Products Liability

Question 1

What are the three main products liability claims?

Answer 1

• Strict products liability
• Products liability on negligence theory
• Products liability on warranty theory

Question 2

What is the focus on strict products liability cases?

Answer 2

• Focus on the condition of the product, not on D’s conduct.

Question 3

Who is a proper P for strict products liability cases?

Answer 3

• Any P who is a user, consumer, or bystander physically injured by a defective product. No requirement of contract privity.

Question 4

Who is a proper D for strict products liability cases?

Answer 4

• Commercial suppliers at all levels of the distribution chain and those in the market of selling the product - manufacturer, wholesaler, and retailer. Does not include occasional sellers and those supplying services.

Question 5

What is the proper context for products liability cases?

Answer 5

• Generally services alone are not enough. When both a product and services are present, the goods/product must dominate.
  o EXAMPLE: Prudence goes into Valerie’s beauty salon and wants a perm. Valerie chooses a perm manufactured by DunCo and applies it to Prudence. Prudence goes bald and sues Valerie in strict liability. The court says that the product predominates and Valerie can be a proper defendant in strict products liability. Different from a dentist using a defective needle to administer Novocain.

Question 6

What is the liability where a product is in an unreasonably dangerous defective condition?

Answer 6

• Almost all jurisdictions impose strict liability where the product is in an unreasonably dangerous defective condition.

Question 7

What are three kinds of defects subject to strict liability?

Answer 7

• Manufacturing defects
• Design defects
• Inadequate warnings

Question 8

When does a manufacturing defect occur?

Answer 8

• A manufacturing defect occurs when a product is manufactured in a form other than intended by manufacturer.

Question 9

What must a P show for manufacturing defects?

Answer 9

• P must show that the product is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands.

Question 10

When does a design defect occur?

Answer 10

• Made as intended by manufacturer but still presents a danger of personal injury or property damage to P because of a flawed design

Question 11

What are the two tests for finding a design defect?

Answer 11

• Ordinary consumer expectation test
• Risk-utility balancing test

Question 12

What is the ordinary consumer expectation test?

Answer 12

• Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community.
  o EXAMPLE: The goggles only protect the front, but not the side. Plaintiff is welding and a piece of metal flies into his eye. Plaintiff sues for a design defect, saying that the design of the goggles should have protected the side. Plaintiff loses under this approach. Ordinary consumer would not expect side protection.

Question 13

What is the risk-utility balancing test?

Answer 13

• Jury determines whether the danger the design threatens (cost in human injury and property damage), outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.
• Questions to ponder: How easy would it be to swap out the defective design for the alternatives? How high is the likelihood of harm and how bad would the harm be if it happened? How important/useful is the product?

Question 14

What is the test for determining whether a product warning was inadequate?

Answer 14

• The test here is reasonableness. Does the warning reasonably inform a reader of the risks of the product and how to reduce them? Look at language, placement, size of font, and clarity.
  o EXAMPLE: DunCo manufactures a pod-shaped laundry detergent called, Clothes-B-Clean that looks a lot like candy. The box includes the words, “Danger-Keep Out of Reach of Children.” A child thinks the pod is candy, eats it, becomes extremely ill and is hospitalized. A better warning would explicitly state that the pods could cause significant harm if eaten.

Question 15

When would a manufacturer face liability for placing no warning at all?

Answer 15

• A manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm.
  o 1% risk of death - they should warn.
  o 1% risk of tooth discoloration - probably not.

Question 16

How is actual cause shown in products liability cases?

Answer 16

• Usually proven by showing that the defect that injured P was in existence at the time it left D’s control.

Question 17

How is proximate cause shown in products liability cases?

Answer 17

• Look for superseding causes which might break the chain of causation. For instance, did P use/alter the product in an unforeseeable way?
  o EXAMPLE: Manufacturer mixes gasoline and kerosene and sells to a pharmacy. Pharmacy discovers the mixture and calls the manufacturer and alerts it. Pam comes in and buys the mixture. She is injured and sues the manufacturer. The pharmacy’s decision to continue to sell the defective product is a superseding cause.

Question 18

What is the learned intermediary doctrine?

Answer 18

• If a manufacturer provides a warning to a doctor, the manufacturer can expect that the doctor will pass the warning on to the patient. If the doctor does not, the doctor is a superseding cause of the patient’s harm.

