FormaCars

Visit our community sponsor

Thanks Thanks:  0
Likes Likes:  0
Results 1 to 10 of 10

Thread: Do I have liability as the original builder.

  1. #1
    Senior Member
    Join Date
    Feb 2011
    Location
    Tampa, Florida
    Posts
    170
    Post Thanks / Like

    Do I have liability as the original builder.

    I’m considering selling my MK3.1. Since I’m the original builder do I have liability to the future owner if they get hurt in the car? Thanks for the advice.
    Mark III complete kit ordered 12/03/2007, received #6351 1/22/2008 Homemade mods: driver footbox extension with deadpedal and dimmer switch, widened passenger footbox, brake reservoir mounting bracket, under trunk storage box, custom dash and dash extension, heater forward box, custom glove box, under dash switch panel, Explorer motor carb conversion, first start 7/10/2010, off to paint (Performance Automotive) 11/20/2010, finally home 5/7/2011, Graduated 11/22/2011

  2. #2
    Papa's Avatar
    Join Date
    Dec 2016
    Location
    Parker, CO
    Posts
    5,594
    Post Thanks / Like
    I'm not a lawyer and can't vouch the source of this article, but it would seem to me that if the statements are true, you, as a builder, are not liable.

    https://autoweek.com/article/car-lif...means-builders
    My Build Thread: http://thefactoryfiveforum.com/showt...ter-Build-9754
    (Most viewed Roadster build thread on this forum!)

    Delivered: 6/17/2017
    First Start: 12/30/2017
    Completed: 12/7/2019
    Legal: 1/30/2020

    Member of the Mile-Hi Cobra Club
    Dave's Cobra YouTube Channel: https://www.youtube.com/channel/UCbk...npK1UZHj4R-bYQ
    Agora 1:8 Scale Cobra Build: https://thefactoryfiveforum.com/show...l-Build-Thread

  3. #3
    JohnK's Avatar
    Join Date
    Sep 2018
    Location
    SF Bay Area, CA
    Posts
    2,212
    Post Thanks / Like
    I'm not sure I interpret that article the same way that Papa does (no offense, Papa). That article, to me, says that manufacturers of low-volume autos are not subject to the same crash and emissions standards as high-volume manufacturers. The thing that I'd be more worried about as the original builder and seller of one of these kits (and presumably what Rootbeer Roadster is also worried about) is the liability associated with a negligence claim as the guy that assembled the kit. If that's a real concern to you, I don't think it would be that hard to have a lawyer draft a release of liability that the buyer would sign, protecting you from any future claim should the car have some sort of issue down the road that could be traced back to how the car was built. Mind you, I'm not a lawyer either, so take my comments for what they're worth (not much )
    MkIV Roadster build: Gen 2 Coyote, IRS, TKO600. Ordered 10/24/18. Delivered 1/29/19. Engine installed 8/8/21. First start 9/12/21. First go-kart 9/17/21. Off to paint 4/11/22. Back from paint 12/30/22. Build thread here.

  4. #4
    Papa's Avatar
    Join Date
    Dec 2016
    Location
    Parker, CO
    Posts
    5,594
    Post Thanks / Like
    Quote Originally Posted by JohnK View Post
    I'm not sure I interpret that article the same way that Papa does (no offense, Papa). That article, to me, says that manufacturers of low-volume autos are not subject to the same crash and emissions standards as high-volume manufacturers. The thing that I'd be more worried about as the original builder and seller of one of these kits (and presumably what Rootbeer Roadster is also worried about) is the liability associated with a negligence claim as the guy that assembled the kit. If that's a real concern to you, I don't think it would be that hard to have a lawyer draft a release of liability that the buyer would sign, protecting you from any future claim should the car have some sort of issue down the road that could be traced back to how the car was built. Mind you, I'm not a lawyer either, so take my comments for what they're worth (not much )
    No offense taken. This is something I hadn't considered, not that I intend to sell. I wonder if the sold "As Is" statement on a bill of sale will protect the builder.

    Dave
    My Build Thread: http://thefactoryfiveforum.com/showt...ter-Build-9754
    (Most viewed Roadster build thread on this forum!)

