Candace R, Arrington, Phillips Nizer Associate
Aspirations of heroism are not typically the motivation behind entering the fashion business as they would be, for example, for people training to be fire fighters and other first responders. When trouble does come, however, it often does so from unexpected quarters and with unanticipated consequences, such as the world now faces with COVID-19.
We know that we were unprepared, without supplies of such basics as protective masks and gowns. News stories have appeared about how garment makers have hurriedly retooled to make those desperately needed items and how fragrance manufacturers are using their equipment and workers to produce hand sanitizer.
To the extent that any of the items made in such hurriedly retooled factories have to meet the requirements of applicable safety regulations, counsel should be brought in to help facilitate compliance. That is all about immediate need. The follow-up question is whether, should any of the essential items so produced by factories not previously employed in their manufacture suffer from defects such that the health of users or others is compromised, to what extent might the maker be liable?
State Good Samaritan laws typically protect people who act reasonably when helping others in immediate peril (such as accident victims and overdosing drug users) but who might cause unintentional harm. It is probably not realistic to expect such a law to be accepted as a defense in a lawsuit claiming negligent manufacture. It is reasonable to expect that a court and a jury would be very sympathetic to the manufacturer, but sympathy can only go so far.
First, as always, manufacturers should check with their insurers to see to what extent they might already be covered or can be covered to protect against liability resulting from such claims. Next, a simple, albeit ad hoc, solution for fashion companies that want to participate is to offer their new goods coupled with a short-form release, explaining the situation and stating clearly that the purchaser accepts those goods at its sole risk. For several reasons, that is not foolproof as to the purchaser, and legal questions could also arise if the purchaser passes on the item or injuries are suffered by third parties during use, but it would still be worth doing. But we are in a time in which perfect is no longer a viable option. Regardless, as always in these situations, counsel should be consulted for drafting the release and on how to use it. Most attorneys are working remotely these days, but the American bar remains able and willing to serve.