Bill Text: NJ S52 | 2010-2011 | Regular Session | Introduced
Bill Title: Modifies the tort liability of product sellers.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-01-12 - Introduced in the Senate, Referred to Senate Judiciary Committee [S52 Detail]
Download: New_Jersey-2010-S52-Introduced.html
Sponsored by:
Senator GERALD CARDINALE
District 39 (Bergen)
SYNOPSIS
Modifies the tort liability of product sellers.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning the tort liability of product sellers and amending P.L.1995, c.141.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1995, c.141 (C.2A:58C-9) is amended to read as follows:
2. a. In any product liability action against a product seller, the product seller may file an affidavit certifying the correct identity of the manufacturer of the product which allegedly caused the injury, death or damage.
b. [Upon filing the affidavit pursuant to subsection a. of this section, the] A product seller shall be relieved of all strict liability claims and all claims for breach of implied warranty of merchantability, subject to the provisions set forth in subsection d. of this section. [Due diligence shall be exercised in providing the plaintiff with the correct identity of the manufacturer or manufacturers.]
c. The product seller shall be subject to strict liability and breach of implied warranty of merchantability if:
(1) [The identity of the manufacturer given to the plaintiff by the product seller was incorrect. Once the correct identity of the manufacturer has been provided, the product seller shall again be relieved of all strict liability claims, subject to subsection d. of this section; or] (Deleted by amendment, P.L. , c. .)
(2) The manufacturer has no known agents, facility, or other presence within the United States; or
(3) The manufacturer has no attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable from the assets of the bankruptcy estate, except, with respect to this paragraph, the product seller shall not be subject to strict liability or breach of implied warranty of merchantability for more than five years after acting as the product seller in regard to the plaintiff.
d. A product seller shall be liable if:
(1) The product seller has exercised some significant control over the design, manufacture, packaging or labeling of the product relative to the alleged defect in the product which caused the injury, death or damage; or
(2) The product seller knew
or should have known of the defect in the product which caused the injury,
death or damage or the plaintiff can affirmatively demonstrate that the product
seller was in possession of facts from which a reasonable person would conclude
that the product seller had or should have had knowledge of the alleged defect
in the product which caused the injury, death or damage; or
(3) The product seller created the defect in the product which caused the injury, death or damage.
e. The commencement of a product liability action based in whole or in part on the doctrine of strict liability against a product seller shall toll the applicable statute of limitations with respect to manufacturers who have been identified pursuant to the provisions of subsection a. of this section.
(cf: P.L.1995, c.141, s.2)
2. This act shall take effect immediately.
STATEMENT
This bill modifies the current law concerning a product seller's liability for product liability. Under current law, a product seller becomes subject to strict liability or breach of implied warranty of merchantability if the manufacturer of the product has no attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable from the assets of the bankruptcy estate. This bill modifies that provision by providing that a product seller in those circumstances shall not be so liable if more than five years have passed since acting as a product seller in regard to the plaintiff. Originally the provision was included because it was argued that the product seller had insurance to cover the loss. However, the product seller may not have such coverage or may have recently purchased the business and faces product liability claims only recently filed under the discovery rule with no record of the previous owner's insurers. In addition, extensive product liability claims which bankrupt manufacturers and remain not fully paid will surely bankrupt product sellers which have fewer assets and which had no responsibility for the damages.
