Products Liability Outline
The structure of the course builds around a number of causes of action. The main
causes of action that we are going to look at are negligence, UCC, strict liability in terms
of manufacturing defect (the product leaves the manufacturer not as intended), design
defect (the product leaves the manufacturer exactly as intended; to understand the issues
involved in design defect have to take the time to learn the product for cross-ex and use
expert witnesses) and warnings (now manufacturers need to be specific, can no longer
just say a product is safe), and fraud.
We will also look at defenses. The most traditional defense is to say that an element of
the cause of action is missing.
Vandall‟s theme in the course is that we need a vigilant court system because Congress is
failing us. Congress is failing us because the US political system makes it beneficial not
to be vigilant. Vandall says the whole Enron thing was caused by a system that was set
up to allow this- there was complicity between the accountants and Congress to allow for
the messed up balance sheets. Beyond statutes, always looks to common law to see if
there is a way to hold people accountable. Common law is essential- sets up a safeguard,
so even when Congress fails us with statutory law, the courts need to be there to aid with
Organization of the Course
You are an attorney and client comes in with a question and asks for help.
First, have to look at the issue of damages- what are the damages that the individual has
Then have to run through and say what are the potential causes of action, some that we
have discussed (not an exclusive list) are fraud (cigarette cases), UCC- express warranty,
implied warranty of merchantability, fitness for a particular purpose (look at all of the
traps- disclaimers, notice requirements). Other causes of action are negligence, strict
liability (manufacturing defect, design defect, warning), cause in fact will be an issue
throughout the course. Another potential cause of action is public nuisance, like in the
Then we get to the issue of defenses. To understand the defenses have to understand the
strength of the offense. Show an element of the cause of action is missing (for example
that an element of express warranty is missing), this is an important one that should not
be overlooked. Contributory negligence, assumption of risk, comparative fault, statute of
limitations, statute of repose and economic loss doctrine (no physical damage to the
person or property, although there is one case that says P can recover) are other defenses.
Also, remember social policy- where are we today, where are we going, and how should
it be resolved.
If there is a federal statute of a federal regulation it preempts a state cause of action
for any tort.
I. General Products Policies
The approach of the course is how to get sellers into the courtroom. The swing of the law
is away from privity- protection of the sellers and towards liability. This is a pendulum
effect though- there is then a limitation on getting sellers into the courtroom through
court reform. Today the war in products liability is to find the appropriate amount of
liability to place on the manufacturers- need to strike a balance.
A. The first rule of products liability is that the repair has to be cheap.
B. Manufacturers can reduce liability by putting warnings on products.
There is also the issue of what kinds of warnings are effective and sufficient. Have to
remember that people read warnings in different ways, some people read the warnings in
detail and others are just attracted to pictures. Warn corporate clients of this situation.
Vandall likes the pill warning- starts off with ten short bullets, and then if you want to
read more about one of the bullets, there is a detailed description later in the pamphlet
coded to the corresponding bullet.
C. Another way that manufacturers can deal with defects is through recall.
D. The problem with safety classes for things like three wheelers is that the
only person required to take the classes is not the only person who is going to use the
product. Will most likely lend to others because it is a fun toy.
31 cities have brought suits against gun manufacturers for the cost of dealing with gun
violence. A number of these cases have been lost, the Atlanta case is still alive. Intersing
question of how society wants to deal with gun violence. One theme is that legislature is
not dealing with the problem, so people are turning to the courts.
Merrill v. Navegar- under negligence
Vandall says the gun debate is heading to the legislature- Ps lost both of the cases that we
read and the state causes are being lost one by one. The problem with taking it to the
legislature is that each state might come up with different solutions and gun saturation
and violence are national problems. Could be constitutional issues, the EPC and DPC.
There are two types of un suits- suits brought by victims and suits brought by the cities
(because of increased costs due to gun violence). There was a suit in Illinois in which the
Court of Appeals allowed the victims of gun violence to go forward based on public
nuisance. Public nuisance suits are based on things that damage the public interest- the
charge to the judge in a public nuisance is to do what is right, this is a very broad
category. This case is important because it keeps gun cases alive. There is also a newer
suit by the city of Newark what is left alive on the basis of public nuisance. There is a
third suit that has been filed in Georgia- it is a suit against a manufacturer of a Saturday
Night Special, alleged to be poorly made and not very accurate. A teenager who was
injured when he dropped the gun and it went off because it was poorly made brought this
suit. This is a design defect case. Be sure to recognize the distinctions amongst all of
F. Superfund developed a few years ago- the purpose was to gather money to
help with oil spill clean-up efforts, and also to help with other hazardous waste site clean-
ups. Who should have the responsibility for paying for these clean-ups- corporate
America or taxpayers? The way it is set up now, corporate America pays for a certain
amount through taxes. The problem with handling these things through tort liability is
that these corporations have great attorneys and punitive damages are litigated for years,
the Ps start to run out of money and resources. The other problem with tort liability is
that the loss has occurred anyway. Superfund deals with problems immediately. For
2003, 50% of Superfund will be paid by ordinary taxpayers and by 2004, all of Superfund
will be paid by consumers rather than corporate America. Vandall says when you put the
loss on ordinary taxpayers, corporate America has no incentive to prevent these
problems, there is not deterrence value for corporate America.
II. Historical Basis of Products Liability
Winterbottom v. Wright (1842)
D had a contract with Postmaster-General to maintain a stagecoach for the delivery of
mail. The coach broke because D did not maintain, and P, the driver, was injured.
Court held that there was no privity between the parties, and to allow the P to prevail
would allow for an infinity of actions- passengers, everyone walking by. Fear of absurd
The idea from this case, that remained the law for 75 years, was that there could be no
cause of action unless there was privity of contract.
This case has also been explained on the basis of commission-omission, D is not liable
because he had no duty to act and did not act.
B. Legal Fiction
Statement that something is true when it is false. Going to look at the exceptions to
privity- this huge hurdle has been erected and need to get around it. Courts get around
privity- the exceptions- through legal fictions.
C. Exceptions to Privity
Huset v. J.I. Case Threshing (8th Cir. 1903)
Court recognized three exceptions to privity.
1. Act of negligence of a manufacturer or vendor which is imminently dangerous to
the life or health of mankind, and the act is committed in the prep or sale of an
article intended to preserve, destroy or affect human life, is actionable by third
parties who suffer from the negligence.
Thomas v. Winchester (1852)- D sold a dangerous poison that was mislabeled.
2. An owner‟s act of negligence that causes injury to one who is invited by him to
use his defective appliance on his premises. Can form the basis for an action
against the owner.
Coughtry v. Globe Woolen Co. (1874)- D negligently constructed a scaffold hat borke,
injuring an employee of a contractor that contracted with the owner to construct a
cornice on the building.
3. Action against one who sells or delivers an article that he knows is imminently
dangerous to the life or limb of another without notice of these qualities is liable
to any person who suffers an injury therefrom which might have been reasonably
Langridge v. Levy (1836)- where a dealer sold a gun for use by the purchaser‟s son,
representing the gun to be safe. When the son fired the gun, it exploded, injuring
In Huset, the court hold the case to fall within the third exception- D knew that the iron
sheet covering on the thresher could not withstand weight and it presented a concealed
danger, and that the D knew that the machine was in this imminently dangerous condition
when it shipped and supplied it to the purchaser.
Fraud and Misrepresentation
New York court held in Kuelling that one who sells and article, knowing it to be
dangerous by reason of concealed defects, is guilty of a wrong, without regard to the
contract, and is liable in damages to any person, including one who is not in privity of
contract with him, who suffers an injury by reason of his willful and fraudulent deceit and
concealment. D makes a material statement intending P to rely on it, and knowing that if
P relies on it, he will suffer injury.
By the start of the 20th century, liability had been extended to cases where
misrepresentations of product safety had been made, where the supplier had known of the
defect, and where a court characterized a product as dangerous per se, and therefore,
albeit without further explanation, not subject to the privity rule.
Statler (1905)- P was injured when a large coffee urn made by D exploded. D
D did not sell the urn to P, but rather to a jobber, who in turn sold it to a company of
which P was an officer. The court held that P stated a cause of action- in the case of an
article of inherently nature, a manufacturer may become liable for a negligent
Vandall thinks this is the most important case in this series. Lets the cat out of the
bag, an urn is not inherently dangerous, just a product, so if you can be liable for
that then you can be liable for any product.
Mazetti (1913)- P goes to restaurant and orders tongue. He gets very sick and
brings suit. The court applies strict liability in this suit. Does not require privity
because we are dealing with food. We all eat and food must be pure, will not
tolerate questionable or problematic food. Strict liability is applied to food
This entire series of cases is important- shows the jurisprudence history of courts getting
around the high wall of privity through various exceptions. Vandall thinks the courts
want to give justice, so they find exceptions to privity.
D. Pillars v. R.J. Reynolds (1918)
Human toe in the tobacco. The court seems to rely a great deal on public policy-
anything taken into the mouth should be free of those elements which may endanger the
life of health of the user- this is how the court gets around privity (remember that we are
still in 1918). Shows the history of the decline of privity- one of the first and most
powerful exceptions to privity was food- he who prepares the food or drink should be
required to exercise great care to prevent the dangerous conditions.
Ellis (1975)- this case brought Georgia into modern law products liability.
Fondue pot case.
A. Five Elements
(2) Breach of Duty
(3) Cause in Fact- matter of science
(4) Proximate Cause (PC)-
D is liable for foreseeable injuries (Kinsman)
D is liable for injuries that are a direct result of his conduct (Polemis)
D is liable if there is a foreseeable small risk of injury (Wagon Mound II)
P must have been within the zone of danger (Palsgraf)
There is no liability for remote injuries (Ryan)
In products cases, the elements of negligence are often stretched to the limit because high
stakes are in the balance.
B. MacPherson v. Buick Motor (1916)
D makes cars, sold to retailer, who sold to P. Car suddenly collapsed, P injured. One of
the wheels was made of defective wood and the spokes crumpled. The wheel was not
made from D, it was bought from another manufacturer, but there is evidence that the
defects could have been discovered by reasonable inspection and that was not done. The
charge is one of negligence.
The question is whether the D owed a duty of care to any one but the immediate
Foundation of this law based on Thomas- D‟s negligence put human life in imminent
danger. A poison falsely labeled is likely to injure anyone who get is. Because the
danger is to be foreseen,, there is a duty to avoid injury. Narrow reading, later cases are
more liberal. Devlin- D built a scaffold for P, collapsed and a worker was injured. D
liable- he knew that the scaffold, if improperly constructed, was a dangerous trap. He
built it for the workmen, he owed them a duty, irrespective of his contract with their
master, to build it with care. Statler- urn had an inherently dangerous character, can be a
great source of danger if not properly constructed.
Cardozo holds that Thomas is not limited to things that are in their normal operations are
implements of destruction. If the nature of a thing is such that it is reasonably certain
to place life and limb in peril when negligently made, it is then a thing of danger. If
to the element danger, there is added knowledge that the thing will be used by
persons other than the purchaser, and used without new tests, then, irrespective of
contract, the manufacturer it under a duty to make it carefully.
The nature of a car give warning of probable danger is its construction is defective-
meant to go 50 mph. D knew the danger and knew the car would be used by someone
other than the buyer (apparent from the # of seats).
The principle that the danger has to be imminent does not change, but things subject to
the principle do change as society develops- going to look at a product and see how it fits
into society. Vandall thinks this is the basis for market share liability. The dealer cannot
be held liable because he did not make the product. The problem becomes that a lot of
manufacturers are located in other countries and to sue would too expensive. This court
skirts this issue and allows D, rather that the tire manufacturer, to be sued.
