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Massachusetts Law Review

Tort Law - Sophisticated User Doctrine

 

Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431 (2006).

 

I.          Introduction

That a manufacturer should bear responsibility for harm from the use of its product is well-established. A product-related injury is not, in itself, sufficient grounds for imposing liability, however.[1] A manufacturer is not an insurer,[2] and products liability is not absolute liability.[3] Rather, courts will hold a manufacturer liable only when a product is “defective” in a way that makes it “unreasonably dangerous” to users.[4] A product can be unreasonably dangerous in three ways: (1) it can be designed defectively;[5] (2) it can be manufactured defectively;[6] or (3) it can be sold without adequate warnings,

or any warning at all, of the dangers associated with its use.[7]

The third type of defect, failure to warn, is a widely-employed claim in Massachusetts products liability litigation. Manufacturers are increasingly vulnerable to lawsuits based on the absence of warnings.[8] On August 15, 2006, however, in Carrel v. Nat’l Cord & Braid Corp.,[9] the Massachusetts Supreme Judicial Court (“SJC”) provided manufacturers with a defense to such claims, adopting the “sophisticated user doctrine” as an affirmative defense in products liability failure-to-warn actions.[10] The doctrine is a boon to manufacturers, relieving them of liability for failure to warn when an end user knows or reasonably should know of a product’s dangers.[11] It is premised on the theory that manufacturers have no duty to warn end users who have the sophistication necessary to understand the risks associated with a product’s use.[12] Nevertheless, while its adoption was foreshadowed in the Court’s 2001 decision in Hoffman v. Houghton Chem. Corp.,[13] the doctrine’s ultimate scope remains unclear.

II.        Factual Background

In the summer of 1996, 16-year-old Hyman Carrel suffered a serious eye injury when struck by a bungee cord at a Boy Scout camp in South Carver, Massachusetts.[14] As part of his camp experience, Carrel participated in its “zip-line” course, which required campers to descend from high platforms via zip-line cable.[15] To prevent injury, the zip-line course employed a braking mechanism called a brake block.[16] Although designed merely to slow their descent, the brake block often brought riders to a complete stop between platforms.[17] The course supervisor attempted to fix this flaw by placing two campers beneath the zip-line.[18] When a rider got stuck, the campers were directed to pull a bungee cord tied to the brake block.[19] Unfortunately, on the day of the accident, when Carrel and another pulled the bungee cord, the knot attaching the cord to the brake block came undone. The bungee cord recoiled, striking Carrel in the eye.

III.       Procedural History

Carrel filed suit, claiming negligence and breach of warranty against the Boy Scouts, Project Adventure, the company that supplied the Boy Scouts with the

bungee cord,[20] and National Cord & Braid Corporation, the alleged manufacturer of the cord.[21] Carrel soon settled with the Boy Scouts and Project Adventure.[22] He proceeded to trial against National Cord, however, on the theory that it had breached the implied warranty of merchantability and fitness with respect to the sale of its bungee cord.[23]

Carrel argued that the type of bungee cord sold by National Cord, especially when new, had latent properties that caused certain types of knots to loosen easily.[24] Carrel claimed that National Cord breached the implied warranties by failing to include with its product an adequate warning about these properties and the resulting danger posed to foreseeable users.[25] National Cord countered that a warning was unnecessary because of obvious characteristics and dangers of the bungee cord. The defendant also asserted that Project Adventure and the Boy Scouts knew more about the specific use that would be made of the cord, the dangers associated with that use, and the way to counteract these dangers, than National Cord.[26]

At the close of the evidence, the trial judge instructed the jury on the manufacturer’s duty to warn under the implied warranty of merchantability and fitness.[27] The instruction also included the following description of the sophisticated user doctrine:

When considering the extent and nature of the manufacturer’s duty to warn, the jury should take into account knowledge that the manufacturer had or could be expected to have, regarding the use of the product as compared to the knowledge and skills of the user. . . . [T]he duty to warn might be lessened or might not exist if the user’s experience, expertise, and knowledge far exceeds the manufacturer’s.[28]

 

Once instructed, jury members were given a special verdict form, asking whether National Cord had breached the implied warranty of merchantability by selling its bungee cord without an adequate warning.[29] They answered in the negative.[30]

