Trying to tell the difference between a product and a service may not be harder than deciding if a glass is half full or half empty, or if a tomato is better characterized as a fruit than as a vegetable, but it is certainly not easy.”
Whitaker v. T.J. Snow Co., 151 F.3d 661, 664 (7th Cir. 1998).
Is it a good or is it a service? This argument has been fought ever since the distinction between products’ cases and service arose. This distinction really mattered in a burn injury case in Indiana that was decided last week because the Indiana Product Liability Act does not apply to transactions that involve wholly or predominantly the sale of a service rather than a product. Barely, it would seem, a lawsuit against a maker of work shirts for burn injuries, allegedly caused because of the failure of a cotton uniform shirt to serve as expected, survived summary judgment last week in Indiana.
Here are the facts. Plaintiff was a welder/plasma torch operator who was operating a Pro Cut 80 plasma cutter made by the defendant. The Pro Cut 80 plasma cutter is used to cut through metal and steel. As you would expect, the plasma cutter fires off sparks when cutting metal. While using the plasma cutter, the plaintiff’s shirt catches fire causing serious burns.
Plaintiff sued a number of folks, including the manufacturer of the shirts saying these shirts just shouldn’t catch fire like that because everyone knows what the people in these shirts are doing, and the defendant has an obligation to make them safe for the intended use. The plaintiff’s argument that the negligence claim is not subject to the product liability act in Indiana because the relationship between the defendant and plaintiff’s employer was for the laundry service rather than the providing of work shirts.
No one found any Indiana case that looked at whether a company that provided clothes is predominately providing a product or a service. The court decided that the fact that the laundry service was not optional was critical to calling the shirt provider a service. Ultimately, the court is not saying that it is a service. Instead, the court found that a reasonable jury could so find.
This is one of those crazy cases where there is clearly a dispute as to negligence, but it is hard to find a defendant to bring a claim against who is not barred by some law or another that shields them from negligence. We need fewer laws that protect defendants that hurt someone from negligence claims.
I once fought this issue unsuccessfully in a wrongful death claim involving a sugar factory worker. The product liability claim was denied, but the negligence count continued. I tried the case, got through the plaintiff’s evidence – and past a motion for a directed verdict. The case settled shortly thereafter.