Elements of Negligence by yaoyufang


									What must the Plaintiff Prove? (The Prima Facie Case): Duty,
Breach, Cause and Harm

The Doctrine of Respondeat Superior:
   is negligent in the course of performing his duties?
   is on the job (both temporally and geographically)?
   And has a purpose to serve his employer by the challenged conduct?
   Rst 228 (d) if force is intentionally used by the servant against another, the use of
    force is not unexpectable by the master.
Ostensible Agency (R/S (Agency)
   Agency 229 - ∆ actions make ∏ reasonably believe + ∏ rely on this belief = liability
   Torts 429 – ∏ reasonably believes + Relies = liability
Non-Delegable Duties
Property Owner  different standards
Statutory Responsibility that can be delegated?
   Misfeasance – Everyone has a duty to conduct their own affairs in a way that does
    not pose an unreasonable risk of harm to someone else. They must, in short, behave
    as the average reasonable person with due regard for others.

   Nonfeasance – In general, there is no legal obligation for individuals to take
    affirmative steps to aid, assist, rescue or warn other people. In such cases, the duty
    element of negligence must be found elsewhere as follows:

The Common Law Exceptions
   1. P and D have a special relationship
   2. D caused the harm
   3. D created the risk
   4. D began the rescue
   5. D impeded the rescue attempts of another
   6. D promised to rescue
Contract Obligations
   1. Duty to a contracting party
   2. Duty to Third Parties to a Contract
   3. Public Utilities - Such entities are rarely found liable to third parties for failure to
    provide services.
Statutory Obligations
   1. Misfeasance – If one violates a statute in the course of one’s activity and thereby
    poses a risk to others, there is a duty of due care to obey the statute
 2. Non-feasance – To bring a cause of action under the statute, the court must
    interpret the statute as providing a private right of action.
 Duty to rescue
 Good Samaritan statute
 Duty to report child abuse
 Duty to report crime
 Limitations on Liability
Obligations that Arise in Favor of Third Parties – These obligations
typically arise from a relationship between the defendant and the injurer. Two areas
where the use of this doctrine is common are:
 1. Medical Warnings
            o Aids cases
 2. Service of Alcohol to Minors or to an Adult who is Impaired.
The Special Obligations of Land Owners and Occupiers
   1. Trespasser
   2. Licensees
  3. Invitees
  4. The Elimination of the Common Law Categories
  Open and obvious dangers
  Activities
  Child Trespassers
  Recreational Use of land
  Landlord Tenant
  Liability from harm outside the premises
  Criminal Activity
Duties of Government Entities -- the Obligation to Respect Civil Rights
Mis or nonfeasance?  Exception?  Contract?  Statute? Ministerial (Uhr) or
Discretionary  immunity
 Municipal Transport
 The 911 Call
 Other Custodial Relationships
 Educational Malpractice
 Official immunities
Duty Non-physical harm
   Emotional Harm
   Car crashes and Airplane crashes
   Airplane passengers
   Emotional distress of victims who realize they are doomed
   HIV Cases
   Windows
   Zone of danger rules
   Physical Manifestations
   Beyond the Family
   Unmarried Couples and emotional distress
BREACH - What degree of care did that duty require and did the defendant
meet it? What must the Plaintiff Prove? (The Prima Facie Case)

What is the Appropriate Level of Care?
The General Standard
   TARP
           o   Gender
           o   Mental Ability
           o   Superior attributes
           o   Children
           o   Emergency Doctrine – honest exercise of judgment
   C=MP
Applying the Standard to a Particular Case
   The Role of the Jury
   The Role of Custom
   The Role of Statutes
          o Proof Considerations, RIL
          o Medical Malpractice as a Special Case
                   Informed consent
          o Statutory purpose
          o Licensing
          o Compliance
Proof considerations
   Spoliation of evidence
   Automobile cases
CAUSE - Was the defendant’s negligence the factual and proximate cause of
the plaintiff’s injuries? Causal relationship between negligence and harm

Cause in Fact
In General -- But For the Defendant’s Negligence the
Plaintiff’s Harm Would not have happened.
   There are many “but for” causes.
   The defendant’s harm need only be one of them. It need not be the
    “chief” or “main or “actual” cause
   Probabilistic recovery for harm in the future – asbestos litigation
           o ∆ neg created risk that ∏ will suffer harm in the future?

   Circumstantial Evidence
           o Not proving a fact but a “counter fact”
           o Need to show that the surrounding circumstances were such
              that the “but for” statement was a correct statement of the
   Expert testimony – Sometimes experts are needed to appraise the
    surrounding circumstances.
           o Daubert Test

Loss of Chance Rule – If can’t prove probability of loss of life or
serious injury, can try to argue that plaintiff lost a chance at life or
avoidance of injury.

Multiple Defendants
   Lack of Knowledge re who caused the harm
   Inability to apportion the harm
   Market share Liability
            o Asbestos
            o Lead paint
            o Childhood vaccines
            o Blood clotting factors
            o Paint shop products
            o The statute of repose and the statute of limitations
   Absent tortfeasors
   Immune tortfeasors
   Non-delegable duty – liable but entitled to indemnity
Proximate Cause
Recurring Cases
Unexpected Type of Harm
   Eggshell plaintiffs – Was the plaintiff injured because he or she was especially
    sensitive or vulnerable to this kind of injury?
            o Suicide – increasingly willing to allow recoveries when ∏ kills
                themselves. Wells - Cant recover unless it is an irresistible impulse
            o Emotional distress – ordinarily sensitive or reasonably constituted
            o Secondary harm – liable for medical aggravation - original + incremental
   Directness – Was the defendant’s negligence the direct cause of the plaintiff’s harm?
   Foreseeability – Is the plaintiff’s harm a foreseeable result of the defendant’s
    negligence? Foreseeable in what sense? How specifically should we describe the P’s

Unexpected Manner of Harm
   Consider the number and type of the intervening causes.
   Are they human acts?
    negligent acts?
   criminal acts?
    foreseeable acts?
    is the harm distant in space and time? etc.

