United States: New York Court Of Appeals Re-Affirms Its Casual Seller Doctrine

In a decision couched largely in terms of sound public policy, the New York State Court of Appeals refused to extend strict liability to a casual seller of used industrial equipment. The case, Jaramillo v. Weyerhaeuser Company, 2009 N.Y. Slip Op. 02444, 2009 WL812965, was decided on March 31, 2009. In no uncertain language, the Court once again refused to extend "the onerous burden of strict liability" to all but "certain sellers", especially where the goods in question were sold "at irregularly-scheduled 'as-is, where is' surplus sales." Id. at 8.

The Court reiterated all of its points from the seminal case Sukljian v. Ross & Son Co., 69 N.Y.2d 89 (1986) and its progeny, including Stiles v. Batavia Atomic Horseshoes, Inc., 81 N.Y.2d 950 (1993). And, like those cases, it refused to squeeze the facts at hand into the exception to the casual seller doctrine articulated by the Fifth Circuit Court of Appeals in Galindo v. Precision American Corp., 754 F.2d 1212 (5th Cir. 1985). All in all, Jaramillo was the Court's opportunity to reiterate that because of the powerful public policy considerations, it remains loathe to extend strict liability to any party that fits even loosely into the definition of a casual seller.

This is good news for all companies who look to offload used or out-of-date equipment onto buyers searching for discounts. The Court recognized this reality of the marketplace: "Indeed, the most likely effect [of imposing liability on casual sellers] would be exactly what the District Court predicted: Weyerhaeuser would stop selling its used machinery, thus depriving small businesses of the ability to purchase otherwise unaffordable equipment." Jaramillo at 8-9. While this is by no means an implication that the Court will turn a blind eye to the reckless distribution of old, dangerous equipment, so long as a seller does indeed remain casual the rule will remain that no strict liability will attach to such sales.

A review of the facts of Jaramillo is instructive. Plaintiff Jaramillo sustained a serious injury to his right hand when it was caught between two rollers of an industrial Flexo Folder Gluer machine (FFG) that he was operating for his employer, Glenwood Universal Packaging Products Corporation. Glenwood is a manufacturer of corrugated containers. Jaramillo had worked for them for about five years and had used the FFG before without incident. Id. at 2.

Glenwood had purchased the FFG used from defendant Weyerhaeuser. As a part of its business, Weyerhaeuser operates plants that in part use FFGs to manufacture cardboard boxes from corrugated cardboard sheets. A division of Weyerhaeuser, the Investment Recovery Business (IRB), coordinates disposal of obsolete or unnecessary equipment, including the FFG at issue. The Court recognized that the IRB distributes quarterly catalogs of items for sale, advertises in trade journals, telemarkets, and conducts market research on potential buyers and dealers of used equipment. The IRB grossed "somewhere between $7.5 and $8.5 million in 1986", accounting for "approximately 0.15 percent of Weyerhaeuser's net sales of about $5.65 billion for that year." Id. at 2.

The IRB marketed the FFG that was sold to Glenwood. The Court found it quite important to mention that "there was no genuine dispute of fact that the FFG was sold to Glenwood in "as-is, where is" condition". Id. This FFG was originally manufactured in about 1964 by S&S Manufacturing, then sold new to General Foods Company. Weyerhaeuser bought it from General Foods in 1971.

The Court of Appeals discussed its Sukljian and Stiles decisions to support its finding that on the facts above, Weyerhaeuser was a casual seller and it would not extend strict liability to the sale of the FFG to Glenwood. "The policy considerations that have been advanced to justify the imposition of strict liability on manufacturers and sellers in the normal course of business obviously lack applicability in the case of a party who is not engaged in the sale of the product in issue as a regular part of its business. The casual or occasional seller of a product does not undertake the special responsibility of public safety assumed by those in the business of regularly supplying those products, nor is there the corollary element of forced reliance on that undertaking by purchasers of such goods." Id. at 5-6, quoting Sukljian, 69 N.Y.2d at 95-96.

The two policy points were parsed out further for Jaramillo. First was that the "onerous burden of strict liability" should only attach to those "certain sellers" who have a "continuing relationship with manufacturers." Second was the "special responsibility" to a buying public that relies on the seller's representations should not apply to occasional sellers who specifically sell used products "as-is, where is." Id. at 8.

At the heart of the Jaramillo decision is a policy that makes practical sense. As pointed out before, the Court made a point to articulate that in today's industrial marketplace, there is a need to allow larger businesses to sell used machinery to smaller businesses who, in normal circumstances, might be unable to purchase the otherwise unaffordable equipment. The larger business should be allowed to do so without the fear of the "onerous burden" of strict liability constraining these sales. While there was no direct reference to the current struggling state of manufacturing in the State of New York and the rest of the country, the relief to the second-hand marketplace for all manners of equipment should not go unnoticed.

Businesses seeking to unload used equipment onto the second-hand marketplace should not consider the Jaramillo decision a blank check, however. Weyerhaeuser had a separate division set up for disposing of obsolete or unnecessary equipment, and advertised and marketed the equipment. These facts standing alone could lead an observer – or a potential purchaser – to think that perhaps Weyerhaeuser was not simply a casual seller. However, second-hand sales by Weyerhaeuser only accounted for some 0.15 percent of net sales, and most importantly, the FFG was sold in "as-is, where is" condition. The Court drove these distinguishing points home. It emphasized that Weyerhaeuser's sales of second-hand goods were "irregularly-scheduled", and repeatedly stated that as with the FFG sale, all "surplus sales" were "as-is, where is" – shedding light on two ways hopeful "casual sellers" can safeguard themselves.

With these cautions in mind, businesses should still take comfort in the Court of Appeals' reliance on the driving power of public policy interests to not extend strict liability to casual sellers in a similar position to Weyerhaeuser.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.