The Sophisticated User Doctrine: Fair or Fowl

Introduction

Keith Wilson is a well trained ventilation and air conditioning (HVAC) technician. [1] Trained both on and off the job, Mr. Wilson had the highest certification available from the Environmental Protection Agency ("EPA"), a training that required passing a five-part examination. [2] His qualifications allowed him to purchase, braze, weld and replace parts on large commercial air conditioning systems. [3] These air conditioning systems use R-22, a hydrochloroflourocarbon refrigerant that can decompose into phosphane gas when exposed to heat, as is often the case when a technician brazes or welds an air conditioning system. [4] Exposure to phosphane gas and R-22 can cause numerous health problems which are detailed in Material Safety Data Sheets (MSDS's). [5] The California code requires employers to use the MSDS's to train their employees about the chemicals and dangers they can be exposed to on the job. [6] Mr. Wilson received a MSDS every time he purchased R-22 and he even read it on occasion. [7].

After years of being exposed to R-22, Mr. Wilson developed pulmonary fibrosis and sued the chemical manufacturers, suppliers and air conditioning unit manufacturers including the defendant, American Standard, Inc. [8] His contention was that the companies failed to adequately warn him of the dangers of being exposed to R-22. [9] The defendant moved for summary judgment claiming that it had no duty to warn to Mr. Wilson of the dangers of R-22 and as a professional HVAC technician, he should have known of the dangers of the chemical. [10] On appeal, the California Supreme Court agreed with the defendant reasoning that Mr. Wilson was a sophisticated user, one who knew or should have known of the dangers of being exposed to R-22, and as such, the manufacturer/distributor should and will be held blameless for exposing him to the chemical. [11]

"One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous." [12] So says the Restatement Second of Torts Section 388. [13] The restatement, in its comments, further goes on to specifically address subsection (b) of Section 388 by stating that "[i]t is not necessary for the supplier to inform those for whose use the chattel is supplied of a condition which a mere casual looking over will disclose, unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made. However, the condition, although readily observable, may be one which only persons of special experience would realize to be dangerous." [14]

The California Supreme Court held, based on its and other jurisdictions interpretations of section 388, that it would adopt the "sophisticated user doctrine." [15] The doctrine essentially states that sophisticated users or professionals do not need to be warned about dangers that they know or should have known about. [16] The doctrine charges professionals to a standard of awareness, whether or not they actually know about a danger and acts as a defense "to negate a manufacturer's duty to warn of a product's potential danger when the plaintiff has (or should have) advance knowledge of the product's inherent hazards." [17] In adopting this doctrine, the California court gives manufacturers a new layer of defense against potential claims from sophisticated users.

The adoption of the sophisticated user standard however raises several general questions not unique to California's adoption, including: who is the so called "sophisticated user" and is charging a person to a "should have known" standard, especially in the products liability context, truly fair to the individuals charged with such knowledge?

Products Liability And The Sophisticated User Doctrine

Products liability refers to the liability incurred by every party along the chain of manufacturing for any damages caused to a user by the product. "Products Liability is generally considered a strict liability offense." [18] In strict liability claims, the degree of care taken by the defendant is immaterial, all that generally matters is that they sold or distributed the product and if they did, liability attaches if the product causes a harm. "It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it." [19]

The sophisticated user doctrine protects manufacturers from negligence claims arising from a failing to warn. The doctrine has been described "as imposing no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product.” [20]

Support For The Doctrine

The doctrine appears to be receiving wide support both in state legislatures and in the courts. The Wisconsin appellate court recently adopted the doctrine, holding that it was sound policy to support said adoption. [21] The reasons included, "[f]irst, it places the duty to warn on the party arguably in the best position to ensure workplace safety, the purchaser-employer. Second, the burden falls upon the party in the best position to know of the product's potential uses-thereby enabling that party to communicate safety information to the ultimate user based upon the specific use to which the product will be put." [22] The state of Michigan has chosen to adopt the doctrine by statute. [23] Specifically, the statute defines a sophisticated user as "a person or entity that, by virtue of training, experience, a profession, or legal obligations, is or is generally expected to be knowledgeable about a product's properties, including a potential hazard or adverse effect. An employee who does not have actual knowledge of the product's potential hazard or adverse effect that caused the injury is not a sophisticated user." [24] The state expressly states that such a user may not have not have protection within the laws of Michigan, unless there is a state or federal statute that expressly requires a manufacturer to warn. [25]

