Product Monitoring Duty

Liability in tort recognizes another defect group, known as product monitoring defects. This duty does not concern the producer until the product he has developed and manufactured is put into circulation. This term was developed from case law and describes the producer’s obligation to monitor the product in terms of its safety-related behavior on the market, even after it has been successfully put into circulation.

The producer must track the application of his product in practice, i.e. by evaluating specialist findings in  industry journals, in the media or at specialist events and exhibitions. The product monitoring duty also includes monitoring product development at key competitors.
A well structured, internal organization is therefore required, to ensure that:
• monitoring of the market is guaranteed
• the relevant information is evaluated and
• the report reaches the decision maker.

A sophisticated product monitoring program can be achieved as part of a company’s quality assurance management.

As a second step, decision makers must draw conclusions from any notifications of damage. The following questions need to be answered:
• Does the existing design need to be changed for future product series?
• Should additional hazard warnings be incorporated for existing and future customers?
• Does a previously undetected product hazard indicate the need for an avoidance measure (e.g. a public warning, a retrofit action or a recall)?

For example, once a product has been put into circulation, should increased notifications of damage and new academic reports in the technical press reveal that a certain safety bolt ceases to be effective at high temperatures, the producer will indicate on any unsold products that additional protection is required during the summer months. At the same time he will inform his customers about the risk. If the customers are known to him by name, this will be easy to carry out, but this is unfortunately quite rare in practice. Where the names of customers are unknown, a retrospective warning via the main points of sale, technical journals or other public media will need to be considered.

However, the producer does not have to consider instances of misuse in terms of product monitoring. If the product is used for purposes other than those intended or is converted without authorization, there is no obligation to act in terms of product monitoring.

Example: An industrial operator buys a complex technical machine and converts it without  authorization or agreement from the producer; the original producer is not required to advise the operator of any safety deficiencies relating to the conversion.