Products Liability Outline

Product Safety Regulatory Law

- Operates ex ante: preventing product accidents before they occur
- Regulate building, health, fire codes, used hats. CPSC, NHTSA, FDA, FAA, DoA.

National Organization on Product Safety
- In response to product injuries in the 80s.
- MKT place wont solve the problem, Govt Intervention Needed: Educate, Ban,
Recalls
- 1) study accidental injuries from products 2) to determine avoidable injuries
& unnecessary injuries 3) to examine existing regulatory regime 4) to
propose remedial legislation
- Unnecessary injuries:
I. Consumers DN know it exists.
II. Consumers are unable to estimate its frq & severity.
- Mfg able to take longest strides in shortest time
III. DN know how to cope
- In moments of carefree confidence, disaster strikes
IV. Cheaply avoidable (ie glass windows, color TVs, hot water vaporizers,
household chemicals)
- CPSC: 1) study causes & cures for accidents 2) est min safety stds 3) ban
products incapable of being made safer

Products Liability
- Operates ex post: claim for DMGs for injuries done
- Tort law: negligence, SL, deceit
- Contracts: warranty

History: Caveat emptor
Tough luck: ignore distinction b/w latent & obvious defects
no action if no warranty; affirmations fell far short
Caveat emptor predominated in early US law.

Winterbottom privity bar.

Modern: increasing technologies & complexities. Birth of modern era = Mcpherson,
rids privity bar.

Skil Saw
P lost toe when skilsaw traveled across floor & ran over foot. ANSI: saw must have
retractable guard.
P: Known & foreseeable dangers of sawdust stopping guard. Cheap brake available.
D: Exceeded stopping STD. Evidence of wedging. Brakes risks (electrocution,
operators coping behaviors) exceeded benefits to person (2% of all possible
injuries).
CT: Negligent.

Black & Decker
Kickback causes injuries. P: insuff warnings. This & other mfgs have put in warnings
after this accident. D: Too many warnings is distracting. CT: Subsq remedial
measures is probative of defectiveness & alt design. Forms basis of comparison.

I. Negligence: classic theory of PL
Failure to act as a reasonable person would act under the circumstances
juries respond more favorably to Ps asserting negligence
Risk-utility: B, P, L: whether a risk is unreasonable from societal POV
o B = burden of precaution: cost of installing safety equipment OR
benefit foregone by eliminating the activity;
o if B > PL: society (balancing of costs) & mfg (would rather pay tort
compensation) would be better off (from an economic perspective)
w/o mfg taking precautions.

Privity Bar
Usually P Ks w/dealer & NOT w/mfg

Winterbottom (early) privity bar: no privity b/w mfg & driver b/c otherwise all
injured might sue & all defects & risks will be subj to scrutiny infinity of actions: K
b/w mfg & dealer will be ripped open.
no action could be maintained against a remote seller

[change]
Mcpherson (*)
Wheel spokes broke injuring driver. Buick is the deep pocket.
TCT
1
found wheels caused accident & D was negligent in its inspection.
Appeal: D: Car isnt inherently dangerous, privity bar, see Winterbottom. Innocuous
article mfg cant follow it through every hand
vs
P: Moral right & sympathy: need to better protect consumers. & esp P from harm
actually caused.
CT:
Winchester poison mislabeling (negligence) 1
st
destroyed privity b/c inherently
dangerous. Ds negligence put P in imminent danger.
1. Expand Winchester: (no longer restricted to poisons, explosives, deadly weapons,
etc), so long as reasonably certain to place life & limb in danger if negligently made
(ie high-speed auto requires sturdy wheels), then its a inherently dangerous thing
of danger.

1
P: Wheels wood was poor quality (DN break cleanly) & Buick DN inspect (merely
ran car around the track).
D: Impossible to inspect wheel & no trade practice of doing so: wheels never broke
before.
2. Overrule Winterbottom: If theres knowledge that the thing will be used down-
stream w/o new tests, then mfg held to a duty of care, irrespective of privity. Here,
mfg knew auto would be used downstream. Mfg had duty of vigilance.
Decision reflects civilizations advances (protect consumers & mfgs wont
be unduly inhibited).

Mfg defect ~ one shot error

Ford Motor
Defective ashtray (sharp & rough) in car lacerates passenger eye upon braking
action.
D: inspection was adq sampling inspection (less intensive inspection) OK: min
potential harm, low probability of harm (unusual occurrence).
(B = P (low) L (low)).
CT: STD requires mfg to exercise reasonable skill & care during mfg; requires
reasonable inspection.
D is negligent. B < PL; PL is high. Ps injuries is evidence of harm.
B/c fast moving car, brakes are often applied throwing people onto the dashboard.
Hence sampling is inadq: must look over every unit individually.

Design Defect ~ Wrong way from the inception; every unit put out is defective

Metzgar
Baby choked on playblock.
P: Negligent design. PL is great
D: Blocks size satisfied min CPSCs STDs.
DCT: B = PL: although foreseeable, risk of choking is small (P is low).
CT: Barely met CPSC min STD: CPSC STD is just the minimum, anything less is
dangerous. Says nothing about the safety of any length that is greater. Here, great
many choking injuries from small toys: realistic threshold of risk. Making block
differently (B) would be cheap in light of harms (L). B < PL.

Duty to Warn
complex products & consumers failure to appreciate dangers means mfg
are responsible for taking reasonable care
failure to warn of hazards associated w/foreseeable uses of a product is
negligence
Boyl
Weed rinse-water causes serious rashes & injuries days after use.
CT: Duty to warn of incidental uses b/c reasonably foreseeable injuries. Warnings
for livestock shows D knew about long-lasting properties of poison.

Tortious Misrepresentation
Jury will be agitated w/negligence + fraud ~ will award treble dmgs.

Fraud
D knows matter to be false but says it anyways.

