Products LiabilityStrict Liability, Negligence, WarrantyManufacture, Design, WarningStrict Liability•Defective and unreasonably dangerous seem to be present here•So, too, does the policy of not requiring the P to figure out where the problem was•What is the product? Poison, yes. Can, yes. But really the whole packaged product, like the car manufacturer who is not just selling parts.Manufacturing Defect•Looking for flaw in product itself…oops•Would need to compare w/other products of same type•Probably they were all defective in this way, which suggests design more than manufactureDesign Defect•Uses more of a negligence-based standard to decide if strict liability applies•Risk-utility test measures risks of product as designed compared w/cost of improving it•Look at things like usefulness of product, probability and magnitude of injury, ability to eliminate danger or spread the lossDesign Defect (cont’d)•Product (killing poisonous snakes)seems useful•But probability of injury (spraying, exploding) seems medium at least and magnitude (fatal, permanent injury) seems huge•A RAD doesn’t seem difficult or even overly expensive, given that this is an expensive product already: non-aerosol can, test and improve the aerosol can, a safer poison vis-à-vis humans•Could probably show substandard for industry and certainly for state of the artDesign (cont’d)•Consumer expectation test also easily met•Defenses–Unreasonable use? Taking it out of state? Foreseeable–High altitude an intervening cause? No, foreseeable–Contributory negligence? How stored? 2 hours away from doctor. Very doubtful.Failure to Warn•Was warning here effective?•Again use negligence-based, risk/utility test•No warning about altitudes, or risk to eyes, or about a time frame (2 hours) or interim steps for protection•Consumers would not expect poison exploding•Was this an obvious danger? Probably not.Failure to warn•Cost or difficulty of changing warning very low and favorable impact very high•Contributory? Going too far away from doctor? Probably not.•Assumption? Not assume risk of exploding.Negligence•Duty to design safely and warn effectively•Duty was breached by exploding can of poison causing almost immediate and permanent injury•Foreseeable use in high elevations…whether in CA or CO•Perhaps even punitive damages? Reprehensible conduct?Implied Warranty of Merchantability•Courts will imply as a matter of law that product is safe and fit for its purpose•This product was not•This can go forward without much other proofConclusion•Almost certainly a good products liability case under any of the theories•May have to choose•Implied warranty might be easiest, but negligence might provide largest recovery•Strict liability a good middle groundDefamationI.Defamatory Words―The manufacturer is a killer‖―Doesn’t care about human life, only making money‖Defamatory Words (cont’d)•Would substantial group find this defamatory? Emotion of moment. •Opinions vs. statements of fact–Was he really a killer?–Isn’t money vs. human life an opinion?II. Publication to 3rdperson•Statement on TV clearly qualifies•Oral statement, especially unscripted normally slander.•But network television has the greater permanence and reach of libel, so probably libel.•If not, slander per se likely—affects business, imputation of crime? (killer)•Either way, no special damages requiredIII. Inducement•If someone actually died as a result of manufacturer’s actions, that should be pleaded•Since that is apparently not the case, if the statement is defamatory, it’s defamatory on its face, so no inducement requiredIV. Colloquium•Statement must be ―of and concerning the plaintiff‖•Not clear whether D is defaming a person or a company•Person need not be named, but identity should be clear•Presumably referring to head of companyV. InnuendoParticular defamatory meaning seems clearVI. Damages•Damages may be presumed•If special damages required (probably not, see above), pecuniary damage, such as loss of business, would need to be shownVII. Constitutional Aspects•Need to balance protection of P’s reputation w/protection of D’s 1stamendment free speech•If P is a public person, need actual malice. Head of small wilderness corporation probably not public person. Might be for this limited purpose. Would have access to media and by selling this product has assumed some risk.•Might this be speech about public matters?Constitutional (cont’d)•If so, P must show D knew statement was false or had reckless disregard for truth or falsity. May also carry burden of proving falsity.•If P has not ―killed‖ it would appear the statement is false.DEFENSES•Truth is a defense. But no evidence P was ―a killer‖ of anything but snakesCONCLUSION•While this would appear to be defamatory, the statement itself may be only opinion, may not lower esteem to substantial group•The colloquium would also need to be clear•If so, then it is libel w/no special damages required•Since P is probably a limited public person, or this is a public concern, actual malice is needed, but probably provable here.