform industry have a different perspective. People in this business dont just come and go – theyve been around a long time, for generations in some instances, says Chiusolo. Anybody with longevity has a reputation to protect, and theyre not going to destroy it by producing or selling an intentionally defective product.