    Delivered: 6/17/2017
    First Start: 12/30/2017
    Completed: 12/7/2019
    Legal: 1/30/2020

    Member of the Mile-Hi Cobra Club
    Dave's Cobra YouTube Channel: https://www.youtube.com/channel/UCbk...npK1UZHj4R-bYQ
    Agora 1:8 Scale Cobra Build: https://thefactoryfiveforum.com/show...l-Build-Thread

  5. #5
    Out Drivin' Gumball's Avatar
    Join Date
    Feb 2011
    Location
    Blackberry Township, IL
    Posts
    2,653
    Post Thanks / Like
    1. Will depend on the jurisdiction in which the suit is brought; and
    2. Anybody can sue you, but the real question - which you appropriately ask - is whether you could be found liable. Unfortunately, the answer is "it depends."

    Lots of people sell restorations and builds every year and this doesn't seem to be a big issue in the hobby. That doesn't answer your question, but if it is a concern, you may want to consider taking a page from the homebuilt aircraft hobby - disable the car and make the new owner install some critical component(s) to ensure that your work has been superseded. Still no panacea, but it could help if you ever have to mount a defense.
    Later,
    Chris

    "There are no more monsters to fear, and so, we have to build our own."
    Mk3.1 #7074

  6. #6
    Papa's Avatar
    Join Date
    Dec 2016
    Location
    Parker, CO
    Posts
    5,594
    Post Thanks / Like
    I just found this thread in another forum for homebuilt aircraft:

    http://eaaforums.org/showthread.php?...er-s-liability

    One post in that thread:

    Liability

    I am providing this opinion for academic purposes. For legal advice, contact your lawyer.

    There are three major theories of exposure when someone is selling a homebuilt, kit Car (or almost everything). General principles of negligence, contract and product liability. Neither theories will likely result in exposure under the circumstances described in this thread.

    Negligence is composed of four sub-parts. A duty, breach, causation and damages. All four elements must be met for a recovery. A 'duty' can be defined as an obligation. For instance, while "puffing" is tolerated in a sale, "fraud" is not. This can loosely be described as a duty to be honest in the sale. The phrase: "as is where is" is often used to negate the duty. For example, actively concealing a known defect would likely breach the duty of honesty in the sale. While saying "the plane is a strong runner" when you really believe it is an "ok runner" would be puffing. In a similar vein, you have a duty to maintain the plane consistent with the FAR's. Therefore having an A & P sign off on the work would likely demonstrate compliance with the duty to maintain or shift the duty to the A & P. The breach of the duty must 'cause' an injury. However, the injury must be foreseeable. For example, consider this example: "if I was not delayed because of the (fill in the blank) the mid air collision would not have occurred" This is not a foreseeable injury, it is too remote. Alternatively, it is foreseeable that a plane using a defective spar could kill someone.

    Breach of Contract is simply not doing what was contracted for and is dependant on the language of the contract. (e.g. not fulfilling the promise, misrepresentation, not performing a service, fraud, consumer protection claims etc.)

    Products liability varies by State. The restatement of torts (sort of the model used by States) essentially provides that a seller (in the business of selling goods) is strictly liable for the sale of any goods that are sold inherently dangerous in a defective condition. In some circumstances, even if you were not the builder of the goods, you can be liable under a products liability theory. However, you are clearly not in the business of selling airplanes. Therefore, exposure is unlikely (for other reasons as well), even if the airplane is in a defective condition, inherently dangerous.

    Notwithstanding the representations I have made above, nothing can guarantee that you will not be sued. However, a lawyer typically evaluates the likelihood of recovery before filing a lawsuit.

    Ok, there are risks in life. As a pilot, you appreciate the risks of flying and minimize them, when possible, with judgment.

    I would personally sell the plane "as is where is" and pay a lawyer to draft a release of liability. This will minimize, but not eliminate your exposure.

    As an aside, to Forrest Hills Cynic was the use of the term "scumbag" in describing lawyers really necessary? You will never forget, or thank a good lawyer enough, when you need him/her.

    Daniel
    My Build Thread: http://thefactoryfiveforum.com/showt...ter-Build-9754
    (Most viewed Roadster build thread on this forum!)

