The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 1252
INTRODUCER: Senator Collins
SUBJECT: Exemptions from Products Liability Actions
DATE: Febuary 2, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Pre-meeting
2. AG
3. RC
I. Summary:
SB 1252 provides that a distributor, dealer, or applicator of pesticides may not be sued in a
product liability action unless such persons are at fault for harm resulting from a defective
pesticide product. The type of conduct that would make a distributor, dealer, or applicator of
pesticides at fault for a defective pesticide product is limited to:
Exercising substantial control over the aspect of the design, testing, manufacture, or labeling
that led to the personal injury;
Altering or modifying the product and the alteration or modification was a substantial factor
in causing the injury;
Acting inconsistently with the manufacturer's product label and such action caused the injury.
However, a distributor, dealer, or applicator will remain subject to liability without fault for
products whose manufacture is not subject to the jurisdiction of the courts of this state.
Manufacturers will also remain liable for any defects in a pesticide product.
A product liability action is a type of strict liability action in which every party in the chain of
distribution of a product can be held liable for harm caused by defects in the product regardless
of the party’s fault.
The bill is effective July 1, 2024.
REVISED: BILL: SB 1252 Page 2
II. Present Situation:
Florida Pesticide Law
The sale and use of pesticides is governed by the Florida Pesticide Law.
1
The purpose of the law
is to regulate the distribution, sale, and use of pesticides and to protect people and the
environment from the adverse effects of pesticides. Pesticides are “inherently dangerous” and
safety gains related to pesticides are achieved not through modifying a pesticide’s design, but by
improving the warnings and instructions contained on its label.
2
The law does not apply to
mosquito control or to pest control services.
3
Product Liability Law
Product liability refers to a civil tort action against a manufacturer or retailer of goods that cause
damages. Product liability law is primarily set forth in the common law, not statutory law. There
are two forms of product liability--negligence and strict liability.
Product liability negligence is the failure to use reasonable care, which is the care that a
reasonably careful designer, manufacturer, seller, importer, distributor, or supplier would use
under like circumstances. Negligence is doing something that a reasonably careful designer,
manufacturer, seller, importer, distributor, or supplier would not do under like circumstances or
failing to do something that a reasonably careful designer, manufacturer, seller, importer,
distributor, or supplier would do under like circumstances.
4
Reasonable care requires that a
designer, manufacturer, seller, importer, distributor, or supplier give appropriate warnings about
particular risks of the product which the designer, manufacturer, seller, importer, distributor, or
supplier knew or should have known are involved in the reasonably foreseeable use of the
product.
5
“A strict product liability action requires the plaintiff to prove that (1) a product (2) produced by
a manufacturer (3) was defective or created an unreasonably dangerous condition (4) that
proximately caused (5) injury.”
6
A product is defective because of a manufacturing defect if it is
in a condition unreasonably dangerous to the user or to a person in the vicinity of the product and
the product is expected to and does reach the user or consumer without substantial change
affecting that condition. A product is unreasonably dangerous because of a manufacturing defect
if it is different from its intended design and fails to perform as safely as the intended design
would have performed.
A product is defective because of a design defect if it is in a condition unreasonably dangerous to
the user or to a person in the vicinity of the product and the product is expected to and does reach
the user without substantial change affecting that condition. A product is unreasonably
1
Part I of ch. 487, F.S.
2
Bates v. Dow Agrosciences LLC, 544 U.S. 431, 450 (2005).
3
Section 487.012, F.S.
4
Fla.Std. Jury Instruction 403.9.
5
Fla.Std. Jury Instruction 403.10.
6
Hernandez v. Altec Env’t Prod., LLC, 903 F. Supp. 2d 1350, 1357 (S.D. Fla. 2012); Tran v. Toyota Motor Corp., 420 F.3d
1310, 1312 (11th Cir. 2005); McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002). BILL: SB 1252 Page 3
dangerous because of its design if the product fails to perform as safely as an ordinary consumer
would expect when used as intended or when used in a manner reasonably foreseeable by the
manufacturer, or if the risk of danger in the design outweighs the benefits.
7
A product is
defective when the foreseeable risks of harm from the product could have been reduced or
avoided by providing reasonable instructions or warnings, and the failure to provide those
instructions or warnings makes the product unreasonably dangerous.
8
In most instances the manufacturer of the item that caused the injury is liable for its negligent
design and/or negligent manufacturing. However, the wholesaler and/or retailer may also be
found liable, and thus is commonly named as a defendant in the action. “One engaged in the
business of selling or otherwise distributing products who sells or distributes a defective product
is subject to [strict] liability for harm to persons or property caused by the defect.”
9
The
wholesaler or retailer need not have taken any action that would be considered negligent, the
mere act of selling the product leads to strict liability.