Carrel appealed, arguing that the trial judge erred by instructing the jury on the sophisticated user doctrine.[31] The SJC transferred the case from the Appeals Court on its own motion.[32] In rejecting Carrel’s argument, the Court formally adopted the sophisticated user doctrine as an affirmative defense in products liability actions.[33] It also concluded that the instruction on the defense was properly given in this case.[34]

 

IV.       The Doctrine

A.         The Foundation

            Before Carrel, Massachusetts was one of the few states that had not adopted some form of the sophisticated user doctrine.[35] That is not to say, however, that its courts had not laid a foundation for recognition of the defense. Instead, courts in the commonwealth have long held that manufacturers have no duty to warn when a product’s danger is obvious or when the user appreciated the danger to the same extent as a warning would have provided.[36] For example, in Bavuso v. Caterpillar Industrial Inc., the SJC declined to impose liability against a forklift manufacturer for failure to warn that use of the machine without an overhead guard was dangerous.[37] The Court explained that the hazard was “open, obvious, and unavoidably attendant upon the regular and usual use of the forklift. The danger . . . was one that no one who thought about it . . . could fail to appreciate.”[38] Similarly, in Carey v. Lynn Ladder & Scaffolding Co. Inc., the SJC affirmed summary judgment for a stepladder manufacturer based on evidence that the injured plaintiff was “aware of, and appreciated, the danger he was incurring by going to the seventh step of the ladder . . . .”[39] Under such circumstances, said the Court, no warning was necessary.[40]

            The sophisticated user doctrine is a corollary of this so-called “open and obvious doctrine.”[41] Like the open and obvious doctrine, the sophisticated user defense also serves to relieve manufacturers of liability for failure to warn. Such relief extends beyond obvious hazards, however, to include situations where a product’s danger is non-obvious but still should be known by the end user.

B.         The Relevant Inquiry

The sophisticated user doctrine originates in the Restatement (Second) of Torts § 388.[42] This section, which governs a supplier’s duty to warn, provides:

One who supplies . . . a chattel for another to use is subject to liability . . . for physical harm caused by the use of the chattel . . . if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.[43]

 

Comment k, under this section, further states that “[o]ne who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its danger [.] . . if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.”[44] Thus, according to the Restatement, a supplier is absolved from liability for failure to warn when the supplier could reasonably expect an end user to realize the product’s dangerous conditions.

In spite of the doctrine’s roots, the SJC, nonetheless, departed from the Restatement in Carrel. According to the Court, the sophisticated user doctrine relieves manufacturers of liability for failure to warn when an end user knows or reasonably should know of a product’s dangers.[45] Unlike the Restatement, the doctrine adopted in Massachusetts examines the end user’s level of knowledge, not the manufacturer’s level of knowledge about the end user. Under the Restatement approach, a manufacturer escapes liability for failure to warn when it has reason to believe that an end user will realize a product’s danger.[46] The reasonableness of the manufacturer’s belief is controlling.[47] Whether the user knew or should have known of the danger is irrelevant.[48] To be sure, application of this approach can produce unfair results. For instance, to the chagrin of manufacturers, if a manufacturer fails to warn without reason to believe an end user will realize a product’s danger, the manufacturer is liable, even if the end user, in fact, possessed actual or constructive knowledge of the danger. Conversely, to the chagrin of end users, if a manufacturer has reason to believe an end user will realize a product’s danger, the manufacturer is not liable for failure to warn, even if the end user was without actual or constructive knowledge of the danger. By focusing on the end user’s knowledge rather than the manufacturer’s expectations, the approach adopted in Carrel, the majority approach, avoids such outcomes.[49]

The relevant inquiry, in other words, is not what the manufacturer has reason to believe about the end user. Rather, the Court emphasized, “The relevant inquiry turns on the end user’s level of sophistication.”[50] A manufacturer finds refuge under the doctrine, therefore, only when the end user knows or reasonably should know of the dangers posed by the manufacturer’s product.[51] Under such circumstances, the Court reasoned, a warning from the manufacturer will have little deterrent effect, thus allowing “the fact finder to determine that no such duty [to warn] was owed.”[52]

