Products Liability Module

Question 1

MacPherson v. Buick - automobile manufacturer sold car with a defective wheel to a dealer who sold it to MacPherson

Answer 1

a manufacturer of articles that are not inherently dangerous by that may become dangerous when improperly constructed owes a duty of care to anyone beyond the purchaser who might foreseeably use the articles, when it is reasonable to expect no further tests will be performed

there was no privity in this case

Question 2

Escola v. Coca Cola - waitress restocking fridge when coca cola bottle shatters in her hand, alleges excessive pressure

Answer 2

res ipsa applies as long as no evidence that bottles changed condition after they left the manufacturer’s possession

Question 3

Escola primary themes

Answer 3

• defective products can be handled by res ipsa
• manufacturers are always in a better position to prevent the harms and control the risks, so they should be held liable
• consumers can recover damages for defective products from retailers, retailers can get compensation from manufacturers
• warranties provided under contract law provide for strict liability and tort law and contract law should treat injuries the same

Question 4

what is products liability?

Answer 4

the law governing liability for those who manufacture or sell products that cause injury to person or property

Question 5

the pre-1960s products liability

Answer 5

• plaintiff had only negligence and warranty actions for products that caused injury
• courts not happy that plaintiffs were not recovering for personal injuries
• privity requirement began to erode in both negligence and warranty so ppl able to recovery for injuries
• courts begin by suggesting liability without proof of fault (negligence), “stict” liability

Question 6

why did products liability arise in the 1960s?

Answer 6

• manufacturing boom causes rise in products liability cases
• mass assembly lines would cause harm

Question 7

privity

Answer 7

the direction connection between the buyer and the seller/manufacturer of the product

Question 8

warranty

Answer 8

a contract that runs between the buyer and the seller of a product, direct connection is privity

Question 9

MacPherson court

Answer 9

liability will be imposed in absence of privity of contract
- type of product that is certain to place life and limb in peril if negligently made
- D knows the product will be used by one other than the immediate purchaser
- D knows the product will be used without further inspection

** knows = probably, not merely possible; based on foreseeability

Question 10

MacPherson takeaway

Answer 10

the rules was an enormous departure!
- no longer requires evidence of privity of contract for liability (previously was only products inherently dangerous)
- there was a long dissent that takes issue with how far a leap this opinion went to eradict privity requirement
- helps injured plaintiffs and puts manufacturers on notice of what types of liability they might be exposed to even when they have not directly sold their product to injured plaintiff

Question 11

Escola court

Answer 11

the theory asserted in this case is negligence and uses res ipsa to prove it
- proves through “excessive pressure”

Traynor’s concurrence:
- suggested courts should adopt a strict liability theory for product cases where a product is placed on the market knowing it will be used without further inspection

Question 12

Greenman v. Yuba Power Products - manufacturing tool while be used malfunctioned causes serious head injuries to plaintiff

Answer 12

by placing a product on the market, a manufacturer becomes strictly liable for a defect in the product that causes that injury to ultimate user of the product

lack of privity in this case because wife bought the saw as a gift for husband

neither party argued for a strict liability theory

Question 13

Greenman v. Yuba Court

Answer 13

Traynor wrote the majority –> court finally adopts a strict liability theory

Question 14

after greenman the R2T 402A is adopted

Answer 14

special theory of seller of product for physical harm to use or consumer

Question 15

402A (1)

Answer 15

(1) one who sells any product in a defective condition unreasonably dangerous to the use 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

Question 16

402A(2)

Answer 16

(2) the rule stated in subsection (1) applies although –> [strict liability part of restatment]
- (a) the seller has exercised all possible care in the preparation and sale of his product, and
[this part of the rule eliminates of negligence]
- (b) the user or consumer has not brought the product from or entered into any contractual relation with the seller
[this part removed privity requirement]

Question 17

402A notes

Answer 17

• “unreasonably dangerous” language because there are a lot of defective products on the market that are not dangerous (ex: broken ipad)
• every single word in 402A has been litigated
• this section does not make a distinction between types of defects (as compared to R3T)
• most jurisdictions use 402A rather than R3T

Question 18

402A comment g

Answer 18

defective condition: one “not contemplated by the ultimate user which will be unreasonably dangerous to him

Question 19

402A comment i

Answer 19

unreasonably dangerous: dangerous to an extent beyond which the ordinary consumer who purchases it with ordinary common knowledge to the community as to its characteristics

Question 20

thee types of defects

Answer 20

1. manufacturing defect
2. design defect
3. inadequate warning (failure to warn)