St Joseph
GE implements highly flammable wall paneling for Hospital. GE had tested the wall
& knows about its flammability (too flammable to get a rating). Says nothing about it
during K-ing. D sends letter to P telling him wall DN carry a flame rating and asks
for more $ to get flame rating: half-truth implies facts which are untrue (D
already knows about walls flammability)
CT: Evidence of fraud
1) half-truth is a misleading statement b/c DN disclose necessary material facts
(already got a flame rating) & D intends to cover up the real truth; largely causing
reliance;
2) after K-ing, DN disclose new, material info even though P relied.

VS puffing which is merely opinion HOWEVER, opinion will be construed as fact if
scienter (Ds knowledge of falsity & Ds intent to deceive; even pretense of
knowledge OK) & P will reasonably rely (cf P who buys safe for burglary cant rely
on sellers guarantee of fire protection).

Negligent Misrepresentation
Pabon steering wheel locked up. P had previously brought problem up to D but D
DN inspect; instead ensured P of its safety & P relied. CT: D shouldve given more
considerate response. STD: 1. P desired info for serious purpose 2. P intended to rely
3. If info is false, P will be injured.

Innocent Misrepresentation
Baxter
(before Mcpherson)
While driving car, pebble from ground breaks windshield & injures Ps eye. Mfg
advertises windshield as wont shatter, eliminates danger, extra margin of
safety.
P: advertising misrepresented & caused reliance.
D: privity bar & personal properties of items DN run w/article sold
CT: Ordinary person wouldnt know windshield lacked such safety properties, thus
mfg was in the position of mislabeling a drug. Winchester (breaks privity bar).
Based on advertisements, mfg created demand, then put item in stream of
commerce, & caused P to rely to his detriment.
See: RST 402B: advertisement or labeling, even though not fraudulently or
negligently made, is negligent, so long as misrepresentation causes reliance.

Hauter
P was injured while using product. Golfing gizmo advertised as completely safe
and wont hit player.
D:
1. Mere puffing.
2. Only safe if hit squarely, improperly hit shot will always expose player, esp in golf
P cant reasonably expect product to be safe in all circumstances.
CT:
RST 402B representation of 1. material fact that 2. causes reliance
1. Not puffing b/c completely safewont hit player DN indicate Ds subjective
opinion, rather factually describes an important characteristic of the product.
CT trend towards minimizing puffing.
2. Justifiable reliance: D made broad guarantee of safety. P was just learning &
eliminated most of the dangers inherent in golf by staying at home. Injury
caused by risk inherent in Ds product, not inherent in golf. D represented
product as completely safe & anticipated errors: reasonable for P to assume
safe in training.

Warranty
2-313 (express), 314 (implied), 315 (implied for particular purpose)
313, 315 applies to anyone; 314 only applies to merchant

313: Express warranty
basis of the bargain? Mccarty no blowouts: express warranty even
though this warranty is above & beyond normal warranties. Warranty
could go beyond.
Hypo ie grandma who listens to the radio pays for 6 speakers, but only
gets 4. Express warranty despite no reliance.

Kolarik
P injured by olive pit.
P: Minced pimento stuffed means no pits.
D: Olives are received in bulk & no inspection possible. Fed STDs allow some pits.
CT: Instances of error in mfg process OK. 313 must be read wrt trade practices; jar
as a whole was merchantable.
vs
Swanson: no bones is reasonably understood by consumer to mean no bones.

Stang
Tire blew out on car causing injuries.
P: Salesman said you have good tires.
D: Salesman was puffing.
CT: Per 313, warranty DN form the basis of the bargain b/c deal was already
closed. No evidence of reliance or that P considered warranty before agreeing on
rental.
313, cmt 7: Unlike Stang, reasonable assurances made after sale modifies
warranty w/o need for consideration

Hauter
Golfing gizmo.
CT: Seller must stand behind his words. Affirmation of safety formed basis of the
bargain, reliance is merely secondary: to take such affirmations out of the
agreement requires affirmative proof.
Puffing exception gradually narrowed

314: Implied warranty of merchantability ~ must be a merchant
Seller is in the best position; as a cost of business
caveat venditor based on fairness: buyer should expect an advantage
from purchase
w/o any particular warranty, there is an implied term in every K.
Purchaser cant be supposed to buy goods to lay them on a dunghill
Certain minimum requirements of quality in thing sold: reasonably fit for
ordinary purposes

Maybank
Exploding flashcube on camera injures eye. Not merchantable b/c not fit for ord
purposes.

315: Fitness for particular purpose
if seller had reason to know of particular uses; if buyer relied & seller
knew of reliance

Barb
P purchased engine for use as go-cart. P had knowledge of engine mechs. D said this
was OK. Engine exploded injuring P.
CT: DN matter if P had existing knowledge, P couldve still relied on D.

Reliance:
easy to prove reliance: ie scalp customer, casket purchaser
difficult to prove if buyer himself inspected:
o Carney: no reliance despite sellers recommendation b/c buyers own
discretion & judgment in choosing step-ladder.
vs
o Peters: inspection of dog chain by buyer + seller. CT: defect wasnt
discoverable, hence reliance. Reliance need not be total & joint
decision DN take away cause of action. Also, implied warranty of
merchantability (chains are supposed to hold dogs)

Heningsen (*)
[Destroys citadel of privity]
Steering wheel veers suddenly b/c of mechanical defect. STD form K & fine print
disclaims all warranty & disallows liability for personal injuries.
P sues on implied warranty of merchantability.
CT: Unjust: K language gave little & withdrew much. Absence of fraud BUT
disclaimers are not favored & must be strictly construed: unequal bargaining
position, STD form K: take it or leave it, language is unclear, reasonable person
would assume liability for injury. Warranty is a fundamental right & law grants
remedies. K violates public policy & therefore void.
Aftermath, adoption of UCC 2-316: unreasonable disclaimers are inoperative

