Component Liability

Fenestration requires a broad perspective on when, what and how to warn
Matt Johnson
June 14, 2019
COLUMN : Legal | Codes & Standards

Best practices

  • Consider warnings that are applicable to the components that make up the products. 
  • Purchasing conditions and supplier warranty-commitments that address both the provision of applicable warnings and offer remedies for the failure to supply those warnings are crucial. 
  • These warning-commitments should extend beyond the performance of the product as integrated, and into the composition of the component itself; e.g., California Proposition 65 and federal air quality disclosures.

While it is a maritime case, the Supreme Court’s decision in Air & Liquid evidences a societal shift that demands manufacturers know more: more about their products, the components within those products, and how they are used in the field. As these expectations increase, the knowledge that accompanies this increasing sophistication means that the opportunities for warnings and disclosures about products—and their incorporation into other products—equally grows. So, too, does the legal risk accompanying a failure to attend to those warnings.

The U.S. Supreme Court is not asked often to address questions that have the potential to touch on window and door claims. But the Court’s decision in a maritime asbestos-exposure case did just that. 

The question before the Court in the 2019 Air & Liquid Systems v. Devries case was whether a manufacturer of a component that was installed into U.S. Navy vessels had to warn about potential asbestos exposure. The part did not contain asbestos and the manufacturer did not instruct that asbestos had to be used. But, without asbestos or other similar insulation, the part could not be used. The manufacturer knew that fact and did not warn about the known dangers of asbestos exposure.

The Court ultimately decided that, under those circumstances, the manufacturer had a duty to warn. Stated generally, the Court held a manufacturer must warn when it knows, or has reason to know, that a “required later-added part is likely to make the integrated product dangerous” for its intended use. It reached this conclusion after reviewing general tort-law concepts that a manufacturer must provide a warning when it knows that its product is or may be dangerous, and the user might not realize the danger.

Normally, cases involving warnings and tort claims involve application of state law; the states have different views on when warnings are required.Some states take a claimant-friendly approach and require warnings about any foreseeable danger arising from a product as it sits or when incorporated with another product. Other states take a more restrictive approach that simply requires warnings about a product itself, ignoring any foreseeable incorporated-component risk. A middle ground, like that adopted by the Supreme Court, requires a warning about foreseeable risks where the product is required to be incorporated with a potentially dangerous item.

Regardless of your state’s approach, no one in this industry is oblivious to the fact that windows and doors are components of larger buildings. They are also, however, assemblies of component products. This dual role—as both an incorporated component and an assembly of components—requires a broad perspective on when, what and how to warn.

Fenestration as a component

For decades, installation recommendations have provided guidance on how to approach incorporation of windows and doors into buildings. These recommendations are typically subject to ongoing internal review. Equally, as manufacturers receive feedback from the field, these recommendations evolve to address practices that develop over time. Through both processes, manufacturers educate themselves about what is happening with their products and may help identify opportunities to warn.

Changing installation materials, practices and new system development requires attention to warnings that might be advisable with respect to how products are incorporated into buildings. But this practice must be tempered by recognizing that not every installation is identical. 

Those developing appropriate warnings and recommendations must recognize the inevitable exception. For that reason, consider the propriety of warnings that default to local requirements, codes or consensus-generated installation guidelines.

Fenestration as a sum of components

Beyond whole-product considerations lies the recognition that windows and doors are assemblies of components themselves. Coatings. Sealants. Compounds. Hardware. The list of available, incorporated components is long. Also, since vertically integrated manufacturers are few and far between these days, most window and door companies must rely on those supplying these critical components to supply critical warnings as well. 

Matt Johnson is a member for The Gary Law Group, a Portland-based firm specializing in legal and risk issues facing manufacturers of glazing products. Write him at matt@prgarylaw.com.