D is manufacturer- responsible for finished product.
This case severely limits the privity doctrine, so some have said that the exceptions have
consumed the rules. There is a new platform of negligence.
C. Merrill v. Navegar (1999)
Ferri entered an office building with two semi-automatic weapons manufactured by D.
he killed 8 people. Ps brought suit based on negligence and strict liability for
ultrahazardous activities. Ferri bought the guns in other states with a fake driver‟s license
and said it was for target practice.
Police chief said that the gun has no legitimate sporting use and no practical value for
self-defense. Another expert said that it was disproportionately associated with criminal
activity and a weapon of choice for violent offenders. Hendrix said that the guns Ferri
used had a significant role in the timing of the murders, and he would not have been able
to fire off as many rounds and kill as many people with another gun..
Evidence shows that D deliberately targeted the marketing of the guns to certain types of
people attracted to or associated with violence. D targeted militarists, as is shown by ads
in Soldier of Fortune. D advertised the guns in a wide variety of publications sold in
Cali. D said that they knew of news reports of the guns being used in sensational
murders and of condemnation by law enforcement officers, and this helped sales. D said
they were flattered. To stimulate the interest of consumers though to be attracted to the
guns because of its connection to violence, D gave or loaned the guns to violent movies
and TV shows.
The issues are the existence and scope of D‟s duty and the sufficiency of the evidence
that the guns were cause in fact of Ps‟ injuries.
The issue of duty is a question of law to be determined by the court. Ps say that D acted
negligently in manufacturing, marketing, and making available to the general public the
TEC-9 and TEC-DC9. D knew, or should have known that the weapons were more
attractive to criminals for mass killings and disproportionately associated with criminal
First issue is that of foreseeability. The injuries in this case were foreseeable- evaluate
whether the category of negligent conduct at issue is sufficiently likely to result in the
kind of harm experienced by Ps.
Ferri‟s criminal conduct was foreseeable. The evidence shows that D had substantial
reason to foresee that many of those to whom it made the TEC-DC9 available would
criminally misuse it to kill, and that its targeted marketing of the weapon invited or
enticed persons likely to so misuse the weapon to acquire it.
Imposition of duty is justified by three other relevant criteria set forth in Rowland.
-Morally Blameworthy Conduct-marketed and encouraged criminal conduct.
-Policy of Preventing Future Harm-the social cost of the deaths and injuries resulting
from the use of firearms in our society is enormous.
-Burden to D and Consequences to Community of Imposing a Duty to Exercise Care
With Resulting Liability for Breach- whether preventative measures would unduly
interfere with a societal interest. It follows that where the D‟s conduct has little or no
social utility, and the imposition of liability would have minimal adverse social
consequences, it is easier to attach a duty to exercise care.
D argues that a duty cannot be imposed because no statute was violated, but the court
says this does not preclude a finding that the actor was negligent in failing to take
additional precautions. §1714.4 says that in a products liability action, no firearm will be
deemed defective in design on the basis that the benefits do not outweigh the risk of
injury posed by its potential to cause injury or death. This is a statute on point, and the Ps
and the court need to get around it. Very often the courts say that these statutes are not
preclusive- can hold manufacturer liable even if they comply with statutes. In this case,
the Ps say that this statute is a strict liability provision, and in this case we are dealing
with negligent marketing which is a different concept.
The imposition of a duty does not impose an impermissible judicial ban on
manufacture and sale. Not trying to enjoin D‟s commercial activity, just asking them to
pay for damages.
Cause in Fact- D argues that there was no cause in fact because Ferri‟s acts were
unrelated. To establish cause in fact, Ps must show that D‟s conduct was a substantial
factor for the injuries.
Parke- Supreme Court Case- physician who prescribed potentially dangerous drug that
caused the P‟s death testified that although he read medical journals in which Parke
allegedly over promoted the drug, he could not remember any specific instances in which
he received any information directly from Parke. And the Court still found that there was
sufficient nexus. The theme of this case is negligent over promotion. This case also does
not reflect well on the FDA, they did not pull the drug even though people were going
blind and dying and there was no warning. Parke did not want the warning and the FDA
said there must be a warning, so Davis started promotional campaigns saying that the
drugs were fine and the warning were stupid.
In this case, there is sufficient evidence that the D‟s promotional activities influenced the
P‟s injuries. He read the magazines and several were seized from his house.
Court sends the case to trial.
The dissent argues that this is judicial legislation.
The California Supreme Court rejected this analysis. Basically says no cause in fact.
In a products action based on negligence in the design of a product placed on the market,
the test of negligent design involves a balancing of the likelihood of harm to be expected
from a machine with a given design and the gravity of harm if it happens, against the
burden of the precaution which would be effective to avoid the harm.
Distinguishes this case from Parke- requested the drug by name and likely sources of
information were ads and visits from sales reps of the manufacturer. Ferri never asked
for a TEC-9 by name and asked about many different kinds of guns. From this
circumstantial evidence, a jury could not reasonably infer the information about the TEC-
9 that ultimately influenced Ferri to choose it derived from D‟s ads or catalogs. No
triable issue in regard to cause in fact.
Furthermore, Legislature has set California‟s public policy regarding a gun
manufacturer‟s liability under these circumstances. Given that public policy, Ps may not
proceed with their negligence claim. §1714.4 applies in this case. The negligence claim
is precluded by the statute- both negligence and strict liability (Barker) boil down to a
weighing of cost and benefit. This is the same thing under the statute. Cannot escape
§1714.4 through calling it negligent marketing- there is that same weighing as with strict
D. Hamilton v. Accu-tek (COA NY 2001)
Relatives of gunshot victims sued manufacturers. Gun Case
This case was certified from the federal court to the state court. Erie problem- the federal
courts do not make substantive law, so they send the problem to the state court to
determine the substantive state law.
Issue was whether the manufacturer‟s owed the relatives a duty to exercise reasonable
care in marketing and distributing- threshold question; and whether there can be market
Courts balance factors to determine duty- courts must be mindful of the precedential, and
consequential, future effects of their ruling, and limit the legal consequences of wrongs to
a controllable degree..
Foreseeability only determines the scope of the duty once it is determined to exist.
Courts do no like to extend liability to Ds for their failure to control the conduct of others.
But a duty may arise with a relationship- look to the D’s relationship with either the
tortfeasor or the P places the D in the best position to protect against the risk of
harm. For duty to arise, D must be a direct link in the causal chain and in the best
position to prevent the harm.
This does not exist in this case.
Ps‟ argue that there is a protective relationship, but the court says that P did not present
any evidence to show to what degree their injury was enhanced by the presence of
negligently marketed and distributed guns, as opposed to the risks due to guns in general.
Ps also argue that a general duty of care arises out of the gun manufacturers ability to
reduce the risk of illegal gun trafficking through control of the marketing and distribution
of their products. The court rejects, saying that imposing such a general duty of care
would create not only an indeterminate class of Ps, but also an indeterminate class of Ds
whose liability might have little relationship to the benefits of controlling illegal guns.
One argument against this is that you have to start somewhere- if we make these Ds
liable, then maybe that is the place to start.
Should be cautious in imposing novel theories of tort liability while the difficult problem
of illegal gun sales in the US remains the focus of a national policy debate. The court is
saying that gun liability is a question for the legislature rather than the judicial system.
This is a continuing theme throughout the course- liability of manufacturer is not for the
courts; it is instead for the legislature. One way to deal with this problem is that courts
have to answer the question before them- the question must go forward or be rejected.
Vandall says with the gun debate it seems that the question is headed to the legislature
No market share liability. Market Share Liability—based on Hymowitz- each
manufacturer engaged in tortious conduct parallel to that of all other manufacturers,
creating the same risk to the public at large by manufacturing the same defective product.
Courts in NY and other jxs have refused to extend the market share theory where
products were not fungible and differing degrees of risk were created. The court says that
here, Ps have not show a set of compelling circumstances like those in Hymowitz
justifying a departure from traditional common-law principles of causation. Basically the
court is saying that unlike DES, each gun is very different with different levels of risk. P
would have to show that each victim was killed by a specific gun to get that manufacturer
in the courtroom. Could argue against this by saying that guns are fungible and the risk
is inherently the same- guns kill people, almost all are capable of this.
Based on Sindell (Hymowitz is the NY form)- DES case. The main difference between
these cases is that in Sindell is a D definitely did not make the DES then it is dropped
from the case. This is not the situation in Hymowitz- regardless, if the D manufactured a
DES pill, even if P definitely did not take the pill, D is kept in the case.
Remember the role of policy- we are not getting to the question of what gun
manufacturers can do to get rid of the problem- the courts are not asking the gun
manufacturers to make the guns safer. Basically, the courts are not even looking at the
E. Need to remember that negligence is an important cause of action in
products cases and that each of the elements will be given careful
examination by the courts.
Look at Class Notes p.5 for Accutane Hypo and Black Velvet Case
F. With breach of duty, in a lot of products cases will need an expert to show
what the standard/situation should be.
IV. Dean Green Theory and Negligence
Two approaches to the scope of liability- rule and duty analysis.
Vandall argues that Green‟s duty theory is good for negligence and products cases.
Green thinks foreseeability has been used as a “cure all” and is misleading- “squid
function”. Under the duty approach, foreseeability is used to answer almost every
question in the negligence formula.
Green thinks foreseeability should be limited to breach of duty question in negligence
cases and PC should be eliminated. Intervening cause and shifting responsibility should
be handled under duty rather than PC.
The judge usually determines duty. When the scope of the duty is clear, it is the judge‟s
function to decide the question and take it from the jury. Therefore, it is misleading to
say that PC is a question for the jury. This is seen in the intoxicated employee case-
drunk at Xmas party, car wreck, not fault of the corporation. Also illustrated in the
negligent infliction of mental distress cases.
Green clarified the nature of the duty question- Does the D‟s duty extend to this specific
person for this specific injury. The judge should decide the scope of duty, which is a
policy question and is influenced by the judge‟s background and philosophies.
Factors the judge weighs in determining the duty question- precedent, prevention, the
economic impact of the decision, problems in administration, the D‟s ability to carry the
loss, and justice.
Should use Green rather than PC because it fosters clear analysis.
The test for negligence, under Green‟s approach, is whether the D, as a reasonably
prudent person, should under all of the circumstances have foreseen danger to the P or
someone similarly situated.
Green says that there are three key questions a court should ask in a negligence case:
1. Is there evidence that the D was the cause in fact of the P‟s injury?
2. Is there sufficient evidence of the D‟s negligence to send the case to
3. If there is evidence of 1 and 2, then the judge must ask the duty
question- does the D‟s duty extend to this specific injury to this
Factors to Examine-
a. Prevention- is there something the manufacturer could do
to the product that would avoid the injury. Takes into
account the cost.
b. Loss shift- should the cost be placed on the manufacturer.
d. Administrative Factors- can the courts deal with the
question or is too large or will it open the gates to the
courts being flooded?
f. Insurance- who is best able to get insurance in a
g. Economic Impact of the Decision
Not everyone is entitled to a day in court and the function of the court is to control the
Application to cases:
h. Polemis- lessee of a ship‟s employee dropped a plank into
the hold of the ship, which caused a spark, which ignited
a fire. The key to this case would be prevention- P
should have won because the D could have prevented the
injury by hiring skilled workers.
i. Palsgraf- conductor helped a man get on a train, carrying
a package of fireworks that fell and exploded. Caused a
scale to fall, which injured P. Applies prevention, loss-
shifting and precedent.
j. Kinsman- flooding case. Court looks at loss shifting
factors and insurance factor.
k. Goar- shows factor that Green does not take into account-
Restatement Third keeps alive the confusion by relying on foreseeability.