Question 21

Malcolm v. Evenflo Co. - child safety seat is ejected from the car when the left belt of the seat broke off during the rollover –> manufacturing defect

Answer 21

a manufacturer is liable under a strict liability claim of defective design under the consumer expectations test if its product fails to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner or is dangerous to an extend beyond that anticipated by the ordinary user

Question 22

Warner Fruehauf Trailer v. Boston - mechanic injured when a liftgate malfunctioned and fell on him –> design defect

Answer 22

a manufacturer is liable under strict products liability claim of defective design in a risk-utility jurisdiction if a plaintiff proves that the likelihood and magnitude of the injury caused by the product is greater than the cost of a reasonable alternative design

Question 23

Richter v. Limax International - mini-trampoline did not warn of stress fractures in ankles after intended use

Answer 23

a manufacturer may be held strictly liable for negligence when it has reason to know through ongoing review of studies, research, reports, and scientific literature that its products may be dangerous during use and fails to warn the consumer

Question 24

defective under 402A

Answer 24

• PA Supreme Court has rejected the R3T sections 1-3
• this section does not mention 3 types of defects
• most jurisdictions are still in a 402A

Question 25

manufacturing defect 402A

Answer 25

not specifically defined

Question 26

manufacturing defect R3T

Answer 26

a product contains 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
- liability may be imposed regardless of whether manufacturer will be held negligent or not

what do you measure the product against?
- against the manufacturer’s own intended design

majority test: consumer expectation test

Question 27

consumer expectation test

Answer 27

consumers expect the product to conform to the manufacturer’s own standard

does the product depart from the manufacturers standards?

where items from the assembly line departed from manufacturers’ own standards, are they able to submit evidence of quality control?
- NO! quality control does not matter for strict liability

Question 28

quality control admissibility

Answer 28

• goes to whether you were negligent, no whether you can be held strictly liable
  ** quality control evidence ONLY when assessing liability under negligence theory and they MAY NOT use it when they are assessing strict liability in tort for the exact same thing **
• if youre a D, you want to keep negligence claim in so you can include quality control evidence

Question 29

manufacturing defect summary

Answer 29

• a single product deviates from the manufacturer’s own intended specifications and causes injury (easy and inexpensive to prove)
• does not impact the entire product line (no recalls, just a one off)
• test: consumer expectation test (deviation from the manufacturer’s own specifications)
• may be the one place where truly strict liability makes sense

Question 30

design defect

Answer 30

• different from manufacturing defect = entire product line is at issue, manufacturer subject to multiple lawsuits, expensive litigation
• however, there are certain products never subject to design defect (kitchen knives)

Question 31

R3T section 2 design defect

Answer 31

a product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or voided 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
- focuses on whether measures could have been taken by the manufacturer of the product to render the product safeer
- end test is really about whether it would have prevented the exact accident involved on the plaintiff

Question 32

malcolm v. evenflo (design defect)

Answer 32

applied the consumer expectation test

Question 33

risk-utility test for design defect

Answer 33

• most jurisdictions use this
• weighs the benefits of the product designed as-is v. risk of injury and costs of safety improvements to a product via: 1. change in design, or 2. the addition of warnings
• safety improvements must be one that would have prevented this accident from occurring
• usually requires a feasible alternative design via expert testimony ($$$)
• risks and benefits of proposed alternative design must also be proven and evaluated ($$$)

Question 34

warner case

Answer 34

• this case involves experts and more specifically failure of expert testimony
• if experts cannot meet the test and conform to each factor of risk-utility balancing, you are going to have a problem
• if you find yourself to have to prove or defend against design defect, ensure your expert is prepared to analyze and weigh in on each factor

Question 35

risk-utility summary

Answer 35

• majority rule on one form
• originates from negligence in that it evaluates the product at the conception stage and looks at what the manufacturer or seller knew and should have foreseen at that time

Question 36

warning defects

Answer 36

• if the risk of harm cannot be designed away, warnings must be given “significant hazards not obvious to the user or consumer”
• ex: kitchen knife is obvious, curler in water is not
• most courts use negligence standard
• 402A comments i and j say you have a duty to warn of foreseeable risks

Question 37

big issues with failure to warn

Answer 37

• if there a duty to warn? question of law
  –> risk foreseeable? open and obvious to consumer?
• is the warning adequate? question of fact
  –> attention catching, comprehensible, conveys fair indication of nature of danger

Question 38

defenses to product liability claims

Answer 38

• open and obvious danger
• contrib/comparative fault
• product misuse
• product alteration
• assumption of the risk