WPI 110.04 Seller—Manufacturer—Defined

Use this instruction with WPI 110.01 (Manufacturer's Duty—Defect in Construction), WPI 110.01.01 (Manufacturer's Duty—Express Warranties), WPI 110.02 (Manufacturer's Duty—Design), WPI 110.02.01 (Manufacturer's Duty—Design—Unavoidably Unsafe Products—Negligence—Comment K), WPI 110.02.02 (Crashworthiness / Enhanced Damage and Injury—Manufacturing and/Or Design Defect), WPI 110.03 (Manufacturer's Duty to Provide Warnings or Instructions With Product), and/or WPI 110.03.01 (Manufacturer's Duty to Provide Warnings or Instructions After the Product Was Manufactured) which relate to a manufacturer's duties. Also use this instruction if the case includes a claim of negligence, express warranty, or misrepresentation against a seller other than a manufacturer.

Use bracketed material as applicable. Use only the bracketed first or second sentence if there is no issue over the defendant's status as a manufacturer or product seller.

This instruction has been modified for this edition to include entities that an ordinary and reasonable consumer would consider to be a manufacturer based on the entity's representations.

RCW 7.72.010.

See the statute for specific exceptions from the definition of “seller” and for specific indications of who is or is not a manufacturer. The definition of seller set forth in the statute includes a party who is in the business of “leasing or bailing” products. If the bailment arrangement is not covered by the word “leasing” a special instruction in needed to fit the case. The word “bailment” should not be used unless it is defined.

For a discussion of when a seller may be liable, see the Comment accompanying WPI 110.07 (Seller Other than Manufacturer).

Product seller. If the product has a label attached to it bearing the name of the seller, with inventory and bar code numbers and the name of the seller, then the company whose name is on the product is subject to liability as a product seller who markets a product under their trade name. Farmers Ins. Co. v. Waxman Indus., Inc., 132 Wn.App. 142, 130 P.3d 874 (2006); see also Heneghan v. Crown Crafts Infant Prods., Inc., 868 F.Supp.2d 1153 (W.D. Wash. 2012).

RCW 7.70.040(2) provides in pertinent part that a product seller assumes the liability of a product manufacturer under a number of circumstances, including when the product is marketed under a trade name or brand name of the product seller. Thus, when REI marketed a bicycle under its brand name, it stood in the shoes of the actual manufacturer. Johnson v. Recreational Equip., Inc., 159 Wn.App. 939, 247 P.3d 18 (2011).

A firm may be subject to liability for leasing under the WPLA, when the following factors are considered: (1) Is the firm leasing so much product that it is in a “position to exert pressure on the manufacturer to influence the product's design”? (2) Do people who lease the product typically look to this firm for advice regarding selection, operation, and maintenance of the product? (3) Is the firm in a position to be best able to spread costs of injury among the public? If the firm is involved merely in isolated or casual transactions, the firm is not “in the business of leasing products.” Bostwick v. Ballard Marine, Inc., 127 Wn.App. 762, 767–68, 112 P.3d 571 (2005) (quoting Buttelo v. S.A. Woods-Yates Am. Mach. Co., 72 Wn.App. 397, 401, 864 P.2d 948 (1993)).

The statutory definition of “product seller” is subject to a number of exceptions, including an exception for providers of professional services who use or sell products in the course of their professional practice. See RCW 7.72.010(1); McKenna v. Harrison Mem'l Hosp., 92 Wn.App. 119, 960 P.2d 486 (1998) (hospital qualifying as a provider of professional services). Additional instructions will be necessary whenever a case involves factual issues as to these statutory exceptions.

Product manufacturer. A manufacturer of a product that is not in the chain of distribution of the dangerous product and did not manufacture, sell, or select asbestos insulation (the dangerous product) is not a “manufacturer” of a dangerous product. Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 282 P.3d 1069 (2012); see also Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008); Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008).

A manufacturer of component parts of a product may be liable under RCW 7.72.030(1)(a) for an unsafe design if those parts are used and installed without substantial modification in assembling the product. Parkins v. Van Doren Sales, Inc., 45 Wn.App. 19, 724 P.2d 389 (1986); RCW 7.72.010(2) (definition of “manufacturer” with regard to component parts of a product). Parkins is in accord with prior law decided under section 402A(1)(b) of Restatement (Second) of Torts (1965) that a plaintiff may be barred from recovery if the products underwent a substantial change in condition after leaving the manufacturer. See Sepulveda-Esquivel v. Cent. Mach. Works, Inc., 120 Wn.App. 12, 84 P.3d 895 (2004); Padron v. Goodyear Tire & Rubber Co., 34 Wn.App. 473, 662 P.2d 67 (1983); Bich v. Gen. Elec. Co., 27 Wn.App. 25, 614 P.2d 1323 (1980).

The court in Washburn v. Beatt Equipment Co., 120 Wn.2d 246, 840 P.2d 860 (1992), discussed in detail whether a contractor that made, fabricated, and constructed a pipeline for a propane fuel system was a manufacturer under the definition set forth in RCW 7.72.010. See also, Anderson Hay & Grain Co. v. United Dominion Indus., 119 Wn.App. 249, 76 P.3d 1205 (2003) (firm that constructed a grain storage building was a service provider, not a manufacturer or seller); Almquist v. Finley Sch. Dist. No. 53, 114 Wn.App. 395, 57 P.3d 1191 (2002) (school district served tacos for lunch; court held that district was liable as a manufacturer, after students were sickened by E. coli found in the ground beef used to make the tacos).

Apparent manufacturer. An entity who did not manufacture, sell, or distribute a product may nonetheless be liable as an “apparent manufacturer.” Rublee v. Carrier Corp., 192 Wn.2d 190, 213–14, 428 P.3d 1207 (2018). An entity is liable as an “apparent manufacturer” if an “ordinary, reasonable” consumer would understand from the entity's representations that the entity was a manufacturer. Rublee, 192 Wn.2d at 210–11. Such representations may include the product's labels, advertising, or packaging. Rublee, 192 Wn.2d at 210–11.

Successor liability. A corporate entity acquiring another's product line may be liable under successor liability and the “product line doctrine.” Leren v. Kaiser Gypsum Co., Inc., 9 Wn.App.2d 55, 442 P.3d 273 (2019), review denied 194 Wn.2d 1017 (2020). The “product line doctrine” applies where: (1) the successor acquired substantially all of the predecessor's assets, leaving “a mere corporate shell,”; (2) the successor held itself out to the general public as a continuation of the predecessor by producing the same product line under a similar name; and (3) the successor benefitted from the goodwill of the predecessor. Leren, 9 Wn.App.2d at 62–63.