Jurisdiction
When a court has jurisdiction over a person or entity, the court has authority to enter orders and
judgments that are binding and enforceable. Clearly, a Florida court has jurisdiction over Florida
citizens and Florida-based entities. Florida law asserts jurisdiction over a broad range of
individuals and entities, providing that commission of any of these acts relevant to the bill
submits a person to the jurisdiction of the state:
Operating, conducting, engaging in, or carrying on a business or business venture in this state
or having an office or agency in this state.
Committing a tortious act within this state.
Causing injury to persons or property within this state arising out of an act or omission by the
defendant outside this state, if, at or about the time of the injury, either: a. The defendant was
engaged in solicitation or service activities within this state; or b. Products, materials, or
things processed, serviced, or manufactured by the defendant anywhere were used or
consumed within this state in the ordinary course of commerce, trade, or use.
Breaching a contract in this state by failing to perform acts required by the contract to be
performed in this state.
10
The state’s assertion of jurisdiction exposes defendants to the state’s coercive power, and is
therefore limited by the Fourteenth Amendment’s Due Process Clause.
11
Court opinions have
differentiated between general or all-purpose jurisdiction, and specific or case-linked
jurisdiction.
12
A court may assert general jurisdiction over foreign (sister-state or foreign-
country) corporations to hear any and all claims against them when their affiliations with the
7
Fla.Std. Jury Instruction 403.7.
8
Fla.Std. Jury Instruction 403.8.
9
Restatement (Third) of Torts: Prod. Liab. § 1 (1998). See also West v. Caterpillar Tractor Co., 336 So.2d 80, 84 (Fla.
1976).
10
Section 48.193(1)(a), F.S.
11
Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915 (2011); International Shoe Co. v. Washington, 326 U. S.
310, 316 (1945) (“assertion of jurisdiction over out-of-state corporation must comply with traditional notions of fair play and
substantial justice”).
12
Goodyear; Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414, nn. 8, 9 (1984). BILL: SB 1252 Page 4
state are so “continuous and systematic” as to render them essentially at home in the forum
state.
13
Specific jurisdiction, on the other hand, depends on an “affiliatio[n] between the forum
and the underlying controversy,” principally, activity or an occurrence that takes place in the
forum state and is therefore subject to the state’s regulation.
14
In contrast to general, all-purpose
jurisdiction, specific jurisdiction is confined to adjudication of “issues deriving from, or
connected with, the very controversy that establishes jurisdiction.”
15
III. Effect of Proposed Changes:
The bill provides that a products liability action, including a failure to warn, may not be brought
or maintained against any distributor
16
, dealer
17
, or applicator
18
of pesticides unless:
The distributor, dealer, or applicator exercised substantial control over the aspect of the
design, testing, manufacture, or labeling of the product that caused the alleged harm for
which recovery of damages is sought;
The distributor, dealer, or applicator altered or modified the product, and the alteration or
modification was a substantial factor in causing the alleged harm for which recovery of
damages is sought;
The distributor, dealer, or applicator handled, used, or applied the product in a manner
inconsistent with the product label and that such action or failure to warn caused the alleged
harm for which recovery of damages is sought; or
The manufacturer of the product that caused the alleged harm for which recovery of damages
is sought is not subject to the jurisdiction of this state.
In effect, the bill provides that, as to pesticides, a wholesaler or retailer cannot be sued under a
strict liability theory of product liability law, but only under a negligence theory. However, this
does not apply, and a wholesaler or retailer may be liable in strict liability, if the manufacturer is
not subject to the jurisdiction of this state.
The bill is effective July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
13
See International Shoe, 326 U. S., at 317.
14
Goodyear; von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1136
(1966) see Brilmayer et al., A General Look at General Jurisdiction, 66 TEXAS L. REV. 721, 782 (1988).
15
Goodyear
16
A “distributor” is defined by s. 487.021(24), F.S., as “any person who offers for sale, holds for sale, sells, barters, or
supplies pesticides in this state.” Section 487.021(24), F.S.
17
A “dealer” is defined by s. 487.021(17), F.S., as “any person, other than the manufacturer or distributor, who offers for
sale, sells, barters, or otherwise supplies pesticides to the ultimate user or consumer.”
18
The term “applicator” in ch. 487, F.S., is widely used but not specifically defined. It appears to apply to a number of
persons licensed to apply pesticides, specifically one of the following as the context requires: “certified applicator,”
s. 487.021(14), F.S.; “commercial applicator,” s. 487.021(16); “licensed applicator,” s. 487.021(41), F.S.; “private
applicator,” s. 487.021(52), F.S.; “public applicator,” s. 487.021(55), F.S.; or “product specific applicator,”
s. 487.021(56), F.S. BILL: SB 1252 Page 5
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may lower liability costs and expenses of retailers and wholesalers of pesticides
who do not modify the products prior to retail sale, and may correspondingly increase
liability costs and expenses of the manufacturers of pesticides. This may impact injured
parties to the extent that responsibility for payment of damages may be limited to parties
who, in some circumstances, may be less able to satisfy a judgment.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 487.081 of the Florida Statutes. BILL: SB 1252 Page 6
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.