E&E Products Liability Notes Products Liability refers to claims for injuries caused by commercial products

Background on Products Liability (Other than SL) Negligence Winterbottom v. Wright established the privity o Seller of goods only owed a duty of care to the purchaser (one they had contracted with) o No one else Privity was rejected in MacPherson v. Buick o Courts now hold (all courts today embraced this case) that a manufacturer owes a duty of care to all those who may be foreseeably injured by its products However, this has been rejected because there are problems with negligence o Often difficult to prove that a manufacturers negligence led to the defect that injured the P Some products will always come off production line defective P can invoke RIL, but the jury could still deny recovery and accept Ds argument that it used due care defects still may occur o Also a D may not be available Through series of retailers and wholesalers, there may not be a D subject to jurisdiction or liable Breach of Express Warranty P have invoked this contractual remedy under UCC 2-313 o Allows recovery if a seller makes specific representations about the qualities of a product and the buyer is injured due to the failure of the goods to fulfill those representations Limited remedy Limitations: o Only applies when specific representations were made to the buyer about the product feature that caused the injury o Statutory notice provisions require the buyer to notify seller of the breach in a short period of time or they can be barred from recovery o Claim only arises if the feature that was subject of the warranty caused the injury If seller warrants that a car has excellent brakes, and they fail, could sue for breach of warranty of breaks but nothing else Breach of Implied Warranty of Merchantability Implied Warranty arises by operation of law no representations by seller Governed by UCC which provides that a seller warrants that its goods are fit for the ordinary purposes for which goods of that description are used P could recover by showing that the D was a dealer in goods of that kind, sold the goods, they were not fit for the purposes they were sold, and that she suffered personal injury as a result of their unfitness o Approaches strict liability o Arises automatically and allows recovery without and showing of negligence or misrepresentation Limitations o Can be disclaimed o UCC contains alternative provisions that states can adopt if they chose concerning who may recover o Requires timely notice of warranty claims Misrepresentation P establishes a misrepresentation claim by showing that the D made a misrepresentation (either intentionally, recklessly, negligently, or innocently) about a fact material to the transaction, that the P

acted in reliance on that misrep. And that she suffered injury because the product was not as represented by the seller Advantage: P may recover even if product is not defective as long as failure to live up to the representation caused injury Also has limitations -- end background -Development of strict liability for defective products 1960s brought SL Greenman v. Yuba Products Justice Traynor held a manufacturer SL for an injury caused by a defective power tool o Said it was appropriate in order to insure that the costs of injuries resulting from defective products are borne by the manufacturers who put products on market rather than injured persons who are powerless to protect themselves Public policy rationale for SL o Increasing sophistication of products makes it difficult for consumers to assess their risks so manufacturers should do so o Buyers cant rely on relationship with manufacturers because it doesnt exist Must rely on info put out by distant manufacturer Since manufacturers extensively advertise, courts have interpreted this as them standing behind their products o Manufacturers can redistribute liability through insurance And price increases o Risk of liability will encourage manufacturers to make their products safer The ideas of Greenman were embraced in R2d 402A R2d. 402A. Special Liability of Seller of Product For Physical Harm to User or Consumer 1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if a. The seller is engaged in the business of selling such a product, and b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold 2. The rule in (1) applies although a. The seller has exercised all possible care in the preparation and sale of his product, and b. The user or consumer has not bought the product from or entered into any contractual relation with the seller. Elements to 402A o Authorizes recovery By a user or consumer From a seller, Who is engaged, in the business of selling the product For physical harm Caused by a defective product That is unreasonably dangerous 402A says nothing about how the product came to be defective o Fault is not an element of the claim which is why it is strict liability Comment a. seller subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product o However, in practice courts have construed it to require proof of fault (making it similar to negligence) The Types of Product Defects Under 402A, a manufacturer is liable for injuries resulting from the defective condition of its products. They fall into 1 of 3 categories