    Delivered: 6/17/2017
    First Start: 12/30/2017
    Completed: 12/7/2019
    Legal: 1/30/2020

    Member of the Mile-Hi Cobra Club
    Dave's Cobra YouTube Channel: https://www.youtube.com/channel/UCbk...npK1UZHj4R-bYQ
    Agora 1:8 Scale Cobra Build: https://thefactoryfiveforum.com/show...l-Build-Thread

  7. #7
    Senior Member cv2065's Avatar
    Join Date
    Dec 2017
    Location
    Orlando, FL
    Posts
    1,837
    Post Thanks / Like
    Any car I've sold, is always "as is" with no implied warranty and anything that happens to the vehicle once it leaves my property is the sole responsibility of the new owner. It's up to the new owner to send out an inspector, ask questions, etc., prior to the sale. This would hold true for any restoration, build, etc. There's no way to prove that something was or wasn't tampered with after the sale by the new owner.
    MKIV Roadster - #9380 - Complete Kit - Delivered 7/17/18 - SOLD 5/2023
    Build Thread #1: https://thefactoryfiveforum.com/show...V-Build-Thread
    MKIV Roadster - #TBD - Complete Kit - Delivered 11/6/23 - In Progress
    Build Thread #2: https://thefactoryfiveforum.com/show...Build-Thread-2

  8. #8
    Senior Member
    Join Date
    Nov 2017
    Posts
    765
    Post Thanks / Like
    Quote Originally Posted by Rootbeer Roadster View Post
    I’m considering selling my MK3.1. Since I’m the original builder do I have liability to the future owner if they get hurt in the car? Thanks for the advice.
    I'm certain FFR has competent legal advice.

    I would refer you to the disclaimers at the front of the FFR build manual, and advise you to seek competent counsel (to advise you on the appropriate release paperwork).


    https://www.factoryfive.com/wp-conte...ual-rev-4L.pdf

    "Safety Notice

    While there are many things to love and be proud of in our country today there are a few things that we wish were different. With regret and a small amount of resentment we include the following warning and statement of non-liability at the advice of men with soft hands and necks the size of pencils.

    Motorsports involves the operation of machines and materials near the limits of performance. Racing involves an inherent amount of risk. Any decision to proceed in the project of building one’s own racecar must be made with the acceptance of personal responsibility. If, while building, driving or racing this Factory Five Racing kit, should you become injured or die, it will be the result of your own conscious decision and we at Factory Five Racing, Inc., disclaim any responsibility of any kind."


    It's probably a good place to start.

  9. #9
    PLATNUM Supporting Member
    wallace18's Avatar
    Join Date
    Apr 2012
    Location
    Trenton, Florida
    Posts
    5,381
    Post Thanks / Like
    All the cars I build or sell are for off -road use only. It is up to the owner to make sure vehicle is safe for road use and they assume all responsibility for on the road use. This is stated in a build contract or sales contract. That being said we live in a society that can sue for anything they see fit. Just my 2-cents worth.

  10. #10

    Super Moderator
    Ray's Avatar
    Join Date
    Feb 2011
    Location
    La Mesa, California
    Posts
    1,249
    Post Thanks / Like

    Sales Agreement

    I found this a few ago and have kept it on hand just in case I sell. No idea where I found it on who the author is.

    *********************


    EXPERIMENTAL AIRCRAFT SALES AGREEMENT

    This Agreement is made and entered into on this day, ___/___/_____ , by and between
    _________________________________ (hereinafter "seller") and ___________________________ (hereinafter "buyer") as follows:

    1. Seller agrees to sell and buyer agrees to buy seller's _____________________________
    ____________________________________ (hereinafter "aircraft"). This sale includes all installed equipment as well as all logbooks or other records in the seller’s possession relating to the operation and maintenance of the aircraft.

    2. The purchase price of the aircraft is $_____________ payable in certified funds on or before the delivery of the aircraft. The seller acknowledges receipt of _____________, paid by the buyer as a deposit towards the sales price. This deposit is the property of the seller and is refundable to the buyer only under the terms of paragraph 6b of this agreement.

    3. The seller shall deliver and the buyer shall take possession of the aircraft upon delivery at _____________________________. Actual time of buyers possession is _________________________________________ (This part to be filled in at time of transfer.)

