Products Liability

Question 1

What case is credited with obviating the privity requirement in products liability actions?

Answer 1

MacPherson v. Buick Motor Co.

Question 2

What are the facts of MacPherson v. Buick Motor Co.?

Answer 2

Buick Motor Co. (D) made a new automobile using parts it purchased from its various suppliers.

Buick neglected to inspect and perform safety tests on the automobile before it was sold to a retail dealer.

MacPherson (P) then bought this car from the dealer.

While MacPherson (P) was driving the car, one of the wheels, which was made of defective wood, crumbled into fragments.

The car collapsed and MacPherson (P) was thrown out and injured.

There was evidence that the defects could have been discovered if Buick (D) had performed a reasonable inspection.

Question 3

What is the rule from MacPherson v. Buick Motor Co. / Does a manufacturer owe a duty of care and vigilance to anyone other than the immediate purchaser of a product?

Answer 3

(i) rejected the defendant manufacturer’s claim that it could not be held liable because there was no privity between the plaintiff and the defendant, and;
(ii) held that if a reasonable person would foresee that the chattel would create a risk of harm to human life or limb if not carefully made or supplied, the manufacturer or supplier of the chattel is under a duty of care in its manufacture and supply—and this duty is owed to all foreseeable users.

For a manufacturer to be liable independent of contract, there must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction.

When there is an element of probable danger with a product, the manufacturer is under a duty to make it carefully.

The car manufacturer was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests

The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger, the greater the need of caution.

Question 4

What standard was applied in MacPherson v. Buick Motor Co.?

Answer 4

Negligence.

Question 5

Do lawyers prefer to bring products liability cases based on strict liability or negligence? Why?

Answer 5

Negligence. Juries are more likely to award larger damages when they feel the ∆ did something wrong.

Question 6

What are the facts of Baxter v. Ford Motor Co.?

Answer 6

Baxter (P) purchased a Model A Ford from St. John Motors (D), who had acquired the automobile from Ford Motor Co. (D).

Ford’s (D) catalogues, given to Baxter (P) by St. John (D) prior to sale, represented that the car had a shatter-proof glass windshield which would not shatter under the hardest impact.

Baxter (P) was injured when a pebble struck and shattered the window, causing glass to fly into Baxter’s (P) eyes.

Baxter (P) lost sight in his left eye, and his right eye was injured.

The trial court refused to admit evidence of Ford’s (D) printed warranty.

The court took the case from the jury and entered judgment for ∆s. Baxter (P) appealed.

Question 7

What is the cause of action in Baxter v. Ford Motor Co.?

Answer 7

Breach of express warranty.

Question 8

Why could the π in Baxter v. Ford Motor Co. not sue Ford for breach of contract?

Answer 8

Because the car was purchased from a dealer and thus there was no privity with Ford.

Question 9

What is the rule from Baxter v. Ford Motor Co. / Can a tort action be maintained for breach of an express warranty, even when there is no privity of contract between the injured party and the warranting party?

Answer 9

A purchaser has a remedy against a manufacturer because of damages suffered by reason of a failure of goods to comply with the manufacturer’s representations as to the existence of qualities which they did not in fact possess, when the absence of such qualities were not readily discoverable, even though there was no privity of contract between the purchaser and the manufacturer.

The breach of an express warranty is actionable in tort, even absent privity of contract, if a purchaser of ordinary experience and reasonable prudence could not have discovered the defect.

In the case at bar, the automobile was represented by the manufacturer as having a windshield of non-shatterable glass “so made that it will not fly or shatter under the hardest impact.” An ordinary person would be unable to discover by the usual and customary examination of the automobile whether glass which would not fly or shatter was used in the windshield.

The nature of non-shatterable glass is such that the falsity of the representations with reference to the glass would not be readily detected by a person of ordinary experience and reasonable prudence.

If a person states as true material facts susceptible of knowledge to one who relies and acts thereon to his injury, if the representations are false, it is immaterial that he did not know they were false, or that he believed them to be true.

Question 10

What are the policy reasons for allowing recovery for express warranties?