Unexpected Plaintiff
Was the plaintiff within the zone of the risk that was created by the defendant’s
 Rescue – danger invites rescue
 Time – arguments both ways: long time = outside the range of apprehension
 Distance – liability likely to be imposed
 Fire – NY  limited to original structure

Affirmative Defenses
Is there a Defensive Case?

Was the plaintiff at fault?
   Contributory negligence
           o Exceptions
                   Recklessness or willful conduct
                   Last clear chance
                   Imputation of contributory negligence
                   Juries role
   Comparative negligence
           o Pure or modified version?
           o What is to be compared?
           o Reckless conduct
           o Interplay of intent and negligence
           o Should fault of multiple defendants be combined
           o Should the judgments be setoff against each other
           o What if the defendant is insolvent
           o Mulit-party disputes in which all do not settle
           o Should the neg of one ∏ be imputed against another ∏
                   Loss of consortium
                   Wrongful death
                   Bystander emotional distress
                   Parent-child
           o Should Jurors be told the consequences of their verdict
           o Other changes wrought by comparative negligence
                   RIL
                   Rescue
                   The drinking ∏ - both seller and ∏ will be deterred from their
                   Subsequent harm
                   Economic cases
           o The impact of chronology

Did the plaintiff assume the risk?
   Express Assumption of the Risk
           o Express agreements
           o Drafting the contract
           o Post-injury releases
   Implied Assumption of the Risk
           o Express – compatible with comparative negligence
           o Primary – compatible with comparative negligence
           o Secondary – not compatible
           o Participants -
           o  Baseball spectators
           o  Legislation
           o  Swimming pools
           o  Minority view – maintains assumption of the risk
           o  Firefighter rule – compensated for their assumption of the risk
                   Exception for volunteers
   Avoidable consequences – failure to get medical attention
Intentional Torts - ∆ does wrong by intending harm to another person.
   Prima Facie Case
           o Battery
                   Intent
                   Offensive Contact
           o Assault
                   Intent
                   Apprehension Of Harm
           o False Imprisonment
           o Intentional Infliction of Emotional Distress
           o Government Torts under the Civil Rights Act

   Defenses
            o *1. Consent Hart v. Geysel
            o *2. Self Defense Courvosier v. Raymond
            o 3. Defense of Another
            o *4. Defense of Property Katko v. Briney
   Privileges
            o Lawful Arrest or Detention
            o *2. Private Necessity Vincent v. Lake Erie
            o Public Necessity - Surroco v Geary
Strict Liability
Prima Facie Case: What, in addition to cause, is the plaintiff expected to
prove? In the cases we have read so far, the following was required of the

       Under the
       rule in:            The plaintiff must prove:
       Rylands             That the harm was caused by the fact that
                           the defendant had brought something on the
                           land which would do damage if it escaped.
       Sullivan            That the harm was the result of a collision
                           that was caused by the intentional blasting
                           activities of the defendant.

Five Justifications for Strict Liability (from King, A Goals-Oriented Approach
to Strict Tort Liability, p.525)
1. Loss Spreading – Individual unable to bear catastrophic costs of an accident 
policy: to spread those costs to others similarly situated.
2. Loss Avoidance–Is the strict liability standard more efficient then negligence
3. Loss Allocation - Internalization  more efficient decisions about how much of an
activity to engage in.
4. Administrative Efficiency simplifying proof problems and providing more
5. Fairness – corrective justice  Strict liability for non reciprocal risks

Corrective Justice Rationales For Strict Liability
Rabin’s Notion of Relational Responsibility –I have an obligation to you to avoid
posing a risk on to you. Goal: a just resolution of the controversy
Enterprise Liability – Pay the freight for money making activities
Fletcher’s Notion of Reciprocity – Pay for non-reciprocal risk.
Wells, Corrective Justice as Reflecting Community Norms of Relational
Responsibility - Jury - uses its common knowledge to determine the bounds of fair
compensation in the same way that it determines TARP

The Relative Efficiency of Negligence and Strict Liability
1. General Efficiency
Negligence - It is efficient because actors have an incentive to take cost effective
precautions rather than pay for the larger accident costs.
Strict Liability - It is efficient because the defendant has an incentive to take cost
effective precautions rather than pay for the larger accident costs. Does not over deter

Efficiency Problems with negligence:
   Cases where the accident can be avoided by reducing the level of activity
   Cases where contributory negligence is a factor

Strict Liability - In general, strict liability does not have this problem because I pay for
all accidents I cause whether or not I could have cost effectively avoided them. Thus, if I
decide to drive I have to figure in the cost of second party injuries.

The strict liability (CCA) standard has a number of advantages:
        Assumption of the risk defense fixes problem of contributory negligence
        It forces potential injuries to make efficient decisions about optimal levels of
        It decentralizes decisions about cost effective accident avoidance.
        It makes liability decisions at a more general level. For example, a court does
             not need to decide that some specific employee of the defendant did
             something wrong but only that the defendant, as a whole, was in a better
             position to assess and manage the risk.
        It allows insurers and other third parties who actually pay liability judgments to
             make better decisions about risk management.

Coase theorem: In a situation where there are no information costs or transaction
costs, it does not matter who bears the liability.
Calabresi’s Proposal: Transaction costs and information costs are not zero.
Therefore, we should place liability on the person who, given these costs is the Cheapest
Cost avoider.

