Working at the Car Wash, Yeah! O’Connell v. MacNeil Wash Systems, Limited and Products Liability/Design Defects

Author: Jenny Silverstein

Guest Editor: Jeremy Freedman

March 5, 2018 2:49pm

It is my belief that everyone should have a customer service job before they land a “blue” or “white” collar job. Not only is it great training, but it makes one humble and is a great reminder of how far you have come. Before I obtained my paralegal certificate or my Juris Doctor, I had a variety of customer service positions. They ranged from a waitress to working at the counter at a dry cleaners.

Fortunately, my customer service positions were never too labor intensive, like working at a car wash. Sure, I was a member of some student groups who would have a “car wash” as a fundraiser for a school trip, but that is the limit of my experience at a car wash.

However, not all car washes are based on a model of “hand wash.” Sometimes car washes are strictly done mechanically and there is an entire industry of manufacturers, distributors and suppliers of various parts which are used in the operation of a mechanical car wash. Despite these mechanical parts, a human still needs to be present in the event the machine malfunctions or breaks.

But what happens if the human present is injured because a car hits him while he or she is using the car wash? Does the person strictly file a lawsuit against the driver? What if there is evidence that the design of the car wash contributed to the person’s injuries? Can the designer be sued as well?

The John O’Connell v. MacNeil Wash Systems Limited Matter

The Washington Court of Appeals ruled on the matter of John O’Connell v. MacNeil Wash Systems Limited on January 30, 2018. Defendant MacNeil Wash Systems Limited sold plaintiff John O’Connell a car wash system, which did not include safety bollards at the entrance of the car wash. Plaintiff contacted Auto Wash Systems, LLC (Auto Wash), which was defendant’s independent distributor, who coordinated and facilitated the sale of a car wash system to plaintiff. The Auto Wash representative told plaintiff the car wash system was “the Cadillac of car wash systems.” Plaintiff did not select specific equipment for the car wash and Auto Wash told plaintiff what equipment he would need to operate the car wash.

Plaintiff also hired an architect to draw up plans for a car wash building and submitted those plans to Auto Wash, which in turn submitted them to defendant. However, defendant does not design the buildings that house its equipment.

Defendant prepared an estimate of all the required parts for plaintiff to start his car wash, which came to approximately $478,000. Included in the estimate were parts for a vehicle conveyor and for a correlator, which served as the “entry guide onto the conveyor.” A representative from defendant told plaintiff that the correlator “would guide vehicles safely” onto the conveyor and wash platform. Defendant, however, did not include protective bollards in the equipment package. Defendant also prepared drawings showing how the car wash equipment should be organized and installed in the proposed building housing the car wash. However, if the building and equipment package did not work together, defendant required the purchaser’s architect to draw up new building plans that would work with its equipment.

After plaintiff approved defendant’s proposed drawings, defendant prepared additional “shop drawings” to assist the subcontractors in building and installing the car wash equipment. Plaintiff’s car wash was built according to the drawings prepared by defendant. Auto Wash installed defendant’s car wash equipment, and defendant’s vice president of sales in the Western Region was on the premises during the construction and installation. Plaintiff’s car wash opened for business in February 2010.

On October 8, 2011, plaintiff was standing near the correlator and conveyor while directing a customer into the car wash. The correlator was working properly. During this process, the customer felt the vehicle’s wheels go “up,” causing her to step on the accelerator. Her vehicle accelerated off the correlator and struck plaintiff, causing him serious injuries.

Defendant’s equipment manual did not warn the correlator-conveyor equipment would not protect others from suddenly accelerating vehicles. The manual further did not recommend the use of bollards to protect people from such a risk. After his injury, plaintiff installed bollards, which cost about $1,000 for labor and materials, in front of the place where he had been standing to prevent any similar incidents.

Plaintiff sued defendant under the Products Liability Act, Chapter 7.72 RCW alleging defendant was not only the manufacturer of the parts for the car wash, but also the designer of it. Plaintiff alleged defendant’s failed to design its car wash system to include bollards at the entrance of the car wash. Plaintiff’s complaint also alleged defendant failed to warnthe correlator-conveyor would not prevent vehicles from striking him.. Defendant moved for summary judgment. In support of its motion, Defendant filed a declaration from a “car wash systems consultant.” Relying on his own investigation and personal knowledge, defendants consultant opined,  “[s]afety bollards at the entrance of tunnel car washes are not and have never been industry standard.”The State Court granted defendant’s Motion. Plaintiff appealed.

