Re: test misuse
- Subject: Re: test misuse
- From: "J. Woestehoff" <pureparents@PUREPARENTS.ORG>
- Date: Thu, 30 Aug 2001 10:40:03 -0500
- Reply-to: Assessment Reform Network Mailing List <ARN-L@LISTS.CUA.EDU>
- Sender: Assessment Reform Network Mailing List <ARN-L@LISTS.CUA.EDU>
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.
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
and valid and they do accept that legal responsibility. However, once
tests leave our office, we must trust those that are using our tests to
them responsibly (afterall they do sign purchaser qualifications
and affidavits stating same). Test publishers are not to be held
for another individual's failure to act responsibly. How would you like
be convicted for a crime just because the person standing next to you
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
other person. Ummm!
You can probably find cases which come down on both sides of the
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
number of factors, such as any inherent flaws in the design,
by manufacturer regarding proper use (what product is designed to be
for), circumstances under which product was sold, evidence of intent
misuse which manufacturer may have been aware of, and so on.
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