Reverse Learned Hand Test:

§ 520 *Abnormally* Dangerous Activities – Look for strict liability when: a
lot of danger M is very high and P is very high BUT it cant be prevented

Balancing Test:
       (a) Magnitude-
       (b) Probability - likelihood that the harm that results from it will be great;
       (c) Cost - inability to eliminate the risk by the exercise of reasonable care;

        (d) Common - extent to which the activity is not a matter of common usage;
        (e) Appropriate - inappropriateness of the activity to the place
        (f) Useful - value to the community is outweighed by its dangerous attributes.
Products Liability
Prima facie case:
1) Defective condition –
         a. Ordinary Use  defect caused injury
     Design
            a. CE, EPD – RAD
     manufacturing
     Inadequate warning
 2) Unreasonably dangerous
      Barker – Five Factors
      Comacho v. Honda – Seven Factors
3) The seller is engaged in the business of selling such a product,
4) It is expected to and does reach the user or consumer without substantial modification
5) Harm – physical harm to person or property
6) Proximate Cause + But for

MacPherson v. Buick Motor Co., p. 540
   •   Duty - Abolition of the privity requirement means that Buick owed a duty to the
       retail purchaser.
   •   Breach - Due care requires an assembler and manufacturer of automobiles to
       inspect parts purchased from others.

Restatement 2d, Section 402A – Products Liability
(1) Defective condition + unreasonably dangerous  liable for physical harm IF
    • in the business of selling and
    • (b) It is expected to and reaches the user/consumer without substantial change in
        the condition
(2) The rule stated in Subsection (1) applies although
        • (a) exercise of reasonable care
        • (b) seller did not sell directly to ∏
1. Sale of a product.
        • It need not be a direct sale. The plaintiff may end up suing anyone in the
            chain of distribution. See, Welge v. Planter’s Peanuts and Comment L.

2. In a defective condition (Overlap between this and unreasonably dangerous, only
matters when we have a defect – Knife was to sharp  EPD). CE – knives are expected
to be sharp).
         A product can be defective in any of three ways: It doesn’t conform to the
            manufacturer’s specifications; it is poorly designed in an unsafe way; and it
            fails to carry a warning to the consumer about how to use the product safely.

3. Unreasonably dangerous
          Comment I says the question of unreasonably dangerous is one of consumer
           expectations. A cost benefit test should not be used.

4. Physical Harm
        Not only would this requirement seem to rule out claims for emotional harm,
           it also rules out what are essentially warranty claims. I buy a car and its
           defect is that the steering fluid leaks. Fortunately, I have no accident but I
           want to recover for the repairs. This is a warranty claim not a 402A claim.

5. Defendant is in the business of selling
        If you sell your car as a used car, you are not covered by 402A. The seller
          must be in business.

6. No expectation of post-sale modifications
        This covers the kind of case where I sell you an incomplete or not assembled
          product. For example, I sell you an engine for installation on a motor scooter.
          The presumption is that you will inspect the final product before use.

Requirements 5 and 6 should not be read too broadly.
CAVEAT: The Institute expresses no opinion as to whether the rules stated in this
Section may not apply:
(1) to harm to persons other than users or consumers
(2) to the seller of a product expected to be processed or otherwise substantially changed
before it reaches the user or consumer; or
(3) to the seller of a component part of a product to be assembled.

Justification for the strict liability: The seller, by marketing his product for use and
consumption, has undertaken and assumed a special responsibility toward any
member of the consuming public who may be injured by it; that the public has the right
to and does expect, in the case of products which it needs and for which it is forced to
rely upon the seller, that reputable sellers will stand behind their goods
Public policy demands that the burden of accidental injuries caused by products intended
for consumption be placed upon those who market them,
         Treated as a cost of production against which liability insurance can be
         Consumer of such products is entitled to the maximum of protection at the
            hands of someone
         Proper persons to afford protection are those who market the products.

Important Comments
   • G. Defective condition - The rule stated in this Section applies only where the
      product is, at the time it leaves the seller's hands, in a condition not contemplated
      by the ultimate consumer, which will be unreasonably dangerous to him
          • Burden of proof: Thus the plaintiff must show that it is more likely than
              not that the defect was present when it left the manufacturer’s possession
       •    Daniels v. GNB, Inc. p. 558 – battery in fine working order when he left
            the garage.
•   H. Abnormal Handling 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. Where, however, he has reason to anticipate that
    danger may be required to give adequate warning of the danger (see Comment j),
    no warning  defective condition.
•   I. Unreasonably dangerous – Consumer expectations: The article sold must be
    dangerous to an extent beyond that which would be contemplated by the ordinary
    consumer who purchases it, with the ordinary knowledge common to the
    community as to its characteristics.
        • Thus, the question of unreasonably dangerous is one of consumer
            expectations. A cost benefit test should not be used. Cronin v. J. B. Olsen
            (p. 558)
•   j. Directions or warning. prevent unreasonably dangerous may be required to
    give directions or warning,
        • The seller may reasonably assume that those with common allergies.
            Exception: substantial number of the population are allergic, danger is not
            generally known or if know would reasonably not expect to find in the
            product  required warning If he has knowledge or should have
        • Likewise in the case of poisonous drugs, or those unduly dangerous for
            other reasons, warning as to use may be required.
        • But a seller is not required to warn when danger is created only by
            consumption of excessive quantity. When the danger, or potentiality of
            danger, is generally known and recognized.
        • Where warning is given, the seller may reasonably assume that it will be
            read and heeded; and a product bearing such a warning, which is safe for
            use if it is followed, is not in defective condition, nor is it unreasonably
•   k. Unavoidably unsafe products. There are some products which, in the present
    state of human knowledge, are quite incapable of being made safe for their
    intended and ordinary use. If seller has undertaken to supply the public with an
    apparently useful and desirable product, attended with a known but apparently
    reasonable risk  not strictly liable.
        • Such a product, properly prepared, and accompanied by proper directions
            and warning, is not defective, nor is it unreasonably dangerous.
        • The same is true of many other drugs, vaccines, and the like, new or
            experimental drugs
        • Such experience as there is justifies the marketing and use of the drug
            notwithstanding a medically recognizable risk. The seller of such products
            (qualification: properly prepared and marketed, and proper warning is
            given)  is not to be held to strict liability.
        • Obrien – given the dangers the product should not be marketed in the first
            place even though no RAD. This is a decision for the jury.
   •   L. User or consumer - It need not be a direct sale. The plaintiff may end up
       suing anyone in the chain of distribution. See, Welge v. Planter’s Peanuts and
       Comment L.
   •   N. Contributory negligence – is not a defense, however, assumption of the risk
       is. I need to know the test for assumption of the risk HERE!

