Products Liability

Question 1

37 STRICT LIABILITY

Answer 1

Elements:

[1] D is a commercial supplier

• >> Suppliers have a strict duty to supply safe goods
• >> Commercial Supplier = one who routinely deals in the product sold, including any merchant in the stream of commerce
  
  • E.g, manufacturer, distributor, supplier
  • Casual sellers, service providers are not suppliers

[2] Product is defective

• >> Defect must make product unreasonably dangerous
• >> See Card 38

[3] Defective product was actual and proximate cause of P’s injury

• >>Product must not be substantially altered between leaving commercial supplier and reaching consumer

[4] P used the product in a foreseeable manner

• >>P’s misuse of the product can be foreseeable

Who can sue: foreseeable users or bystanders

• E.g., buyers as well as their guests, employees, family, etc.

Damages — P can recover for physical injury or property damage, but not solely for economic losses

Question 2

38 TYPES OF PRODUCT DEFECTS

Answer 2

Manufacturing defect — product departs from its intended design, causing it to be more dangerous than designed

• Requirements - P must show that the product failed to perform as safely as an ordinary consumer would expect

Design defect — product creates an unreasonable risk of danger due to its faulty design

• Requirements¹ - P must show an economically feasible alternative design or modification

Inadequate warning - manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use

• Manufacturer also has a duty to warn of foreseeable dangers from misuse of the product
• Requirements - P must show that the product has risks that
  
  • 1) cannot be eliminated by redesign, and
  • 2) Consumers would not ordinarily notice
• Unavoidably unsafe products - If a product cannot be made safe for its ordinary use, manufacturer must give
  
  • 1) proper instructions for use; and
  • 2) adequate warnings of known dangers
• D is not liable for risks that were unforeseeable at the time the product was marketed

FN1: Depending on the jurisdiction, courts usually apply either the consumer expectation test or the risk-utility test (or a hybrid of both) to determine whether a design defect exists. Under the consumer expectation test, the plaintiff must prove the product id dangerous beyond the expectation of an ordinary consumer. Under the risk utility test, the plaintiff must prove that a reasonable alternative design that is economically feasible was available to the defendant, and failure to use that design rendered the product unreasonably dangerous. This test balances the available alternatives and their cost against the risk to users and the value of injuries avoided.

Question 3

39 Negligence Theory

Answer 3

P may establish liability for a product defect under a negligence theory

Note — a product defect is almost always easier to establish under a strict liability theory

Elements:

[1] Duty of care — each commercial supplier in the stream of commerce owes a duty to all foreseeable product users and bystanders

[2] Breach of duty — D’s negligence leads to the supplying of a defective product

• >> Retailers and wholesalers satisfy due care by a cursory inspection of the product (this makes it difficult to hold them negligent for product defects)

[3] Causation — P must show actual and proximate cause

• >> Note — an intermediary’s negligent failure to discover a defect does not absolve the upstream commercial supplier of liability

[4] Damages — P must show physical injury or property damage

• >>Economic loss alone is not recoverable

Defenses — all standard negligence defenses are available

Products liability as battery — if a commercial supplier places a product into the stream of commerce knowing that it may harm someone, this may give rise to a tort of battery