GUIDE TO USED MACHINERY SALES
After 4 years of conversations with members and potential members, we are amazed at the high percentage of injuries reported from the use of machinery being run by someone other than the original owner.

Our first objective is to reduce injuries!

Our second objective is to protect the original equipment manufacturers and the used machinery dealers from unfair and frivolous lawsuits. The used machinery buyer gets some protection from workman's comp. and insurance, but can also suffer serious side effects from the use of the machine.

Original Equipment Manufacturers
Even in states where there are statute of limitations for machines over a certain age, the rule may be set aside, and the injured will go after the deep pockets or insured targets. The charge against original equipment manufacturers is simple: "You put this equipment into the stream of commerce 20 years ago, and you are a prime target."

What could you have done to reduce your exposure, and reduce possible injuries?

OEMs must try to keep track of all machines ever built. If any of your personnel become aware of an old machine's new or current location, send a registered, return receipt letter to the President (call and ask the name or get it on the internet). It should be a friendly letter warning them that the machine must not be run until they are sure it meets current safety standards. Quote cost of inspection and request the serial number of the machine. When you find out what needs to be done, quote that by registered mail. This costs time and money - but it can also be part of a profit center, and you will be producing receipts and documents that will show in court that you did all you could to protect the owner's employees from injuries. Include a warning that injuries may occur if they run the machine as is.

If the machine owner refuses to cooperate, you can send these documents to O.S.H.A. If you get involved in a suit, you can show that you did your best to protect the user's employees from injury. You may lose the customer -- but what comes first?

The trade journals are full of used machine listings, and there are several direct mail listings by some machinery dealers. Have someone scan them every month and send a registered letter that offers your assistance in updating your equipment, or urge that the buyer be advised to contact you for an inspection before running it, with a copy to you so you are aware of its new location. Or, send a general mailing to all used machinery dealers in your field.

Train your sales, parts and service departments to always get serial numbers and check records to see if this is an original owner. Helping the customer run an unsafe machine will put you first in line for damages, (this could also apply to sales direct to this customer). Suits have been lost because a salesperson or service man was in the plant and saw a machine with guards removed and no warning letter was sent and parts and service were supplied.

Take old machines in trade and scrap or rebuild them. One company had many suits on old machines. They rebuilt or scrapped dozens of machines as a deliberate plan and their suits dropped 90%.

Write letters to all users of old machines that need updating and urge them to upgrade, especially if the product is from a company you have acquired. Even if you only bought the company's assets, presuming the product liability stays with the seller, the injured will still go after deeper pockets, the insured party, or the acquirer if they connect you to the user in any way possible. This includes just the passing of time that gradually removes the original owner from any control or practical means of upgrading machines or knowing their locations or changing safety standards.

Used Machinery Dealers
Now, do Used Machinery Dealers need a policy? You sold the machine so you are in line. If the original builder is out of business, outside the USA, or can't be traced through multiple acquisitions, you are the first one in line, deep pocket or not. And, you can reduce your exposure and help reduce injuries. Selling equipment "as is," does not take you off the hook. Also, if you don't get full payment up front, don't expect the balance. A claim that the machine won't perform is enough to force you onto an uneconomical battle to collect. One member found a used machine buyer who never bought any new equipment, never paid the balance and filed suit against six sellers for non-performance of everything they bought over the past five years, (his lawyer got this data from the court system). Then, they claimed a false injury claim on top of this.

A specific policy that creates defense documents and shows that you seriously made every possible effort to avoid user injury will help. But, when the injury is really serious, the only recourse may be to go to a higher court.

Let's start with the sales document: On the face of the document (not in small print) we recommend the following message in some form, "Since this is a used machine and we did not manufacture (or remanufacture) it, the machine may not meet current safety standards. It is impossible for our company to keep up-to-date on the hundreds of designs and products. Therefore, we urge you to contact the original manufacturer directly and supply them with the above description and serial number (if available) so they can advise you on current safety requirements."

Then, send a copy of this letter to the manufacturer. Please be aware that any work you do on a used machine or equipment can put you directly in the position of being as responsible as if you made it. In one case, just painting it did. Either don't touch it or go all the way and rebuild it, but make sure it meets today's safety standards.

What is the bottom line? You're in a jury trial and you can produce documents to prove you did all you could possibly do to prevent the injury.

Note: It is very difficult to sell a U.S. made machine in Europe unless it meets their Uniform Safety Code. Why is it that machines from Asia (and possibly other areas) are allowed into the U.S. that do not meet ANSI Standards? There have been several bad accidents resulting from their use.

Used Machinery Buyers
The purchased machine may not be able to function properly. It may also have original safeties or signs removed, and an old machine probably does not meet current standards. It should not be connected electrically until you contact the original builder for a current manual and upgrade advice. Even temporary use is risky. You risk serious O.S.H.A. penalties, possible increase in workman's comp. insurance, plus the devastating knowledge an injury occurred that could have been avoided by proper procedures. Not following these rules can also lead to charges of criminal negligence against company officers. This also applies to users who alter the safety format of a new machine.

Helpp, Inc. is a non-profit organization.

For more information, contact Dewey Rainville, Helpp, Inc., 46B Pearl St., Plainfield, NJ 07060, 800-686-9681, 908-757-9494, FAX 908-757-6446, e-mail: helppinc@worldnet.att.net.

Neither The Plastics Distributor & Fabricator Magazine, nor KLW Enterprises, Inc., is responsible for the information or opinions contained in this magazine. All such information and opinions are those of the authors.