Wednesday, August 3, 2011


Product liability
Where's it end?


A headline in the AdvisenFPN email of August 3, 2011, reads: Aluminum bat maker liable for pitcher's death, says Montana Supreme Court. The article was originally published by Lawyers USA.

During a teenage league game, a hit ball struck the pitcher in the head, killing the 18-year old hurler.

The pitcher's mother sued, claiming the ”aluminum bat increased the dangers of baseball because infielders have less time to react due to the increased velocity of a batted ball."

The supreme court got the case on appeal of a jury's US$850,000 award.

According to the state supreme court, the bat maker is obliged to warn all players that the bat's properties placed players at risk by the increased exit speed of the batted ball.

Editorial comment. Young people, little leaguers to collegians, have been using aluminum bats for many years. Like McDonald's hot coffee, it seems safe to assume that coaches and players knew that a ball came off an aluminum bat faster than a wooden bat. The pitcher was 18 years old at the time of his death; how many years had he been playing ball on teams using aluminum bats? End of editorial comment.

The question for risk management practitioners is: How, and to whom, should a product's potential danger be advertised?

The court ruling stated that "A warning of the bat's risks to only the batter inadequately communicates the potential risk "

Obviously, in this case, a warning on the bat, if there was one, was insufficient, even though it seems reasonable to believe that the unfortunate pitcher also used the bat from time to time.

The supreme court seemed to suggest that a warning should be posted in each teams' dugout.

Would a warning in only one language be sufficient? What if there is a person who has yet to master the local language - one assumes English in Montana. Must the warning be in all languages that are used privately in the area; as examples, Vietnamese or Hebrew or Spanish?

While it may seem frivolous asking where to post a warning and in what languages, the questions need to be considered before a product is released to the consumer.

The courts apparently are deciding that the obvious based on experience - balls hit with aluminum bats travel faster than those hit with plastic or wooden bats - lacks adequacy and that additional warnings and cautions are required.

Risk managers need to deal in "worst case" scenarios. In the case of the bat maker, the worst case is the death of a young person followed by a suit against the manufacturer. Even had the bat maker prevailed, the costs to defend would have been high.

Could the suit be avoided if additional warnings had been provided? What if the warnings were provided and the consumer (in this instance coaches and managers) failed to post the warnings in locations frequented by the players?

Does the bat maker have insurance to cover the US$850,000 award and costs?

Questions to consider before releasing a product to the market.

Warnings plastered on a dugout's walls and elsewhere might not have avoided either the injury or the legal action, but they might have mitigated the amount of the award.

Risk management is all about playing the "what if" game and coming up with probable answers. It is not a game to be played in isolation; the more "players" the better for all concerned.

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