Manufacturing Defects strict liability a. P alleges that the product was defective because it did not meet the manufactures own specifications for the product i. Eg. A medical instrument has a structural defect due to bad steel. Breaks off during the operation and injures the patient. 1. Patients claim would be that it was defectively manufactured it did not come off the assembly line as the manufacturer intended b. P recovers by showing that the product does not meet the manufacturers own specs and therefore it was dangerously defective i. Does not matter how the defect occurred ii. P does not need to show negligence led to defect 1. Or that manufacturer should have discovered the defect c. P must only establish that the defect i. Existed ii. It made the product unreasonably dangerous iii. And caused her injury d. The basis of the liability is selling the defective product, not faulty conduct that leads to the defect i. The condition of the product, not the conduct of the defendant e. Manufacturer is liable simply for selling a product that turns out to be defective, without proof of any fault Speller v. Sears the circumstantial approach to proving a product liability action requires proof that the product did not perform as intended and all other causes for the products failure, that are not attributable to the D, have been excluded - this follow 3 RTT:LPL 3 Circumstantial Evidence Supporting Inference of [Manufacturing] Defect It may be inferred that the harm sustained by the P was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the P: a. was not of a kind that ordinarily occurs as a result of product defect; and a. [RIL language but this is still strict liability] b. was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution Design Defects - negligence f. Product can be defective if its design makes it unnecessarily dangerous i. Eg. A punch press with an exposed switch could lead to accidents where it is switched on, while the risk could be eliminated if the switch was recessed g. It would be against public policy to make these strictly liable i. If manufacturer were liable because a product merely had some risk of injury, it would be bad 1. Car makers liable for auto accidents h. The goal of both design engineers and the law should be to promote in products and ideal balance of product usefulness, cost and safety i. P must establish the product design was inadequate under a negligence standard i. Under Risk/Utility standard, the jury must decide whether the manufacturer made a reasonable trade-off, in designing its product, between risk and the expense of preventing that risk 1. Similar to the hand formula a. Negligence ii. Consumer expectations is closer to strict liability 1. Considers the nature of the product sold, rather than the Ds conduct in designing it a. Negligence though because of the unreasonable choice to market a product that does not satisfy consumer expectations for safety

1.

2.

3.

4.

5. 6.

402A comment i. says that a product is unreasonably dangerous if it is i. Dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics 402A is the Consumer Expectations Test (Or Reasonable Expectations) i. A product is defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner 1. The product failed to perform as safely as an ordinary consumer would expect 2. The defect existed when the product left the manufacturers factory 3. The product caused the injury when it was used in either a. The intended way, or b. In a reasonably foreseeable manner b. This test does not require the P to demonstrate a safer alternative i. May allow a claim to be established without hiring an expert ii. Risk/Utility Test embraced by RTT i. The product is defective as designed only where the magnitude of the hazards outweigh the individual utility or broader societal benefits of the product ii. Basically says only reasonably safe products should be marketed, and defines reasonably safe products as those whose utility outweighs the inherent risk, provided that risk has been reduced to the greatest extent possible consistent with the product's continued utility. iii. Wade Factors know that it is a multifactorial test that gives decision makers most discretion 1. The utility of the product to the public as a whole and to the individual user 2. The nature of the product (likelihood it will cause injury) 3. Availability of a safer design 4. Potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced 5. The ability of the P to have avoided injury by careful use of the product 6. Degree of awareness of the potential danger of the product which reasonably can be attributed to the P 7. The manufacturers ability to spread any cost related to improving the safety of the design b. RTT endorses this approach but requires the P to establish that a reasonable alternative design would have eliminated the risk that injured the P i. This can be difficult to find evidence ii. Further, the evidence must show that the suggested alternatives are not only technically feasible but also practicable in terms of cost and the over-all design and operation of the product iii. If P cant demonstrate RAD then presumably product is not defective 1. BUT could still be more dangerous than consumer would expect iv. Dominant test In Barker the court used a hybrid test of the consumer expectations and risk/utility a. A product is defective in design if i. The P demonstrates that the product filed to perform as safely as an ordinary consumer would expect used in an intended or reasonably foreseeable manner, or ii. The P proves that the products design proximately caused his injury and the D fails to prove that on balance the benefits of the challenged design outweighed the risk of danger inherent in such a design Manufacturing defect alleges that a single unit of a product was defective, because something went wrong in the manufacturing process Design Defect asserts that all units of the product are defective

j.