C.        The Relevant End User

            After formally adopting and defining the sophisticated user doctrine, the SJC addressed Carrel’s issues on appeal. First, Carrel argued that he, not the Boy Scouts or Project Adventure, was the relevant end user of the bungee cord and that National Cord presented no evidence that he was a sophisticated user of its product.[53] As a result, said Carrel, even if the doctrine applies to claims of breach of implied warranty for failure to warn, an instruction on the doctrine still was not warranted in this case.[54]

            The SJC disagreed. According to the Court, Carrel tried his case on the theory that the Boy Scouts and, to a lesser extent, Project Adventure were the end users National Cord had failed to warn.[55] The Boy Scouts and Project Adventure were so characterized not only in Carrel’s opening and closing statements but also by Carrel’s own expert during trial testimony.[56] For instance, Carrel’s expert testified, “The users were the people who purchased the product from the manufacturer.”[57] The expert also remarked that “[t]he people that should have been placed on notice [were] the Boy Scouts and Project Adventure.”[58] In light of this evidence, the SJC rejected Carrel’s argument, as a party may not present one theory of proof at trial and then desert that theory for a different one on appeal.[59]

D.        The Sophisticated End User

            Even if the Boy Scouts or Project Adventure qualified as the relevant end user, Carrel argued that there was insufficient evidence that either was a sophisticated user for purposes of the doctrine.[60] The SJC found otherwise. In support of its contention that the Boy Scouts[61] knew or should have known of the bungee cord’s dangers, National Cord produced the following evidence: (1) the Boy Scouts ran COPE programs, including zip-line courses with bungee cord components, across the country; (2) the Boy Scouts conducted COPE training courses, had national safety standards, and employed specialists to inspect and ensure compliance with those standards; (3) the course director at Camp Squanto was trained and certified as a COPE director and paid particular attention to the knots used on the bungee cord; and (4) the course director had ordered the bungee cord from Project Adventure, which included in each shipment a warning sheet informing customers of the danger of tying knots in new bungee cord as well as the way to counteract that danger.[62] This evidence, the Court found, was sufficient to warrant an instruction on the sophisticated user doctrine.[63] Carrel’s appeal was accordingly denied.[64]

V.        Future Application

A.         Determining the Relevant End User

In the wake of the SJC’s decision in Carrel, a number of details are clear regarding future application of the sophisticated user doctrine in Massachusetts. One lesson provided by the Court concerns identification of the relevant end user. To be sure, when a manufacturer delivers a product to a single user, the identity of the relevant user is clear. The doctrine focuses exclusively on the solitary user injured by the product.[65]

            Products seldom pass directly from manufacturer to end user, however.[66] Before reaching its final user, a product often passes through the hands of one or more intermediaries, such as wholesalers, distributors, retailers, or employers.[67] In such circumstances, the relevant end user does not necessarily remain the person injured by the product. As seen in Carrel, the sophisticated user defense may focus, instead, on the knowledge of an intermediary.[68] Indeed, the SJC flatly rejected Carrel’s argument on appeal that he, not the Boy Scouts or Project Adventure, was the relevant end user National Cord had failed to warn.[69] The Court pointed to Carrel’s opening and closing statements as well as the testimony of his expert at trial. In each instance, Carrel treated the Boy Scouts and Project Adventure, mere intermediaries, as the relevant users of the bungee cord.[70] “In this context,” the Court stated, “neither Carrel nor the jury could have misunderstood the instruction to mean anything other than that it was the sophistication level of the Boy Scouts that was to be examined.”[71] The SJC thus opened the door for intermediary users as figures of relevance in future applications of the sophisticated user doctrine in Massachusetts.[72]