Strict Liability
A focus on the product. P must prove defect & defect was the proximate cause of Ps
injury.
Public interest: Merchant mfg liable even though he exercised all reasonable care
b/c:
Internalization & Risk Distribution: mfg better able to spread & internalize
risks (increase price to pay for court liability)
Protect: fairness: protect innocent consumers (mfg more likely to have
insurance).
Modern needs: increase in product complexity & lack of reasonable
inspection
Steady chipping: 1
st
food, 2
nd
Mcpherson & negligence, 3
rd
Henningsons
destruction of privity in warranty.
Escola
Exploding coke case. Bottle wasnt dmged by any external factors.
CT: may prove negligence by res ipsa b/c the mfg had exclusive control.
Traynors CONCURRENCE: SL ~ extend Mcpherson: absolute liability when defective
article enters stream of commerce.
As matter of public policy, mfg is liable b/c most likely to reduce risks to life &
health. Cost of injury is best borne by the mfg. Today, consumers accept products on
faith. This is esp true w/complex products & modern needs.

Greenman
{shift from Ks warranty to Tort law}
Multipurpose power tool causes wood to fly out. P alleges defective design: injury
was easily preventable.
CT (Traynor):
SL in tort: mfg liable if defective article placed in SOC causes injury. P couldnt
inspect: Implicit in the product was a representation that itd safely do the jobs for
which it was built. Tort law establishes that society would benefit from mfgs
internalizing injury.
No warranty b/c mfg cant define scope of its own responsibility. K law insuff to
protect weak consumers from efforts of powerful mfgs.

RST 402 (p166) & defective condition unreasonably dangerous STD = R-U; B<PL

Phipps
{SL vs Warranty}
Cars accelerator got stuck.
CT: SL over warranty b/c mfg better able to bear & spread risks financially &
physically. Consumer relies on mfg & expect a safe product. Warranties DN serve
these purposes well: sellers may disclaim warranties, esp non-consumer goods not
covered under the UCC; notice requirement & bar.

Denny
{SL & Implied warranty isnt coextensive}
Car flips after brakes are applied. Jury finds car wasnt defective but finds car was
unfit for ordinary purposes.
SL requires R-U analysis; implied warranty claim requires showing product not
minimally safe for expected purposes.
Here, R-U is sufficient b/c high-center of gravity of car is for off-track roading.
However, implied warranty of merchantability means car is insufficient b/c not fit
for ord purposes of paved, suburban roading.

Defect
402As defective condition
1. Mfg
2. Design
3. Warnings

Mfg Defect
Contrary to specs (vs design defect specs arent good enough): poor
material, improper assembly.
unreasonably dangerous: consumers contemplate an exchange for a
standard, uniform package of utility & safety. An injured consumer is
subjected to a disparity in both risk and result from products generally.

Magnuson
Wheel broke loose from truck. P: Steel was too weak b/c made improperly during
mfg. D: P must specifically show wheel DN conform to specs.
CT: SL, no need to show noncompliance w/specs. So long as steel was defective, the
wheel contained the defect, yet mfg still introduced it into SOC.
See McPherson: wooden spokes had no specs, rather, consumer expected supplier to
carry strong wood.

Pouncey
Blade broke off radiator fan in car.
P: inclusions in metal caused stress, which led the fan to break off.
CT: Clear & unspeculative evidence of dirty steel {flaw}, this would lead to fan
fractures {infer defect} & Ford offered no proof of quality control or inspection.

Design Defect
How safe is safe enough?
Questions about allocation of social resources. DN have to make product
perfectly safe: balancing test B<PL = D; CE + R-U

Matthews
Lawnchair snipped Ps finger off w/shearing action. CT: innocent furniture turns out
to be v dangerous. Danger was concealed to consumer. Mfg DN design out defect. No
guard, no warning.

McCormack
Vaporizer spilled scalding water. Nothing to fasten cap to jar to prevent spills. All
danger couldve been guarded against.
Water was hot, no indication of extreme heat (no bubbling or movement), primarily
used by children. Design was bad. Simple screw-on alt design wouldve prevented
such accidents OR warning.

CE
Product DN have to be full proof; STD is unreasonably dangerous.
Minimum expectations of safety must be reasonable & one that most people
would have (customs and mores)

Donegal
Fridge was defectively designed b/c unsafe, unexpected product performance: P
merely set it on self-clean mode & it caused fire. CT: more dangerous than an
ordinary consumer would expect when used in a reasonably foreseeable manner.

Vincer
P falls into pool b/c ladder was left down. Alleges design defect b/c there shouldve
been a cheap guard in the form of a gate to prevent access to children.
CT: 402A: defective condition
2
unreasonably dangerous
3
[read together]
Unreasonably dangerous: must be dangerous to an extent beyond that
contemplated by an ordinary consumer w/ordinary knowledge common to the
community
Test depends on reasonable expectations of an ordinary consumer. Ordinary
consumers, not children, would expect no gate as obvious danger to small children
esp when ladder was let down, hence, not unreasonably dangerous.
expectations of the community of likely users, ie Jackson painters
expectations were relevant

Problems of CE test:
1. Disallows obvious dangers: discourages product improvements
2. Even if obvious danger, some consumers will still take risks ie 100% cotton
T-shirt
3. Difficult to calculate
4. Bystanders arent protected
5. Expert consumer
6. DN give mfgs a chance to explain calculus of risk

2
A product is in a defective condition if it leaves the seller's hand in a condition that
will be unreasonably dangerous to the ultimate consumer or user.
3
Dangerous to an extent beyond that contemplated by the ordinary consumer
R-U
Whether product is reasonable given the reality of its use in contemporary
society.

o Calculus of Risk: If B < PL; SL if dangers can be cost-effectively
removed; mfg must provide precautions proportionate to risk.
o Feasibility of alt design
o Financial cost of improved design
o Usefulness of product & ability to reduce danger w/o impairing social
utility of product
o feasibility of spreading loss by increasing the products price (ie thick
market)
o users ability to avoid danger by the exercise of care
o users anticipated awareness of the dangers b/c of general public
knowledge or existence of warnings
Nichols
Childs t-shit catches fire when playing w/matches. P complains CE test is inadq,
product DN become reasonable just b/c danger is within contemplation of ordinary
purchaser.
CT: CE is just one factor, R-U test: What did the ordinary prudent company think?
Concurrence: not just ordinary company but social utility. Mfg is negligent if risk to P
outweighed the utility of 100% cotton T-shirt to the public.