-Recent Cases Applying Dean Green‟s Theory:
Wade listed certain factors that should be weighed in deciding whether a product is
i. the usefulness and desirability of the product- utility to public as a whole
ii. safety aspects of the product
iii. availability of a substitute product that would meet the same needs and not
iv. manufacturer‟s ability to eliminate the unsafe character without making
the product too expensive or impairing usefulness
v. user‟s ability to avoid danger by exercising care
vi. user‟s anticipated awareness of the dangers inherent in the product and
their avoidability because of general public knowledge of the obvious
condition of the product, or because of suitable warnings or instructions
vii. feasibility of the manufacturer of spreading the loss by setting the price of
the product or carrying liability insurance.
These factors were used in the Barker tests- especially in the risk-benefit factors.
A very recent case, Shanks v. Upjohn, furthers Green‟s approach by suggesting that the
design defect of a prescription drug may be evaluated by weighing various factors.
The concept of operative factors developed by Green, in the late 1920s, as an element of
duty, has changed and expanded over the last 65 years. Today it is the key to modern
products liability law.
A lot of this theory was adopted by the courts in Navegar and Accu-tek- the courts are
not focused on foreseeability.
V. Strict Liability
Anonymous (1466)- Suggests that civil liability rests on strict liability. There is a
war in the torts world as to whether products liability is negligence or strict liability
and Vandall says that this case shows that the foundation is strict liability rather
In products liability, there are two theories- negligence and strict liability- the
Restatement is putting their thumb on the scales and saying that it is all about negligence.
P attorneys should put their thumbs on the scale and say that civil liability is based on
strict liability seen in the 1466 Anonymous case, rather than negligence, which came
around in 1850.
Start with class notes.
B. Restatement Third
The Restatement emphasizes manufacturing defects, design defects and warnings.
Restatement Third §101 (substitute for Restatement §402(a))- the theory of the
Restatement Third is to take strict liability and limit it only to design defect.
The real problem is reasonable alternative design. To show that a product was defective
in design, have to show that there was a reasonable alternative design that the
manufacturer did not use. In this one sentence, the ALI gets rid of all cigarette, guns, and
alcohol liability- there are no safe alternative for these products. The cigarette
manufacturers and insurance companies contributed to this draft by the ALI.
Vandall argues that the Restatement Third §101 violates case law, products liability
policy, economics, and history.
§402A (1964)- most popular part of the Restatement. Written by Prosser and cited in
over 3000 cases. The Restatement is supposed to restate the case law. The Restatement
can also say what the law should be or what it might be. The authors of §101 did not
read and incorporate the 3000 cases. The cases the authors of §101 cite for reasonable
alternative design do not support the idea.
§101 also does not comport with the policy of products liability. The underlying idea is
that products are complicated and consumers do not understand them or have any input in
how the products are made. It makes more sense to put the liability on the manufacturers
because they can do something about the defect while the consumer cannot.
§101 also violates economics. Reasonable alternative designs come from experts, it costs
about $25,000 for experts per case. So in the past, a products liability case that did not
need an expert would cost $75,000. Today, would need an expert to show reasonable
alternative design regardless, so would cost $100,000. And if the P thinks they will only
recover $90,000, then it is not even worth bringing the case, and many small cases get
thrown out of court this was.
The authors are also wrong about history- they say that products liability history is based
on negligence when it is really strict liability.
In §402(A) there is no separation of manufacturing defect and design defect, so both
could be argued- made sense because often both could exist for the same product. Under
the Restatement Third §101 it is a big deal because a manufacturing defect is strict
liability and a design defect is negligence, which is much harder to prove.
Under §402(A) there are several tests for design defect that we will look at- consumer
expectation, risk-utility, and imputed negligence. The idea is that the courts had choices
under §402(A), while under §101 there is only negligence, so look only at reasonable
VI. Contract and Tort Remember the UCC-could be a smooth path.
In MacPherson, the privity requirement was abandoned.
Sometimes a case can be won based on the UCC (Uniform Commercial Code-
designed to resolve commercial disputes).
Express Warranty: a statement that the product is safe or that it will not hurt you.
Implied Warranty of Merchantability
Implied Warranty of Fitness
Under §402(a) of the Restatement, the word “seller” is used, which has a broad
interpretation- anyone who sells a product. Perhaps the only exception is the seller of
used goods- they did not design the product and the buyer is aware that the product could
have been anywhere and been through anything.
Under the UCC, the term “seller” is very narrow, so have to be careful with its use. Also
have to be aware of horizontal privity as well as vertical privity. A purchaser is very
narrowly defined under UCC. Cannot use some manufacturers under the UCC because
there is no privity.
The other thing that brings trouble under the UCC is the notice requirement- must give
notice within reasonable time of intent to file suit. The reasonable time can be as little as
six months. This notice requirement is to give the seller time to fix the problem-
especially important when dealing with food products. There is no such provision under
B. McLaughlin v. Michelin Tire Corporation (Wyo. 1989)
Cobre, in accordance with a contract and pursuant to D‟s advice, installed two tires on a
Caterpillar, which was delivered to P‟s place of employment. P told his supervisor
immediately that the tires caused the machine to vibrate excessively and bounce. Three
other operators agreed. D was informed of the complaints, but did nothing even though
there were lots of complaints over a 26 day period. The tires remained on the machines.
The tires were taken off put on another machine, same problem, so re-installed on 699.
P, an experienced heavy equipment operator, was making a dirt haul pass over a ditch,
which is a very accepted practice with little risk. There were extreme vibrations, P was
thrown out the window, and seriously injured.
Negligence- breach of duty to exercise reasonable care which proximately caused P‟s
injury. The conduct of the maker or seller is in question. In pursuing a theory of strict
liability, the focus is on the product. In the absence of some evidence to show a defect
in these tires, the SJ in favor of D on the alleged theories of negligence in manufacturing
or design and strict liability must be sustained.
The court also sustains SJ on express warranty because there was no affirmative
promise by the D to anyone.
The court also sustains SJ on implied warranty of merchantability because there is no
proof of a defect. Vandall thinks this definition of implied warranty of merchantability
could have been used- The goods must pass within the average of similar goods- to
determine if the product is merchantable. For example, if there are just a couple of bad
products in a shipment, the implied warranty of merchantability would not be breached,
but if the whole shipment was bad then it would be. Vandall thinks the court should have
looked at the problem like this instead of focusing on the products liability language of
The court finds that there is a genuine issue of material fact in regards to implied
warranty of fitness. Defines it as when the goods are not defective in the usual sense,
but conditions exist which give rise to the warranty, it may be breached when a product
properly made and merchantable is simply the wrong one for the buyer‟s particular use.
It requires only an error in merchandising. The elements of a cause of action under the
UCC for this are (1) knowledge on the part of the seller of the purposes to which the
goods will be put; (2) some reason for the seller to know that the buyer is relying on the
seller‟s skill and judgment; and (3) there must be actual reliance on the part of the buyer
on the seller‟s skill and judgment. The defect is not in the product itself but in the
conduct of the seller in furnishing a product that was the wrong one for the buyer‟s
particular purpose. All three of these exist in this case.
There is no SJ for claim of negligent failure to remove the tries. This is a simple
negligence claim, not a products liability claim.
The concurrence argues that the definition of defect is too narrow- specific defect, should
C. American Tobacco Co. v. Grinnell (Tx. 1997)
Cigarette Case- wrongful death.
Issue is whether common knowledge of the health risks of cigarette smoking relieves
tobacco companies of any duty to warn smokers of those risks.
Applying SJ standard, the court concludes that the D has conclusively established the
defense of common knowledge with regard to the general health risks of smoking. But
the D has not conclusively established the common knowledge defense with regard to the
addictive nature of cigarettes.
My thought is that could argue the P became addicted as a child.
Grinnell smoked cigarettes manufactured by D for 33 years, and he was then diagnosed
with lung cancer and he died.
P argues that D failed to warn of, and actively concealed, facts that is knew or should
have known about the addictive nature of cigarettes and the cancer-causing ingredients in
cigarettes. They also argue that D misrepresented- represented to consumers that
cigarettes were not harmful, dangerous, or capable of causing injury.
D argues that Ps claims are pre-empted by federal law.
Implied warranty claims- the court holds that the common-knowledge defense applies
and bars these claims to the extent they relate to the general health risks of cigarettes.
Because the general health dangers of cigarettes are commonly known to the community,
no expectation of safety arises with respect to cigarettes when they are purchased.
The common knowledge defense does not preclude the P‟s implied warranty claims to
the extent they relate to the addictive quality of cigarettes. Vandall has a problem with
assumption of risk and cigarette smoking- thinks kids have no idea about the real health
risks of smoking.
Ps also have claims for fraud, fraudulent concealment, negligent misrepresentation, and
express warranty. These claims are based on alleged misrepresentations in D‟s
advertisements. If D had revealed the health risks and not deceived Grinnell by making
false representations, then he would never have started smoking. Ps support these
allegations with four documents and a statement by D‟s CEO.
All of these claims, including express warranty (UCC) are based on the common element
of reliance, which D negated as a matter of law. Grinnell‟s own testimony shows that he
started smoking 10-20 years after the publication of the documents, and even more
importantly there is no evidence that he saw the ads or relied on them to start smoking- in
his own depo says that he started smoking because his friends smoked. Vandall argues
that cigarette ads in general do more than just promote the product; they promote a
lifestyle based on smoking.
D. Gladden v. Cadillac (NJ 1980)
P seeks to recover from Uniroyal property damages for the total loss of her car based on
breach of express warranty covering the car‟s tires. P claims that the right rear tire failed
while being driven, which caused the car to leave the road and hit a tree and rail. As the
car left the road, both the driver and passenger heard a loud pop, and the tire was later
discovered two feet from the accident. D argues that there was no breach of warranty,
and in any event, its liability is limited to a refund or replacement of the tire.
The language of the guaranty, if given its literal effect, would limit damages recoverable
for breach of warranty. There is a general exclusion that limits the scope of the warranty.
But the court says that an exclusion or limitation engrafted upon express warranties is
inoperative to the extent that is terms are unreasonably inconsistent with the express
warranties that are given. The complete exclusion of express warranties is strongly
disfavored in the UCC.
The UCC requires that implied warranty of merchantability be clear and concise. While
there is no such requirement in the UCC with respect to a disclaimer of an express
warranty, it is inconceivable that such a disclaimer or limitation of an express warranty
which is other than clear and conspicuous could be regarded as valid and enforceable.
Unconscionability is based on the idea that consumers cannot change these warranties
with companies- “take it or leave it” situation. No presumption of unconscionability here
because there is no personal injury, only property damage.
The court determines that the key question, rather than unconscionability, is whether the
terms of the remedy limitation are so deceptive, confusing, or misleading as to constitute
an inadequate communication to purchasers concerning the meaning of the express
Remember in this case we are dealing with property damage, not personal injury. The
courts which have found remedy limitations on property damage to be unconscionable
have been strongly influenced by the fact that purchasers were misled or deceived or that
the warranties were not explicit.
The court finds the Uniroyal guarantee to be seriously lacking in clarity, calls it a
“linguistic maze”. The consumer is presented with a melange of overlapping, variant,
misleading, and contradictory provisions. The big problem is Uniroyal is trying to mask
a limited promise to replace or refund a tire as a “guarantee”.
The court stresses that we are dealing with words of exclusion or limitation in a
document that is not the product of mutual negotiation or cooperative draftsmanship.
Warranties are prepared unilaterally by the company and distributed with the product on
a mass basis. This is the principle of fair dealing. The court has applied UCC §2-719(3)
to property damage.
