Liability Selling Used Tools

[Randy Mack]

I was getting ready to put an old sears jointer for sale on craigslist today, but then backed away from that idea when I considered the liability. Does anyone have any comments on this? I am concerned with someone doing something dumb with the tool and turning around and suing me.

[Greg Cuetara]

I would think that if you make it clear that it is as where is then you are not responsible. Others will probably chime in, but thousands of tools are sold used all the time.

Greg

[Mitchell Andrus]

There is zero liability as long as the buyer is not a minor and is of sound mind. As a non-professional, it is assumed that you do not know any more about the risks than the buyer and therefore cannot be found to have 'failed to warn' about the tool's dangers. A widow selling her husband's tools is not expected to know about the risks, for instance.

If the buyer purchases lessons on it's use from you, you're on the hook.

Cars are inherently dangerous tools too, but we buy and sell them every day. It's assumed that the buyer knows what he's doing.

[Bob Rufener]

Caveat emptor

This is Latin for the phrase "let the buyer beware," which means the buyer buys at his own risk and therefore should examine and test a product for obvious defects and imperfections.

[Joe Chritz]

As a side opinion (granted I am not an attorney but am in the legal field so to speak) anyone can sue for anything if they have few bucks to file a paper in court.

It is an annoyance and if the suit doesn't at least have a little merit it doesn't get going very far.

Make sure you don't do anything fishy (like sell an obviously defective tool as in working order) and you should be fine.

Joe

[Cliff Rohrabacher]

"Your question is a legal question and is not subject to a simple answer:

In 1977 in Pennsylvania a case came before a Federal District Court. The matter involved an injury from a brake failure in a car after a transaction from a private seller to a private purchaser.

The Court held that the doctrine of strict liability did not apply and that the Tort of breach of express warranty also did not apply.
However the court held that:

“[A] right of action in negligence would lie against private sellers of used automobile for personal injuries plaintiffs sustained when they were struck by automobile as it was being driven by the buyer.”
Lemley v. J&B Tire, 426 F.Supp. 1376 (1977)


In Lemley:
A guy named Shelter bought a car from another guy named Morrison. Both private parties in the private transaction. The car was sold “as is” in used condition.

Prior to the sale Morrison had taken the car to J&B tire for work.

Shelter drove the car away. He had an accident in which the brake failure of the car he jus t bought was found to be the cause.

The Plaintiff ( Lemley) sued the Morrisons and J. B. Tire Company alleging that the defective condition of the automobile was the cause of their injuries and that these defendants are liable to them.

Lemley sued under the following three theories of law:
1.) Strict Liability
2.) Negligence
3.) Breach of Express Warranty


The courts stated that: “plaintiffs cannot prevail […] under the doctrine of Sec. 402A of the Restatement, Torts 2d, because the defendants Morrisons are not sellers engaged in the business of selling such a product. Even though the text of Rule 402A is clear as to this requirement, Comment F of the Reports Notes illustrates this point: “Nor does it apply to the owner of an automobile who on one occasion, sells it to his neighbor.”The rationale of the Rule is further explained in Comment F. This determination has nothing to do with the status of plaintiff vis-a-vis the alleged seller.

Plaintiffs may not recover from Morrisons on the grounds that there was an express warranty from Morrison to Shetler that the automobile was free from defects, including defects from the repair of the automobile because plaintiffs had no contract relation with Morrisons nor are they within the scope of Sec. 2-318 of the Uniform Commercial Code which extends the benefits of warranties to members of the family, household, or guests in the home or a buyer.”

However the court did say that:
“There is no dispute that plaintiffs may assert a cause of action in negligence against defendants Morrisons.”


The case ends with summary judgment on two of the theories of law and I am unsure how it all shook out. There is reason to believe the parties later settled on the negligence claim. Either that or the plaintiff went after the brake manufacturer. Ot both.



Which all boils down to one thing: The private seller of a car in a private transaction was liable for defects under at least one theory of law. In this instance it was Negligence.





There was a following trial (426 F.Supp. 1378) where the liability of the Auto Repair shop was addressed wherein the court held them not liable. Apparently the self-adjusting mechanism in the brake assembly was defective from the manufacturer and the Court felt the plaintiff should have taken his suit to them.



Your facts and circumstances and result from the sale of a jointer - may differ.

















c

[Rob Damon]

Two suggestions, if you are really concerned:

1. Sale it with the owners manual. If you don't have it you can try to find it. Then it is the new "owner" that is responsible for reading the manual and operating it in a safe manual.

Stipulate on a bill of sale that the owner's manual has been transferred with the product and by signing the bill of sale the new owner accepts the responsibility, as someone over the age of 18, who is legally able to enter into a legally binding contract, will read and following the warnings in the manual.

2. If you know of any defects or items that need to be serviced or should have been serviced in accordance with the operations manual, then either perform them or state that you have not performed them and that the new owner understands that he/she will be responsible any testing and maintainance of the tool prior to use. The tool is be sold "As-is, without warranty.

Just a few thoughts. Should it be necessary, no, do I do it, no.Why, because I give all of my older tools away and do not sale them. Hence, you get what you pay for.

