ASME C&S Training Module C3ASME C&S Training Module C3

MODULE C - LEGAL

SUBMODULES

C1. Conflict Of Interest/Code Of Ethics

C2. Antitrust

C3. Torts

C4. Intellectual Property

C5. Speaking For The Society

ASME C&S Training Module C3ASME C&S Training Module C3

REVISIONS

CHANGE SLIDEDATE“accreditation” changed to “conformity assessment”

“accreditation” changed to “conformity assessment (accreditation and certification) ”Last bullet, first listed item revised.“accreditation” changed to “conformity assessment” and last bulleted item deleted.“accreditation” changed to “conformity assessment” and notes added“accreditation” changed to “product certification”“accreditation” changed to “product certification” in the heading; “An accreditation body” changed to “A certification body”; and Note revised.“accreditation” changed to “product certification” in heading and second listed item revised.First paragraph revised.

3 & Notes, 4, 9, 14, 244 Notes

8 Notes9 Notes

14 Notes

1515 Notes

16 & Notes

17 Notes

6/16/06

C3. Torts

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 4

OBJECTIVES

This submodule will– Describe the potential tort problems that can

arise in standards development and conformity assessment activities

– Provide guidance in how to avoid these liabilities

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 5

AGENDA

I. What is a Tort?

II. Potential Tort Problems in Standards Development

III. Potential Tort Problems in Conformity Assessment

IV. Potential Tort Problems in the Timely Implementation of New Technology

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 6

I. WHAT IS A TORT?

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WHAT IS A TORT?

• Definition

– Civil wrongs recognized as grounds for a lawsuit filed by an injured party

• Example

– “Negligence” resulting in harm to persons or property

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WHAT IS A TORT?

• Purpose of tort law– To provide monetary relief for damages incurred– To deter others from committing the same

harms

• Source– Primarily, state court decisions– Some national consensus on issues affecting

ASME

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 9

TORT - POTENTIAL APPLICABILITY

• Negligent Tort– Defendant’s actions were unreasonably unsafe– Plaintiff must demonstrate that the defendant• Owed a duty of care• Breached or failed to discharge duty• Breach of duty was direct or proximate cause

of injury to plaintiff’s person or property

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ASME AND TORT LAW

• Source of liability– Fostering reliance creates a duty to use

reasonable care

• Activities creating potential problems– Promulgating voluntary codes and standards– Administering conformity assessment programs

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II. POTENTIAL TORT PROBLEMS IN STANDARDS DEVELOPMENT

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NEGLIGENT STANDARDS DEVELOPMENT

• Party must

– Demonstrate a failure to exercise reasonable care

– Demonstrate this failure increased the risk of harm

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 13

NEGLIGENT STANDARDS DEVELOPMENT

• Potential applicability– Adoption of a standard could be held to

constitute approval of an “unsafe” level of safety

– Especially likely when manufacturers, regulators, insurers and users rely on the standard

– Standard of care• Higher standard for a professional than for

“reasonable person”• Conduct judged by what a “reasonable

engineer” would have done

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 14

AVOIDING LIABILITY

• Guidelines– Members must exercise reasonable care by• Carefully weighing all views • Using their best professional judgment

– Objective, documented technical basis for the standard or code

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 15

III. POTENTIAL TORT PROBLEMS IN CONFORMITY ASSESSMENT

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NEGLIGENT MISREPRESENTATIONIN CONNECTION WITH ASMEPRODUCT CERTIFICATION

• Party must demonstrate – Either that there was a failure to exercise

reasonable care in ascertaining whether a stamp was to be issued

– Or that inadequate care was taken in overseeing the use of the stamp

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 17

• Issues– The presence of an ASME symbol may be

misinterpreted as a ASME’s representation that the stamped item meets the ASME standard.

– The actual certification of a product’s compliance is made by the ASME-authorized manufacturer.

– Misinterpretation is likely where others rely on the stamp as an assurance of code compliance.

NEGLIGENT MISREPRESENTATIONIN CONNECTION WITH ASMEPRODUCT CERTIFICATION

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 18

AVOIDING LIABILITY

• Guidelines– Reviews and surveys must be carried out by

competent and qualified personnel.– ASME must act promptly, within the limits of

due process, upon the receipt of a report of non-conformance• Curtail Code Symbol use • “Quarantine” stamped products

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IV. POTENTIAL TORT PROBLEMS IN THE TIMELY IMPLEMENTATION OF NEW

TECHNOLOGY

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TIMELY IMPLEMENTATION OF NEW TECHNOLOGY

• Potential liability– Exists where new safety-enhancing technology

is introduced but the consensus process delays a revision to the standard

– New Jersey Supreme Court’s decision in Snyder vs. American Association of Blood Banks

(cont’d)

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 21

TIMELY IMPLEMENTATION OF NEW TECHNOLOGY

• Potential liability (cont’d)– Suit against the National Spa and Pool Institute• NSPI is a trade organization• NSPI failed to change a standard

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 22

AVOIDING LIABILITY

• Guidelines– Take advantage of advances in communication

technology– Streamline the standards development process

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 23

POP QUIZ #1

Name three “Do’s” that will help avoid tort liability when developing standards or running an accreditation program.

1. __________________________________

2. __________________________________

3. __________________________________

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 24

CLOSING REMARKS

• Things to keep in mind– Operation of standards development process

and accreditation programs involves risk– Constant vigilance is required on the part of all

individuals involved in the process– Direct questions to ASME officers or staff

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 25

SUMMARY

I. What is a Tort?

II. Potential Tort Problems in Standards Development

III. Potential Tort Problems in Conformity Assessment

IV. Potential Tort Problems in the Timely Implementation of New Technology

ASME C&S Training Module C3ASME C&S Training Module C3 Slide 26

Legal Implications of Codes and Standards Activities:

“A Guide to Tort Law Compliance for ASME Volunteer and StaffMembers” adopted by Codes and Standards Board of Directors March 23, 1982

REFERENCES