B.         Evidence of Sophistication

            The SJC’s decision in Carrel also provides guidance regarding the types of evidence sufficient to warrant a jury instruction on the sophisticated user doctrine. It serves as a blueprint for defendant-manufacturers to establish that the relevant end user knew or reasonably should have known of a product’s dangers. First, evidence that the relevant end user is familiar or experienced with the product is particularly relevant to whether she had constructive notice of the product’s dangerous conditions. National Cord, for instance, successfully relied on evidence that the Boy Scouts ran zip-line courses not just at Camp Squanto but across the country.[73] Second, evidence that the product’s relevant end user self-regulated is also relevant to whether she reasonably should have known of the product’s dangers. Here, again, National Cord presented evidence that the Boy Scouts conducted COPE training courses, had national safety standards, and employed specialists to ensure compliance with those standards.[74] It also provided evidence that the course director at Camp Squanto was trained and certified as a COPE director and paid particular attention to the knots used on the bungee cord.[75] Finally, evidence tending to show that the relevant end user was forewarned of the dangers posed by the product points to constructive, and perhaps actual, knowledge. For example, National Cord relied on evidence that, in each shipment delivered to the Boy Scouts, Project Adventure included a warning sheet informing the Boy Scouts of the danger of tying knots in new bungee cord.[76] To be sure, following in the wake of Carrel, manufacturers may rely on a broad range of evidence sufficient to warrant an instruction on the sophisticated user doctrine.

C.        A Question of Scope

            The SJC’s guidance in Carrel on future application of the sophisticated user doctrine is extensive. Early in the decision, for instance, the Court extended the reach of the doctrine to claims of both negligent failure to warn and failure to warn under breach of warranty. Later in the decision, it explained how to determine a product’s relevant end user as well as establish the sophistication of that user for purposes of the doctrine.

            Despite such guidance, one question still remains: Will application of the sophisticated user doctrine reach beyond jury instructions to the summary judgment stage? In Carrel, the SJC affirmed the trial court’s jury instruction on the sophisticated user doctrine.[77] The high court found the instruction proper under the circumstances of the case.[78] It remains to be seen, however, whether courts in Massachusetts will choose to employ the doctrine at the summary judgment stage, or whether they will be more inclined to treat the defense as a question of fact for a jury. Guidance from the courts on this issue will provide counsel with a better understanding of the potency and scope of the sophisticated user doctrine in Massachusetts.

VI.       Conclusion

The SJC’s decision in Carrel is a victory for product manufacturers. The newly adopted doctrine will serve to relieve manufacturers of liability for failure to warn when the relevant user knows or reasonably should know of a product’s dangers. Given its likely impact on liability for product-related injuries, the Court provides extensive guidance regarding future application of the sophisticated user doctrine in the commonwealth. Nevertheless, it will fall upon future courts whether to broaden the scope of the defense. But, like the doctrine itself, practitioners may rely on this, too, soon emerging from shadow.

 

Brien M. Cooper

 

 

 



[1]. Carole A. Cheney, Comment, Not Just for Doctors: Applying the Learned Intermediary Doctrine to the Relationship Between Chemical Manufacturers, Industrial Employers, and Employees, 85 Nw. U. L. Rev. 562, 565 (1991).

[2]. E.g., Venezia v. Miller Brewing Co., 626 F.2d 188, 192 (1st Cir. 1980) (“Even under the most expansive theories of products liability, a ‘manufacturer is not an insurer and cannot be held to a standard of duty of guarding against all possible types of accidents and injuries’ . . . .”) (quoting Schneider v. Chrysler Motors Corp., 401 F.2d 549, 557 (8th Cir. 1968); see also Jeff Webb, Tire Design Defect Claims: Why Compliance with the Recently Promulgated Federal Motor Vehicle Safety Standard 139 Should Constitute a Defense as a Matter of Law, 37 U. Tol. L. Rev. 551, 569 (2006) (“[A]s many courts have recognized, a manufacturer is not an insurer for all injuries sustained while using its product.”).

[3]. Jonathan Bridges, Note, Suing for Peanuts, 75 Notre Dame L. Rev. 1269, 1279 (2000); Cheney, supra note 1, at 565.

[4]. Restatement (Second) of Torts § 402A (1965). Breach of the implied warranty of merchantability and negligence are two principal theories of products liability in Massachusetts. The warranty theory, congruent in “all material respects” with § 402A of the Restatement, focuses on whether the product was defective and unreasonably dangerous. Colter v. Barber-Greene Co., 403 Mass. 50, 61-62 (1988); see infra note 24. The negligence theory, by contrast, focuses on the condition of the product as well as the conduct of the defendant. Mass. Tort Law Manual § 2.3.1 (MCLE, Inc. 1999). A plaintiff must show not only that the product was unreasonably dangerous but also that the manufacturer’s conduct was unreasonable. Id.; see Colter, 403 Mass. at 62 (“A defendant cannot be found to have been negligent without having breached the warranty of merchantability.”) (quoting Hayes v. Ariens Co., 391 Mass. 407, 410 (1984) (overruled on other grounds in Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 (1998))).