The concurrence gives a second reason for refusing enforcement- the cotent of the
The dissent argues that there is a difference between property damage and personal injury
and the statute distinguishes remedy limitations for the two. In terms of property
damage, Uniroyal‟s promise to replace the tire is in accordance with the conditions
specified goes beyond the minimum warranty required by law.
VII. Manufacturing Defects
Manufacturing defects are unique because the cause of action is not critical because the
product is not as the manufacturer intended. So, everyone accepts that the product is not
as it was intended and there should be liability if this is how the product left the plant.
The issue is therefore cause in fact- did the product leave the plant this way or did
something happen to the product along the way.
A. Expert Testimony
Krause v. Sud (2d. Cir. 1969)
A helicopter crash killed all on board. The crash was due to a failure of the helicopter‟s
tail at a point where the horizontal stabilizer bracket was welded to the longeron. The Ps
argue that there was incomplete root penetration in the weld, which caused the longeron
to break off, while the Ds argue that mishandling caused a crack in the longeron near the
weld, which progressed to a complete fracture. Both sides had experts. The trial court
found for the P and this court sustains.
Must note that in these types of cases, almost every P‟s attorney that handle these cases
are pilots, so they are very familiar with the technology involved in these cases.
Remember with a products liability case, you need to understand the case of action very
Pouncey v. Ford (5th Cir. 1972)
The P was injured while putting antifreeze in a car, when a blade broke off the radiator
fan and hit him in the face. The P and his expert argued that there were too many
inclusions in the metal of the blade, which caused it to break off. The D and expert argue
that there was an acceptable inclusion level that conformed with the standards of the
Society of Automotive Engineers. D says that the blade was out of balance because it
was bent. Court finds for P- negated D‟s claims, had an expert for his claims, and D did
not provide any quality control standards, just relied on Society of Automotive Engineers.
D could argue that it is strange that the blade decided to come off at the exact moment
that the P put his head in the check the antifreeze. Could argue that the P was messing
around with a screwdriver and screwed up the fan belt, this is especially likely because
anti-freeze has to be put in the car while the engine is running.
The reason why it is critical in this case to draw a line between manufacturing defect and
design defect is because of Restatement 3d, 2(a), which proceeds on the bases that
manufacturing defect is strict liability while design defect is negligence. This part of the
Restatement is based on the idea that it is easy to tell the difference between
manufacturing defects and design defects, which Pouncey shows that it is not.
B. Sealed Containers
Gentry v. Stokely-Van Camp (Tenn. 1982)
P found a condom in a can of beans. Friends called him names, and he sued for mental
distress. The court found no evidence of tampering and applied res ipsa loquitur allowing
Note that this is a food case.
C. Foreign Objects in Bottles
Shoshone Coca-Cola v. Dolinski (Nev. 1966)
P drank some soda and then found a decomposed mouse in the bottle. The court affirmed
P‟s jury verdict. D argues that the mouse was not in the bottle when it left the plant
because it would have been denuded by the heat and brushing in the bottling process and
the mouse had hair. P offered expert testimony of a toxicologist that said that the mouse
had been dead for a long time and the feces stains at the bottom were there before the
liquid was added.
The court says that the P does not have a burden to prove tampering. The sole burden is
on the P to prove that his injury was caused by a defect in the product and that such
defect existed when the product left the hand s of the D. D can offer evidence of
tampering as a general denial of liability.
Note that this is a food case.
Pillars v. R.J. Reynolds
Human toe in the tobacco. The court seems to rely a great deal on public policy-
anything taken into the mouth should be free of those elements which may endanger the
life of health of the user- this is how the court gets around privity (remember that we are
still in 1918). Shows the history of the decline of privity- one of the first and most
powerful exceptions to privity was food- he who prepares the food or drink should be
required to exercise great care to prevent the dangerous conditions. The court says
negligence because if toes are found in the chewing tobacco, then someone has been very
The manufacturers of food, beverages, drugs, condiments, and confections have been
held liable to ultimate consumers for damages resulting from the negligent preparation of
E. Criminal Tampering
In response to well-publicized attempts at extortion, many states have enacted specific
F. The Tests
Mexicali Rose v. Superior Court (Cali 1992)
The court addresses the validity of the Mix test, which distinguished substances that were
natural to food and those that were foreign substances that cannot be anticipated by a
reasonable consumer. Under Mix, a substance causing injury that is natural to the food
served can never lead to tort or implied warranty liability. The idea behind Mix is that
the food server is not an insurer.
In this case, P swallowed a bone while eating a chicken enchilada. He alleged that D
negligently left the bone in the enchilada and he did not expect to find a bone, and it is
not common knowledge that there may be bones in chicken enchiladas. P urges the court
to drop the Mix test, and adopt the reasonable expectations of the consumer test.
In Mix, the court found that injury due to a chicken bone in a chicken pie did not
establish a lack of due care amounting to a breach of that duty- does not have to furnish a
boneless chicken pie. Some jurisdictions have dropped Mix and instead use consumer
expectations test- whether the consumer reasonably should have anticipated the natural
injury-producing substance in the food.
Others have combined the two tests- in these cases, the “naturalness” of the substance is
used to determine which theory of recovery should be allowed- strict liability, implied
warranty and/or negligence. In cases where the injury-producing substance is natural to
the food product, these courts have applied the Mix test to hold that the P cannot have a
cause of action based on strict liability or breach of implied warranty, but they held that
under the same facts, an action can be stated in negligence for the failure to exercise
reasonable care in the food preparation. This is the correct balance between affirming the
high degree of care on food service providers and making sure that they do not have the
unconscionable burden of becoming the absolute insurer of his customers.
The court holds that if the injury-producing substance is natural to the preparation of the
food served, it can be said that it was reasonably expected by its very nature and the food
cannot be determined unfit or defective. A P in such a case has no cause of action in
strict liability or implied warranty. If, however, the presence of the natural substance is
due to a restaurateur‟s failure to exercise due care in food preparation, the injured patron
may sue under a negligence theory. If the injury-causing substance is foreign to the food
served, then the injured patron may also state a cause of action in implied warranty and
strict liability and the trier of fact will determine whether the substance (i) could be
reasonably expected by the average consumer and (ii) rendered the food unfit or
The dissent argues that Mix should be completely abandoned, and it does not protect the
consumer enough. Basically argues that the distinction between natural and foreign is
So, with food products, think foreign/natural rule (Mix), modified foreign/natural
rule (Mexicali Rose) and reasonable consumer expectation rule (dissent in Mexicali
G. American Tobacco v. Grinnell (1997)
Ps allege that the cigarettes were defectively manufactured because the cigarettes had
pesticide residue, which caused cancer and the D knew. D says that there is pesticides in
all cigarettes. If the P had argued design defect, then he would have fallen into the trap of
common knowledge defense- since 1965, tobacco has been known to be hazardous-
warnings added to cigarette boxes. So P argues manufacturing defect, which the
common knowledge defense does not apply to because a user does not anticipate a
manufacturing defect. The D says that the case is just P masquerading a design defect as
a manufacturing defect- the court does not buy this, and then reached question of cause in
fact. The D argues that the Ps did not present evidence that the pesticide residue caused
cancer. The D is trying to get the claim dismissed- large law firms do not like to go to
the jury because there is a possibility that they will lose. The court says that D messed up
it summary judgment burden- should have disproved an element of P‟s cause in fact
instead of saying that P did not meet his burden.
H. Perez-Trujillo v. Volvo (1st Cir. 1998)
P was operating a new Volvo on a smooth road, and the air bag prematurely deployed,
causing him to lose consciousness and collide with an oncoming car driven by Pagan.
Pagan said he saw and air bag and white smoke in the driver‟s compartment. After the
accident, the air bag sensor was sent to Volvo for testing. The air bag is designed to
inflate and deflate within one-fifth of a second, undetectable to the human eye.
D argues that the air bag deployed after the accident and moved for SJ based on ADAR
and expert testimony.
The P based its claim on eyewitness testimony from Pagan, an affidavit from Diaz a
putative airbag expert, and a 1994 NHTSA investigation, in which Volvo could not
explain what caused several so-called inadvertent reported Volvo airbag deployments.
This court reverses the SJ- accepts Pagan‟s testimony, D did not present any evidence
that an already inflated airbag could not be seen, the sensor evidence is not completely
reliable because D did not take into account that the sensor could have malfunctioned, the
court also says there is no proof in the ADAR test that Volvo replicated the experiment in
the same way, and the NHTSA report also places D‟s sweeping assumptions into doubt.
D also insists that a strict liability claimant cannot establish an unsafe defect in a product
without expert or scientific evidence. The court says that jurisdictions that model their
decisional law along Restatement lines uniformly hold that a strict liability claimant
may show an unsafe defect through direct eyewitness observation of a product
malfunction, and need not adduce expert testimony to overcome a motion for SJ.
Pagan’s eyewitness testimony- standing alone- represented competent evidence that
the air bag in the P’s Volvo had an unsafe defect.
Strict liability claimants may resort to an array of circumstantial evidence- including
(1) the malfunction of the product; (2) expert testimony as to a variety of possible causes;
(3) the timing of the malfunction in relation to when the P first obtained the product;
(4) similar accidents involving the same product; (5) elimination of other possible causes
of the accident; and (6) proof tending to establish that the accident does not occur absent
a manufacturing defect.
I. ALI- Restatement Third Products Liability
Vandall thinks this is a very badly drafted provision.
§ 2- Categories of Product Defect
A product has a manufacturing defect when the product departs from its intended design
even though all possible care was exercised in the preparation and marketing of the
product. (at the time of sale or distribution)
VIII. Design Defect
The purpose of this section is to present the foundational cases for modern products
liability spanning the period from MacPherson to Barker and to introduce the three
leading tests for strict liability design defect.
One big question for the P‟s attorney is how might the product have been redesigned.
Vaporizer in a child‟s room, the water near the heating device reaches near boiling. The
child ran into the chair holding the vaporizer and the vaporizer spilled boiling water all
over the child. One way to redesign the vaporizer is to put a latch on the top of it so that
it cannot easily open. Another way is to make the top screw on instead of sliding on.
Finally, could change the shape of the vaporizer so that the water swirls around and is
cooler. Could win this case on design defect and failure to warn- there was no warning
label on the vaporizer about the heat of the water- there needs to be a warning that tells
consumers how to use the product safely.
Vandall‟s first rule- most likely to win a design defect case when the redesign is cheap.
The redesign must be cheap.
Vandall stresses that there must be good warnings on products telling how to use the
product and the dangers of the product.
The big question is does a good warning negate a design defect- will a good warning save
a badly designed product? There is an interrelationship between these two causes of
action- design defect and warning.
With products, there are constant improvements in technology, so things that seemed
impossible in the past are possible now.
A. ALI- Restatement Third Products Liability
A product is defective in design when at the time of sale or distribution, 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.
B. Escola v. Coca-Cola (Cali 1944)
P, a waitress, was injured when a bottle of Coke broke in her hand. P argues that the D
was negligent in selling the defective bottles to her employer. P relied on res ipsa
loquitur and offered evidence as to her careful handling and unexplained explosion.
D says that res ipsa loquitur does not apply.
The court found P established that the condition of the bottle had not changed after it left
the D‟s possession and that the accident was of such a nature that it ordinarily would not
have occurred in the absence of negligence of the D.
Res Ipsa- would not have occurred in the absence of negligence. It is a permissible
inference of negligence, enough to get passed a motion to dismiss and get P to the jury,
which is a victory in and of itself for the P. [Remember that Ds‟ consider getting to the
jury to be a loss, and will most likely settle.].