Answer 10

Fairness.

Public policy.

The rule in such cases does not rest upon contractual obligations, but rather on the principle that the original act of delivering an article is wrong, when, because of the lack of those qualities which the manufacturer represented it as having, the absence of which could not be readily detected by the consumer, the article is not safe for the purposes for which the consumer would ordinarily use it.

Question 11

May beech of express warranty actions be brought for property damage or personal injury? Or both?

Answer 11

Both.

Question 12

Should the π be required to demonstrate reliance upon the representation, either in making the purchase or in using the product in breach of express warranty actions?

Answer 12

Yes, most courts require reliance, however, a minority do not.

Question 13

What are the facts of Henningsen v. Bloomfield Motors, Inc.?

Answer 13

Mr. Henningsen purchased a car from Bloomfield Motors Inc. (D), a retail dealer.

The car had been manufactured by Chrysler Corporation (D).

Mr. Henningsen gave the car to his wife for Christmas.

Mrs. Henningsen (P) was badly injured a few years later when the steering gear failed and the car turned right into a wall.

When he purchased the car, Mr. Henningsen signed a contract without reading the fine print.

The fine print contained a ‘‘warranty’’ clause which disclaimed all implied warranties and which granted an express warranty for all defects within 90 days or 4000 miles, whichever came first.

Mrs. Henningsen (P) sued Bloomfield (D) and Chrysler (D).

The trial court dismissed her negligence counts but ruled for Mrs. Henningsen (P) based on the implied warranty of merchantability.

Bloomfield (D) and Chrysler (D) appealed.

Question 14

What was the cause of action in Henningsen v. Bloomfield Motors, Inc.?

Answer 14

Breach of the implied warranty of merchantability.

Question 15

What is an implied warranty of merchantability?

Answer 15

If the buyer, expressly or by implication, makes known to the seller the particular purpose for which the article is required and it appears that he has relied on the seller’s skill or judgment, an implied warranty arises of reasonable fitness for that purpose.

Question 16

Is privity required to bring an action for breach of an implied warranty of merchantability?

Answer 16

Not in the majority of states, however, it is required in a minority of jurisdictions.

Question 17

Do breach of warranty actions require negligence by the defendant?

Answer 17

No.

Question 18

May warranties be limited through the use of disclaimers?

Answer 18

No, disclaimers will not be enforced. Courts don’t want manufacturers to unilaterally limit buyers power of redress.

Question 19

What elements are not needed in a breach of warranty action?

Answer 19

• Don’t need expert testimony.
• Don’t need negligence.
• Don’t require privity.
• The warranties need not be expressed.
• Warranties cannot be disclaimed.
• Since negligence is not applicable, there is no standard of care.

Question 20

What are the facts of Greenman v. Yuba Power Products, Inc.?

Answer 20

• Greenman (P) saw a demonstration of a Shopsmith, a combination power tool, and he studied a brochure prepared by the manufacturer, Yuba Power Products Inc. (D).
• Greenman’s (P) wife gave him a Shopsmith for Christmas.
• While properly using the Shopsmith to lathe a piece of wood, Greenman (P) was injured when the wood flew out of the machine and struck him.
• Almost a year later, Greenman (P) sued Yuba Power (D) and the retailer based on breach of implied and express warranty and negligence theories.
• Evidence at trial showed that the Shopsmith was defectively designed and constructed.
• The jury returned a verdict in favor of the retailer but against Yuba Power (D) based on a negligence and/or breach of express warranty theory.
• The court denied Yuba Power’s (D) motion for a new trial and entered judgment on the verdict.
• Yuba Power (D) appealed.

Question 21

What is the rule from Greenman v. Yuba Power Products, Inc. / Is a manufacturer strictly liable when an article he places on the market has a defect that causes injury?

Answer 21

• A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.
• Implicit in a product’s presence on the market is a representation that it will safely do the jobs for which it was built.
• To establish a manufacturer’s liability in a products liability case, it is sufficient that a plaintiff prove that he was injured while using its product in a way it was intended to be used as a result of a defect in design and manufacture of which the plaintiff was not aware that made the product unsafe for its intended use.