[5]. A design defect occurs when the product satisfies the manufacturer’s own standards but is more dangerous than the ordinary consumer would expect when using it in a reasonably foreseeable manner. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 99(3), at 698 (5th ed. 1984).

[6]. A manufacturing defect occurs when a product falls below the manufacturer’s own standards, making it more dangerous than intended. See id. § 99(1), at 695.

[7]. Even a flawlessly manufactured and designed product may be considered unreasonably dangerous if the manufacturer fails to warn or warn adequately of the danger associated with the product's use. Id. § 99(2), at 697-98.

[8]. In Massachusetts, as a general rule, a manufacturer of a product that the manufacturer knows or should know is dangerous is under a duty to warn of such dangers to persons who foreseeably will come into contact with the product. MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 135 (1985) (quoting H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976)). Manufacturers may be held liable for failure to warn under breach of warranty and negligence theories. See supra note 4. Although theoretically distinct, the Supreme Judicial Court recently eliminated any practical difference between the two claims, providing: “[N]egligent failure to warn and failure to warn under breach of warranty are to be judged by the same standard: the reasonableness of the defendant’s actions in the circumstances.” Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 637-38 (2001).

[9]. 447 Mass. 431 (2006).

[10]. Under Carrel, the sophisticated user doctrine now serves as a defense to claims of both negligent failure to warn and failure to warn under breach of warranty. Id. at 441; see infra note 34.

[11]. Carrel, 447 Mass. at 440-41.

[12]. Christopher P. Downs, Comment, Duty to Warn and the Sophisticated User Defense in Products Liability Cases, 15 U. Balt. L. Rev. 276, 285 (1986).

[13]. 434 Mass. 624 (2001). In Hoffman, the SJC adopted the bulk supplier doctrine, which allows a manufacturer of bulk products, in certain circumstances, to discharge its duty to warn end users of a product’s hazards by reasonable reliance on an intermediary. Id. at 629. The Court took pains to distinguish the bulk supplier doctrine from the sophisticated user doctrine. See id. at 629-30. Although discussing it extensively, the Court did not formally adopt the latter doctrine.

[14]. Carrel, 447 Mass. at 432.

[15]. Id. at 436. The zip-line course was one component of the Boy Scout’s Project COPE (Challenging Outdoor Personal Experience), a national program designed to develop self-esteem and team-building skills in young persons through the completion of outdoor activities. Id. at 435.

[16]. Id. at 436.

[17]. Id.

[18]. Id.

[19]. Carrel, 447 Mass. at 436. The bungee cord served to anchor the brake block, not to pull riders along the zip line. Id. In the Project COPE manual, an illustration of a proper zip-line course shows one end of the bungee cord fastened to the brake block and the other end tied around the base of a tree. Id. at 436 n.7.

[20]. Project Adventure is a nonprofit organization which assists and equips others interested in adventure education, such as zip-line courses. Id. at 434. National Cord began selling bungee cord to Project Adventure in 1993. Id. As National Cord knew, Project Adventure resold the cord, without alteration, to summer camps. Id.

[21]. Id. at 432. In addition to other defenses, National Cord argued that Carrel could not prove that it was the manufacturer of the bungee cord used at the time of the accident. Id. at 439.

[22]. Id. at 432.

[23]. Carrel, 447 Mass. at 432. In Massachusetts, liability for breach of the implied warranty of merchantability is governed by the commonwealth’s version of the Uniform Commercial Code. Mass. Gen. Laws ch. 106, §§ 2-314 to 2-318 (2004). Section 2-314(1) provides: “[A] warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” Id. § 2-314(1). To be “merchantable,” goods must be “fit for the ordinary purposes for which such goods are used . . . .” Id. § 2-314(2)(c). A seller breaches its warranty obligation when “a product that is defective and unreasonably dangerous for the ordinary purposes for which it is fit causes injury.” Haglund v. Philip Morris Inc., 446 Mass. 741, 746 (2006) (citations omitted) (quotations omitted). Breach of the implied warranty of merchantability may be based on defective design or, as in Carrel, failure to warn. Id. at 747.

