Products Liability Law Daily Software program for assembly line qualified as a product and/or design feature
Tuesday, September 21, 2021

Software program for assembly line qualified as a product and/or design feature

By Pamela C. Maloney, J.D.

The manufacturer of an automated assembly line defeated negligence claims for allegedly defective software, but product misuse did not defeat products liability claims.

The estate of a worker who was killed while performing maintenance on robots used as part of an automated assembly line could not maintain common law negligence claims against the manufacturer of the assembly line because the line’s allegedly defective software programming was a product, not a service, the U.S District Court for the Western District of Michigan ruled, adding that only product liability claims could survive the manufacturer’s motion for summary judgment. The district court also found that the worker’s admitted misuse was foreseeable (Holbrook v. Prodomax Automation Ltd., September 20, 2021, Jarbou, H.).

The decedent had worked as a journeyman maintenance technician at an automotive plant. As part of her job, she performed maintenance on robots used as part of the automated assembly lines used to manufacture chrome-plated plastics, bumpers, and trailer hitches, such as those used on Ford’s F-150 pickup trucks. On the day of the accident, the decedent was working in the “100 line,” which consisted of six enclosed zones separated by retractable walls that could be lowered to permit the transfer of parts between zones. All parties agreed that the likeliest course of events that led to the accident started when a robot in one zone reached over the lowered wall into another zone to pick up a welded hitch assembly. The hitch was misaligned in its fixture and the robot could not extract it. As a result, the robot “faulted over” so that it laid stretched across the lowered wall between the zones. The decedent climbed over the wall to manually guide the robot, allegedly in contravention of the plant’s safety procedures. According to an incident report issued by the Occupational Safety and Health Administration of Michigan’s Department of Licensing and Regulatory Affairs, the decedent’s head was crushed between two parts when a robot from a third work zone entered the area in which she was working to place another welded hitch into the fixture. The report contained allegations that the “lockout” function had not been engaged prior to the incident.

The personal representative of the worker’s estate filed a lawsuit against several companies that allegedly manufactured the robots, robot controllers, robot tooling, part fixtures, welding process equipment, and/or safety devices within the 100 line of the factory. Claiming that the companies had been negligent in programming the assembly line’s zone-specific shutdowns through what is called a programmable logic controller (PLC), the complaint asserted common law negligence and product liability claims under theories of defective design, manufacturing defect, breach of implied warranty, and failure to warn. One of the named defendants, Nachi Robotic Systems, was granted summary judgment after the estate admitted that its products were not involved in the incident [see Products Liability Law Daily’s August 28, 2019 analysis]. Before the court were motions for summary judgment filed by the company that had contracted with Ford to supply trailer hitch receiver assemblies for its F-150 pickup trucks and the company that built the assembly line.

Common law negligence. The two companies argued that the estate could not assert common law negligence claims because the Michigan Products Liability Statute (MPLS) provides the sole remedy available for product liability claims. The estate countered that the PLC programming was not a product and, therefore, was not subject to the MPLS. The Michigan courts have not addressed the question of whether software, such as PLC programming, should be considered a product, and the MPLS merely offers a recursive definition of “product,” stating that “product” includes any and all component parts to a product. Thus, the district court had to rely on common and approved usage of the language to resolve the issue. The relevant definitions of “product” (as taken from Black’s Law Dictionary and the Oxford Dictionary) included references to “parts” or “components,” which were defined as “an integral portion, something essentially belonging to a larger whole,” or as “a portion or division of a whole that together with another or others makes up a whole.” Based on these definitions, the district court agreed with the defendants that the PLC programming was an integral and essential part of the 100 line because, without it, the robotic components would not have been orchestrated to move at all within the line. In addition, the term “production” included design and, because the PLC could have been programmed in multiple different ways, including to treat all relevant zones as a single zone, the estate’s claims fundamentally challenged the design of the product. Thus, the estate could pursue its claim that the PLC programming was defective only through a product liability claim under the MPLS.

Programming as a design feature. The trailer hitch supplier also argued that the PLC programming need not qualify as a product itself because it was part of the 100 line’s design and, as such, the estate’s underlying action was based on the design of the line and must be brought under the MPLS. The estate responded that the programming could not be part of the design because the 100 line was not programmed until its installation was completed at the plant. However, this argument did not adequately counter that of the supplier. The PLC programming determined how the 100 line would function as an assembly line: it told the many robots when to act, or not, and-more importantly-it determined how much of the line would remain in operation while portions of the line were under maintenance. Thus, the PLC programming fell squarely within “design,” and the fact that it was completed at the plant did not make it any less a part of the product’s design.

