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Bostwick v. Ballard Marine5/31/2005
Marine was not a 'product seller' because it was 'not in the business of leasing.' We agree.
The WPLA defines a 'product seller' as:
any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption. The term includes a manufacturer, wholesaler, distributor, or retailer of the relevant product. The term also includes a party who is in the business of leasing or bailing such products.
The WPLA applies to claims arising from a 'product' sold by a 'product seller' giving rise to a 'product liability claim.' By definition, 'product seller' includes any person in the business of leasing 'that product or its component part or parts, which gave rise to the product liability claim.'
The WPLA 'differentiates between those who are 'in the business of' leasing and those who are not. Only those who are 'in the business' of leasing are 'product sellers'.' Courts generally hold product lessors to the standard of care imposed on a product seller when the lessor is "found to be in the business of leasing, in the same general sense as the seller of personalty is found to be in the business of manufacturing or retailing." Products liability principles apply only when 'the volume of transactions is sufficient to give the lessor the ability to guard against and to pay for any injury {and} to justify holding it accountable for the acts of the manufacturer.'
Policy considerations that justify imposing on product sellers a duty to protect the public from unsafe products were stated and applied in Buttelo v. S.A. Woods-Yates American Machine Co., Inc. There, the court considered whether Paxport Mills was liable for an injury caused by a wood molder Paxport had leased to Western, a custom manufacturer of wood products. After examining the legislative purpose of the WPLA, the court held that Paxport was not 'in the business of leasing .' It concluded that imposing manufacturers' duties on a 'product seller' is justified when (1) the seller is in the position to exert pressure on the manufacturer to influence the product's design, (2) the consuming public typically looks to the seller for advice in the selection, operation and maintenance of the product, and (3) the seller is best able to spread the costs of injury among the public. The seller involved in an isolated or casual transaction lacks not only the ability to exert pressure on manufacturers and spread the costs of injury, but also the expertise that would induce buyers' reliance.
The court concluded that Paxport's scant leasing activities did not justify the imposition of liability. There was no evidence that Paxport ever engaged in manufacture or sale of molders, or used the molder in its own business. Nor was there any indication that Paxport ever entered into another lease with any company other than the long-term equipment and machinery lease with Western. Other factors that weighed against imposing liability on Paxport were specific lease terms making Western responsible for inspecting and maintaining the molder, and assuming the risk of its loss, and absence of any express or implied warranties by Paxport with respect to the molder.
Here, Bostwick has the burden of showing that a genuine issue of material fact exists as to whether Ballard Marine is a 'product seller' by virtue of being 'in the business of leasing.' At oral argument, Bostwick maintained that Ballard Marine's tax records supported a conclusion that leasing equipment was its principal business. However, evidence in the record indicates that there is no way to determine from the tax records whether Ballard Marine's 'rental income' was derived from the rental of
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