[24]. Carrel, 447 Mass. at 433.

[25]. Id.

[26]. Id. at 439.

[27]. Id. The instruction described the duty to warn under the implied warranty of merchantability and fitness, in part, as follows: “Even if a product is properly designed, it is unreasonably dangerous and therefore not fit for the purpose for which such products are used if foreseeable users are not adequately warned of the dangers associated with its use.” Id.

[28]. Id. at 440.

[29]. Carrel, 447 Mass. at 440.

[30]. Id. After the jury found in favor of National Cord on the breach of warranty claim, the parties stipulated to a dismissal of the negligence claim still pending against National Cord. Id. at 433 n.3.

[31]. Id. at 433.

[32]. Id.

[33]. Id. In Hoffman v. Houghton Chem. Corp., the SJC recognized that claims based on negligent failure to warn and failure to warn under breach of warranty are to be based by the same standard of reasonableness of the defendant’s actions under the circumstances. 434 Mass. 624, 637-38 (2001). Based on this determination, the Court concluded, “[A]n instruction on the bulk supplier doctrine may apply to both a claim of negligent failure to warn and a claim of breach of warranty failure to warn in products liability actions.” Id. In Carrel, the SJC reached a similar conclusion with respect to an instruction on the sophisticated user doctrine. 447 Mass. at 441 n.12.

[34]. Carrel, 447 Mass. at 433.

[35]. For a comprehensive list of states recognizing the sophisticated user doctrine, see Victor E. Schwartz & Leah Lorber, A Letter to the Trial Judges of America: Help the True Victims of Silica Injuries and Avoid Another Litigation Crisis, 28 Am. J. Trial Advoc. 295 app. (2005).

[36]. See Carey v. Lynn Ladder & Scaffolding Co. Inc., 427 Mass. 1003-04 (1998); Colter v. Barber-Greene Co., 403 Mass. 50, 59 (1988).

[37]. 408 Mass. 694, 699 (1990).

[38]. Id. at 701.

[39]. 427 Mass. 1003, 1004 (1998). Carey, 427 Mass. at 1003-04.

[40]. Id.

[41]. Carrel, 447 Mass. at 441.

[42]. Restatement (Second) of Torts § 388 (1965); Carrel, 447 Mass. at 441 (citing Gray v. Badger Mining Corp., 676 N.W.2d 268, 275 (Minn. 2004)).

[43]. Restatement (Second) of Torts § 388 (1965) (emphasis added).

[44]. Id. § 388 cmt. k.

[45]. Carrel, 447 Mass. at 440-41.

[46]. Restatement (Second) of Torts § 388(b) (1965).

[47]. Recent Development, Duty to Warn Extended to Non-Commercial Vendor Selling Chattel “As Is, 43 Wash. L. Rev. 484, 491 (1967).

[48]. Id.

[49]. See Schwartz & Lorber, supra note 36.

[50]. Carrel, 447 Mass. at 441.

[51]. Id. Curiously, according to the SJC, the sophisticated user doctrine seeks to “advance the goal of products liability law to prevent accidents.” Id. (quoting Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 630 (2001)). Neither Carrel nor Hoffman provide any further explanation other than that the doctrine applies where a warning will have little deterrent effect. Hoffman, 434 Mass. at 630. At first blush, it is hard to image how an affirmative defense to failure-to-warn actions encourages the prevention of accidents. According to commentators, however, by absolving manufacturers of failing to warn users who knew or should have known of a product’s dangers, the sophisticated user doctrine places “the incentive for loss prevention on the party or parties who are best able to accomplish [that] goal.” See Victor E. Schwartz et al., Getting the Sand Out of the Eyes of the Law: The Need for a Clear Rule for Sand Suppliers in Texas After Humble Sand & Gravel, Inc. v. Gomez, 37 St. Mary’s L.J. 283, 294 (2006) (quoting Model Unif. Prods. Liab. Act, 44 Fed. Reg. 62,714, 62,714-15 (1979)).