Alternative definitions of “product.” The estate encouraged the district court to adopt the definition of “product” set forth in the Restatement (Third) of Torts, which supported its argument that PLC programming was a service, not a product. However, there were no Michigan courts, or federal courts applying Michigan law, that had relied on or applied that definition. Furthermore, the “any and all component parts” language used in the MPLS defined the term “product” more broadly than the Third Restatement, which offered no guidance on what the district court should make of that additional language. Thus, the Third Restatement’s definition of “product” could not be applied in this case.

The district court also rejected the estate’s proffered definition of “product” from the most recent edition of Black’s Law Dictionary, which limited the term to tangible personal property and made no mention of any results of intellectual labor. The Michigan legislature defined “product” in 1995 when it adopted the MPLS and there was no way it could have relied on a definition from 2019, which was why the district court had relied on the Black’s Law definition that was contemporaneous with the MPLS.

The estate also asked the district court to follow the Uniform Commercial Code’s treatment of software in order to determine whether the PLC programming should be considered a product. Under the UCC, software’s status as a “good” depended on whether the parties had contracted for the provision of services rather than goods. In this case, the estate argued that the automation company provided a service in creating and programming the line and that, therefore, the PLC programming fell outside the MPLS’s definition of “product.” The district court rejected that argument, explaining that even if the PLC programming could be considered a service rather than a good, the ultra-broad definition of “production” used in the MPLS meant that the bulk of the automation company’s work in making the 100 line still would qualify as the provision of goods rather than of services.

Supplier’s liability under MPLS. The district court granted the trailer hitch supplier’s motion for summary judgment on the estate’s products liability claims against it because the supplier did not qualify as a manufacturer or a non-manufacturing seller under the MPLS.

Misuse defense. The automation company that built the assembly line asserted that it was shielded from liability by the product misuse defense. The estate claimed that the decedent’s uncontested misuse, i.e., climbing over a wall into another zone instead of following mandated safety protocols, was foreseeable to the assembly line manufacturer and, therefore, there was no basis for the defense. The evidence showed that the particular misuse in this case was foreseeable and that, in fact, the manufacturer had foreseen it. The manufacturer’s engineering manager explained that the purpose of the walls, even when lowered, was to prevent a person from going between the zones in the exact way the decedent had. The fact that the manufacturer had intended workers to use the assembly line safely did not mean that it did not foresee that they would not. In addition, the assembly line manufacturer had anticipated improper wall-climbing and had taken measures, such as installing the walls, to make this type of misuse more difficult to achieve. Finally, the argument that the misuse was not foreseeable because no one could have reasonably expected the decedent to do something so dangerous did not negate that the misuse was foreseeable given the steps the manufacturer took to mitigate such misuse.

Inherently dangerous product. The district court also rejected the assembly line manufacturer’s argument that it was impossible to design out or absolutely guard against a user who was determined to defeat or evade provided safety devices and procedures. Although the 100 line might have been as safe as could be reasonably expected, that did not mean that dangerous misuses were not foreseeable. In light of the fact that the manufacturer foresaw workers climbing over walls separating the zones in the 100 line, the district court refused to grant summary judgment on the products liability claims against it.

The case is No. 1:17-cv-219.

Attorneys: Charissa Chaiyiang Huang (Smith Haughey Rice & Roegge PC) for William Holbrook. Michelle A. Thomas (Dickie, McCamey & Chilcote, P.C.) for Prodomax Automation Ltd. James D. VandeWyngearde (Troutman Pepper Hamilton Sanders LLP) for Flex-N-Gate, LLC. Fred Joseph Fresard (Dykema Gossett PLLC) for FANUC America Corp.

Companies: Prodomax Automation Ltd.; Flex-N-Gate, LLC; FANUC America Corp.

MainStory: TopStory DefensesLiabilityNews DesignManufacturingNews IndustrialCommercialEquipNews MichiganNews

MainStory: TopStory DefensesLiabilityNews DesignManufacturingNews IndustrialCommercialEquipNews MichiganNews

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