Rst 3rd § 1 Products liability
   •   Defective when - at the time of sale:
          • Manufacturing defect
          • Defective in design
          • Defective because of inadequate instructions or warnings.
                           Elements of a Case Under 402A

Manufacturing Defect - A product has a manufacturing defect when
the individual product does not conform to the manufacturer’s design for that product.
    • Escola v. Coca Cola Bottling Co., p. 546 – Proof issues: Res Ipsa – court is lax
        on exclusive control (timing issues – when did the defect occur?)
    • MacPherson – No privity required
    • Daniels – Must be defective at time of sale

Restatement 3rd policy rationales for strict liability in manufacturing defects:
    Tort law creates safety incentives
         a. strict liability encourages greater investment in product safety than does a
             negligence standard
         b. Discourages the consumption of defective products by causing the
             purchase price of products to reflect, more than would a rule of
             negligence, the costs of defects.
         c. Eliminating the issue of manufacturer fault from plaintiff's case, strict
             liability reduces the transaction costs involved in litigating that issue.
    Fairness factors
         a. Proof problems even if manufacturer is negligent  strict liability = RIL
         b. Products that malfunction due to manufacturing defects disappoint
             reasonable expectations of product performance.
         c. quality control  they know how many defective products will reach the
             market  manufacturing process entails deliberation
         d. Consumers who benefit from products should share the burden of
             unavoidable injury costs
         e. Cost Spreading - Product sellers are in a better position than are
             individual users and consumers to insure against such losses.
         f. Creates incentives for them to deal only with reputable, financially
             responsible manufacturers and distributors
Design Defect - foreseeable risks of harm could have been reduced or
avoided by RAD by seller or distributor, or a predecessor in the commercial chain, and
 the product is not reasonably safe;

                                              Design Defects

                California Approach (RS 2d)                    Banks (GA), Restatement 3rd
                                                               P must redesign the product


Prima Facie Case - Barker v. Lull (p. 558-9): Two Prong test - CA
Consumer expectation test: Should only be used if the circumstances permit a
inference that the products performance did not meet the minimum safety standards of its
ordinary users. (Morton – Asbestos)

Fundamental difference: The circumstances of the products failure permit an inference
that the products design performed below the legitimate, commonly accepted minimum
safety assumptions of its ordinary consumers.
Prima Facie Case – product may be found defective if:
     Failed to perform as safely as an ordinary consumer would expect
     Defect existed when it was sold
     Defect was Legal Cause of harm
     Used in reasonably forseeable manner
     Applied in extreme circumstances: Performs “so unsafely”  the defect is
        apparent to common reason, experience, and understanding of its ordinary
        consumer (See soule)
     Policy: Consumer plan their conduct around dangers that are understood to them:
        When there are reasonably accepted minimum safety standards products should
        conform to them so that consumer can plan their behavior accordingly.
• Pruitt – airbags not within ordinary experience of juror  no CE test
• Campbell – public trans a matter of common experience
• Cronin - A bakery truck that was equipped with shelves for baked goods
• Soule - Not every case can be resolved by application of the CE test. Where the
    matter is outside the ordinary judgment of the consumer or the jury, then expert
    testimony must be offered as to EPD.
        • In Soule, the consumer would have like to use CE as a sword in order to avoid
            the challenges of proving EPD.
       •    The court said that CE was not available because consumers generally do not
            have firm expectations about crashworthiness of wheels.
•   As a sword for the plaintiff - The product was defective because it did not meet
    consumer expectations (CE)
        • Soule – Plaintiff could not use as a sword because consumers do not have
            expectations about technical auto design issues
        • Campbell: CE are relevant with respect to a grab rail for standing passengers
            on a bus.
        • Pruitt: (airbag that deployed in low impact crash) CE not relevant to
            question of whether airbag should deploy on low impact, though might have
            been relevant if no impact
        • Morton: CE relevant to use of dangerous asbestos in building insulation .
•   As a shield for the defendant - The product met consumer expectations and
    therefore it was not defective. (CE)
        • Camacho, defendant cannot use CE as a shield against the consumer’s design
            claims where design is unreasonably dangerous
        • Luque, Note 2,p 579 Should defendant be able to use obvious nature of the
            problem as a shield to the unreasonableness of its lawn mower design?
                • No – accident forseeable, people assume blade will be protected

Camacho: Total reliance upon the hypothetical ordinary consumer’s contemplation of an
obvious danger diverts the appropriate focus and may thereby result in a finding that a
product is not defective even though the product may easily have been designed to be
much safer at little added expense and no impairment of utility.