[California]
Barker
Ps loader shifted b/c of heavy weight & P is injured. P alleges design defect,
shouldve have outriggers, seatbelt, & other guards.
CT: Dual test:
1. CE: SL if product failed to perform as safely (unreasonably dangerous) as an
ordinary consumer would expect when used in a foreseeable manner.
2. R-U: Even if passes CE test, still defective if through hindsight the jury determines
that the products design embodies excessive preventable danger, R > U
Factors include ~ B, PL, feasibilities of alt design, social utility lost b/c of alt design.
Once prima facie case, burden shifts to mfg. Trade-offs when designing the product
may insulate mfg from liability

Soule
Car crash & front wheel collapses inwards, breaking Ps ankles.
CT: Barker dual prong approach:
1. CE: ie Campbell: driver thrown from bus w/o safety handles: public
transportation is a matter of common experience. Ordinary consumers would find
bus unreasonably dangerous.
2. However, if complex product ie breast implants b/c beyond common
experience, R-U & burden is on D b/c of complexities
Here, oblique car crash situation full of technical & mechanical detail is not within
contemplation of ordinary users contemplations.
[Connecticut]
Potter
Hand-arm vibration syndrome from use of pneumatic drills. Ps allege defective
design.
D: must prove availability of alt design (3
rd
RST)
CT: P DN need to prove alt design
4

Instead, Barker 2-prong:
1. CE: if unreasonably dangerous to an extent beyond ordinary users
contemplation.
2. RU: if complex, since ord consumer cant form an expectation of safety Soule,
P may, not must, show availability of alt design. RST3 DN require this
showing.
Here, experts allowed for CE test.

Mikolajczyk
Ps seat collapses & P dies in car crash.
D: complex product, so R-U test. Not C-E test b/c design considerations of car seat
are out of range of juries considerations.
CT: consider R-U & the broad range of mfgs considerations.

Expert Testimony
Frye
D offered polygraph test to prove innocence from murder. CT applies general
acceptance STD. Shifts the fulcrum of decision from the expert to the expertise.
Because ideas become accepted wisdom only with time, this test tends to negate
cutting-edge research

{evolution from generally accepted to quality of the methodology}
Evidence Rule 702: admit scientific knowledge if itll assist the trier of fact (ie
helpful)

Daubert {seminal}
Mothers claim anti-nausea pregnancy pills caused their birth defects. Ps re-examine
Ds proffered epidemiological studies & provides expert analysis based on animal
testing.
TCT: Ps experts DN meet fryes general acceptance test.
P: Frye superseded by rules of evidence.
SCT: Combining Rule of Evidence 702 & Frye, TCT has vital gate-keeping function:
assess experts solely on principles & methodologies & not conclusions. Reliability:
Scientific implies grounded in methods & procedures of science.
Knowledge implies more than subjective beliefs, must be from a body of known
facts accepted as truths on good grounds: must be supported by appropriate
validation.

4
this requires experts, forbids circumstantial evidence of liability, & forbids liability
when alt is unavailable.
Relevant: helpful: expert testimony must be sufficiently related to disputed facts:
scientific validity for one purpose isnt scientific validity for another unrelated
purpose (ie studying moon is relevant if darkness is an issue but irrelevant to Ps
behaviors).
CTs now treat gatekeeper fn more seriously since Daubert applies to all
experts with scientific, technical, or specialized knowlege. Kumho.
B/c of Daubert stds, Ps are put on notice & must be more precise & DN get
2
nd
bite at the apple. Weisgram.

Relevance (fit)
+
Reliability:
1. Testability: ability to withstand challenge & scientific trial
2. Known rate of error
3. Control standards
4. Peer review
5. General acceptance

Addtl factors:
1) Are experts testifying about matters growing naturally from research
independent of the litigation?
o Qualifications of the expert witness testifying based on the
methodology.
o The non-judicial uses to which the method has been put
2) Did expert unjustifiably extrapolate from an accepted premise to an
unfounded conclusion?
3) Did expert acct for obvious alternative explanations?
4) Is expert being as careful as he would be had it not been for the
litigation?
5) whether the field of expertise claimed by the expert is known to reach
reliable and similar results

Evidence 702: 1. expert must be qualified 2. testimony is based on
sufficient facts or data

Booth
English muffin case. Ps expert Thomas alleges toaster oven caused fire b/c wires
spontaneously welding together causing overheating. Uses electron microscope to
confirm: wires show indications of melting & scoring, suggesting wires welded.
Thus, oven was defectively designed b/c no thermal cut-off device & made of
excessive plastic.
CT: Ps expert fails Dauberts reliability test. No objective anchor for Ps conclusions.
P merely examined oven & concluded it couldve been safer.
P cant repeat his hypothesis w/another oven. P failed to show why evidence of
melting means welding occurred. P failed to show general usage/acceptance of
methods of microscopic examination. Method wasnt subject to peer review, DN
have a known rate of error, couldnt be measured by existing stds. P DN offer an
example or sketch of a thermal cut-off device.