Vandall thinks that in airplane crashes where the plane just fell from the sky, res ipsa
should apply- the fact that the plane just fell from the sky is enough to allow an inference
Traynor’s Concurrence- thinks that a manufacturer incurs an absolute when an article
that he has placed on the market, knowing that it is to be used without inspection, proves
to have a defect that causes injury to human beings. Even if there is no negligence,
public policy demands that responsibility be fixed wherever it will most effectively
reduce the hazards to life and health inherent in defective products that reach the market.
Does not like the negligence standard.
The consumer no longer has the means or skill enough to investigate for himself the
soundness of a product, even when it is not in a sealed package, and his vigilance has
been lulled by the steady efforts of manufacturers to build up confidence by advertising
and marketing devices.
A big thing is the difference in times. In 1840, to buy a wagon, would go to the
manufacturer and buy directly, negotiating various elements of the wagon and the cost.
There was a bargaining element. In 2002, to buy a car, go to a dealer and get the car.
Can do things like look under the hood and test drive, but there is no bargaining- the
consumer must sign a standardized contract.
Traynor is essentially saying that society has changed and that we should put the loss on
those who can bear it the best. Traynor‟s argument is based on the facts that the
manufacturer can reduce hazards, manufacturers can anticipate, manufacturer can
prevent, the public is unaware, the cost of the injury is better borne by the manufacturer,
insurance, place the loss on the manufacturer, situations when the manufacturer is not
negligent, needlessly circuitous- the P should be able to sue the manufacturer or dealer
directly so that needless litigation does not occur, mass production, trade secrets-
products and how they are manufactured are secret, consumer cannot investigate, sealed
package- cannot sue the dealer when a product comes in a sealed package because he
cannot investigate, but can sue the manufacturer, advertising, and trademarks (same
concept as secrets). These are the traditional arguments for strict liability.
This could have been a manufacturing or design defect- there could be a
different standard involved. Some courts hold that a risk-utility standard should
apply to design defects and a consumer expectations test to manufacturing defects.
Some use only a negligence standard for design cases and it is often said that a risk-
utility analysis is the same as a negligence standard.
C. Henningsen v. Bloomfield Motors (NJ 1960)
P bought a car manufactured by co-D and sold by D. P‟s wife was injured while driving.
The complaint was based on breach of express and implied warranties and negligence.
The case was given to the jury solely on the basis of implied warranty of merchantability.
Jury verdict for P.
The suit was in warranty. According to the warranty, the car had to be sent to the
manufacturer, who determines whether or not they were at fault and if they decide that
they are at fault, then they will replace the part that malfunctioned. Only the part- even if
a part malfunction destroys the entire car. The warranty is limited to 90 days or 4000
The issue in this case is what are we going to do with the disclaimer, and the first
principle of contract- can you back out of the contract when it is signed and there is no
fraud or coercion.
The purchase order was a printed form of one page. The type was smaller towards the
signature, and the smallest type is the part that the defense relies on the strongest. These
two paragraphs are the least legible and the most difficult to read in the instrument, but
they are the most important in the evaluation of the rights of the contesting parties. The
warranty clause was on the back of the order.
The court states that warranties are supposed to protect consumers, but the ingenuity of
the Automobile Manufacturers Association, by means of its standardized form, has
metamorphosed the warranty into a device to limit the maker‟s liability. A warranty is a
great burden on consumers and the maker has total discretion.
D argues that the warranty precludes recovery for personal injury claims.
The court holds that under modern marketing conditions, when a manufacturer puts a
new car in the stream of trade and promotes its purchase by the public, an implied
warranty that it is reasonably suitable for use as such accompanies it into the hands of the
ultimate purchaser. The obligation of the manufacturer should not be based alone on
privity, it should rest on the demands of social justice.
The D manufacturer has national advertising campaigns, and when a manufacturer
engages in advertising to bring his good to the attention of the public and thus to
create consumer demand, the representations made constitute an express warranty
running directly to a buyer who purchases in reliance thereon. The issue becomes
what effect does a limiting provision have- look to
The D manufacturer has national advertising campaigns, and when a manufacturer
engages in advertising to bring his good to the attention of the public and thus to create
consumer demand, the representations made constitute an express warranty running
directly to a buyer who purchases in reliance thereon. The issue becomes what effect
does a limiting provision have- look to MacPherson.
The court emphasizes that these standardized contracts are not like traditional contracts-
there is no bargaining. Cars are common and dangerous.
D also argues that there is no privity between Mrs. Henningsen and the Ds. But the court
says that there is- an implied warranty of merchantability extends to the purchaser of the
car, members of the family, and to other persons occupying or using it with his consent.
The court extended the warranty to the owner, members of his family, and to other
persons occupying or using it with his consent. The court looks at who uses the product,
rather than focusing on rigid privity- beyond the contract. This is an important case
because the UCC is being drafted at this time, so the whole concept of privity and who
can recover was up in the air and this is an important case in saying who can recover.
The court says the fact is that the dealer and the ordinary buyer do not, and are not
expected to, buy goods, whether they be food stuffs or autos, exclusively for their own
consumption or use. The court notes that most cases were privity has been abandoned
have involved food and drugs, but “we see no rational doctrinal basis for differentiating
between a fly in a bottle of beverage and a defective automobile.”
There was a famous cinderblock case before Henningsen that had a big impact on §402A-
the court in that case said that the house was defective.
“The obligation of the manufacturer should not be based alone on privity of contract. It
should rest, as was once said, upon „the demands of social justice.‟” This is significant-
the court is saying that cannot just look at black letter law, have to take into account
The other problem with the warranty is that a layman would not understand what was
written in the contract. Vandall also notes that many people do not have the time to read
the contract at leisure- the person who drove you to the dealership needs to leave, the
bank will not finance and you are dealing with that, kids are pulling at you, etc. This
makes the court hesitant to enforce the disclaimer.
The holding is that implied warranty extends to the dealer and the manufacturer, the wife
can sue, and breaks down privity.
Remember that we are dealing with cars every day- very common product that almost
everyone owns and a product that can be very dangerous- “in these times, an automobile
is almost as much of a servant of convenience for the ordinary person as a household
If Henningsen were the law, would this increase or decrease the amount of cars sold?
Although it may increase the price of the car somewhat, consumers will probably buy
more cars as they will feel more comfortable- even if the warranty is horrible, the courts
will bail you out.
D. Greenman v. Yuba Power Products (Cali 1962)
P sued D for breach of warranty and negligence, when a piece of wood flew out of the
power tool and hit him on the head.
P introduced substantial evidence that his injuries were caused by defective design and
construction of the tool. Had experts to show better ways of fastening the tool parts and
the screw sets were inadequate.
The D argues that the P did not give notice of breach of warranty within a reasonable
time and therefore his cause of action is barred by § 1769 of the Civil Code.
Court notes that there are warranties that have arisen through common law, to
which the Code would not apply.
To impose strict liability on the manufacturer in this case, it was not necessary for the P
to establish an express warranty as defined by the Code, consumers are not steeped in
legal practice, and they will not think to give notice to one with whom they have had no
A manufacturer is strictly liable in tort when an article he places on the market, knowing
that it is to be used without inspection for defects, proves to have a defect that causes
injury to a human being.
Traynor gets to live out his Escola fantasies.
E. Restatement 2d §402A (1965)
(1) “One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user of consumer or to his
Applies to one who sells, so if you give the product to someone, then §402A might
not apply. For example, if A gives B a fryer to use for free, then §402A might not
apply as it is not a sale, but could argue that it was a sale because A is in the
business of selling. The Georgia Supreme Court held situation close enough to a
sale to be a sale.
Any product- does not apply to services, only products. Harder question if you
go to the massage parlor and the masseuse puts a cream on you that burns your
skin, can you sue the manufacturer of the cream, or would this be considered a
Defective condition unreasonably dangerous- is this one idea or two? Does the
product have to be defective and unreasonably dangerous, or just one. The key
phrase- the one that was there first- was unreasonably dangerous. Defect was
added so that some products that are just inherently dangerous by their nature
would not be punished.
To the user or consumer- shows expansion of the privity concept- applies to the
consumer- the one who bought the product- and anyone who uses it.
Subject to liability for physical harm- the idea is that there must be physical
injury. Cannot sue for pure economic harm- need some tangible harm to the
person or the property.
Ultimate user- the person that actually ends up using the property can recover-
protects third parties.
(a) the seller is engaged in the business of selling such a product and
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold- question of
what constitutes a substantial change.
(2) The rule in (1) applies although:
(a) the basic idea is that reasonable care is not a defense- this is the
key difference between negligence and strict liability. With
negligence, reasonable care is a defense, while with strict liability
(b) the basic idea is that it gets rid of the privity defense.
F. Cronin v. JBE Olson Corporation (Cali 1972)
P was driving a delivery truck, collided with another truck, P‟s truck went in a ditch. The
impact broke an aluminum safety hasp, which was just behind the driver‟s seat and
designed to hold the bread trays in place. The bread trays came forward, hit P in the
back, and hurled him through the windshield.
P alleges that the truck was unsafe for its intended use because of defects in its
manufacture- the hasp was exceedingly porous, had holes, pits and voids, and lacked
sufficient tensile strength to withstand the impact. P had an expert testify to this.
Jury verdict for P.
D argues that the P must show that there is a defect and that the defect is unreasonably
dangerous to be in accordance with §402A.
The court thinks that this rings of negligence, which goes against the courts‟ efforts to
insure that the costs of injuries resulting from defective products are borne by the
manufacturers. The bifurcated standard that D wants would be too much of a burden on
P, and the court sticks with the Greenman standard because it is clear and simple.
The judge did not define defect in this case because it was not the issue before the court.
The issue before the court was whether this was a one-part or two-part test. The judge
did not overreach and define defect because he did not want to be reversed. This leaves
the question open for Barker.
G. The Risk Benefit and Consumer Expectations Tests for Defect
i. Barker v. Lull (Cali 1978)
P injured at a construction site while operating a high-lift loader manufactured by
D. P operating a high lift loader. The loader can lift heavy loads up to 32 feet. The
higher the load, the greater the tilt at the top. The cab of the loader had no cage to protect
the driver. The other workers saw the load start to tip, they shouted at P to jump from the
cab, and as he did so, he was injured.
P and his expert argue that the loader should have been equipped with outriggers-
mechanical arms that extend from the side of the machine.
The court defines “defective” design- either (1) if the product has failed to perform as
safely as an ordinary consumer would expect when used in an intended or reasonably
foreseeable manner, or (2) if, in light of the relevant factors below, the benefits of the
challenged design do not outweigh the risk of danger inherent in such a design.
This dual standard for design defect give Ps protection from products that fall below
ordinary consumer expectations as to safety, or that are not as safely designed as they
should be. Also allows a manufacturer to demonstrate the complexity of design decisions
and the trade-offs that may be required. Finally, reflects a continued adherence to the
principle that, in a product liability action, the trier of fact must focus on the product, not
on the manufacturer‟s conduct. Also insures that manufacturers do not become insurers.
In the RB test, relevant factors to consider are (non-inclusive) 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.
Burden- once the P has made a prima facie showing that the injury was proximately
caused by the product‟s design, the burden should shift to the D to prove, in light of the
relevant factors, that the product is not defective- burden of proof and persuasion.
The legal issue that the court is faced with is how to define defect in terms of strict
liability. The court says there must be something wrong with the product, and then gives
two tests- risk-benefit test and the other is the consumer expectations test. These two
tests are not tied together, P does not have to show both, can show either one.
