Post on 01-Jan-2016
transcript
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?
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 7
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
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 8
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
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 10
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
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 11
II. POTENTIAL TORT PROBLEMS IN STANDARDS DEVELOPMENT
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 12
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
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 16
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
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 19
IV. POTENTIAL TORT PROBLEMS IN THE TIMELY IMPLEMENTATION OF NEW
TECHNOLOGY
ASME C&S Training Module C3ASME C&S Training Module C3 Slide 20
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