Question 22

What are the policy reasons for imposing strict liability in products liability?

Answer 22

• The purpose of imposing strict liability on the manufacturer is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.
• Although strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law, and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort.

Question 23

What are some reasons to plead breach of warranty as well as strict liability?

Answer 23

• Differences in damages.
• Proof required.
• Jury sympathy (i.e., breaking of a promise with warranty)

Question 24

What elements are required in an action for strict products liability?

Answer 24

• (1) a defective product;
• (2) use of the product in the manner it was intended to be used;
• (3) injury as a result; and
• (4) knowledge by the manufacturer that the product was to be used without inspection for defects.

Question 25

Restatement (Second) of Torts §402A is the relevant source for strict products liability.

Answer 25

(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 stated in Subsection (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.

Question 26

Restatement (Third) of Torts: Products Liability §2 Categories of Product Defects

Answer 26

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Question 27

What are the facts of Rix v. General Motors Corp.?

Answer 27

* Michael Rix (P) was injured when his pickup was rear-ended by a new GMC (D) two-ton truck, which had been equipped with a water tank after sale. * Rix (P) sued GMC (D) on a theory of strict liability. * The parties stipulated that the accident occurred because of brake failure caused by a brake tube dislodging from a booster unit. * Rix (P) argued that there was a manufacturing defect in the tube when it left the assembly line. * Rix (P) also argued that the brake system was defectively designed. * According to Rix (P), a truck of this size should have been equipped with a dual braking system in order to provide extra braking power. * GMC (D) contended that the tube was defective because it had been altered after it left the GMC (D) assembly line. * GMC (D) also maintained that the single braking system was not unreasonably dangerous, and that the accident would have occurred even if a dual braking system was present. * Rix (P) appealed a jury verdict for GMC (D), arguing that the jury was not properly instructed on the law of manufacturing defects.

Question 28

What is the rule for manufacturing defects / Is a manufacturer strictly liable if it sells a product in defective condition unreasonably dangerous and it causes injury?

Answer 28

* Sellers are strictly liable for manufacturing defects that reach the consumer without substantial change in the defective condition. * Under a manufacturing defect theory, the essential question is whether the product was flawed or defective because it was not construed correctly by the manufacturer: * Manufacturing defects, by definition, are imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A defectively manufactured product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design. * Stated differently, a defectively manufactured product is flawed because it is misconstrued without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction.

Question 29

What if the manufacturer could show it had the best quality control in the industry, and only one in a million products would have a defect and there was no way to detect the defects?

Answer 29

* That would constitute reasonable care and thus no liability under negligence. * Under a strict liability standard the manufacturer would be liable.

Question 30

Why do most manufacturing defects cases settle?

Answer 30

* The π has to prove that the product deviated from the seller's design or from the seller's other products of the same design, not what specific conduct of the manufacturer led to that defect. * Because it is easily provable that a product has a defect different from all other products of that type.

Question 31

What is a defense often used by a manufacturer in a manufacturing defect case?

Answer 31

That the defect occurred after the product left the manufacturer's control.

Question 32

What are the facts of Prentis v. Yale Mfg. Co.?

Answer 32

* Prentis (P), a foreman in a automobile dealership’s parts department, utilized a battery-powered forklift to lift an engine into a truck’s cargo bed. * The Yale Manufacturing (D) forklift was a stand-up variety, rather than a riding machine with a seat, and it was operated by lifting its handle up and down. * When the machine experienced a power surge, Prentis (P) lost his footing and fell to the ground. * The force of the fall alone caused multiple fractures to Prentis’s (P) hip. * Prentis (P) sued for an alleged design defect, arguing that Yale (D) should have provided a seat or platform for the operator of the forklift. * The trial judge refused to instruct the jury on breach of warranty. * Rather, the judge instructed the jury on a single theory of negligent design. * The Court of Appeal reversed, holding that both instructions should have been given. * In this appeal, the Court of Appeal was reversed and the trial court affirmed.

Question 33

What is a design defect / Should a negligence test apply to products liability actions predicated upon defective design?