Rudd
Fan breaks off car engine, No direct evidence of a physical flaw, but Ps expert
applies circumstantial evidence by excluding other possible explanations: 1. P
operated car in accordance w/instructions, 2. based on inspection & measurements,
fan wasnt previously bent, & no external injuries, 3. only explanation was internal
fatigue fracture.
CT applies Daubert:
Reliable b/c
(1) Sufficient data: factual bases for testimony was sufficient: visual inspection, got
history of fan, made indicators & measurements, & P had background in metal
fracture analysis.
(2) Accepted: process of elimination is widely accepted method within community
of experts, and specialty publication used same methods
(3) Proper application of the methods to the facts: ruled out other defects to get to
the heart of the issue; no error rate is possible. P includes step-by-step &
transparent acct, fully revealing basis of his opinions & allowing x-examination.

Proof-expert testimony
To educate jury on matters beyond ordinary experience, experts are
needed to establish defect generally and the availability of a feasible
alternative design, in particular & sometimes, also causation link b/w
product defect & Ps harm.
To prove design defectiveness, P must show: 1. Danger in design 2.
Unreasonable risk of harm.
To establish unreasonable risk, expert must establish an alternative
design that is a) feasible b) safer c) cost-effective d) little loss of product
utility
In rebuttal, to prove adq design, D must show: 1. Reasonableness of
design 2. Problems w/proposed alternatives ~ unreasonableness 3. Alt
design wouldnt have prevented accident (causation)
Calhoun
Jetski accident. P alleges defective design: acceleration throttle resembled bike
brake.
CT applies Daubert to Ps three experts.
Issue: Here, are experts reliable?
D: based on unsupported opinion & lack grounding in science.
CT:
1. Expert opined a child would naturally squeeze throttle when stressed; clench
fist as a stress reaction. However, Ps stress-response acceleration-mech
theory lacks foundation. It lacks support in literature not are there demons
ratable tests. It is speculative & unreliable.
2. Ps expert testified Yamahas throttle wasnt as safe as alternative designs.
HOWEVER, proffered safer alt designs lacks foundation b/c experts range of
experiences were inadq. Expert lacked formal knowledge or background to
make comparisons. Expert DN provide scientific, statistical, or other evidence
regarding relative safety of alt design.
3. Ps expert testified Yamaha resembled a bike brake. HOWEVER, Ps bicycle
similarity theory lacks foundation b/c expert never operated jetski & no
specific knowledge related to jetski throttles & he DN conduct tests to
evaluate relative merits of alternative designs.

Reiff human factor expert disallowed b/c one article (counter to his own research)
showing ergodynamic keyboards as more comfortable isnt enough to show design
defect. No scientific basis.

Warning Defects
Cheap way to avoid harm
Better to over-warn rather than under-warn
Not a panacea: ie vaporizer & 40-ton press

Warnings is usually a negligence test wouldve it been reasonable to give a
warning in a particular circumstance?

Duty if: Product seller knows or should know of a foreseeable risk of harm that a
foreseeable user using product in foreseeable way is unlikely to be aware (No duty if
obvious danger) of
CT statute technological feasibility & cost of warnings & instructions; ie
Michelin & yellow warnings
Causative? Ie if P has full knowledge of risks & dangers then the causation
link is broken.

If duty exist
1. Seller must act reasonably to see that user gets needed info
2. Warning must be adequate
Procedural
o 1) reaches the user 2) catches his attention 3) penetrates his mind
o Sufficient size, style, color & located in a prominent position (on
product itself)
o Intensity must be proportionate to risk: 1. DANGER, 2. WARNING,
3. CAUTION
Substantive (wording must be direct, communicate specific risk,
5

probable consequences, & methods of avoidance)
Burch mfg warned not to use near flame but failed to warn of specific
risk of pilot lights
3. Lack of warnings must be cause of injury Smith, Campos
Sea Ray

5
Allison vaccine warned of rashes & possible brain inflammation. However, insuff
b/c risks included blindness, deafness, or mental retardation
Generator powers AC & Ps leave AC running. CO1 poisoning caused by generator
exhaust & wind migration. Warnings only point to dangers of engine, not generator.
Salesmen warned of need to ventilate.
P: warnings about CO1 migration was inadq. Boaters often sleep w/AC running
foreseeable harm from foreseeable method use.
D: Not a known hazard (not foreseeable harm) since no death incidents have arisen
before.
CT: Warnings here specifically addressed danger of CO1 from engine but only
addressed danger from exhaust inferentially. Since CO1 is tasteless, need for this
specific warning. Mfg never warned of specific ways of avoidance, only referred
generally to need to ventilate.
Jury was improperly instructed impression warning would make on juror.
Instead Pavlidas warning must be 1) designed to reasonably catch the attention of
the consumer 2) be comprehensible & give a indication of specific risk involved 3) be
of an intensity proportionate to the magnitude of the risk.

Meyerhoff
Truck driver killed when re-inflating tire. P suggested specific warning about this
danger.
CT: Ps yellow tire theory quickly unravels. Yellow warning is not adequate or
practical. A reasonably prudent mfg wouldnt have done it Garst: 1. yellow color
would wear off, 2. would lull users into a false security & DN warn user from other
dangers
Ps experts theory & methodology lacked scientific validity of Daubert b/c it was
mostly unsupported speculation.

Delegation of Warning Obligation
Mfgs duty is at the time the product leaves the door, w/o considering
indiv Ps knowledge.

Higgins
Dupont sells paint to City who gives paint to firefighters. Paint causes birth defects.
P sues chemical suppliers (Eastman).
CT: Goodbar factors:
1. dangerous condition of product 2. purpose which product is used 3. form of any
warnings given 4. reliability of 3
rd
party as conduit of information 5. magnitude of
risk involved 6. burden imposed on the supplier on balance by require that he warn
all users.
1) If P or employer has full knowledge (sophisticated user) of risks & dangers then
no duty to warn. 2) for bulk suppliers, impractical to warn.
Here, chemicals are supplied in bulk (practically difficult to warn) & Dupont is
aware of the dangers. No liability.