With the risk-benefit test, once the P shows that the defect proximately caused his
injury, the burden shifts to the D to show that the benefits exceed the cost. Vandall
thinks that this is a radical test. A lot depends on how easy it is to prove proximate
The P having to show that the defect proximately cause his injuries is the hardest part of
e the test. If proximate cause means cause in fact, then it would be easy for the P- just
has to show that the loader was wobbly. But if proximate cause is proximate cause, then
this is a harder question, and Vandall has never seen this happen.
With strict liability look at the product, and with negligence look at the conduct of the
seller. The argument is that even if you are just looking at the product, it all boils down
to a risk-benefit analysis. Risk-benefit is the pinch-point, and the issue then becomes
whether there is something left to strict liability that’s important and different from risk-
utility balancing or negligence.
A problem with the Barker test is that the courts say something must be wrong with the
product, which eliminates cigarettes, alcohol, and aboveground pools. The problem is
that these things are dangerous, even though nothing is technically wrong with them.
Vandall thinks that the Barker standard should be applied in a pure form, without the
The problem with the Barker test is that there are some products that cannot be made
safer. Vandall suggests that should be able to follow Professor Shavell‟s (Harvard Law
Review 1987 or 1981) idea- every product should represent its social cost. Some
products are priced high to get a certain market to buy them, not necessarily a better
product. For example, Ferrari‟s are very expensive, but their quality does not reflect their
cost- actually the car has lots of problems. Therefore, Vandall does not think that law
and economics answers all questions. The point is that the market determines many
things in society. Vandall thinks some products are priced to low- motorcycles,
cigarettes, alcohol, and above ground pools are examples. The problem with the
motorcycle is that the cost does not reflect how many people are going to be seriously
injured in motorcycle accidents. Vandall thinks they should be priced higher to reflect
the social cost. To fully be in accordance with law and economics, products should
reflect their true social cost. Basically, Vandall is arguing against the generality that a
manufacturer is not an insurer- some products are so dangerous that the social cost should
be placed on the manufacturer. What are social costs? The costs that are placed on
society, costs that are borne by the tax payer- for example, when a smoker goes to a
public hospital, keeping in mind that 40% of people do not have health insurance. Or
with gun violence- people in jail, police officers, treatment costs, etc.
The way it would work is that there is a dangerous product, then a law suit, to pay for the
recovery the manufacturer would have to increase the price of the product, which leads to
fewer people using the product. (Fordham 1994 Law Review- article on how social costs
The strongest argument for cigarette manufacturers is that they give a lot of their money
to cultural organizations and events- things like symphonies, ballet. Cigarette companies
are improving the quality of life. To argue against this by saying that life is worth more
than cultural events.
Right now, society pays the cost of hospital bills for smokers who do not have insurance
and for their families after their death. The cost of this should be on the manufacturers
rather than society.
The thriving questions in this area are alcohol, above ground pools, and guns.
ii. Heaton v. Ford (Oregon 1967)
P ran over a rock, and 35 miles later his car ran off the road and hit a tree. The tire was
messed up. He had only driven the truck 7000 miles, and rarely took it off of paved
roads. After the accident, the rim of the wheel was found to be separated from the spider.
In some cases, P can produce direct evidence of a mistake in fabrication or design.
In the type of case in which there is no evidence, the P may be able to establish his right
to recover by proving that the product did not perform in keeping with the reasonable
expectations of the user.
In this case, the court says that there is not enough evidence to send the case to the jury.
Running into large rocks is not common enough for the jurors to be able to determine if
the tire performed as a ordinary consumer would have expected.
Heaton clarifies that application of the consumer expectation test, which had its roots in
Seems to give the judge a great deal of discretion. The court must decide if there is
enough evidence to give to the jury- this case is important for that element.
H. The Negligence with Imputed Knowledge Test
i. Phillips v. Kimwood Machine Corporation (Oregon 1974)
P was injured while feeding fiberboard into a sanding machine at work. The machine
was a six-headed sander, and each head moves in an opposing direction to push the wood
through. P was sanding extra thick sheets, and a thin one got mixed in. the pressure
exerted by the pinch rolls in the top half was not enough to counteract the pressure which
the sanding belts were exerting on the thin sheet, and the sheet was regurgitated and hit P/
P argues that there should have been safeguards or barriers to protect workers.
D got a directed verdict and P appeals.
The court states a test for unreasonable danger is vital to. A dangerously defective
product would be one which a reasonable person would not put into the stream of
commerce if he had knowledge of its harmful character. The test is whether the seller
would be negligent if he sold the article knowing of the risk involved.
The Wade and Keeton formulations of this standard are the same, except that Keeton
would impute the knowledge of dangers at time of trial to the manufacturer, while Wade
would impute only the knowledge existing at the time the product was sold. In terms of
adoptions, Vandall‟s impression is that the Wade version is much more accepted.
For design defect, can only determine if a product is unreasonably dangerous by taking
into consideration the surrounding circumstances and knowledge at the time the article
was sold, and determining therefrom whether a reasonably prudent manufacturer would
have so designed and sold the article in question had he known of the risk involved which
The determination of whether a product is dangerously defective and strict liability is to
be applied is one for the jury. The factors set out by Wade and used in Roach are not the
bases for jury instructions, but should be used to determine if the case should go to the
jury. The factors are
(1) The usefulness and desirability of the product- to the public and user.
(2) The safety aspects of the product—the likelihood that it will cause injury, and
the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need.
I. Vargo reported in 1996 that 15 states follow RB test, 10 follow CE test,
and nine states follow the imputed knowledge plus negligence test.
This only totals 34 jurisdictions, so there are 16 that have not adopted a test, so would
argue which one should be adopted.
J. Economics and Strict Liability
In critiquing strict liability, Posner says to look at the example of the sparking train. A
railroad engine emits sparks that damage wheat crops and land along the RR‟s right of
way. Posner argues that we should consider that the P farmer can do. He could start his
wheat field 50 yards back, he could plant a crop that is not as flammable as wheat.
Posner argues that we should also look at what the P can do instead of just what
improvements the RR can do. The RRs would have to put $10,000 guards on their
To critique Posner, could argue that farmers may not be able to make these changes and
to make more money, not every farmer is going to want to move his crops back 50 yards.
When it comes to complex pharmaceuticals, consumers have no idea what the side effects
may be- trust the word of their doctor, no independent knowledge. Also, in real world
terms, consumers cannot do as much as economists believe in terms of choice. If a
consumer buys a car and then the car turns out to be totally crappy, there is nothing the
average consumer can do about the car, which they sank a lot of money into. The other
problem is that economists do not take into account total damages- for example, it is not
just the smoker that suffers, his family suffers, society as a whole suffers. Have to look at
the extensive costs. Also, Ps are often third parties, with products being given to them as
a gift. Or, Ps are bystanders- an SUV that flips and hits someone on the side of the road,
another car, or hurts a passenger- these people are all missing the opportunity to make a
choice, and choice is something that Posner relies on.
Another foundation of law and economics is the Coase Theorem. If transaction costs are
zero, then efficiency will be achieved regardless of which party is assigned the property
right in a situation of conflicting uses. The key to law and economics is efficiency, rather
than justice. It does not matter who wins in a lawsuit, the efficient result will occur no
matter who wins. The usual example is that there is noisy factory by a doctor‟s office,
which is upsetting the patients. The doctor brings a lawsuit that the factory wins. The
GNP of the doctor is one million and the GNP of the factory is $250,000. What is going
to happen is that the doctor is going to buy out the factory- pay for the factory to put in
smokestacks and insulation. The economist would say that this is an efficient result-
favors the most productive member of society. The law was irrelevant- did not matter
who won the lawsuit, this is what is going to happen regardless.
Does the Coase Theorem apply to product liability cases? The first principle is that in the
real world, there are high transaction costs. To sue a major corporation people have to
spend a lot of time and money- high transactions costs. The second principle is say there
is a defective car, the consumer does not want to buy the manufacturer, and furthermore,
the third principle is that the consumer cannot do so. Furthermore, in terms of products,
the manufacturer does not want to sell their companies (fourth principle). The fifth
principle is that size matters- we are dealing with individual consumers and very large
corporations. Vandall says the Coase Theorem makes sense in terms of things like cattle,
but lots of times in products there is nothing consumers can do except with the force of
the law. Without the force of the law, will have people needlessly suffering injury.
K. Potter v. Chicago Pneumatic Tool (Conn. 1997)
*Watch the slaying of the Restatement Third‟s reasonable alternative design.
Ps claim they were injured in the course of employment as a result of using pneumatic
hand tools manufactured by D. the Ps allege that the tools were defectively designed
because they exposed the Ps to excessive vibration, and because the Ds failed to provide
adequate warning of the dangers of the excessive vibration. The Ps used the tools for 25
Expert testimony confirmed that exposure to excessive vibration is a significant
contributing factor to hand-arm vibration syndrome. Testing revealed that a large
number of D‟s tools violated the limits for vibration set by the American National
A mechanical engineering expert offered many ways to decrease or eliminate the amount
Jury gave P verdict.
D argue that Ps must show that there was a feasible alternative design available at the
time that the Ds put their tools in the market- the court says no.
Connecticut uses the CE test.
D urges the court to adopt reasonable alternative design in accordance with the Draft
Restatement Third, but the court refuses. Their review of the prevailing common law
reveals that the majority of jurisdictions do not impose on Ps an absolute requirement to
prove a feasible alternative design. The court thinks this requirement would place too
much of a burden on Ps- make it too hard to get to the jury. Ps would have to get an
expert even in cases in which lay jurors can infer a design defect from circumstantial
evidence. Also, in some cases the product may be in an unreasonably dangerous
defective condition even when there is no reasonable alternative design.
Court continues to adhere to CE, but there may be cases involving complex product
designs in which an ordinary consumer may not be able to form expectations of safety.
In such cases, a consumer‟s expectations may be viewed in light of various factors that
balance the utility of the product‟s design with the magnitude of its risks. Modifying CE
by incorporating RB factors into the ordinary CE analysis. Thus, the modified CE
provides the jury with the product‟s risks and benefits and then asks if a reasonable
consumer would consider the product unreasonably dangerous. The court cites the same
factors, and emphasizes that the focus should be on the product and not the conduct of the
manufacturer. Remember that P does not have to present RB in every case- the ordinary
CE test is appropriate when the everyday experience of the particular product‟s users
permits the inference that the product did not meet minimum safety expectations.
The trial court should determine which test is appropriate and give the instructions.
In this case, the court affirms the verdict.
Footnote 11 sets out the spread of jurisdictions in terms of reasonable alternative design.
In six states, P does not have to show reasonable alternative design. Sixteen hold that a
feasible alternative design is merely a factor to consider. Three require a D to show that
the product was not defective. Eight require that the P prove a feasible alternative design.
L. Mann v. Coast Catamaran Corporation (Ga 1985)
P was injured when the mast of his sailboat came into contact with an uninsulated,
electric power line traversing a lake. He argues that the boat is defectively designed
because it is neither insulated nor grounded.
D‟s SJ is granted. The court says the boat was reasonably suited for its intended purpose
of sailing. Additionally, sailing the boat into a power line is abnormal handling, and
there is no cause of action. Many products cannot be made completely safe and some
cannot be made safe at all, yet they are useful and desirable. Do not want to discourage
the marketing of many products because some danger attended their use.
The dissent argues no reasonable person would sail into a power line, nonetheless power
lines are common on lakes. D had previous knowledge of similar accidents. There will
be more injuries, and under such circumstances, it is a jury question whether a mast,
which lacks grounding or insulation constitutes a defective design.
Vandall says that this is how the case should have been written: 600 people have been
killed by these Hobie boats running into electrical wires. If you are Hobie, what are you
going to do? One idea is to make the bottom or the top carbon fiber, so it provides
insulation. This is what Hobie has done on the new boats. The argument against this is
that some people sail these boats and this carbon fiber mast would slow them down.