Total reliance on the CE test diverts the appropriate focus and can lead to a finding that a
product is not defective even though the product may easily have been designed to be
much safer at little added expense. Accordingly, the EPD test should be applied. (See
Why we should apply the EDP test:
 Technical information to determine if it can be made safer
 Manufacturer has more information about the efficacy of potential safety measures
 Policy: should encourage manufactures to take advantage of testing data

Excessive preventable danger Could the defective aspect be cost effectively
eliminated (you can consider the design). Does the risk of the defect outweigh the
benefits? A product may alternatively be found defective in design if the plaintiff
demonstrates that the product's design proximately caused his injury and the defendant
fails to establish, in light of the relevant factors, that, on balance, the benefits of the
challenged design outweigh the risk of danger inherent in such design.
• The plaintiff must show that some feature of the product was unsafe and caused his
• Burden of proof: switches to the defendant to show that this feature could not be
    cost effectively eliminated. (See Barker)
         • Compare with Wilson v. Piper – Burden of proof is on the plaintiff to show
             that there is an RAD (Product has to be as good and as cheap to produce)
Barker EPD is very different from Rst 3rd RAD.

Barker – Five Factors – Risk/benefit test for the condition of the product
• the gravity of the danger posed by the challenged design,
• the likelihood that such danger would occur,
• the mechanical feasibility of a safer alternative design,
• the financial cost of an improved design, and
• the adverse consequences to the product and to the consumer that would result from
   an alternative design.

Camacho- is the design unreasonably dangerous?
Factors governing a finding of unreasonably dangerous
• The usefulness of the product
• The risk it poses
• The availability of substitutes
• The feasibility of safer design
• The availability of user precautions
• The knowledge a consumer would have of the risks
• The ability of the defendant to spread the costs of accidents.

The question of assumption of the risk (unreasonably proceeded to encounter a known
danger) is not precluded by the danger being open and obvious.

If it is unreasonably dangerous, what is the effect of the CE test?  the defendant can not
use it as a shield.
• If the defect is open and obvious  does not defeat a design defect claim
• Is it “part of the charm” of riding a motor cycle?  Consumer sovereignty
The question is can the defendant still claim these two defenses? I don’t think that
they can.
Dissent in Camocho: comment I should be the test. Unreasonably dangerous –
Consumer expectations

Crashworthiness doctrine (not unique to products liability) – What is the
responsibility of someone who manufactures cars? Cars are not meant to be crashed,
however, crashes are forseeable  Reasonable care demand that they should make
reasonable trade offs to protect people in a crash.
        Duty - encompassed designing a product reasonably fit and safe for its
           intended use.
        Could the inherent dangerousness be reasonably reduced? (Camacho)
        What were the circumstances – hit by a big truck
Can we apply this to other things then cars?

Reasonable Alternative Design – The Products
Restatement hinges design liability on the existence of a reasonable alternative design.
This standard comes from Banks v. ICI Americas, where the Georgia Court described it
as follows: “The essential inquiry is whether the design chosen was a reasonable one
from among the feasible choices of which the manufacturer was aware or should have
been aware.”
         Goal: focus is on the nature of the product not the ∏ or ∆’s actions. The
           nature of a products use, whether obviously dangerous or not does not
           preclude a claim of and design defect that makes it unreasonably unsafe.
         Policy: Duty of reasonable care for and to minimize risks for forseeable
           accidents. Reasonable, cost effective safety in the foreseeable use of the

A product is defective (therefore not reasonably safe) if there are reasonable alternative
designs that would have reduced the forseeable risk of harm. (See products restatement
2). Ask the questions in this order: 1) What are the design choices? 2) Are they
feasible? 3) Why must the choice be the safest one?

Prima Facie Case: See Banks + Products rest 2
   There were other reasonable designs
   That would have reduced the forseeable risk
   The manufacturer was or should have been aware
   Cause
   Harm

            o Magnitude of forseeable risk
            o More cost effective options of the market (easy case).
            o Instructions and warnings accompanying the product
            o Nature and strength of consumer expectations
                   Including those created by marketing
            o Cost benefit analysis
                   Impact on cost
                   Longevity
                   Maintenance
                   Repair
                   Esthetics
                   Range of consumer choice
                   Not factors: corporate earnings or reduced employment

Reasonable Alternative Design –
           Focus on the designer, (rather then the action of the plaintiff) ie. Plaintiff
            must prove that there is a safer design and the defendant should have
            known about it
           Only extreme designs that should not have been made at all are actionable.
Dyson          Hard top car                No           RAD must be only comparable
Brittner      3 wheel all-terrain vehicle                 Allowed to submit evidence for
              overturned                                  similar vehicles to show that it
                                                          was likely the owners fault. Not
                                                          allowed to submit evidence on
                                                          other activites to show that it is
                                                          not unreasonably dangerous.
Baughn        Manufacturer of Mini trail     No           Rejected obrien – could not be
(rejects      bikes                                       held liable for injuries suffered
Obrien)                                                   when bikes were used on public
                                                          road despite explicit warnings.

Obrien v Minuskin – Above ground swimming pool
Recourse to a to a unique design is more defensible when there is no RAD, however,

Holding: Utility = relative need for the product. Some products that have no RAD are
still so dangerous and serve such little purpose that a manufacturer should still bare the
cost of injuries for foreseeable users.