Answer 33

* Design defect cases should be judged under a negligence test, weighing the risks of injury against the costs of safer designs. * A manufacturer has a duty to design its product so as to eliminate any unreasonable risk of foreseeable injury. For the lack of reasonable care in the face of such duty, the manufacturer may be answerable in a negligence action. * Whether a suit is based upon negligence or implied warranty, the court requires the plaintiff to prove that the product itself is actionable -- that something is wrong with it that makes it dangerous. * Injuries caused by the condition of a product may also be actionable if the product's design, which is the result of intentional design decisions of the manufacturer, is not sufficiently safe.

Question 34

In the majority of jurisdictions, what causes of action will the court instruct a jury on?

Answer 34

All available causes of action, negligence, breach of warranty, and strict liability.

Question 35

What are the 4 approaches for determining whether or not there is a design defect?

Answer 35

(1) A negligence risk-utility analysis - focuses on wether the manufacturer would be judged negligent if it had known of the product's dangerous condition at the time it was marketed. (2) compares the risk and utility of the product at the time of trial. (3) focuses on consumer expectations about the product. (4) combines the risk-utility and consumer-expectation test.

Question 36

What approach for analyzing design defects do the majority of jurisdictions use?

Answer 36

Some form of the risk-utility analysis.

Question 37

What is the risk-utility analysis?

Answer 37

When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be) it is saying that in choosing the particular design and cost tradeoffs, the manufacturer exposed the consumer to greater risk of danger than he should have. Conceptually and analytically, this approach bespeaks negligence.

Question 38

What factors are relevant in a risk-utility analysis?

Answer 38

(1) the usefulness and desirability of the product; (2) probability and magnitude of potential injury; (3) availability of substitutes; (4) manufacturer's ability to eliminate the unsafe character; (5) the user's ability to avoid danger; (6) the user's probable awareness of the danger; and (7) the manufacturer's ability to spread the loss. Also factors in a minority of jurisdictions: (8) consumer expectations (only in some jurisdictions) (9) state-of-the-art (the existing level of technological expertise and scientific knowledge at the time a product is designed)

Question 39

What is the consumer expectations test?

Answer 39

* Is a hybrid of negligence and strict products liability. * The expectations are often influenced by marketing, thus, marketing is an important factor in the test. * The Third Restatement uses this test only as one factor.

Question 40

What is state-of-the-art?

Answer 40

* Refers to the level of knowledge at the time of manufacturing, not design. * State-of-the-art is a ceiling (the best possible), where custom is only a standard,

Question 41

Do most jurisdictions require the π to prove an alternative feasible design in order to prove design defects?

Answer 41

Yes.

Question 42

Is a product which presents an open and obvious danger immune from liability in design defect cases?

Answer 42

* A few jurisdictions have held that an open and obvious danger is an absolute defense. * Most jurisdictions, however, have rejected the obviousness of the danger as a bar to recovery and instead consider it as one factor in the risk-utility balancing test.

Question 43

What is the standard in warning defect cases?

Answer 43

Strict liability.

Question 44

Is a manufacturer required to be aware of a risk of harm in order to impose liability for a warning defect?

Answer 44

* Knowledge, actual or constructive, of potential risk or danger is required before strict liability may be imposed for a failure to warn. * What is relevant is the knowledge available at the time of manufacture and/or distribution.

Question 45

Is state-of-the-art evidence admissible for a defendant to prove knowledge of potential risk in a warning defect case?

Answer 45

The state of the art may be relevant to the question of knowability and, of that reason, is admissible in that context.

Question 46

What is the rule for warning defects?

Answer 46

* Knowledge or knowability is a component of strict liability for failure to warn. * Strict liability is not concerned with the standard of care or the reasonableness of a manufacturer's conduct. * The rules of strict liability require a π to prove only that the ∆ did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. * A fault based standard requiring the π to show that the manufacturer knew or should have known of risks that injured the π. * When, in a particular case, the risk qualitatively (e.g., of death or major disability) as well as quantitatively, on balance with the end sought to be achieved, is such as to call for a true choice judgment, medical or personal, the warning must be given. * Thus, the fact that a manufacturer acted as a reasonably prudent manufacturer in deciding not to warn, while perhaps absolving the manufacturer of liability under the negligence theory, will not preclude liability under strict liability.