Another way is to ground the mast, so that any electric current would run all the way
down. On the Hobie boats, there is also now a warning on the mast telling people not to
run into wires. Vandall says the court should have applied the risk-utility test-look at the
specific design problem, not the whole sailboat. Ask the cost of the safer design as
compared with the benefit of the bad design. Benefit really means injury- how many
injuries are prevented by the new, safer design. Also should have been asked if the
sailors assumed the risk- did they know of the risk and did they voluntarily assume it.
This case is superceded by a later case.
M. Ayres v. Sears (5th Cir. 1986)
Ps‟ decedent was killed in a fire, which destroyed her whole home. Ps allege that the fire
started in a TV bought from D. The court reversed D‟s directed verdict.
The court noted that included in the P‟s evidence was the testimony of a captain of the
fire dept who responded to the accident- he said that the burn pattern in the den was a
“V” with the point located at the TV. P also offered testimony of a young child who saw
sparks from the back of the TV, and two expert witnesses who said that the set was
defective and the probable cause of the fire.
The court says that the P does not have to establish the specific feature which made the
product defective. Proof of defect, as well as the causation link, may be established by
direct or circumstantial evidence and be the product of anecdotal or expert-opinion
testimony. Although proof of a feasible safer alternative design is the usual way to go to
prove design defect, negation of possible causes other than a defective product may
In balancing the utility of the product against the risk it creates, an ordinary person’s
ability to avoid the danger by exercising care is also weighed- this is what happens to the
D’s obviousness defense, becomes a factor to weigh. Vandall would like them to address
this factor as an assumption of risk factor- did P know the risk and voluntarily assume it?
The jury found in P’s favor- probably because they are also farmers or live in the farm
community and they know that this type of thing happens on a regular basis.
In Georgia, obviousness used to be a complete bar- if D could show that the defect was
obvious, then there was a total bar to P’s claim. Then in Navastar, the Georgia Supreme
Court threw out obviousness as a bar in design defect claims.
N. Sperry-New Holland v. Prestage (Miss. 1993)
P lost his lower leg in a combine made by D. P said he used the combine more than
anyone else on the family farm. After the wheat is collected, a threshing mechanism is
engaged to separate the heads from the straw. Then the wheat heads are dumped into a
grain tank. At the bottom of the tank, there is a discharge auger to facilitate the
movement of the wheat. There is a guard that covers the auger and it can be adjusted for
different types of wheat. There is also a leveling auger at the top of the machine. P
leaves the leveling auger on when unclogging the discharge auger with a stick. While
doing so, he leaned across the top of the machine and the leveling auger pulled him into
D argues that the court should apply CE, which was used in older decisions, and the P
argues for RB, which has been used in recent decisions.
Goes through definition of CE test and RB test.
The court adopts the RB test- best protects the manufacturers and consumers.
O. Elliot v. Brunswick Corporation (11th Cir. 1990)
14 year old jumped from a pier and was injured by a boat‟s propellers. P argues that
guards should have been used, and the jury gives them the verdict, but the court of
The court says that certain products whose inherent danger is patent and obvious, do not,
as a matter of law, involve defects of a sort that a jury should resolve. The ordinary
consumer knows that propeller blades are dangerous. Cannot hold manufacturers liable
because their products involve some risk.
In terms of the guards, cannot burden companies with an immediate duty to revolutionize
their industry. P presented evidence of a experimental propeller guard, but the court says
the D does not have to adapt and refine that design. At this stage neither industry custom
nor the pertinent regulations dictate the use of propeller guards. The Coast Guard has
exclusive responsibility for safety regulations and they do not require the guards.
P failed to produce evidence that D had access to a safe, practical design for guards that
the time of her accident. P needed to show more than technical feasibility.
P. Armentrout v. FMC Corporation (Col. 1992)
D manufactured a crane that P used in his employment. The superstructure of the crane
is connected to the truck base, which creates several pinch points. P was crushed when
the superstructure was rotating. P had worked with cranes for two years, and when this
one was delivered, D included a warning not to stand on the platform while the crane was
in motion because of the pinch points. But it is common practice to work on the platform
while the crane is in motion. P was aware of the dangers of working on the platform and
P knew the crane was operating at the time he was on the platform. The jury returned a
verdict for D.
P has proven injury and causation, the issue is whether he has to prove the unreasonable
dangerousness of the product, and the court holds that he must under a RB analysis.
The P must show that the risks outweigh the benefits.
The factors that the court says may be considered, depending on the case, are
(1) the usefulness and desirability of the product.
(2) the safety aspects of the product- the likelihood of whether it will cause injury.
(3) the availability of a substitute product which would meet the same need and not
(4) the manufacturer‟s ability to eliminate the unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility.
(5) the user‟s ability to avoid danger by the exercise of care in the use of the product.
(6) the user‟s anticipated awareness of the dangers inherent in the product and their
avoidability because of general public knowledge of the obvious condition of the
product, or of existence of suitable warnings or instructions.
(7) the feasibility, on the part of the manufacturer, of spreading the loss by setting the
price of the product or carrying liability insurance.
(8) feasible alternative design.
The court reverses the case because the jury was not given instructions on the definition
This is a more usual approach; most courts would follow this rather than Barker‟s light
P. Pietrone v. Honda (Cali 1987)
P was a passenger on a motorcycle. Another car struck her lower leg, and it was forced
to be amputated. P claimed that there was a design defect because the wheel was
exposed. The court says that in this case the evidence conclusively established that a
design feature of D‟s product- the open, exposed, rotating rear wheel in close proximity
to the passenger‟s foot pegs- was a proximate cause of P‟s injury. Without more, the
burden then shifted to D to justify its adoption and utilization of that particular design. D
chose not to justify its design, and therefore failed to meet its burden of proof. D argued
that P did not show a reasonable alternative design. Barker is the law underlying this
case, and the D interprets Barker as requiring a reasonable alternative design. The court
says that interpretation is wrong. The court says that even if Barker does require a
reasonable alternative design, this burden was met by the jury‟s mere inspection of the
photos introduced into evidence. No more than a cursory examination of this machine‟s
configuration makes apparent both the dangers of its design and potential solutions
They are talking about a prima facie case- what gets the case to a jury- here there is a
prima facie case that gets to the jury.
This case also stands for the idea that a specific reasonable alternative design does not
have to be proven in each case by an expert, and reasonable alternative design can be
proven through evidence that allows for inference.
What were the tactical reasons that D did not put on a defense? Most of D‟s motorcycles
have these exposed areas. Vandall does not think the D should have rested- should have
put the case on even though D thought the evidence was weak.
The dissent argues that P should have to show reasonable alternative design, absent such
an approach, the D becomes an absolute insurer of the product.
Can speed be a design defect? For example, there are motorcycles that can go up to
speeds in the high 100s. With a hypothetical car that could go 200 mph, could argue that
the back part of the car is heavier, so when you go around corners the weight from the
back wants to go around the front of the car. The back is heavier because the motor is in
the back. So there are two design defects. The first problem is the back is heavier and
the second problem is the speed. Raises the question of whether you can hold a legal
product defective. Good Exam Question
Q. Elsroth v. Johnson & Johnson (SDNY 1988)
Before this case, a man went into a store, dumped out the Tylenol and put cyanide in, and
then closed the bottle. Lots of people died. In this case, the same thing happened.
In this case, D was not liable because the package was not defectively designed. There
were three safety mechanisms to protect the consumer- carton glued shut, a foil shield,
and a shrink seal.
Why should Tylenol have lost in this case? There are two types of Tylenol- capsule and
tablet. Capsules are easy to break apart and put the cyanide in, while tablets are hard and
cannot be broken. Tylenol stuck with the capsules because real medicine comes in
capsules. The products question is for this marketing decision, which killed P, should D
be held liable. Vandall says that they should have been held liable because there was a
reasonable alternative design with the tablets that the D did not use for marketing
In the first case, the D was not liable because the criminal intervening cause was
unforeseeable, and this cut off liability.
R. Movie on Plane Crash
This is an important film- shows that the law has a responsibility to say when there is a
problem. The idea is that threats of lawsuits will force the manufacturers to make
preventative changes. It is too late in the process for Congress to pressure manufactures-
lives have already been lost. A lot of agency heads are former executives of major
corporations- Vandall says it would be better to have disinterested heads at agencies.
These former executives have a vested interest in the issue.
What was the defect in the airplane in the movie? The door did not close properly- this
was a design defect; they were all like this. Although the particular plane that crashed in
the movie came after the FAA warnings and modification, so could be argued that
particular one was a manufacturing defect.
What was the relationship between the FAA and the airplane manufacturers? It was a
friendly relationship- cause for concern, might be bending rules.
Safety is a coordinated relationship between federal agencies, the public, and the
manufacturers- the public needs to be an element and have a substantial amount of input
in regards to safety.
The Government agencies are immune from lawsuit. Can sue Government employees if
they are negligent under the Federal Torts Claim Act, but cannot sue agencies or heads of
S. Jurado v. Western Gear Works (NJ 1993)
Misuse Case- deals with the definition of misuse in terms of a design defect case.
P, an employee of a printing company, injured his right hand when it was caught in an in-
running nip point located between a rotating cylinder and a support bar underneath a
collating machine. P was trying to clear a blockage and did not turn the machine off
because his employer told him it would confuse the collating sequence.
P‟s expert testified that there was a design defect because there was no guard at the nip
point. At the time the machine was made, a guard could have easily and cheaply been
installed and it would not have interfered with the function of the machine. Also, the
company should have recognized the danger and that employees take short cuts.
D‟s expert testified that the nip point was guarded by its location. Furthermore, the
machine was not designed to be cleaned while in operation.
P has the burden of showing that there was no misuse. If there was misuse, the P can still
prevail by showing that the misuse was objectively foreseeable.
There are two kinds of misuse- (1) use of a product for an improper purpose or (2) misuse
in the manner in which P uses the product.
Product misuse could relate to the existence of a defect, the issue of causation, or that of
comparative fault. In a work-place setting, when because of design defect, an employee is
injured while using a machine in a reasonably foreseeable manner, the employee‟s
comparative fault is irrelevant.
If the jury concludes that the product is defective, it must then determine whether the
misuse proximately caused the injury. Even if a defect is a contributing or concurring
cause, but not the sole cause, of an accident, the manufacturer will be liable.
The court says that misuse is not an affirmative defense. The court combines misuse with
foreseeability. Manufacturer has a duty to prevent an injury caused by the foreseeable
misuse of its product. The P had the burden of showing no misuse or that the misuse was
objectively foreseeable- this should be part of the P’s case. Vandall does not like this,
thinks it is two bites at the apples for the defense. He thinks courts should get rid of
foreseeability as a major element of design defect. This can be done by weighing all of
the factors in a design defect case- this handles the scope inquiry, so no need for
foreseeability. Then, Vandall would get rid of misuse- says that it is repetitious. Vandall
would determine if the product is defective and then say that there are two affirmative
defenses- assumption of risk., comparative fault, or contributory negligence. Misuse
should fall within assumption of risk, it basically a rewriting of assumption of risk. Sole
cause is a quagmire, when it is raised people are trying to confuse you and the judge-
Vandall says that there is no such thing as sole cause when there are two people
When misuse is an issue:
(1) Did P use the product for an objectively foreseeable purpose?
(2) If yes, then was the product defective?
(a) Risk-utility to determine if P used the product in an objectively foreseeable
(b) If yes, then evaluate product’s utility.
(3) If product is defective, must decide whether misuse proximately caused the injury.