I had an older circ saw that a neighbor would always borrow. Knowing the scamming nature and the always trying to get something for nothing ethic of him, I finally just gave him the older saw, but did it in a devious way. I saw him outside, took the saw out with wire cutters, proceeded to the trash can. When he saw me getting ready to put it in the garbage, he came running over, "Your not going to throw that good saw out are you?". I said YES, cut the cord and set it in the can. He took it out and fixed the cord and I guess is still using it. But because I technically disposed of it, I had no further liability, if he did something moronic with it, not my problem. Extreme case, of course. (It was fun seeing the look on his face though.)

Used tools are sold day in and day out. If you know something is wrong with the tool (a quirky switch that doesn't work right) that may be a real safety issue, you may want to rethink saleing it. But if it is in good working condition and it is just an issue of using the tool in a "safe" manner and you can pass it on with the user manual, I wouldn't worry about.
Rob

[Greg Narozniak]

Caveat emptor

This is Latin for the phrase "let the buyer beware," which means the buyer buys at his own risk and therefore should examine and test a product for obvious defects and imperfections.

I remember that from an episode of "The Brady Bunch" :)

[Daniel Berlin]

I was getting ready to put an old sears jointer for sale on craigslist today, but then backed away from that idea when I considered the liability. Does anyone have any comments on this? I am concerned with someone doing something dumb with the tool and turning around and suing me.

Depends on the state, and what version of the UCC they use

[Daniel Berlin]

Your question is a legal question and is not subject to a simple answer:


True, but you cited pre-ucc cases for pennsylvania, which are for the most part, completely inapplicable :)

One of the things very much standardized due to the UCC is warranties and who bears the risk.
See article 2 generally.

[Ken Werner]

I'm no lawyer, but I do have a tale to tell. Several years ago I was selling my old table saw, having upgraded, it was in fine working order. The older gent who came to buy it had more than one partially amputated finger. He proceeded to tell me about the various "accidents" he'd had over the years. He sounded like he didn't always exercise the best safety judgement. "I'll be right back" I said, and banged out a quick release from liability for any injury on my computer. "Please sign this" I asked. He signed, gave me the money and left happy. So was I.

[Dave Lehnert]

I was always told that when you sell or buy something from a private owner it is sold as is. No problem unless you known it had a defect and did not say anything.

As far as getting something in writing when you sell. That at times can open you up more fault than you think. I rather just sell it cash. If a problem comes up there is no paper trail you even sold them the tool.
Reminds be of a court case a friend had when he ran a retail operation. Customer slipped on water on the floor that was tracked in with carts. He had the orange traffic cone type wet floor signs all over the place.
The court ruled that he was at fault because the wet floor signs proved he knew the floors were wet and did not post an employee there all day to keep the water mopped up as it was tracked in. Had he not posted wet floor signs there would have not been prof he Knew the floor was wet

Moral of all this. If you are concerned, Talk to a lawyer to be sure.

[Cliff Rohrabacher]

True, but you cited pre-ucc cases for pennsylvania, which are for the most part, completely inapplicable :)

One of the things very much standardized due to the UCC is warranties and who bears the risk.
See article 2 generally.

You are mistaken.

PA had adopted the UCC before the matter which I cited to was decided.

PA had invalidated the Vertical Privity requirement in the Code for certain types of matters “to make tort liability for sale of a defective product coextensive with liability under Uniform Commercial Code for breach of warranty was based on the consumer's inability to protect himself adequately from defectively manufactured goods as well as the implied assurance on part of the seller that the goods are safe and the superior risk-bearing ability of the manufacturer; however, none of such reasons apply to the casual seller in an isolated transaction. “ ( to quote the court ).


In any event the matter was decided on the basis of Negligence and the UCC has absolutely no controlling effect on the law of negligence.

[Frank Hagan]

I was always told that when you sell or buy something from a private owner it is sold as is. No problem unless you known it had a defect and did not say anything.

As far as getting something in writing when you sell. That at times can open you up more fault than you think. I rather just sell it cash. If a problem comes up there is no paper trail you even sold them the tool.
Reminds be of a court case a friend had when he ran a retail operation. Customer slipped on water on the floor that was tracked in with carts. He had the orange traffic cone type wet floor signs all over the place.
The court ruled that he was at fault because the wet floor signs proved he knew the floors were wet and did not post an employee there all day to keep the water mopped up as it was tracked in. Had he not posted wet floor signs there would have not been prof he Knew the floor was wet

Moral of all this. If you are concerned, Talk to a lawyer to be sure.

You have to talk to a lawyer for the laws in your state. None of the advice here is pertinent, except the advice to ask a lawyer.

State laws vary widely and can be much more restrictive than the UCC (Uniform Commercial Code) or the even more important Magnuson Moss Warranty Act (the federal law that actually applies to consumer warranties for manufacturers). Have you ever done woodworking for hire or sold a piece you did? Your state may consider you a business or an expert, with all the extra liability that entails. Giving away the item won't protect you either if liability attaches (at least in California).