Re: test misuse

["J. Woestehoff" <pureparents@PUREPARENTS.ORG>]

One of our lawyer friends once toyed with idea of filing a product
liability claim against Riverside for allowing their product to be
misused, and for the damage that misuse has caused children. Thought it
was a very intriguing idea- but would take $$$$ . Julie W.

Bob wrote:

> A test publisher should not be able to avoid legal liability by simply
> informing the purchaser (with a wink) of the proper use and then getting the
> purchaser to sign (with a wink) a piece of paper that the purchaser will use
> it properly.  Let's look at guns.  Here are two scenarios.
>
> 1.     The gun company (manufacturer/seller) sells to a reputable dealer who
> takes its obligations seriously and who the gun company has no reason to
> know is selling to criminals.  If a gun is subsequently used to shoot
> someone, and the gun company was not aware that this would happen, it may be
> protected.  You will likely find this to be true in most cases where gun
> manufacturers have not been held liable.
>
> 2.     The gun company sells to a criminal organization that it knows will
> use the guns to commit crimes.  Every gun the gun company sold to this
> organization in the past has been used for a crime.  The organization has a
> written policy that it will use the guns for crime.  Yet the gun company
> informs the organization that the guns should not be used for crime and
> obtains a written promise that the guns will not be used for crime.  When
> the organization shoots someone with the guns, is the gun company protected?
> I don't think so.  The gun company knew very well what purpose the guns it
> was selling would be used for, and knew the written promise it obtained
> would not be complied with.
>
> The key here is what knowledge does the test publisher have when it sells
> the tests.  They simply cannot put these tests in the hands of someone thay
> know are using the test improperly to hurt others.  (And they cannot escape
> this by blind ignorance, where they simply do not ask or make appropriate
> inquiries, because they do not want to know.)  It is not so much that test
> publishers are enforcers, but rather they have an obligation to refrain from
> being knowing participants.
>
> ----- Original Message -----
>
> > > Test publishers are held accountability for ensuring that tests are
> reliable
>
> > > and valid and they do accept that legal responsibility.  However, once
> the
>
> > > tests leave our office, we must trust those that are using our tests to
> use
>
> > > them responsibly (afterall they do sign purchaser qualifications
> agreements
>
> > > and affidavits stating same).  Test publishers are not to be held
> responsible
>
> > > for another individual's failure to act responsibly.  How would you like
> to
>
> > > be convicted for a crime just because the person standing next to you
> took
>
> > > out a gun and shot someone?  You did not shoot the person; the person
> > > standing next to you did.  But perhaps you should be guilty of the crime
> > > because you failed to stop the person standing next to you from shooting
> the
>
> > > other person.  Ummm!
> >
> > > > You can probably find cases which come down on both sides of the
> issue.
>
> > > >  Recent attempts to hold gun manufacturers liable have generally not
> > > >  succeeded, but I'm sure there are other examples where a product
> > > >  manufacturer has been held liable even though they were not directly
> > > >  responsible for the harm caused.  Court's analysis would probably
> involve a
>
> > > >  number of factors, such as any inherent flaws in the design,
> statements made
>
> > > >  by manufacturer regarding proper use (what product is designed to be
> used
>
> > > >  for), circumstances under which product was sold, evidence of intent
> to
>
> > > >  misuse which manufacturer may have been aware of, and so on.
>
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