Consumer Sovereignty -
Dreisonstok v. Volkswagen – CE as a shield is allowed: products liability should not
put itself in the position to second guess consumers
 Peculiar design is why it was purchased  you cant claim the design was
    unreasonably dangerous.
 Design would have been perceivable to anyone purchasing the product
Balancing test: has the manufacturer used ordinary care in designing a car, which, giving
consideration to the market purposes and utility of the vehicle did no involve
unreasonable risk of injury to occupants within the range of its “intended use”
 Usefulness - was vouched for by popularity of the design
 No evidence of improved design that would keep it consistent with what made the
    design desirable.
 Price: change in price would make it not marketable
 Test is: if it can be changed at “no substantial price”

Restatement 3rd –                A product 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;
In contrast to manufacturing defects, design defects and defects based on inadequate
instructions or warnings are predicated on a different concept of responsibility. In the
first place, such defects cannot be determined by reference to the manufacturer's own
design or marketing standards because those standards are the very ones that plaintiffs
attack as unreasonable.
 Balancing Test is needed:
             o Products are not generically defective merely because they are dangerous.
             o Many product-related accident costs can be eliminated only by excessively
                sacrificing product features that make products useful and desirable.
             o trade-offs need to be considered in determining whether accident costs are
                more fairly and efficiently borne by accident victims, on the one hand, or,
                on the other hand, by consumers
 Design defect liability and Inadequate warning liability = achieve the same goals as
     negligence liability
             o The emphasis is on creating incentives for manufacturers to achieve
                optimal levels of safety in designing and marketing products.
                      Optimal level benefits society most. Too much safety is bad.
                              I thought that strict liability did not over-deter?
             o Fairness perspective – careful users should not have to subsidize un-
                careful users.
Differences between RAD, inadequate warning and Manufacturing defect
 Consumer expectations - more difficult to discern than manufacturing defect.
 Deliberation element – not the same in setting appropriate levels of design safety
     (compared with quality control)
             o Reasonably designed product - still carries with it elements of risk that
                must be protected against by the user or consumer since some risks cannot
                be designed out of the product at reasonable cost. (In manufacturing they
                are accepting a certain amount of error while in design they cant get rid of
                all the error).
Fair and Efficient liability system requires the balancing of risks and benefits in
judging product design and marketing must be done in light of the knowledge of risks
and risk-avoidance techniques reasonably attainable at the time of distribution.
 To hold a manufacturer liable for a risk that was not foreseeable when the product
     was marketed might foster increased manufacturer investment in safety. But such
     investment by definition would be a matter of guesswork.
 Manufactures ask to be judged by a normative behavior standard to which it is
     reasonably possible for manufacturers to conform.

Price v Blain – Proximate Cause: Bush Mask
The plaintiff must show that the design defect in the product was a substantial factor in
causing his injury. Moreover, we recognize that if a tortfeasor inflicts injuries on a
plaintiff that are identical to what the plaintiff would have received notwithstanding some
abstract defect in the involved product, the manufacturer may be absolved of liability;
however, if the product defect was a substantial factor in producing the injury, thereby
constituting a legal cause of the injury, the manufacturer will be held liable
   • The plaintiff must show both cause in fact and proximate cause.
   • The causal relationship must exist between the defect and the injury.
   • Products liability uses the same causal analyses that are used in negligence cases.
   • Manufacturer has a duty to anticipate unintended uses

Important exception: if the whole point of what makes the product defective was that it
failed to guard against this type of injury.
Rst 3rd § 15 General Rule Governing Causal Connection Between Product
Defect and Harm: Whether a product defect caused harm to persons or property is
determined by the prevailing rules and principles governing causation in tort.
Inadequate Warnings – Design Defect
Inadequate warnings  defective if the foreseeable risks of harm posed by the product
could have been reduced or avoided by the provision of reasonable warnings + the
omission renders the product not reasonably safe.
   • Restatement 2nd –Comment M. Warning is required if the seller “has
       knowledge, or by application of reasonable, developed human skill should have
       knowledge…” at time of sale.
   • Restatement 3rd, - Warning is required for “foreseeable” harm at time of sale.
           • Comment M
           • Other Obligations: “Duty to perform reasonable testing prior to marketing
              a product…”
           • Continuing duty to warn (at least purchasers) of risks discovered following
              the sale of the product.

Prima Facie Case:
Foreseeable risk reduced or avoided by reasonable warnings
Omission renders the product not reasonably safe
Manufacturer had knowledge or should have known (Rst 2nd)

Issue: What are the risks that must be disclosed under a Products Liability claim?

Restatement 2d; Reporters    Restatement 3d:
Note to Section 2, Comment M Section 2(c)

Warning is required if the   Must warn of “foreseeable
seller “has knowledge, or by risks of harm.”
application of reasonable,
developed human skill should
have knowledge…”

Rst 2nd - In order to prevent the product from being unreasonably dangerous, the seller
may be required to give directions or warning, on the container, as to its use
Restatement 3rd - when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of reasonable instructions or warnings

1. Necessity – When is a warning necessary?
   Danger Open and obvious  no one would be unclear  Not Necessary
   Standard: is are there people that who would be unclear about the danger
   C<MP  necessary (Risk-Utility Balancing test)
        o Label Clutter: Effect of too many warnings: confusion, don’t take each
           seriously (reduces the efficiency of each warning)
                We want to convey information (all about communication) therefore
                   when we judge warnings we should judge them from this standpoint
   Audience is relevant issue – Standard could be interpreted as are there people among
    who the product is marketed to, or who use the product, who would be unclear about
    the danger?
        o Inattentive
        o Insufficiently motivated

Moran v Faberge – Balancing Test: Weighs in favor of manufacturer warning of
latent (flammable) dangers  liable even for unforeseeable injuries if no proper warning.

2. Adequacy – What is necessary for the warning to be adequate?
Pittman v. Upjohn
    1. Indicate the scope of the danger (blade will come falling off)
    2. extent and seriousness of the harm
    3. The physical aspects - adequate to properly communicate the warning
           • Size of type
           • Language
           • Addition of colors and/or pictures
           • Placement (box or product)
           • Specificity – how much should be communicated
Campos          Migrant workers        Yes       Migrant workers likely to use 
                                                 required pictorials

        4. Consequences of failure to heed the warning where appropriate
        5. Appropriate means to convey the warning.

3. Relation to Design Defects – When will an adequate warning
render an otherwise defective product safe?
    •   Unsafe feature + NO defect because of consumer sovereignty: should there be a
        warning to buyers? Yes!
    •   Adequate warning + user is injured: ∏ be able to sue for a design defect? Yes!
        See Obrien – warning on pool did not make it free of defect because it was so
        dangerous and provided little benefit.