Question 47

If the risk is commonly known, is there a duty to warn?

Answer 47

No.

Question 48

Is liability for warning defects more like negligence or strict liability?

Answer 48

More like strict liability because in negligence there is a duty, where in strict liability a π need only show that the ∆ didn't adequately warn of a risk that was known or knowable (majority rule).

Question 49

Does the sophistication of a ∆ factor in to a warning defect analysis?

Answer 49

Yes.

Question 50

Is there a presumption that a user reads a warning on a product?

Answer 50

Yes.

Question 51

What are some of the factors of the reasonableness of a warning?

Answer 51

* The level of detail; * manner of communication; * too many warnings dilute each other.

Question 52

What is the learned intermediary doctrine in warning defect cases?

Answer 52

When there is a professional intermediary between the manufacturer and user, such as a doctor or pharmacist, the manufacturer is relieved of liability.

Question 53

If a manufacturer of a prescription drug markets directly to the consumer, does the learned intermediary doctrine apply?

Answer 53

No, the direct marketing belies the premises upon which the doctrine is based.

Question 54

What are the facts in Daly v. General Motors Corp.?

Answer 54

* Daly (P) sued for the death of the driver of an Opel automobile, which was manufactured by General Motors Corp. (D). * The driver was thrown from the automobile in an accident because of an alleged defect in the door latch. * There was evidence that the driver did not use the seat belt and that he was intoxicated. * General Motors (D) defended on the ground that recovery should be barred by the doctrine of contributory negligence or comparative fault. * The jury found for GM (D). Daly (P) appealed. * On appeal, the verdict was reversed and the court adopted contributory negligence in respect to strict products liability.

Question 55

Do comparative negligence principles apply to actions founded on strict products liability?

Answer 55

* A system of comparative fault should be and it is hereby extended to actions founded on strict products liability. In such cases the separate defense of "assumption of risk," to the extent that it is a form of contributory negligence, is abolished. * Though most forms of contributory negligence do not constitute a defense to a strict products liability action, plaintiff's negligence is a complete defense when it comprises assumption of risk. * Where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence. * The adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. * A few jurisdictions either have refused to recognize the doctrine of comparative fault in products liability cases or have limited it to situations in which π has assumed the risk. * Some decisions have been in accord with the Restatement (Second) of Torts, holding that negligence, in the sense of failure to discover a defect in the product or guard against the possibility of existence , is not a defense.

Question 56

Does the defense of assumption of risk apply to products liability?

Answer 56

* When π voluntarily confronts a known hazard the Restatement (Second) and some courts would bar the claim.(minority rule) * Others would subject the π to the same fault apportionment as in comparative negligence.

Question 57

What are the facts of Ford Motor Co. v. Matthews?

Answer 57

* Earnest Matthews (P) was killed as a result of being run over by his tractor. Matthews (P) was standing beside his tractor when he started it. * The tractor was in gear at the time, even though the tractor was equipped with a starter safety switch designed to prevent the tractor from being started in gear. * Matthews’ (P) administratrix sued under strict products liability, contending that a plunger connected to the safety switch was defective and allowed the tractor to be started in gear. * Ford (D) appealed a jury verdict for $74,272.65 for Matthews.

Question 58

May a manufacturer be liable for injuries caused by reasonably foreseeable uses of its products?

Answer 58

* Although misuse of a product that causes an injury is normally a bar to strict liability, the manufacturer is not liable for injuries resulting from abnormal or unintended use of his product, if such use was not reasonably foreseeable. The issue is one of foreseeability and misuse may be foreseeable. * In strict liability cases the same duty to foresee certain unintended uses has been recognized, and ordinarily the factual issue of the foreseeability of a particular use has been left to the jury. * "A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling . . . the seller is not liable."

Question 59

Does a manufacturer have a duty to foresee abnormal uses of its products?