If product design is unreasonably dangerous product should not be marketed at all i. Unless it is redesigned to reduce risk of injury Campo v. Scofield a manufacturer will not be liable if he does everything necessary to make a machine function properly for the purpose for which it was designed, if the machine is without any latent defect, and if its functioning creates no danger that is not known to the user. Volkswagen of America v. Young a car manufacturer may be held liable for injuries sustained in a so-called second collision if those injuries were the result of the manufacturers negligent design of the vehicle -crashworthiness Linegar v. Armour of America the obviousness of a defect or danger is material to the issue of whether a product is unreasonably dangerous -state of the art Halliday v. Sturn & Ruger under the consumer expectation test, gun makers are only liable when their products malfunction, unless the gun falls within a category of guns which are mainly used for criminal purposes and then manufacturers are SL -subsequent improvements -government contract Duty to Warn - negligence 1. Involves failure to warn the user of dangers associated with a products use a. Many products are safe is used as intended, but pose risks of injury if not properly used i. Eg. Taking a drug with alcohol ii. Using a solvent with gloves is safe but not without gloves 2. Whether the manufacturer made a reasonable choice in deciding not to warn, or in the nature of the warnings it provided 3. User is often the cheapest cost avoider a. She can avoid the risk posed by the product at a low cost, by taking precautions in using it b. Redesigning a product to eliminate risk would be expensive 4. If the user is to avoid the risk, she must have clear directions and warnings a. Thus, a product may be safe enough with the appropriate warnings and directions, but unreasonably dangerous without them 5. What duty to warn do manufacturers have? a. Hard to say but a reasonable one b. Manufacturer should consider i. Extent of the risk ii. Likelihood it will arise iii. Users likely understanding about the danger iv. Means available to convey a warning v. Likelihood that too many warning will decrease the effectiveness of each 6. 402A comment j says a consumer should be warned if a danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product 7. RTT says warnings must be provided for inherent risks that reasonably foreseeable product users and consumers would reasonably deem material or significant in deciding whether to use or consume the product 8. If a warning is required, it must be an adequate warning a. Must plainly describe the nature of the risk i. radioactive, poisonous b. Its severity i. sever burns if used without gloves c. Its scope i. unprotected exposure causes chronic respiratory illness d. And the means of avoidance i. facemask must be worn 9. A product may be defective because it provides inadequate directions for use or assembly a. Directions are different from warnings

a.

MacDonald v. Ortho Pahama the manufacturer of birth control pills owes a direct duty to the consumer to warn her of the dangers inherent in the use of the pill -learned intermediary doctrine -quote page 810 Vasallo v. Baxter health a D is not liable under the implied warranty of merchantability for failure to warn or to provide instructions about risks that were not reasonably foreseeable at the time of sale, or could not have been reasonably discovered through reasonable testing, prior to the marketing of the product Hood v. Ryobi America a manufacturer may be liable for placing a product on the market that bears inadequate instructions and warning or that is defective in design -warnings & design modification latent defects patent defects products made by others Second and Third Restatement Compared 1. RTT 2 restates strict products liability law in different terms than 402A a. Explicitly categorizes claims as manufacturing defects, design defect, and a failure to warn b. RTT adopts the risk/utility standard while 402A uses consumer expectations c. Requires that a design defect P establish that there is a RAD 2. RTT also requires that there should be 1 unified claim for injury due to product defect a. Instead of a numerous for ones based on negligence, warranty, and SL 3. Not all courts have embraced RTTs stance on design defects a. Some courts still use consumer expectations b. Others use risk/utility without the req. for a RAD 4. Many states still allow P to try cases on negligence, warranty, and SL theories simultaneously Pre-emption by statute 1. Many states have begun supplementing or displacing common law principles with statues that limit and define products liability claims a. Time limits b. Definitions c. Relation of PL claims to other theories d. Ps fault, misuse, or assumption of risk e. State of the art defense f. Privity requirements g. Limitations on liability of resellers h. Nature of warnings required i. Limits on particular claims (tobacco or guns) 2. Some states have attempted to simplify PL by creating an exclusive statutory tort remedy a. P sues under the statute and cant assert CL claims asserting negligence, breach of implied warranty, or other PL tort theories Defenses -contributory negligence -foreseeable misuse RTT 17 -contractor defenses