Warnings & Reliance
would adq warnings have made a difference in the outcome?
Greiner
VW overturned on a sharp curve. P alleges failure to warn. Wouldnt have bought
the car if warning. CT: P was on wrong side of road & made an instantaneous
reaction to avoid crashing. Too speculative to say warning wouldve been effective.
Under the circumstances, a warning if given, wouldnt have been heeded.

Defenses nature of the product

Obvious Dangers

Campo
P puts hands in onion topping machine. Sues for lack of guard. CT: patent danger &
duty to avoid is obvious.
Problem Shifting risk. Encourage patent dangers. Discourages innovation.

Micallef
{overrules Campo}
P injured while chasing a hickie on photo machine. Trade custom to chase a hickie
on the run. P: Shouldve put in a guard. D: open & obvious danger.
CT: Law encourages mfgs to develop a reasonably safe product BUT Campo is too
rigid, it grants mfg immunity if patent danger. Law SN encourage misdesign. Patent
danger should just one factor Mfg should at least install a guard if its cheap.
In R-U: In B, P, L; P is low b/c of patent danger.

Belling
Adult male dives through donut tube in 4-ft pool. P: failure to warn.
CT: No duty to warn of obvious dangers, failure to warn wasnt proximate cause of
harm. DISSENT: Must apply Micallef warning would usually be cheap (low B). P DN
know of consq dmgs or latent risks of being a parapalegic, fracturing vertebrae,
etc.

Smith no duty to warn of known dangers, such a warning would be superfluous.
Moreover, P cant establish causation lack of warn DN cause harm.
Cf Campos although relevant in proving causation, the duty to warn attaches at the
time the product is introduced into the stream of commerce so users subjective
knowledge is irrelevant.

Corbin Grown man dives into a 4-ft pool through a belly-flop. Although danger is
obvious, danger is not known since most people think belly-flops could be done
safely.

Inherent Dangers
Bruner
Ps sue alcohol company for consqs of consuming too much beer in SL.
CT: RST 402 (i) Common knowledge of beers harmful properties & not
unreasonably dangerous.
Cf Fraust (i): dangers to toddlers of choking on peanut butter isnt generally
known; Emery (i): unknown danger to children of marshmallows b/c of its
innocuous nature

Pelman
400-lb obese child sues McD. CT: open, obvious, & well known known that fast-food
is junk food.

McMahon
Hot coffee causes severe burns. P: coffees temperature was too high. 1. Failure to
warn of severity of burns 2. coffee above 140F is unfit for human consumption & a
defective product b/c of its power to cause more severe burns. Risks could be
reduced by a negative outlay ie unplugging coffee maker.
CT: 1. Common knowledge coffee was this hot. Bunn cant deliver a medical
education with every cup of coffee, otherwise anybody severely injured by any
product could claim they DN realize the risks ex ante.
2. R-U: social utility (of the aromatic properties of beans) of hot coffee outweigh
risks. People spend $ despite incurring addtl risks all the time ie skiing, BB guns,
hunting, etc.

Hearn
P starts smoking at an early age & dies of cancer.
P: 1) not good tobacco b/c of addition of harmful substances addictive, habit-
forming, and created dependence. 2) Not common knowledge of risks tobacco DN
perform as safely as an ordinary consumer would expect.
D: 1. RST 402 (i): good tobacco is not unreasonably dangerous 2. Common
knowledge that cigs are dangerous & addictive.
CT: 1) RST3 excludes tobacco from list of safe inherently dangerous products.
Comment i DN to bar Ps claim, talks about good tobacco, not good cigs. Ds
manipulated tobacco w/harmful chemicals ammonia, nicotine, to make it more
addictive. (2) Although P claim R > U: D failed to design a product that was
reasonably safe for foreseeable users, failed to make feasible improvements in
design & no suitable alternatives, more factual development required.

Parish
P was rendered a quadriplegic after doing back-somersault w/trampoline. RST3
state requiring showing of alt design.
P: 1. manifestly unreasonable design so 2e exception 2. Inadq warnings
CT: 1. Wrt RST3, P must show reasonable alt design, unless (e) manifestly
dangerous. This exception must be sparingly applied. Common products require
showing of alt design (2d). Here, trampolines are common products. Benefits
(exercise) > risks.
2. Prominent warnings cautioned against doing somersaults, located extensively on
product, exceeded fed stds. 2a requires individual users to pay attention, so as to
achieve optimal safety (careful users DN subsidize careless users).

CT considers product-category liability: R > U, w/o need to show alt
design. See Kelley ban on Saturday Night Specials; exploding cigars are
banned too.

Misuse Defense

Special defenses of contributory negligence. RST 402 (h).
inadq warning misuse means seller had no duty to warn against
unforeseeable uses
design misuse means the mfg had to duty to design product so as to
prevent injuries arising from unforeseeable uses
mfg misuse mean that injury wasnt caused by inherent defect in product
but by consumers abnormal use of it
Venezia
{conservative}
Child throws beer bottle against pole. P sues on implied warranty claim.
CT: Ordinary purposes include both intended use & any reasonably foreseeable use.
Here, not intended use. Ps actions fall far outside of any reasonably foreseeable use.
A mfg isnt an insurer guarding against all possible types of injuries.

Ellsworth
{liberal}
Nightgown came into contact w/range & caused severe burns to P. STD is the
reasonably foreseeable misuse. Here, mfg failed to guard against reasonably
foreseeable misuse in the home.