Question 19

When would P recover damages under strict products liability claim?

Answer 19

• Recoverable when there is personal injury or property damage other than to the product itself. Where the harm is only to the product itself, the only claim is breach of warranty.

Question 20

Would economic losses count as an injury in strict products liability cases?

Answer 20

• Consequential/subsequent economic losses are not enough.

Question 21

What defenses are available in strict products liability cases?

Answer 21

• Misuse
• Alteration
• Assumption of the risk
• Contributory negligence
• Comparative fault

Question 22

How would misuse serve as a defense against strict products liability?

Answer 22

• P’s use of the product is neither intended nor foreseeable. D may still be held liable for foreseeable misuse.
  o EXAMPLE: Plaintiff contracts a rash after Jello wrestling and sues. Wrestling in Jello is not the intended use of the product; therefore, Jello wrestling is a misuse of a product that is not defective and P cannot recover.

Question 23

How would alteration serve as a defense against strict products liability?

Answer 23

• Employer removes safety devices to increase efficiency.
• Alteration or modification must occur between the time the product leaves the manufacturer’s control and the time of P’s injury.

Question 24

How would assumption of the risk serve as a defense against strict products liability?

Answer 24

• Where P has used the product with knowledge of the risk.
  o EXAMPLE: Dumont manufactures a TV. Pam is watching TV and it is the final moments of the final episode of her favorite television show. Pam sees that the TV is smoking and sparking, but refuses to turn it off. The TV explodes and burns a carpet and the sofa. Pam sues. Dumont can assert assumption of the risk. However, if Pam did not see the smoke and sparks, then Pam did not assume the risk and recovery is not barred.

Question 25

When might contributory negligence serve as a defense to strict products liability?

Answer 25

• As initially conceived, a plaintiff’s unreasonable conduct was not a defense to a strict products liability action unless the plaintiff knew of the defect, comprehended the risks posed by the defect, and voluntarily elected to expose himself to those risks. That is, only an assumption of the risk was a defense to strict products liability.
• At modern law, contributory negligence only applies as a defense to strict products liability if the plaintiff’s conduct rises to the level of misuse, abnormal use, or independent negligence (i.e., not where the plaintiff’s wrongful conduct is a failure to discover the defect).
  o A plaintiff’s continued use of a product which the plaintiff knows to be defective is not voluntary, and thus not an assumption of the risk, if there are no practicable alternatives to such use.
  o Where a defendant can show that his product was subsequently altered in an unforeseeable manner by someone in the chain of distribution or a third party, courts usually relieve that defendant of liability.

Question 26

When might comparative fault serve as a defense to strict products liability?

Answer 26

• Some jurisdictions that have adopted a comparative negligence system as to negligence also apply that system to strict liability. A plaintiff’s wrongful conduct that contributes, along with the defective product, to his own injury reduces his recovery in some amount.
• This is usually limited to misuse, abnormal use, or independent negligence situations (i.e., not where the plaintiff’s wrongful conduct is a failure to discover the defect). In some jurisdictions that permit comparative fault, the plaintiff’s unreasonable conduct in failing to discover and guard against the defect is not a defense.

Question 27

How are products liability cases adjudicated on a negligence theory?

Answer 27

• Any foreseeable P can bring an action.
• Analyze the conduct of each D and ask whether D acted reasonably. (This is different from strict products liability, which focuses on the product, not the actions of the D.)
• Res Ipsa Loquitur takes the place of manufacturing defect in negligence theory.
• All negligence defenses apply.

Question 28

What are the two ways to prove products liability under a warranty theory?

Answer 28

• Express warranty
• Implied warranty / warranty of merchantability

Question 29

What does an express warranty exist?

Answer 29

• Exists where D makes a specific representation as to the quality/nature of the product that becomes a basis of the bargain.
• Any seller can make this warranty (manufacturer, distributor, seller).
• Can occur via advertising, during negotiations, or as a contract provision.

Question 30

When does the warranty of merchantability exist?

Answer 30

• Where a merchant deals in goods of a particular kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable (i.e. the goods are of average quality for goods of that kind and are generally fit for the purpose for which such goods are normally used).
• Warranty of merchantability = fit for intended use.
  o Requirements of privity and notice.
  o Can be disclaimed by contract.
• Where harm is to the product itself, the only claim a P can pursue is for warranty.