Other states have also chosen to adopt the doctrine. The Massachusetts Supreme Judicial Court adopted it in a recent case adopted the doctrine as an affirmative defense for failure to warn claims. [26] While California originally had the limitation of plaintiff's being allowed to offset evidence of knowledge by proving that the product misuse could have been reasonably foreseeable by the defendant [27], it appears that the court recently abandoned this belief in a recent case, adopting the doctrine as it stands in many other jurisdictions. [28] The Supreme Court of California expressly adopted the doctrine stating that "[a] manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger." [29]

While it appears that courts have no problems adopting this doctrine, the standard still begs the question of who the sophisticated user really is.

Who Is The Sophisticated User and Where Is The Line?

Although one can reasonably infer who the sophisticated user is from the case law, it is not always clear who the sophisticated user is. In Michigan, where the legislature has statutorily adopted the sophisticated user standard, it defines the sophisticated user as "a person or entity that, by virtue of training, experience, a profession, or legal obligations, is or is generally expected to be knowledgeable about a product's properties, including a potential hazard or adverse effect." [30] This definition is overly broad, leaves one with more questions than answers and can be challenged. For instance, while a plumber that has been working on pipes for the last twenty years or an anesthesiologist who has been in his field for the last ten could easily be considered sophisticated users of the tools of their trade, what about when the anesthesiologist is fresh out of medical school? While she may have had four supervised years of medical school to master her craft, when is she considered generally knowledgeable based on her training? What about people that do not have any training? What about a father that just has a knack for fixing things around his house, or a child who has been riding his stunt bicycle for the last six years, but is still only nine years old? Would these people be considered sophisticated users? While in some contexts, a professional or expert may be readily discernable, in many others, the examples given above will make the standard unclear.

Michigan at the very least gives a definition of the sophisticated user [31], however, in jurisdictions where the standard was judicially adopted, there would likely be no set standard that individuals can comport their behavior to, adding another layer of unclarity to the doctrine. To charge people with a “should have known” standard based on experience that they supposedly have could yield interesting and sometimes frustrating results. However, it will take several years, while cases make themselves up the judicial ladder, to understand the full effects of the standard.

Conclusion

It is unclear when and how the contours of the sophisticated user doctrine will really be tested. Whether it will come down to a child who is injured doing something that he is well versed in, or a grandfather who has been tinkering with his cars for many years and gets injured while doing so, still needs to be seen. The true measure and validity of the doctrine will however eventually be tested, and it will likely come when a case, that borders on the hypotheticals that law school exams are built on, rises through the courts to sufficiently test the boundaries of the doctrine.

Sources

[1] Johnson v. Am. Standard, Inc., 179 P.3d 905 (Cal. 2008).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Restatement (Second) of Torts § 388 (1965)

[13] Id.

[14] Id.

[15] Johnson v. Am. Standard, Inc., 179 P.3d 905 (Cal. 2008).

[16] Id.

[17] Id.

[18] Legal Information Institute, Products Liability, http://topics.law.cornell.edu/wex/products_liability (last visited Apr. 23, 2008).

[19] Id.

[20] Haase v. Badger Mining Corp., 669 N.W.2d 737, 743 (Wis. App. 2003).

[21] Id. 

[22] Id.

[23] Mich. Comp. Laws. Ann. § 600.2945(j) (West 1978).

[24] Id.

[25] Mich. Comp. Laws. Ann. § 600.2947(4) (West 1978).

[26] Carrel v. Nat'l Cord & Braid Corp., 852 N.E.2d 100 (Mass. 2006).

[27] In re Related Asbestos Cases, 543 F. Supp. 1142 (N.D. Cal. 1982).

[28] Johnson v. Am. Standard, Inc., 179 P.3d 905 (Cal. 2008).

[29] Id.

[30] Mich. Comp. Laws. Ann. § 600.2945(j) (West 1978).

[31] Id.

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It seems to me if there is any liability the trade school who trained this individual might be held accountable.
Having been through the classes myself I know that we were told about heating refrigerant and the negative effects caused by breathing the fumes.
But there is no money in suing trade schools.

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[Mikes Air Conditioning Repair]

I am a "sophisticated user" for years and knew there were health issues associated with heating refrigerant but have never heard that pulmonary fibrosis was one issue