Moran
{more liberal}
Girls pour cologne onto candle to make it scented. Fire bursts, injuring bystander.
P: Cologne has flashpoint of around room temperature but no warnings.
CT: mfg has duty if foreseeable misuse; a general field of danger STD. Mfg duty to
warn of hidden dangers, ie cologne is extremely flammable. Here, foreseeable that
extremely flammable cologne would be brought near catalyst in the home.
Dissent: too great leeway to Ps: should instead look at bizarre facts here & look at
overall low accident rate of cologne
rst395k

Contributory Negligence

Reed
{total bar}
Farmer P threw slop near beaters to do job quickly. The slop was slippery & P fell
into beaters.
CT: Test is not what P subjectively knew, or what the custom was, but what, in the
exercise of ordinary care, P shouldve known. Here, open & obvious danger, P was
experienced farmer, reasonable for P to know of peril. Contributory negligence =
total bar on recovery.

McCown
Tractor wheels hit rail causing steering mech to break arm. CT: D admits defective
design of wheel. Ps negligence in hitting rail is not a defense. 402n: Ps failure to
discover or guard isnt a defense either.
Children difficult to impute contributory negligence. Porter 5 yr old
injured while climbing into shopping cart.
Madonna
P was intoxicated when Harley Davidson moto crashed.
D: Proven defect on moto but accident solely caused by intoxicated driver, unrelated
to the product.
CT: although Ps negligence is irrelevant in SL, inquiry into Ps conduct is relevant in
proving causation. Was defect the proximate cause of Ps injury? Or was it the effects
of alcohol?
cf Barry reject superseding cause in favor of apportionment of liability
Daly b/c of difficulty of defining intervening causes

Daly
{comparative fault}
P was forced out of car in car crash b/c of latch mechanism on car door.
D: P DN wear seat belt, DN lock door, & was drunk.
CT: SL isnt absolute liability. Comparative fault principles of negligence applies to SL
For the just & equitable result, CTs must be flexible rather than doctrinal. 1. Will
still protect the defenseless (minus their own lack of reasonable care) 2. Mfg can still
spread costs (minus Ps own fault); others shouldnt insure Ps own negligence
3. Mfg has incentive to promote product safety through its liability(minus Ps own
fault). Jurors are up to the task of apportioning fault.
DISSENT: Injecting impure negligence element into SL. Contrary to Greenman.

Assumption of Risk
RST 402 (n): 1. if the user discovers the defect 2. is aware of the danger 3.
nevertheless proceeds unreasonably to make use of the product & is
injured by it

Moran v Raymond Corp
Sideloader severs Ps arms.
CT: STD for assumption of risk:
1. P knew of danger
2. P understood and appreciated danger
3. P took risk despite danger
Subjective test, not objective std of the reasonably prudent person.
1. P knew of risks of standing outside of cage. 2. P knew danger of guillotine-like
sideloader. 3. P was in a hurry & took a calculated risk that he could get his hands
out of the way (like before).
ONeal feeding moldy corn to hogs DN show real appreciation for risk

Bowen
D instructs P how to light burner. Gas cooking grill explodes causing burns.
D: assumption of risk. 1. P knew of danger 2. P appreciated danger 3. P took risks
despite danger.
CT: 1+2: P improperly lit burner & was reinstructed. 3: despite reinstruction, P left
burner unattended & relit using same improper methods.
DISSENT: Design of burner DN ventilate the pooled gas.
D fails to prove each element:
P must have actual knowledge of the specific risk of harm. DN refer to general, non-
specific risk. Here, Ps general knowledge that burner could explode fails this test.
Must have knowledge of the specific danger of gas collecting & the delayed ignition.
See Haugen grinding wheel explodes into pieces blinding P. CT: although P knew of
general danger of dust & particles, DN know of specific danger of disk. P DN assume
the danger cause by the defect in the disk.

Johnson
Instead of dismounting, P remained in the cab & reached through the uprights to cut
the 2x4s. P accidentally trips ascent/descent lever & forklift severs Ps arms.
P: no adq guard, lever was improperly located, no warnings.
D: assumption of risk
CT: RST402(n) includes both subjective 1. what P himself knew of the specific risks
& dangers posed by the defect & 2. objective element: encountering the risk was
unreasonable.
Objective std of reasonableness: jury considers the circumstances surrounding the
nature of the decision to encounter the known danger (not w/Ps physical conduct).
Here, working conditions & industry practice represent strong motivational
factors, P feared his dismissal & had to keep quick pace: decision might be
reasonable in light of the circumstances.

Post-Sale Duties
Ostendorf
Delta employees forklift overturned. P is injured b/c machine DN have restraints. D
put in restraints in later machines of model & sent retrofit notices. However, this
machine wasnt retrofitted.
CT: no duty to retrofit product: too costly, judicial fiat (recall is properly the scope of
admin agencies). However, once a voluntary retrofit program is underway, to
establish negligence, P must prove:
1) Ds negligent retrofit increased risk of harm to P
2) retrofit was ordered by third party (ie Ps employer) but D was negligent
3) reliance
Here, neither 3 conditions fit b/c P never got Ds retrofit notice.
RST std ~ liability if: 1) gov issues regulation & D fails to comply 2) D
undertakes to recall the product voluntarily but is negligent [criticism:
would discourage voluntary retrofit campaigns]
Generally, mfg duty is limited to point of sale (unless FAA, CPSC, ANSI
orders retrofit) HOWEVER possible mandatory duty to provide
information.

State of the Art
Wade-Keeton (full knowledge of characteristics of product is imputed to
the seller) is no longer followed. Now, constructive knowledge what mfg
knew + what mfg shouldve known: not economically feasible to know of
all dangers.
evidence that could be used by either side (however, compliance w/state
of art isnt an affirmative defense)
Bruce
Crashworthiness case plane carrying sports team crashes & seats unhinge
blocking exit (1952).
P: Design defect causes enhanced injuries b/c DN comply w/state of the art in 1970:
seat fastener wouldve prevented enhanced injuries. Showing design defect in 1970
proves design defect in 1950.
CT: D complied w/state of the art in 1950. STD is unreasonably dangerous:
dangerous beyond an extent expected by the ordinary consumer. A 1950s consumer
DN expect 1970-like protection.

