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Legal Memorandum: Products Liability Duty on a Retailer in KY

Issue: Does the law in Kentucky impose a products liability duty on a retailer who knew or should have known at the time of distribution or sale that a product was in a defective condition and unreasonably dangerous?

Area of Law: Litigation & Procedure, Personal Injury & Negligence
Keywords: Product Liability Duty; Vacation of summary judgment; Kentucky Product Liability Act; Roll Over Protective Structure
Jurisdiction: Federal, Kentucky
Cited Cases: 300 S.W.3d 184
Cited Statutes: Ky. Rev. Stat. § 411.340
Date: 07/01/2010

The United States District Court for the Western District of Kentucky has expressly noted that, “[c]learly, Kentucky courts are willing to impose liability upon those retailers who knew or should have known at the time of distribution or sale that the product was in a defective condition and unreasonably dangerous.”  Adams v. Minnesota Mining & Mfg. Co., Nos. 4:03CV-182-M, 4:04CV-2-M (W.D. Ky. Mar. 30, 2004); see West v. KKI, LLC 300 S.W.3d 184, 192 (Ky. Ct. App. 2008) (“Notwithstanding the ‘middleman’ provisions of the Kentucky Product Liability Act, a wholesaler, distributor or retailer may be liable if it . . . knew or should have known at the time of distribution that the product was in a defective condition, unreasonably dangerous to the user.”), review denied (Ky. Jan. 13, 2010). 

The following cases which may be used to attempt to establish middleman immunity under Ky. Rev. Stat. § 411.340 are inapposite.

·          Jordan v. Massey-Ferguson, Inc., No. 95-5861 (6th Cir. Nov. 12, 1996), is distinguishable for many reasons: (1) in Jordan there was no claim against any distributor; (2) also, no alleged application of the Kentucky Middleman statute; (3) the tractor at issue without Roll Over Protective Structure (ROPS) was manufactured many years earlier, in 1974 and sold in 1975, and the court noted that “under the standard of care existing at the time” (1974-75) the tractor was not unreasonably dangerous; (4) the court noted most implements used with that tractor were incompatible with simultaneous use of ROPS; (5) with ROPS […]

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