EVERYBODY IS familiar with the sight of a truck chugging down the freeway, pulling a trailer. But most people fail to notice that the trailer is not evenly balanced on its wheels. To the contrary, the front of the trailer extends considerably beyond the front wheels. As long as the trailer is tethered to the truck or resting against the loading dock, this cantilevered design is not a problem. When, however, the trailer is neither attached to the truck nor positioned at the loading dock, it can tip forward if the front load is heavier than the rear load. Recognizing this risk, virtually all trailer manufacturers offer a retractable front leg for use when the trailer is in its freestanding position. But this device is customarily offered as optional equipment because some purchasers never load or unload the trailer in a freestanding position and, hence, have no need for this device.
Why does this matter? Suppose a freestanding trailer tips forward as it is being un loaded from the back, seriously injuring the trailer owner's employees. Suppose further that, at the time of purchase, the owner had the option of ordering a front support device from the trailer manufacturer, but declined to exercise that option. Should the trailer manufacturer be absolved of liability because it offered an optional safety device that would have prevented the injury, but the owner declined to purchase it? Or should the trailer manufacturer be held liable for not installing the device as part of the basic package?
One of the authors confronted this precise problem in a negligence and strict liability action tried to verdict a few years ago. In that case, plaintiff workers were injured while unloading solar panels from a freestanding trailer that tipped forward. While the defendant trailer manufacturer prevailed at trial, a defense verdict was by no means a foregone conclusion. When a product causing an injury could have been purchased with an optional safety device that likely would have prevented the injury, courts have arrived at vastly different conclusions about where liability should lie. One line of cases holds that, where the manufacturer notifies the purchaser of the availability of the optional safety device and the purchaser declines it, the manufacturer is absolved of liability for an injury that would have been prevented by the optional safety device. For brevity's sake, we will refer to this view as the "buyer's choice" position. Another line of cases holds that the manufacturer cannot delegate its duty to produce a reasonably safe product, irrespective of the availability of optional safety devices. We will call this view the "seller's duty" position. (1) Interestingly, the leading jurisdictions for each respective position stare at each other across the Hudson River: New York has emerged as the leading proponent for the "buyer's choice" position, while New Jersey is the state that pioneered the "seller's duty" position. Both positions subsequently have been adopted by other jurisdictions across the nation. (2)
While the competing positions were articulated nearly thirty years ago, the jurisprudence has neither changed nor developed much in the interim. By and large, courts confronted with the issue have adopted one position or the other, finding the viewpoint adopted "well-reasoned." Few decisions even discuss the competing line of cases, much less discuss why the position adopted is better reasoned than the opposing point of view. None of the decisions critically examine whether the policies underlying the rule adopted remain valid decades later. Courts confronted with this issue have not attempted to reconcile these competing schools of thought.
In this article, we review both lines of cases and discuss the public policy arguments supporting both positions. We recommend a standard to govern situations where a purchaser declines an optional safety device and is subsequently injured in a manner that could have been prevented if the optional safety device had been in place. …