[52]. Carrel, 447 Mass. at 441 (quoting Hoffman, 434 Mass. at 630). The SJC expanded on the doctrine’s rationale, stating: “The sophisticated user defense is an application of the established principle that a manufacturer may avoid liability ‘for failing to warn someone of a risk or hazard which he appreciated to the same extent as a warning would have provided.’” Id. (quoting Slate v. Bethlehem Steel Corp., 400 Mass. 378, 382 (1987)).

[53]. Id. at 442.

[54]. Id.

[55]. Id. at 443.

[56]. Id. at 443-44.

[57]. Carrel, 447 Mass. at 443.

[58]. Id. (alteration in original).

[59]. Id. (citing Boston Hous. Auth. v. Bruno, 58 Mass. App. Ct. 486, 491 (2003)).

[60]. Id. at 442.

[61]. In a footnote, the SJC mourned the trial judge’s failure to specify whether it was the sophistication of Project Adventure or the Boy Scouts that the jury should consider. Id. at 444 n.13. Nevertheless, the Court remarked that the focus of the evidence at trial was primarily on the Boy Scouts. “To the extent evidence concerning Project Adventure’s sophistication or knowledge was introduced,” the Court reasoned, “it appeared mainly as support for the inference that Project Adventure passed its knowledge on to the Boy Scouts.” Id.

[62]. Carrel, 447 Mass. at 444-45; see supra text accompanying note 15.

[63]. Carrel, 447 Mass. at 444. The SJC further commented, “This evidence was sufficient to support a jury finding that the Boy Scouts were users that knew or reasonably should have known of the product’s dangers, or, in accord with the judge’s instruction, were users whose ‘experience, expertise, and knowledge far exceed[ed] the manufacturer’s.’” Id. at 445 (citations omitted).

[64]. Id.

[65]. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 630 (2001) (“The sophisticated user defense . . . requires no intermediating relationship . . . .”).

[66]. Schwartz & Lorber, supra note 36, at 315 (citing Restatement (Second) of Torts § 388 cmt. n (1965)).

[67]. Id. at 315.

[68]. Identification of the Boy Scouts as the relevant user of the bungee cord had a significant impact on the outcome of the case, as National Cord was able to produce sufficient evidence of the Boy Scouts’ sophistication. It is doubtful, however, whether it could have done so against a 16-year-old camper, who merely held and pulled a cord. See infra note 71.

[69]. See discussion supra Part IV.C.

[70]. “This was because,” the Court reasoned, “[the Boy Scouts and Project Adventure] had the power to determine how to set up the [zip-line] course and what precautions to take, and to provide any necessary protection . . . .” Carrel, 447 Mass. at 443. Carrel, by contrast, was merely directed by the course supervisor to hold and pull the bungee cord. Id.

[71]. Id. at 444; see Carrel,447 Mass. at 443 (citing Boston Hous. Auth. v. Bruno, 58 Mass. App. Ct. 486, 491 (2003)).

[72]. In the instant case, both Carrel, the injured product user, and National Cord, the product manufacturer, argued at trial for treatment of an intermediary as relevant end user. Absent such agreement between plaintiff and defendant, however, it is as yet unclear when courts in Massachusetts will allow for examination of an intermediary’s knowledge for purposes of the doctrine. A growing number of courts apply the doctrine to an intermediary user only when the intermediary is in the best position to convey warnings to end users of the product. See, e.g., Goodbar v. Whitehead Bros., 591 F. Supp. 552, 566 (W.D. Va. 1984) (“[A] sand supplier to a large, knowledgeable foundry . . . has no duty to warn the foundry employees about the occupational disease of silicosis and its causes when only the [f]oundry is in a position to communicate effective warning and accordingly should be the one to shoulder any burden of effective warning.”), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985). But see Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170 (Tex. 2004) (establishing a six-factor balancing test to determine whether industrial sand suppliers have a duty to warn their customers’ employees about the hazards of silica exposure).

[73]. See discussion supra Part IV.D.

[74]. Carrel, 447 Mass. at 444.

[75]. Id. at 444-45.

[76]. Id. at 445.

[77]. Id.

[78]. Id. at 433.

 

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