Boatland
Death by circling boat, preventable w/kill switch.

CT: Feasibility is a relative, not an absolute concept. State of the art refers to state of
industry practice: NOT ONLY scientific knowledge & economic feasibility BUT ALSO
practicalities.
Here, P offers evidence of state of art, known, cheap & simple, in use. However, D is
entitled to rebut Ps state of art argument: unknown, unavailable (to rebut Ps
cheap & simple), not in use. D is entitled to rebut Ps assertions 1-1 w/limitations
on feasibility: time necessary for implementation, increased cost, impairment of
products usefulness, used or not, etc.

vs
Beshada
{high watermark of SL: scare of asbestos}
P were exposed to asbestos, alleges SL failure to warn.
D: state of art defense: limit liability to defects that were discoverable at the time the
product was distributed.
CT: Assuming Ds facts dangers of asbestos in insulation isnt known, still liable.
SL imputes knowledge of danger onto mfg. Scienter.
Liable if R > U.
Not liable if: 1) U > R AND 2) risk has been reduced to the greatest extent possible
consistent w/products utility (ie seatbelts in cars, warnings on products: would
reduce risk w/o hampering utility).
State of the art defense is erroneous in light of scienter b/c it would shift to Ps the
burden of proving Ds knowledge. This is a negligent defense (focusing on Ds
culpability) unsuitable for SL which focuses on product, not mfg.
SL: if product was indeed defective, a duty to compensate:
1. mfgs are better able to spread costs of injuries (on all sectors) as a cost of doing
business than innocent victims 2. Spur mfgs to invest in research & engage in
accident avoidance. 3. Costs of determining scientific know ability at the relevant
time exceeds benefits

vs
Feldman
P sues pharmaceutical for causing tooth discoloration on SL failure to warn.
CT: Just b/c of 402(k), no need to immunize all pharmaceuticals from liability. Drug
couldve been made better w/better mfg or design.
In SL, impute knowledge of danger to mfg. Wade-Keeton.
Assuming this knowledge, did mfg act reasonably in not providing specific warnings
(a warning that warns of an unknowable danger warns of nothing)? Duty on mfg to
keep abreast of scientific advances get information thats reasonably obtainable &
burden on mfg to prove its ignorance.

SOL

Zamboni
93 rash on face; 94 rash on hands, P withdraws from classes
97 diagnosed
98 suit filed
CT: 3 yr SOL & burden on Ps to show they were not time barred.
Accrual means: 1. awareness of injury 2. awareness that Ds caused the harm.
STD: what P reasonably shouldve known; an obligation on P to investigate cause of
injury. Here, P went to ER in 94 & suspected latex allergy in 94, early 95. Barred by
SOL.
~ No accrual in CT: SOL begins to run when P discovers injury

Hypo: mfg gives chemical to employer who gives to employees: employees sue
employer within 3yrs, but fail to sue mfg within 10 yrs. Usually barred, but in CT,
worker is not barred if employee isnt entitled to workers comp (ie employee brings
product home).

Preemption

Geier
P crashes in car that DN have airbags or other passive restraints. DOT promulgates
law giving car mfg choice b/w airbags or other passive restraints. DOT also includes
preemption provision: no state may have similar safety std. Finally, DOT includes
savings clause: compliance DN exempt D from liability at CL.
CT: 1) Does DOTs pre-emption provision preempt this lawsuit? No b/c DOT
included a saving clause that permits a narrow reading of preemption that
exempts CL tort actions from it. CL actions are OK to the extent that they enforce
safety STDs. 2) Do ordinary preemption principles apply? Yes, despite savings
clause, nothing in the language suggests an intent to save state law tort actions
conflicting w/fed regs. 3) Does current no airbag complaint conflict w/DOTs
reqs? Yes, b/c DOT wanted mfgs to have choice b/w different mix of passive
restraints. State law mandating airbags are thus preempted.

Wyeth
IV drip method preferable to injection method; risk of gangrene & limb loss are
great using the latter method. P allege warnings DN instruct physicians to use
former method only. D allege warnings were FDA approved & thus 1) harsher state
rules are preempted. 2) state substitutes laymans judgment for FDAs expert
opinion & FDAs will to strike a balance: this is against congressional intent.
CT: FDA approval create a floor, not put a ceiling on Ds obligations.
a) purpose of congress is supreme b) congresss intent must be clear to supersede
states.
a) Throughout its history, Congress has steadily enlarged FDAs powers save for the
exception of a savings clause state law would be invalidated upon a direct conflict
w/the FDA. Congress made mfgs responsible for updating their labels based on new
safety info.
Here, wrt Ds claims
1) D couldve compied w/both state & fed law. General requirement that label
changes require FDA approval unless mfg is making contraindication
stronger AND reflecting newly acquired info. HOWEVER, new info isnt
limited to new data but also include new analysis of data. Difficult FDA would
prosecute if D made its labels stronger. Mfg bears the responsibility for an
adq label. D had a duty at all times to provide a label adequately describing
the risks.
2) FDA is meant to protect consumers. Congress never enacted a state
preemption provision. Despite FDAs mandate establishing both a floor & a
ceiling, the weight CTs put on FDAs mandate depends on its thoroughness,
consistency, & persuasiveness. Under this STD, the FDA mandate DN merit
deference b/c it specifically mentions that it wont have federalism
implications & the FDA never thought of state law as an obstacle, instead
viewing its own regs as a floor. In light of the vast quantities of drugs, the FDA
DN have huge oversight capacities. Mfg have superior knowledge of their
drugs & state laws keep them in check.