There is a crucial distinction between:
            o Warnings against lapses of attention (e.g. Keep your eye on the ball at all
               times) and
            o Warnings that identify hidden hazards or give instructions for safe use.
                     Lawn mower case – open and obvious
Question about HANSEN, Note 9 – Warning can be one factor in the
balancing test of whether a product us unreasonably dangerous.
    • The defendant makes a household cleaner with dangerous acid
    • Warns people to use rubber gloves.
    • Plaintiff uses gloves but there is a pinhole in glove and acid seeps through

QUESTION: What two issues are open to the plaintiff despite the presence of a
warning? CE and EPD

4. Causation – What causation issues are raised with a warning?
   •     Cause in fact – The plaintiff is helped by the “read and heed” presumption
            • Presumption that they read and headed the warning – if it was missing
                 it is assumed that they would have read it.
   •     Proximate Cause – Is the injury a foreseeable result of the lack of a warning?
         Typically these cases involve misuses of a product as intervening causes.
            • Binakonsky – drunk driver hit tree: court they could still maintain an
                action for crashworthiness of accident.
            • Lugo – boy threw voltron shield in kids face. Court said this kind of
                misuse was entirely foreseeable  should be warning
            • Briscoe – teenager throwing drain cleaner at another teenager (Note 10).
                Criminal act  intervening cause: no need to warn.

5. Addressee – To whom should the warning go?
   •  Prescription drugs and prosthetic implants: warning to the physician as learned
      intermediary are sufficient to warn the ultimate user of the product. Edwards v.
      Basel Pharmaceuticals (Defendant shows 1. Detailed warning to doctor 2. Some
      warning to user) Policy: doctors are more capable.
          • Exceptions: 1. Mass immunizations and 2. Cases where there is an FDA
             requirement to warn the consumer. 3. Advertising
Johnson       ∏ - hurt by anti        no         Warning: shut off pilot lite. ∏ did not
              roach fogger            liability read. Still found adequate.

Martin          Warning with drug      No        Court found no question for the jury
                reserpine              liability Adequacy usually a question of fact.
                                                 However, in clear cases it can be a
                                                 question of law.
Heeding                                          Party responsible must show that the
presumption                                      user would not have heeded an adequate

                                                 Policy – justified because it would
                                                 operate as powerful incentive to
Gen Motors       ∏ contended not        No liab   Court rejected heeding presumption
v Saenz          adequately warned
                 about danger of                  Court found no reason to conclude that
                 Overloading a truck              if the wording had been better the
                                                  accident would not have happened.
Ragans           Hair product           Yes       Words failed to warn of dangers
                 explosion                        consequences of not following

                                                  Decision may be explained by the fact
                                                  that the consequences were much more
                                                  extreme then the ∏ might have
                                                  expected. The ∆ was in a better position
                                                  to know the potential for injury.
Cotton           ∏ hurt when            No        Labels adequate: more info dilutes
                 propane tanks                    effectiveness of the warning
                 exploded on the job
                 site exploded

Post Sale Warnings
What is the standard for judging the manufacturer’s/sellers
knowledge at the time of sale?
     Restatement 2nd –Comment M. Warning is required if the seller “has
             knowledge, or by application of reasonable, developed human skill should
             have knowledge…” at time of sale.
            Restatement 3rd, - Warning is required for “foreseeable” harm at time of
                    o Comment M
                    o Other Obligations: “Duty to perform reasonable testing prior to
                      marketing a product…”
                    o Continuing duty to warn (at least purchasers) of risks discovered
                      following the sale of the product.

Standards for Judging Manufacturer’s Knowledge (can all of these
be applied equally)
1. D knew of the hazard. Rst 3rd (foreseeable?)
2. D knew or should have known. Rst 2nd
3. It was “state of the art” knowledge.
4 The hazard was knowable to experts at the time. After Vassallo
5. Knowledge of all risks is presumed. Before Vassllo
When warnings must be given after the sale?
Lovick v. Wil-Rich Note 5, p. 602 - Holding: There is a continuing duty to
warn of dangers discovered after the sale.

Restatement 3d, § 10 provides for a post sale warning when:
        (1) the seller knows or reasonably should know that the product poses a
         substantial risk of harm
        (2) those who would benefit from the warning can be identified and are likely
         unaware of the risk;
        (3) a warning can effectively be communicated to and acted upon by
        (4) that the "risk of harm is sufficiently great to justify the burden of
         providing a warning."
Products Liability Defenses
  1. Defenses
        1. Based on Plaintiff’s Conduct
               a) Comment N – Contributory negligence is not a defense for
                   products liability. Assumption of the risk.
               b) Daly v. General Motors (CA) – merger with contributory
                   negligence. Was the plaintiff contributorily negligent? Did they
                   assume the risk?
                       1. Comment I distinguish between failing to find the defect
                          and finding and proceeding anyways
                       2. Daily straitforward: TARP would not stick their head under
                          a dump truck
                       3. Ohio – dump truck – failed to discover  not neglient
               c) Sanchez v. General Motors
                       1. Sanchez – dump truck: it wasn’t a failure to discover, it was
                          just stupid. (No difference between Sanchez and Ohio
        2. Implied Assumption of the Risk
               a) Under Comment N – a complete bar to a products liability action.
                       1. ∏ knew of the defect and voluntarily proceed
               b) Under Daly and Sanchez – part of the apportionment scheme
        3. Express Assumption of the Risk
               a) Courts are divided. (Note 9)
                       1. Compare Westlye
                               1. Express assumption of the risk would bar ∏
                                   negligence action but not strict liability claim for
                                   the failure of ski boots.
                               2. Policy – Prevent manufacturer from defining the
                                   scope of their responsibility for harm caused by
                                   products (regulatory effect). Allowing defense of
                                   express assumption of the risk overruled this.
                       2. with Mohney
                               1. Release barred a strict liability claim
                               2. Policy - Since strict liability shows a lesser standard
                                   of culpability it stands to reason that if a ∏ can
                                   waive a negligence claim (by assuming the risk) he
                                   can also waive a strict liability claim.
        4. Disclaimers
               a) Comment M - Action is not affected by any disclaimer or other
  2. Reduction in Damages due to 3rd Party’s Conduct Enhanced Injuries
     Zuern v. Ford Motor Co.
           • ∏ is blameless
           • ∆ vehicle allowed enhanced injuries in crash
           • Third party is drunk driver
              •   Jury – Assign responsibility to drunk driver (70%) and Ford (30%)

