Generally, for a manufacturer to be liable for product liability, the product must have been defective at the time of the first sale. If the defect resulted from a modification that occurred after the original sale of the product, the manufacturer will generally not be held liable. The U.S. Tenth Circuit Court of Appeals recently considered the application of this rule in a case in which a product had been repaired with unused original parts that were designed to be used with a previous version of the product.
Birch v. Polaris Industries, Inc., arose from the death of a man in an off-road vehicle accident. The vehicle flipped over and pinned the man.
Less than two weeks after the man purchased the vehicle in 2011, the roll-over protection structure was destroyed when the vehicle flipped in an accident. The man received an estimate that indicated it would cost more than $6,000 to repair the roll cage and other damage. He asked the technician who provided the estimate to perform the repairs on the side. The technician, who was certified by the manufacturer as a master service dealer technician, agreed to repair the vehicle. He bought a new roll-over protection structure off Craigslist.com, but it was designed for use with a 2008 model of the vehicle. There were several changes to the roll-over protection structure between 2008 and 2009, and the technician had to grind tabs off the mainframe to make it work.