Kansas law permits strict liability actions against sellers of used products

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Recent Cases: Farm Products & Equipment

October/November 2011, Volume 30, No. 5

Kansas law permits strict liability actions against sellers of used products 

Gaumer v. Rossville Truck & Tractor Co., ___ P.3d ___, 2011 WL 3524197 (Kan. Aug. 12, 2011).

Kansas law permits strict liability claims against the sellers of used products, the state supreme court held.

Gabriel Gaumer’s father purchased a used hay baler that was missing a safety shield. Gaumer later suffered an arm amputation when he slipped, and his arm went though the hole left by the missing shield. He sued the company that sold the used machine, alleging strict liability and other claims. The trial court granted the defendant summary judgment, citing Kansas federal court cases predicting that the state high court would not apply strict liability to sellers of used products. An appellate court reversed, holding that Kansas law supports such a claim.

Affirming, the state high court noted that the original language of the Kansas Product Liability Act (KPLA) excluded most sellers of used goods from the definition of “product sellers.” After final amendment, however, the legislature removed the excluding language. Moreover, the legislature included in the definition of seller those engaged in the business of selling products, “whether the sale is for resale, or for use or consumption.” Finding inclusion of the words “for resale” significant, the court determined that at least some resales are sales of used products.

The court also noted that the act provides a defense, available to both new and used products, where the seller was not the manufacturer, had no knowledge of the defect, and could not have discovered it.

Because the act does not describe the responsibilities and potential liabilities of a product seller, the court looked to Kansas common law for additional guidance. The court cited case law adopting Restatement (Second) of Torts § 402A, which does not distinguish between sellers of new and used products. The court concluded that its precedents applying §402A, together with the legislature’s removal of language from the KPLA that would have distinguished between sellers of new and used products, favor extending strict liability to sellers of used products.

The court acknowledged that there are strong policy arguments both for and against permitting such claims. The court found, however, that the state legislature’s decision to remove language from the KPLA that would have differentiated new product sellers from used product sellers was an indication of the legislature’s policy direction in favor of such actions. The court said it was reluctant to deviate from this path, especially given that it seems consistent with state law precedent on the issue. Finally, the court found that persuasive case law from other jurisdictions supported its decision.

As such, the court remanded the case to the trial court.

Plaintiff’s Counsel

Pedro L. Irigonegaray, Topeka, Kan.
Elizabeth R. Herbert, Topeka, Kan.

A document in this case is available, courtesy of Mr. Irigonegaray.


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