    4. The seller warrants that he owns the aircraft free and clear of all liens and encumbrances including applicable federal, state, and local taxes. The Seller shall transfer title for the aircraft to the buyer through an FAA bill of sale document, executed contemporaneously with delivery of the aircraft. Any taxes resulting from the sale or transfer of the aircraft (except taxes on the seller's jncome) are the sole responsibility of the buyer.

    5. The aircraft is sold ''as is". The seller makes no warranties whatsoever as to the condition of the aircraft. Specifically, the seller disclaims any warranty for the aircraft, whether express, implied. The seller disclaims any warranty of merchantability or fitness for a particular use. The seller makes no warranty of airworthiness or mechanical condition.

    6. The buyer acknowledges that the aircraft was constructed and certified by the FAA under the "Experimental" category. Specifically, the buyer understands and acknowledges the following:

    a. The aircraft was constructed as a "homebuilt" by a person who is not certified by the
    FAA as an aircraft manufacturer and in a space or facility that is not certified by the F AA as an aircraft manufacturing facility. The aircraft was constructed using materials components and techniques, which are not certified by the FAA. Seller cannot and does not warrant that the aircraft was built in compliance with any acceptable methods or procedures set forth by the FAA or any other entity.


    b. The buyer has the opportunity to have the aircraft inspected by anyone of buyer's choosing to make a determination of the airworthiness of the aircraft or for any other reason. The inspection of the aircraft is solely the responsibility of the buyer and shall be accomplished at the buyer's expense. The seller shall make the aircraft available to the buyer for inspection in ___________________________________________(insert place), at any reasonable time and for any reasonable period. The buyer shall be responsible for any damage to the aircraft while the aircraft is released to the buyer for inspection. After an inspection is completed, the buyer may cancel this contract and receive a full refund of any deposit if the buyer determines that the aircraft has unacceptable deficiencies. If the buyer proceeds with the sale, however, whether the aircraft was inspected or not, then buyer acknowledges that the aircraft is being sold and accepted ''as is" with all defects and deficiencies, whether detected or not.

    c. The buyer has the opportunity to review this Agreement with an attorney of buyer’s choosing. The buyer's attorney may discuss or negotiate the modification of this contract with the seller's attorney at any time before it is executed (signed) by the parties.

    d. As an Experimental aircraft, the aircraft does not meet the specifications or requirements of aircraft certified by the FAA in the normal or standard categories. The aircraft may therefore possess flight characteristics which are below FAA standards and which may be unsafe or unreasonably dangerous. Operation of the aircraft, even by fully qualified and certified pilots may result in injury or even death. The buyer fully recognizes these facts and-assumes full responsibility for the operation of the aircraft after it is delivered to buyer.

    7. In the event the buyer sells or otherwise transfers title or ownership of the aircraft to any other entity, buyer shall include in any sales agreement the exact terms set out in paragraph 6 above. Additionally, buyer shall fully inform any pilot of the aircraft of the terms set out in paragraph 6d above before flight.

    8. The buyer shall fully indemnify and hold seller harmless from any claim, complaint or cause of action, including all damages and costs of defense, resulting from operation of the aircraft after it is delivered to buyer.

    9. This is the entire agreement between the parties in connection with the subject aircraft. No other terms or conditions shall apply to this Agreement. In entering into this Agreement, neither party relies on any representations other than those specifically set out in this Agreement. This Agreement can only be modified in writing, signed by both parties.


    10. This agreement shall be governed by the laws of the State of ______________. The parties agree that any lawsuit concerning this Agreement or the operation or ownership of the aircraft shall only be brought in the State of _______________ in the county of seller's residence.

    SIGNED, SEALED AND DELIVERED on the date set out above.



    SELLER BUYER


    ______________________________________ _______ ____________________________
    Print Print
    ______________________________________ ___________________________________
    Sign Sign



    ______________________________________ ___________________________________
    Notary Public Notary Public
    I'm not getting gray, I'm adding chrome....

    “Under-steer is when you hit the wall with the front of the car and over-steer is when you hit the wall with the rear of the car. Horsepower is how fast you hit the wall and torque is how far you take the wall with you.”
    -- Jacques Schnauzee "World Famous Racecar Driver"

    "If you can make black marks on a straight from the time you turn out of a corner until the braking point of the next turn, then you have enough horsepower."--Mark Donohue

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

Breeze

Visit our community sponsor