Grubb v. Do It Best Corp (CA2 5/4/12)

This products case discusses the liability of a nominal middleman who actually had little to do with this particular transaction.

Grubb’s husband was killed by an exploding space heater. She sued everyone in the chain for products liability and negligence. The hardware store that sold the heater was a member of a cooperative, Do It Best (DIB), but had bought the heater directly from its manufacturer rather  through DIB. DIB included it in a catalog of items available to member stores and kept a small processing fee for the transaction. DIB moved for summary judgment, which the trial court granted.

The Court of Appeals affirms, based on some other drop-ship cases. DIB never possessed the heater, had title to it, or had any warranty or shipping obligations for it. DIB did not have the “participatory connection” to the sale necessary for strict liability. Including the heater in its catalog merely made it a “product distribution facilitator” under Restatement (Third) Products Liability 20, which is a type of creature not strictly liable.

As to negligence, the court assumes duty but says that Grubb did not cite anything in the record establishing a standard of care or its breach. “Accordingly, Grubb has waived these issues and we will not address the merits of her claims regarding standard of care and breach of duty.” Its hard to know whether this means that there wasn’t any such evidence in the record or there was but Grubb’s briefs were defective.

(link to opinion)