Strict Liability & Products Liability Flashcards
Abnormally Dangerous Activity
Defendants are strictly liable for “abnormally dangerous activity”. Under the 3rd Restatement, an abnormally dangerous activity is one that is not a matter of common use and where there is a highly significant risk despite reasonable care.
Product Liability (Broad)
In general, one who is in the business of selling products owes a duty to third parties not to supply defective products. This duty runs to anyone who foreseeably might use the product or who foreseeably might be injured if the product is defective and uses it in a reasonable or foreseeable manner. This duty is, in theory, a duty of strict liability.
Manufacturing Defect
A product has a manufacturing defect when it departs from its intended design. The seller is strictly liable for these defects regardless of whether all possible care was exercised in the preparation and marketing of the product.
Design Defect (2nd Restatement)
Under the Second Restatement, a product has a design defect if the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if the benefits of a challenged design outweigh the risks. Courts apply the consumer expectation test when expert testimony is not needed.
Design Defect (3rd Restatement)
Under the Third Restatement, a product has a design defect when the foreseeable risks of harm could have been reduced or avoided by adopting a reasonable alternative design and the omission renders the product not reasonably safe. Courts apply the Third Restatement’s risk-benefit test when expert testimony is needed (reasonable alternative designs are not within the knowledge of the ordinary consumer).
Malfunction Theory
Under the Third Restatement, it may be inferred that a product defect existed at time of sale when the incident was of a kind that ordinarily occurs as a result of a product defect, and was not solely the result of other causes.
Inadequate Warnings
A product is defective because of inadequate warnings when the foreseeable risks of harm could have been reduced or avoided by providing reasonable instructions and warnings, and the omission renders the product not reasonably safe. However, if the ordinary consumer already knows of the risk in question, then the manufacturer does not have a duty to warn of that risk. Lack of adequate warnings or instructions is typically considered to be a question of fact for the jury. Courts instruct the jury to presume that if there was an adequate warning, it would have been heeded.
Prescription Drugs
In most states, a drug manufacturer’s duty to warn consumers about the dangers of its prescription drugs extends only to the prescribing physician or health care provider who acts as the “learned intermediary” between manufacturer and end consumer. However, in many states there are exceptions for vaccines, contraceptives, drugs withdrawn from the market, and drugs advertised directly to consumers.
Duty of User
In general, a user has no reason to expect that a new product contains a defect or to be on guard to discover one. However, a user does have a duty to take other reasonable precautions, and failure to do so is negligence and is subject to comparative fault. Additionally, a manufacturer may be relieved of liability if the plaintiff voluntarily and unreasonably proceeded to encounter a known danger and assumed the risk.
Warranty
A manufacturer’s duty of care extends only to personal injury and damage to property other than the product itself. Economic loss resulting only from damage to the product itself is the province of the law of warranty, which falls under contract law.
Third Party Modifications
Although an injured employee cannot sue an employer in tort and must do so through the Worker’s Compensation system, an injured employee can sue a third-party manufacturer. In most states, a product may be defective in design if the manufacturer knows or should know that a safety feature will likely be removed or disabled. If this modification was reasonably foreseeable, the manufacturer has a duty to warn of the danger of unintended uses of a product if those uses are reasonably foreseeable.