Answer 59

* A manufacturer must undertake to determine the possible abnormal uses of its product. * The court treats foreseeability as a defense (i.e., no liability for actions not reasonably foreseeable), but it could easily be viewed as an issue of duty. * Even in cases based on negligence, there are some unusual uses of a product that the seller had to anticipate, and against which he was required to guard, at least to the extent of a warning.

Question 60

Who decides whether an abnormal use of a product should of been foreseeable by a manufacturer?

Answer 60

A jury.

Question 61

What is the obligation of a manufacturer to produce a product that will withstand misuse?

Answer 61

Evidence concerning a misuse or altercation of the product could be used to argue that there was no defect in the product (failure of prima facie case), that any defect in the product did not cause the plaintiff's injury (no causation), or that the plaintiff's conduct in contributing to the cause of the accident should reduce the plaintiff's recovery (affirmative defense of comparative fault).

Question 62

Is a manufacturer liable for an unforeseeable abnormal use of his product?

Answer 62

Whether regarded as a matter of defect or causation, a manufacturer is not liable.

Question 63

What are the facts of Peterson v. Lou Bachrodt Chevrolet Co.?

Answer 63

* Two young children, Maradean and Mark Peterson, were struck by a 1965 Chevrolet on September 3, 1971. * Maradean died from her injuries, and one of Mark’s legs had to be amputated. * James Peterson (P), the children’s father, sued the driver of the used car, its owners, and the used car dealer, Lou Bachrodt Chevrolet Company (D). * Bachrodt Chevrolet (D) had sold the used car on June 11, 1971. * One of Peterson’s (P) claims was for strict products liability against Bachrodt Chevrolet (D). * Peterson (P) alleged that, at the time the automobile left Bachrodt Chevrolet’s (D) control, the car was defective and not reasonably safe for driving because the braking systems were missing several integral pieces. * Bachrodt Chevrolet (D) defended on the ground that it was not liable under a strict products liability theory. * The circuit court dismissed the products liability count, the appellate court reversed, and the Illinois Supreme Court granted review.

Question 64

Is a remote retailer, who is outside of the original producing and marketing chain, subject to strict products liability?

Answer 64

* The strict liability of a retailer arises from his integral role in the overall producing and marketing enterprise and affords an additional incentive to safety. * Only those distributors who are in some position to exert pressure upon manufacturers to create safe products are subject to strict products liability.

Question 65

What are the policy reasons for holding a retailer strictly liable?

Answer 65

* Imposition of liability upon wholesalers and retailers is justified on the ground that their position in the marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product. * The main goal of products liability is to ensure the manufacture and distribution of safe products. * Only those distributors who are in some position to exert pressure upon manufacturers to create safe products are subject to strict products liability.

Question 66

Does strict products liability extend to retailers of used products?

Answer 66

No, most courts do not impose liability on sellers of used products.

Question 67

Are retailers, wholesalers, and distributors strictly liable for product defects?

Answer 67

Yes, most courts extend liability to these sellers in the chain of distribution.

Question 68

Will a seller who does not hold himself out as having knowledge or skill in the commercial sense subject to strict liability?

Answer 68

No, an occasional seller is not strictly liable.

Question 69

Is the owner of a product strictly liable for injury?

Answer 69

The owner of a product may be subject to liability in negligence, but not in strict liability since the owner receives products from the stream of commerce; the owner does not place the product in the stream of commerce merely by offering it to a guest.

Question 70

Is the manufacturer of component parts or raw material subject to strict liability?

Answer 70

* The maker of a component part not subject to further processing or substantial change in the manufacturing process is likely to be subject to strict liability if there is a defect in that part or material. * The component maker or raw material supplier also may be liable if he substantially participates in integrating the component or raw material into a defective product.

Question 71

What are the facts of Hector v. Cedars-Sinai Medical Ctr.?

