Atlanta Injury Law Blog

Tires manufactured in China and sold in the U.S. under brand names Westlake, Compass, Telluride and YKS have been ordered recalled due to life threatening defects.  My bet is that no one will ever be able to hold anyone financially responsible, and certainly not in Georgia. The problem is compounded by the inability to enforce a U.S. court judgment in China.

The Chinese tire manufacturer, Hangzhou Zhongce Rubber Co., chose to leave out a gum strip which helps bind the belts of a tire to each other, preventing tread separation.  When tire treads separate at highway speeds, catastrophic crashes often result.  This was the cause of the massive Firestone / Bridgestone  tire recall several years ago.

The response from the Chinese tire manufacturer was to deny everything.

This recall involves tires imported and sold by a small New Jersey importing company that does not have the resources to complete the recall and replace the tires.  The chance of getting the Chinese company to take responsibility for the recall, or for the injuries and deaths caused by these tires, is just about nil. 

Of course, the Chinese plan to start exporting cheap cars to the U.S. too.  See a 40 mph crash test of a Chinese sedan.  The A-pillar collapses and folds up, forcing the driver's door to pop largely out of its frame, while the lower portion of the car buckles under.  The results to the occupants would be catastrophic.  My German is more than a little rusty, but the frontal and side impact videos really require no translation.

Aside from any interest in protecting American manufacturing jobs, the Chinese lack of safety standards or financial responsibility for resulting damages is another reason to avoid buying Chinese products in any category at any price.  Unfortunately, our retailers such as Wal-Mart have too often abandoned American manufacturers and workers and sell hardly anything that was not manufactured in China and other low-wage countries.  It is just one more instance of corporations exporting American jobs and the safety of American consumers.  See the discussion of this topic at Free Republic.

The tire recall reminds us yet again of the shortcoming of "reformed" Georgia tort law that shields sellers from all liability for defective products, even when they import substandard products from third-world manufacturers that cannot be held accountable in U.S. courts.  I wonder if we might get around that through creative use of the Fair Business Practices Act, though it would be tough.

Caveat emptor.  How do you say that in Chinese?

The Latin phrase "caveat emptor" (buyer beware) is often referred to as an ancient principle of the law.  However,  "caveat emptor" entered the legal vocabulary as a caustic comment of people cheated by itinerant peddlers and horse traders beyond the effective reach of local courts and by dishonest merchants who had won the favor of kings and nobles who controlled the courts. Lawyers began to use the convenient phrase in arguments.  Eventually Blackstone lent it more dignity. Around 1800 it was endorsed in English case law, and American courts followed suit. The doctrine of caveat emptor, wrapped in the convenient cloak of a Latin phrase, arose contemporaneously with philosophies of moral relativism in time to serve the interests of developing mercantilism. See generally, W. H. Hamilton, "The Ancient Maxim Caveat Emptor," 40- Yale Law Journal 1188 (1931).  To borrow language of Justice Frankfurter  in describing "assumption of risk,"  the phrase "caveat emptor" is "an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lay repetition; a repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." 318 U.S. at 68-69.

While products liability insurance is to Chinese manufacturers exporting to the US, it is unclear whether most such manufacturers carry insurance or have any motivation to do so.  In Georgia, where product sellers have virtually no exposure to liability, there is no economic motivation for sellers to require their Chinese suppliers to carry such insurance.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

Then there was the pet food recall a couple of months ago...I agree with all you have said, but I am curious; would a manufacturer know that they are violating US standards when they cheapen a product? And would the importers know that too? I am almost dying of curiosity here as to how someone could just start doing business importing goods from China.

We quit the local Wally's some time ago.
We prefer buying quality goods; Publix and the specialty stores are better.
Not only do we support the entrepenuer, the expertise and knowledge that a small business has is something Wal Mart can't match.

Hm...I would love to be the fly on the wall hearing actuaries discuss 'risk management' and defective imports.

"Caveat emptor is one of that tribe of anonymous Latin maxims that infest our law. They fill the ear and sound like sense, and to the eye look like learning; while their main use is to supply the place of either or both." Gulian C. Verplanck, An Essay on the Doctrine of Contracts 218 (1825).

Many states have passed statutes to insulate the seller who is not the product manufacturer from liability.

Colo. Rev. Stat. § 13-21-402 (immunizing sellers from products liability claims unless personal jurisdiction cannot be obtained over the manufacturer);
Ga. Code Ann. § 51-1-11.1 (stating that sellers may not be liable as manufacturers in strict products liability suits);
Idaho Code § 6-1407 (immunizing sellers from strict products liability, but imposing liability where seller was negligent);
Ind. Code § 34-20-2-3, § 34-20-2-4 (barring strict liability claims against sellers unless personal jurisdiction cannot be obtained over manufacturer);
Iowa Code § 613.18 (barring strict liability claims against sellers and retailers unless personal jurisdiction is not available over manufacturer);
Kansas Stat Ann. § 60-3306 (precluding strict liability of sellers in absence of breach of reasonable care);
Ky. Rev. Stat. Ann. § 411.340 (barring seller liability in absence of breach of warranty or negligence);
Mich. Comp. Laws § 600.2947(6) (immunizing sellers from liability, subject to breach of warranty or failure to observe reasonable standard of care);
Minn. Stat. § 544.41 (allowing sellers named as defendants to obtain dismissal upon identifying manufacturer, unless manufacturer is for some reason unavailable as defendant);
Miss. Code Ann. § 11-1-64 (allowing sellers to escape liability where no basis other than placing product in stream of commerce exists for seller liability);
Mo. Rev. Stat. § 537.762 (allowing sellers to escape liability if no basis other than placing product in stream of commerce exists for seller liability);
Neb. Rev. Stat. § 25-21, 181 (barring seller liability in strict liability actions unless seller is also manufacturer);
N.J. Stat. Ann. § 2A:58C-9 through § 2A:58C-11 (requiring dismissal of strict liability claims against seller where seller properly identifies manufacturer over which personal jurisdiction exists, and where seller is not at fault; special rules apply to health care providers);
N.D. Cent. Code § 28-01.3-04 (providing for dismissal of strict products liability claim against seller where seller identifies manufacturer, personal jurisdiction exists over manufacturer, and seller not at fault);
Ohio Rev. Code Ann. § 2307.78 (establishing supplier immunity to strict liability claims subject to supplier negligence, lack of jurisdiction over manufacturer, or other supplier fault);
S.D. Codified Laws § 20-9-9 (protecting sellers and similar defendants from strict liability claims, absent fault);
Tenn. Code Ann. § 29-28-106(b) (immunizing sellers from strict liability claims unless seller is manufacturer, manufacturer not subject to personal jurisdiction, or manufacturer is insolvent);
Tex. Civ. Prac. & Rem. Code Ann. §82.003 (shielding sellers from strict products liability unless seller is also manufacturer or designer, seller somehow at fault, or manufacturer not subject to personal jurisdiction);
Wash. Rev. Code Ann. § 7.72.040 (protecting sellers from strict products liability claims absent seller fault, manufacturer insolvency, or inability to obtain personal jurisdiction over manufacturer).