Products Liability - Warnings and User Conduct

Question 1

Restatement (2d) 402A Comment i

Answer 1

• sets out condition where the defective condition of the product makes it unreasonably dangerous
• unreasonably dangerous means the article is dangerous to an extent beyond that which would be contemplated by ordinary consumer who purchases it, with ordinary knowledge common to the community as to its characteristics

Question 2

402 Comment j

Answer 2

• deals w/ directions/warning
• in order to prevent product from being unreasonably dangerous, seller may be required to give directions or warning on container as to its use
• not required to warn though wrt products only dangerous when consumed in excessive quantity, or over a long period of time, when the danger or potentiality of danger is generally known or recognized
• includes allergy warning if substantial # of pop allergice + wouldn’t know the ingredient in the product
• PRODUCT BEARING SUCH WARNING (+ safe for use if warning is followed) = NOT DEFECTIVE NOR UNREASONABLY DANGEROUS

Question 3

402A Comment k

Answer 3

• deals w/ unavoidably unsafe products (products which can’t be made safe for their intended or ordinary use)
• Restatement says especially common w/ drugs
• such product when properly prepared + accompanied by proper directions + warning is not defective nor unreasonably dangerous
• seller doesn’t get held strictly liable for unfortunate consequences attending their use where properly prepared + marketed + proper warning given

Question 4

Obviousness of Risk

Answer 4

• if risk is obvious even in absence of warning, don’t need to provide warning
• product itself informs consumer -> no additional duty to warn

Question 5

Belling v. Haugh’s Pools

Answer 5

• 1987

- defs not held liable b/c pl’s vertical dive into 4 ft of water involved open and obvious risk

Question 6

Liriano v. Hobart Corp

Answer 6

• 1999
• meat grinders widely known to be dangerous, but case went to jury b/c warning may also function to indicate safer alternative (not just warn of danger)

Question 7

What happens when risk known by manufacturer but NOT obvious to consumer?

Answer 7

• Restatement 3d says negligence standard - whether reasonable manufacturer would know or would warn (BPL balancing)
• Restatement 2d says strict duty to warn: if knowable (in light of best available scientific evidence) must warn

Question 8

MacDonald v. Ortho Pharmaceutical

Answer 8

• general rule is that if there is a learned intermediary, it’s enough that you give warning to the learned intermediary (don’t need to tell patient)
• BUT in this case, patient more involved w/ birth control decision + interaction w/ doctor infrequent
• court found manufacturer had direct duty to warn patient of risks

Question 9

MacDonald v. Ortho Pharmaceutical - Adequacy of Warning

Answer 9

• duty to provide warning conveying reasonable notice of the nature, gravity, + likelihood of known or knowable side effects of the contraceptives
• court said trier of fact must consider whether reasonably prudent person receiving the warning would have understood a fair indication of the nature and extent of the danger present in the drug

Question 10

What happens if risk was unknown to manufacturer?

Answer 10

Possible theories of liability:

• affirmative misrepresentation
• strict liability
• negligence - could argue reasonable manufacturer should have known about the risk + warned about it

Question 11

Affirmative Misrepresentation

Answer 11

• would hold seller strictly liable if risk unknown (misrepresentation not fraudulently or negligently made, but seller may still be held strictly liable under affirmative misrepresentation)
• ex: Crocker v. Winthrop Labs

Question 12

Crocker v. Winthrop Laboratories

Answer 12

• 1974
• manufacturer may be held strictly liable for an injury it could not reasonably foresee
• manufacturer subject to liability if it misrepresents a product that it puts on the market and injury results from a plaintiff’s justifiable reliance on that misrepresentation
• in this case, pl’s husband took drug, drug was said to be non-addictive, but he got addicted + died -> manufacturer held liable even though it could not reasonably have foreseen the addiction

Question 13

Beshada v. Johns-Manville

Answer 13

• 1982
• pls = workers exposed to asbestos on the job -> brought suit under strict liability for failure to warn
• defs tried to raise state-of-the-art defense - claimed din’t know of the dangers of asbestos exposure at time workers were exposed + thus had no duty to warn
• court held defs still liable + can’t raise “state of the art” defense
• basically, strict liability b/c it doesn’t even matter whether or not defendants knew - the product should have come with warnings, so they are automatically liable for failing to provide them (they seem to actually reject the scientific unknowability arg)

Question 14

Shanks v. Upjohn - Articulation of Strict Liability Failure to Warn

Answer 14

• if the pl proves that the product as marketed posed a risk of injury to one who uses the product in a reasonably foreseeable manner + the product is marketed w/o adequate warnings of the risk, product is defective
• if defect = proximate cause of pl’s injuries, manufacturer is strictly liable unless can prove the risk was scientifically unknowable (higher standard than reasonably unknowable) at time product distributed to pl

Question 15

Shanks v. Upjohn - Strict Liability for Prescription Drugs

Answer 15

• says should be governed by expectations of an ordinary doctor, rather than the ordinary patient

Question 16

Products Liability and User Conduct

Answer 16

• ordinary contributory negligence is not a bar to recovery if the negligence = failure to discover defect or guard against possibility of defect
• manufacturer cannot raise “ordinary mistakes” as a defense, would need to point to misuse

Question 17

Assumption of Risk and Products Liability

Answer 17

• bar to recovery

- means pl knew of the danger + unreasonably proceeded to make use of the product

Question 18

Unusual Handling + Use

Answer 18

• may bar recovery, if use of product was so unusual that the average consumer could not reasonably expect the product to be designed and manufactured to withstand it

Question 19

Defenses for Products Liability

Answer 19

• user conduct/negligence
• can’t use c-neg, but can point to misuse/unusual handling or use + assumption of risk
• def IS liable for unintended but reasonably foreseeable uses of a product

Question 20

Safe Guard Problem

Answer 20

• exists in negligence cases
• accident can be avoided by either great caution on part of user or safeguard put in place by manufacturer -> does balancing require the safeguard?
• ->notes say yes if cost of safeguard to avoid unreasonable harm is less than the cost of using the machine with caution

Question 21

Micallef v. Miehle - Facts

Answer 21

• 1976
• case where printing-press operator got his hand caught in the machine
• machine had no safeguards to prevent this injury + off button was too far away to reach during accident
• pl knew of the danger, but it was customary in the industry to run the risk anyway b/c turning off the machine would take too much time (def knew of this custom)

Question 22

Micallef v. Miehle- Holding

Answer 22

• manufacturer obligated to exercise degree of care in design to avoid unreasonable risk of harm to anyone likely to be exposed to the danger when product is used in its intended manner AS WELL AS unintended but reasonably foreseeable use