Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law. The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the courts by bare-metal equipment is determining under what circumstances the manufacturer or seller of a product that is reasonably safe at the time of sale, and then made unreasonably unsafe by the post-sale addition of defective parts manufactured and supplied by third parties, may be liable to a person injured by that combined equipment. Upon examination, this turns out to be a more difficult and subtle problem than it may first appear. Especially for courts not accustomed to analyzing products liability issues, there can be a temptation to analyze the problem somewhat casually—thereby failing to securely situate it within the specific and quite different doctrinal frameworks in which it can arise. Some federal courts, including the U.S. Supreme Court, have yielded to that temptation. As a result, these courts have not sufficiently appreciated that this issue presents very different conceptual challenges and requires dramatically different consideration and analysis, depending on whether it arises in the context of a negligence claim or in the context of a strict products liability claim. Failure to appreciate the different nature of the problem in the context of these two quite different causes of action has led some courts, including the U.S. Supreme Court, to offer a single, univocal approach to this problem that both oversimplifies and overcomplicates the matter. Specifically in the case of the U.S. Supreme Court, its holding, opposed by a vigorous dissent, produces a set of rules that are at the same time both inconsequential in the negligence context and conceptually incoherent in the context of a strict products liability claim. This article describes and analyzes this fascinating issue, including the recent U.S. Supreme Court decision which squarely addresses it. It proposes an approach to future consideration of the problem by courts that grounds the analysis in the specific doctrinal frameworks within which the issue may arise and explains the very different qualities and challenges that the issue presents in these different doctrinal contexts.
Marin Roger Scordato, The Curious Case of Tort Liability for a Defective Product That the Defendant Did Not Make, Sell, or Distribute, 88 Mo. L. Rev. (2023)