Torts Flashcards
Standard of care
A medical doctor is liable to a patient only when the evidence shows that he has failed to comply with the standard of care for the relevant specialty and medical community and his failure causes the patient’s injury. In assessing whether a doctor has met this test, most courts compare the doctor’s conduct to national standards rather than those that prevail in his or her locality. Because the standard requires assessment of typical doctor conduct, expert testimony is almost invariably necessary to establish a doctor’s negligence. See RICHARD A.EPSTEIN,TORTS § 6.2
Defective product
One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused. . . .” RESTATEMENT (SECOND) OF TORTS § 402A (1965); see also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 (1998).
Products that fail to meet the producer’s own specifications are typically described as having a “manufacturing” defect. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 (1998). In the case of food products, the presence of a harmful ingredient is generally considered a manufacturing defect “if a reasonable consumer would not expect the food product to contain that ingredient.” Id. § 7. The herbal tea that the man consumed falls into the manufacturing defect category even though it is not a manufactured product in the traditional sense because a reasonable consumer would expect the herbal tea to be free of contamination when processed and packaged. Given the severe harm caused to consumers by the pesticide residue, its presence clearly rendered the product unreasonably dangerous. Thus, the processor selling tea with this defect would be liable in tort for resulting injuries.
Strictly liable
In order to recover for injuries sustained because of a manufacturing defect, a plaintiff need not show that the producer was negligent. A producer is strictly liable whenever “the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product . . . .” Id. § 2.
Implied warranty of merchantability
The man could also rely on the implied warranty of merchantability to establish the U.S. companies’ liability. Because the sale of the herbal tea by the producers is a sale of goods, it is governed by Article 2 of the Uniform Commercial Code. See UCC §§ 2-102, 2-105(1). The producers are “merchant(s)” with respect to those goods (see UCC § 2-104(1)), so the contract of sale included an implied warranty of merchantability. UCC § 2-314(1). (There is no evidence that this warranty was excluded or modified in any of the contracts under which those companies sold herbal tea. See UCC § 2-316.) To be merchantable, goods must, inter alia, be “fit for the ordinary purposes for which such goods are used.” UCC § 2-314(2)(c). Clearly, the contaminated herbal tea was not fit for the ordinary purpose for which the herbal tea is used. Thus, the producers breached the implied warranty of merchantability and are liable for that breach.
Warranty theory and SP liability theory
Under both warranty theory and strict products liability, the producers may not rely on the fact that the contamination took place before the herbal tea came into their hands to evade liability. In a warranty action, the only issue is whether the herbal tea was merchantable. How it came to be unmerchantable is irrelevant. In a strict products liability action, the issue is whether the product was defective. Thus, the man could recover against a producer of the herbal tea without proof of negligence if he could show that any given producer sold the product that caused his injury.
Product liability action
Like all tort plaintiffs, the plaintiff in a products liability action must establish that the defendant caused his injury. Had the man consumed only one brand of the herbal tea, causation might be established by showing the link between the tea’s toxicity and the man’s symptoms. However, the man drank the herbal tea produced by more than one producer, and he cannot link any particular defendant’s product to his injury.
There are several doctrines that permit the jury to find a defendant liable when the plaintiff cannot directly meet the causation requirement. However, none of these doctrines would help the man to establish causation here.
Market share liability
The “market share” liability doctrine permits the jury to apportion damages based on the market shares of manufacturers of a defective product. But virtually all courts have held that this doctrine is available only if the manufacturers’ defective products are fungible in relation to their capacity to cause harm. See Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980) (market theory applied; DES drug was fungible product manufactured by several companies using identical formula);Skipworth v. Lead Indus. Ass’n, 690 A.2d 169, 173 (Pa. 1997) (market-share liability doctrine did not apply in lead paint case; lead paint was produced using various formulas with different amounts of lead and so differed in potential toxicity). Here, the man cannot make such a showing; what caused the man’s injury was pesticide-contaminated herbal tea, and the facts specify that the contamination was not uniform. Some packages were heavily contaminated and some not at all. Thus, market-share liability is unavailable.
Alternative liability doctrine
The “alternative liability” doctrine permits a jury to find two defendants liable when each was negligent and either could have caused the plaintiff’s injuries. See Summers v. Tice, 199 P.2d 1 (Cal. 1948);RESTATEMENT (SECOND)OFTORTS §433B(3). Here, there are five defendants, and there is no evidence that any producer was negligent.
Joint venture doctrine
The “joint venture” or “joint enterprise” doctrine allows the jury to impute one defendant’s tortious conduct to other defendants who are engaged in a common project or enterprise and who have made an explicit or implied agreement to engage in tortious conduct. See EPSTEIN, supra, § 9.1. Here, however, there is no evidence that the producers had any control over the warehouses in which the pesticide contamination originated, let alone that they collaborated in tortious conduct.
Strict products liability
Strict products liability applies to all commercial sellers; even a retailer who had no control over the design and manufacture of a product may be found strictly liable if that retailer sells a defective product. Because the health-food store is a commercial seller, it may be found liable to the man for the defective herbal tea that the man purchased there. See RESTATEMENT (SECOND) OF TORTS § 402A.