   3. Plaintiff’s Conduct as it affects the plaintiff’s prima facie case.
                  a) Proximate Cause - the ∆ argues not within the zone of the risk of
                     the defect that the ∏ would using the product in the way that they
                  b) Ordinary Use 402A Comment h, not in a defective condition when
                     it is safe for normal handling and consumption  no liability
                     when the ∏ uses the product in an unusual way
                          1. Hughes v. Magic Chef
                                  o Plaintiff: the stove was unreasonably dangerous.
                                  o Defendant: Plaintiff misused the product when he
                                      “lit” the burner himself.
                                            Ordinary use was part of the plaintiff’s case
                                            Court also held that this use was, in fact,
                  c) User Modifications - Prima Facie Case
                          1. Jones v. Ryobi - The plaintiff’s prima facie case dies on
                              the “defective condition when sold” requirement.”
                          2. There was no contributory negligence on the part of the
                              plaintiff because she did not remove the safety equipment
                              and she was required by her employer to operate the
                              machine without it.
                          3. Nevertheless the machine had been made less safe and the
                              court was willing to say that the machine was not defective
                              before the modification was made. Therefore, the
                              plaintiff’s prima facie case dies on the “defective condition
                              when sold” requirement.”

Plaintiff’s Conduct - ARE THERE TWO APPROACHES? Burden of proof
on the defendant to plead or prove that the plaintiff is negligent.
    • Comment N (Bowling v. Heil – dump truck case) Either the plaintiff knew about
        the defect or he did not.
            • Contributory negligence - Failure to discover the defect – No Defense
            • Assumption of risk - Proceed in face of known defect -- Defense
    • Daly v. General Motors (Calif) – Contributory negligence is a defense.
            • Car hit center median  Door flew open
            • If plaintiff’s conduct fails to meet TARP Standard. Damages are
                apportioned in accordance with his or her fault.
            • Dissent: Difficult to compare the negligence of the ∏ with the product
                responsibilities of the seller + Defeated the policies of strict products
    • Sanchez v. General Motors (Texas) Whether or not the plaintiff knew, did his
        behavior conform to TARP – contributory negligence is a defense.
                 Alternative 1- The Plaintiff failed to discover and guard against the
                 Alternative 2 - The Plaintiff discovered the defect but proceeded anyway.
                 Alternative 3 - The plaintiff did not use ordinary care irrespective of the
Type of Conduct                Effect under   Effect under   Effect under
                               Comment N      Daly           Sanchez

Failure to discover or guard   No effect      Reduces        No effect
against product defect                        damages

Voluntary assumption of a      Bars Claim     Reduces        Reduces
known risk                                    damages        damages

Conduct that is negligent      Not specified Reduces         Reduces
irrespective of the known                    damages         damages
Sanchez – failure to inspect then plaintiff can recover.
                                                       Failure to guard against then
we apportion. Trying to distinguish between someone who failed to discover and
someone who is negligent regardless.

Bowling v. Heil
  • Plaintiff contends that truck was defectively made in that the bed slammed down
      when P touched the controls.
  • Defendant contends that plaintiff’s foolish conduct should bar a recovery
  • Jury The plaintiff was contributorily negligent but did not assume the risk.
  • Appeals Court: For Plaintiff. Comment N: Only assumption of the risk is a
      defense to negligence

    Daly v. General Motors
    •    Accident: Car hit center median. Door flew open and the plaintiff fell out and
         was severely injured. P alleges that defect was that the car latch did not work
         properly. D claims that P could have avoided the accident by wearing a seat belt
         and locking the door.
    •    Jury found for the defendants.
    •    California Supreme Court rules that contributory negligence is a defense to a
         products liability case and that it should be apportioned as comparative
    •    The dissent argued that it was difficult to compare the negligence of the plaintiff
         with the product responsibilities of the seller. It also argued that allowing
         contributory negligence defeated the policies of strict products liability. Is this
Rest 3d § 17 Apportionment of Responsibility - A ∏ recovery of damages be reduced if
the conduct of the ∏ combines with the product defect to cause the harm and the ∏ is
not TARP.
            Sandford v. Chevrolet, N. 4, p.610 – assign a number 1-10 to each party

Causation Problems
   • It is necessary to consider causation both with respect to the plaintiff’s conduct
       and also respect to the defect.
   • With respect to the plaintiff’s conduct, consider Sanchez.
Sanchez’s Negligence
   • Breach – Left gear in park but did not engage emergency brake or shut off the
   • Cause in Fact – But for his failure to set the brake the accident would not have
   • Proximate Cause – Looking back is it highly extraordinary that his failure to set
       the brake would lead to this kind of harm.

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