Answer 71

* Frances Hector (P) was implanted with a defective pacemaker at Cedars–Sinai Medical Center (D). Hector (P) sued Cedars–Sinai (D) for negligence, strict liability and breach of warranty. * Cedars–Sinai (D) moved for partial summary judgment on the strict liability and breach of warranty causes of action. * Cedars–Sinai (D) maintained that it was not liable because it was not a part of the producing and marketing enterprise; rather, Cedars Sinai (D) simply provided medical services to Hector. * The trial court granted the motion. * Hector (P) appealed, contending the court erred in finding Cedars–Sinai (D) was exempt from strict products liability. * In this appeal, the court found the dismissal was proper.

Question 72

Is a provider of medical services subject to strict products liability?

Answer 72

* As a provider of services rather than a seller of a product, the hospital is not subject to strict liability for a defective product provided to the patient during the course of his or her treatment. * Those who sell their services for the guidance of others are not liable in the absence of negligence or intentional misconduct. * A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. * A doctor diagnosing and treating a patient normally is not selling either a product or insurance. One of the requisites for the imposition of strict liability is that the seller is engaged in the business of selling such product. * Even where the service transaction involves an incidental sale of a product, there is generally no strict liability.

Question 73

What is the policy behind not holding service providers strictly liable for products?

Answer 73

* In a service transaction, there is no mass production and distribution, and hence no real ability to spread the risk of loss to consumers. * Service transactions do not involve a group of consumers needing protection from a remote and unknown manufacturer. * Strict liability is imposed to insure that the cost of injuries resulting from defective products are borne by the manufacturers who put such products on the market rather than by the injured persons who are powerless to protect themselves. * Since the defendant profits from the sale of the products, it is in a good strategic position to protect itself by inquiring about or testing the products, promoting safety through pressure on the manufacturer, selling another product which is not defective, or insuring itself and distributing the risk of injury among the public as a cost of doing business. * In a service transaction, there is no real ability to spread the risk of loss on consumers of the services, since there is no mass production and distribution system to attack.

Question 74

If a transaction involves both product and services, what type is it considered to be?

Answer 74

Whichever predominates the transaction.

Question 75

Are sellers of blood, blood products, and human tissue liable for products?

Answer 75

* Most jurisdictions exempt the providers of blood and blood products and, in most cases, human tissue from strict liability, usually by statute. * This protection extends not only to the physician or other healthcare provider, but also to a commercial supplier. * Blood suppliers are liable only if the π can prove negligence. * Restatement (Third) §19c and comment c, exempts human blood and human tissue from its coverage.

Question 76

Who makes the determination whether something is a product for strict liability purposes?

Answer 76

* In some jurisdictions, the statute imposing strict liability provides the definition. * In others, it is left to the common law. * In either case, it is the judge, rather than the jury, who decides whether the situation fits within the statutory definition or is one to which strict liability should apply.

Question 77

Are economic losses as a result of personal injury stemming from products liability recoverable?

Answer 77

* Lost wages are common forms of economic loss that result from personal injury to π and are recoverable, along with other losses, in a strict liability action. * Most jurisdictions also permit loss of consortium claims based on personal injury in products liability cases.

Question 78

Are economic losses recoverable without personal injury or property damage?

Answer 78

* An action in strict liability does not lie when the product itself simply did not perform as expected. * A few courts have recognized an exception to the rule that excludes recovery for pure economic loss when the alleged defect creates an "unreasonable risk" of injury to person, even though no one actually was injured. Under those circumstances, economic losses resulting from damage to the product itself may be compensable.

Question 79

Is damage to property recoverable in a products liability action?

Answer 79

* §402A covers damage to property as well as persons and most courts have agreed with this extension of strict liability beyond personal injury. * When the product itself destroyed by a defect most courts treat this as an economic loss not recoverable in tort, while some courts treat this as a "property" loss and allow recovery in strict liability. * When the defective product is used in the process of manufacturing another product and that product is ruined as a result, this may be treated as damage to property and recovery allowed under strict liability.

Question 80

May a retailer who suffers an economic loss because of a product recover against the manufacturer?

Answer 80

* When a purchase such as a retailer suffers economic loss through a tort suit brought against him by a party injured by the product, he usually may shift that loss to the manufacturer by way of an indemnity action.