Product Liability and Design Defects

Product liability is an area of law in which manufacturers, distributors, suppliers, retailers and others who make products available to the public are held responsible for the injuries those products cause. Although the word “product” has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property. The claims most commonly associated with product liability are negligence, strict liability, breach of warranty and various consumer protection claims. The majority of product liability laws are determined at the state level and vary widely from state to state. Each type of product liability claim requires different elements to be proven to present a successful claim.

Under RCW 7.72.030(1), “a product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.” Therefore, in general, a plaintiff must show that 1) a manufacturer’s product, 2) was not reasonably safe because of its design or because of the adequate warnings or instructions, 3) which caused harm to the plaintiff. (Ayers By & Through Ayers v. Johnson & Johnson Baby Prods. Co., a Subsidiary of Johnson & Johnson Co. (1991) 117 Wn.2d 747, 752; Thongchoom v. Graco Children’s Prods., Inc. (2003) 117 Wn. App.299, 304). “Manufacturer” with regards to product liability includes a product seller who designs, produces, makes, fabricates, constructs, or remanufacturers the relevant product or component part of a product before its sale to a user or consumer.” (RCW 7.72.010(2)).

Analysis

Defendant argued plaintiff was not injured by a relevant product, component part or system it manufactured. Plaintiff on the other hand, claimed defendant sold him a car was system which did not include the necessary safety component of a bollard or guard. The record showed defendant sold plaintiff parts for a final product, knowing plaintiff was going to assemble that product from those parts, and it sold an entire car wash system to plaintiff. Defendant further prepared drawings showing how its car wash equipment would fit into plaintiff’s proposed building and additional shop drawings to assist subcontractors in building and installing the equipment. In doing so,Defendant controlled whether the car wash equipment system it put together would work inside of plaintiff’s proposed building. Because defendant controlled all aspects of the products used and designed the system, defendant met the definition of “manufacturer” per RCW 772.010.

Defendant also argued  its product was unsafe due to a lack of adequate warnings, instructions or because of its design. In order to show a product is unreasonably safe because of design or lack of drawings, a plaintiff may rely on the “risk-utility” test. Under the ‘risk-utility” test, “a product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product.” . In weighing these factors, the Court determined the $1,000 cost for the installation and purchase bollards was relatively nominal relative to alternative designs.Bollards further did not interfere with the design of the car wash system. Therefore, the Court found the car wash system was defectively designed because it failed to include bollards or other safety precautions.

Lastly, the Court considered whether the defective design was the reason plaintiff was injured or if it was due to error by the driver of the vehicle which hit plaintiff. The Court noted, a representative of defendant told plaintiff the correlator would safely guide vehicles onto the tracks in the car wash. Furthermore, the record showed a simple warning would have been feasible by defendant. Therefore, the Court found the injuries were most likely due defendant’s failure to ensure a safe design and product rather than the driver accelerating.

Based on the foregoing, the Court found there was a triable issue of fact to be determined by the jury. The Court of Appeals therefore reversed the lower court’s order granting summary judgment and remanded the case for further proceedings.

Takeaways

Product liability cases may appear to have the same general theme. Such perception can be deceiving as most product liability cases involve unique complexities that require acute attention to detail.. Product liability cases typically involve a technical understanding of the product, the manufacturing process, uses, unintended uses, intended users and servicing of the product. It further requires a legal understanding of applicable state law or federal law.  In this regard, product liability cases can become expensive. However, in such cases, plaintiff bears the burden of  of proof on multiple elementsin order to prevail on such claims.  The silver lining in all of this, plaintiff’s burden of proof provides multiple avenues for successfully resolving and defending against such claims. An attorney should be retained who understands the complexities of products liability claims and the required elements needed to prove the claim so all applicable defenses may be affectively asserted to reach a favorable outcome.

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