Jury instructions- Vandall thinks they were inadequate in this case. As an attorney,
always write your version of the instructions that are most favorable to you and turn
them into the court. In this case, the court says that there should be a retrial because the
instructions were not clear.
The dissent argues that there was no need for a retrial.
Retrials are a big deal- lots of money expenditure. Many cases get settled on reversals
rather than go through another trial.
T. Ellsworth v. Sherne Lingerie (Md. 1985)
P was injured when her nightgown caught on fire. She was wearing the nightgown
inside-out and the pocket flaps caught on fire.
The case is set out to show us five definitions of misuse.
The court says that misuse is not an affirmative defense because defectiveness and
causation are elements that must be proved by the P. Misuse of a product may bar
recovery where the misuse is the sole PC of damage, or where it is the intervening or
superceding cause. The D does not get to present the idea of misuse to a jury.
The court says that the way the P was using the nightgown was reasonably foreseeable.
The court is saying that misuse is a powerful concept that is going to ding the P, so not
going to let it go before the jury. Vandall thinks the court is exercising caution as to what
they are going to allow to go before the jury, so be careful with misuse.
Vandall would make misuse an affirmative defense that the D has to plead and prove
separately. But, he would prefer to just get rid of misuse.
U. Lamkin v. Towner (Ill. 1990)
Kid falls out the window screen and is killed. Court affirms defense summary judgment.
The test that is used is consumer expectation test- what would be contemplated by the
ordinary person for their intended use.
What if the jurisdiction adopted the risk-utility test? The manufacturer would not be
liable under a risk-utility test because of cost and weight, and people want to be able to
see out of windows. Want to be able to move the screens in and out.
The intended use of the screens is to keep bugs out, not to keep kids from falling out.
V. Venezia v. Miller Brewing Co. (1st Cir. 1980)
Child threw a beer bottle against a pole, it exploded, and the child was injured. The court
says that it is not foreseeable that the bottle would thrown against a pole. People may
throw bottles about, but this is not an appropriate use.
How would assumption of risk work? Vandall thinks with assumption of risk would get
into an age problem. Also, parents cannot be held liable for all possible torts the child
would commit, or parents would start to put children on leashes. Therefore, in some of
these cases there is an imputation of guilt from the parent to the child. This case is tough
under assumption of risk, although Vandall does think this is the best way to decide this
case. Obviousness defense might work- kid through the bottle because he wanted it to
W. Andrews v. Harley Davidson (Nev. 1990)
Product alteration- the burden of proving that a product has been altered is on the D
manufacturer in a products liability suit- he knows how the product should be produced.
See footnote for when a P has exclusive possession.
In such cases where the defense of alteration is raised, the burden of persuasion should be
placed on the person with the greatest information of whether there had been an alteration
of the product, and this would normally be the P. The basic lesson is that P‟s attorney‟s
should preserve the product- whether it be a car, weeds, whatever- so that the burden
remain on the D. If the D wants the product of tests or expert examination, then go with
the D or make them pay a bond. Want to keep the burden on the D, so do not get in the
quagmire of the footnote.
X. State of the Art
2. Technological Feasibility
3. Government Standards
Robinson v. Reed Prentice
P injured is hand while operating a plastic molding machine, the employer destroyed the
functional utility of the safety gate.
The court holds that no manufacturer may be automatically liable for all accidents caused
by the use of its product- not an insurer. Substantial modifications of a product from its
original condition by a third party which make a safe product defective are not the
responsibility of the manufacturer. At the time D sold the machine, it was not defective.
Lenhardt v. Ford (Wash. 1984)
The issue is if evidence of compliance with industry customs and standards is always
admissible as a relevant factor in evaluating the reasonable expectation of the ordinary
consumer. The court holds that it is not.
The P was injured when his parked truck slide into reverse. He alleges strict liability for
design defects in the transmission system. P‟s expert argued that the problem could be
eliminated through minor changes in two components.
D‟s expert argues that Ford is in compliance with industry standards.
Must distinguish between two types of evidence- state of the art evidence and evidence of
industry custom. State of the art relates to the technological feasibility of alternative
safer design in existence at the time the product was originally manufactured. Industry
custom refers to a practice or custom regarding a particular design or manufacturing
technique utilized by most manufacturers in that industry.
The court states that introducing evidence of industry and/or manufacturer‟s customs and
practices shifts the jury‟s focus from what the consumer expects to what the
manufacturers are doing. Should focus on the product. If a P establishes that a product is
defective according to CE, then the D cannot introduce evidence that his design comports
with the design of other manufacturers.
The dissent argues that the D should be allowed to present such evidence because it aids
the jury in assessing the relative harms and benefits of a product‟s design.
Boatland v. Bailey
Boating accident- boat hits submerged tree stump. P alleges that boat should have kill
switch and introduced testimony of the inventor of this device. This was a 1978 trial and
the 1973 was the date of manufacture. D contends that the particular design alternative
was impossible due to state of the art.
The court concludes that a suggestive alternative may be invented but not be feasible for
use because of the time necessary for its application and implementation. P has to show
that the kill switch was feasible and practical, not just a theory. When the Ps introduced
evidence of the use of kill switches, D was entitled to introduce rebuttal evidence of non-
use at the time of manufacture due to limitations imposed by the state of the art.
Evidence offered under these circumstances is not offered to show that a custom existed
or infer the D‟s compliance therewith.
Bruce v. Martin Marietta
Plane built in 1952 crashed in 1970, killing most of a football team. Ps allege design
defect regarding inadequate seat fastening and lack of fire protection.
The issue is whether a reasonable consumer would expect a plane built in 1952 to be up
to date or should apply state of the art at the time of manufacture.
The court holds that should apply state of the art at the time of manufacture.
State of the art evidence is relevant to a strict liability claim. State of the art evidence
helps to determine the expectation of the ordinary consumer. Ps have not shown that the
ordinary consumer would expect a plane made in 1952 to have the safety features of one
made in 1970.
Vandall does not agree that an ordinary consumer would not expect seatbelts. In terms of
FAA standards, these are usually admissible as a standard of care but not determinative.
The patent-latent language has fallen into disuse.
Modern products cases refer to that remaining fact-intensive issue as the gradational
question of “obviousness”, and its effect on the issue of legal defectiveness.
The modern trend in the US is to abandon the strict patent danger doctrine as an
exception to liability and to find that the obviousness of the defect is only a factor to be
considered as a mitigating defense in determining if a defect is unreasonably dangerous
and if P used the degree of reasonable care required by the circumstances.
The problems with the patent rule is that it is too rigid and it places all of the costs on the
injured consumer instead of the manufacturer.
Z. Gray v. Manitowoc (5th Cir. 1985)
The P was injured when he was struck by the boom of a crane manufactured by D. He
was standing to the left of the crane supervising its operation.
Testimony at trial established that the operator‟s vision to the left side is obscured by the
boom when the crane is operated in the “boom-down” position. Users of these cranes
place a signalman at various locations on the ground to guide the operator, which P‟s
employer did. Nonetheless, P argues that there should have been mirrors, closed circuit
TV cameras or other devices on the crane to enable the operator to see to the left side of
the crane when the crane is operated in the “boom-down” position.
D says the omission of these devices did not make the crane defective. The hazards of
operating the crane in the boom-down position were open and obvious to ordinary users,
and Mississippi law does not allow recovery for a manufacturer‟s failure to correct such
The court says that it is bound to apply this law, and that the Ps‟ right to recovery
depends on whether the evidence was sufficient to permit the jury to find that the crane
was dangerous to an extent not contemplated by the ordinary consumer who bought it,
with the ordinary knowledge common to the community as to its characteristics.
Contrast with Pike v. Frank Hough Co (Cali 1970)
In this case, the P was killed when he was back over by a paydozer.
The record has evidence favorable to P- the area was well lit and visibility was good, the
driver checked for Pike but did not see him in spite of his luminous jacket. The operator
testified that there was a substantial blind spot to the rear of the paydozer because of its
design and that the lighting was clear enough to see workers on the other side of the dam.
The paydozer had no rearview mirrors and no audible or visible backup warning signal.
P‟s expert said that the blind spot could be significantly reduced through rear view
mirrors and recommended a backing up warning signal.
D argues that the danger of being struck is a patent peril and it had no duty to install
safety devices to protect against an obvious danger.
The court does not agree. Says that the danger of being hit is not obvious to bystanders-
they do not know that the operator cannot see them. The manufacturer‟s duty of care
extends to all persons within the range of potential danger. Also, the obviousness of peril
is relevant to the manufacturer‟s defenses, not to the issue of duty. The issue of
contributory negligence is for the jury. Finally, modern law does not preclude recovery
because the danger is obvious.
The key is that the blind spot could be cut down to 12 feet by a cheap alternative design-
mirrors placed in certain place as compared to the Gray case, which has an expensive
alternative design. Need to always be aware of cheap alternative design that is
AA. Obvious to Children
Griggs v. BIC Corporation (M.D. Pa 1992)
The court held that a minor could not recover for injuries from when he was burned by a
fire caused by a disposable butane lighter manufactured by D.
P‟s three year old son got a lighter from Dad‟s pants pocket and set fire to the bed where
his brother was asleep. The brother was seriously burned.
P claims that the ligher was defectively designed because it was not childproof.
D argues that the cause of the injuries was misuse by an unintended user.
The Ps contend that, as a matter of public policy, the court should that a manufacturer has
a duty to bear the risk of loss when an unsupervised child injures himself or others
through misuse of a product intended for use by adults. They argue that when such
products do not have a childproof safety device its design is defective and unreasonably
The court agrees with D- if they adopt P‟s theory, manufacturers of practically every
conceivable household object would be liable when unsupervised children are injured by
them. Thus, a manufacturer would become an insurer for all injuries that result from use
or its product. This is clearly contrary to public policy.
These are everyday items that are useful- it is the duty of the parent to keep items with
obviously dangerous propensities out of the reach of children.
Contrast with Bondie v. BIC Corporation (E.D. Mich. 1990)
P stated a claim for negligent design against D because the lighter was not child resistant.
The court noted that D had a child-resistant design in place, although not in production, at
the time of the P‟s injury. It also noted that the lighter was brightly colored, and
therefore especially attractive to children.
BB. Shaffer v. AMF, Inc. (6th Cir. 1988)
There are degrees of obviousness of danger.
The court says that there is no defect in this case- the P was injured while riding a
motorcycle. The court says that this is a classic crash. The point of the case is that the
P‟s attorney failed to show a specific defect, and the P‟s attorney must do this. The court
says that there was no defect in the motorcycle beyond the fact of its being a motorcycle
with attendant hazards.
In this case there is a hint- facts say that P has been riding for six years, so strengthens
assumption of risk.
Contrast with Camacho v. Honda Motor Co. (Colo. 1987)
The Ps argued that their motorcycle was defectively designed because it was not
equipped with crash bars to protect the rider‟s legs in case of a collision.
The trial court gave D SJ and said that the danger was obvious.
The court of appeals reverses- does not like the obviousness test. Says that the primary
focus must remain on the nature of the product under all relevant circumstances rather
than on the conduct of either the consumer or the manufacturer.
Uncritical rejection of design defect claims in all cases wherein the danger may be open
and obvious contravenes sound public policy by encouraging design strategies which
perpetuate the manufacture of dangerous products.
Manufacturers of such complex products have greater access than do ordinary consumers
to the information necessary to reach informed decisions concerning the efficacy of
potential safety measures.
CCC. Obviousness and Affirmative Defenses
P, a bartender, was injured when she bumped her head ducking under the bar. This had
happened to her several times, and she warned new employees about this during training.
P alleged no defect other than the height.
The court finds for D- normal and contemplated risk. D wins under consumer
expectations test (obvious risk).
Concurring opinion rewrites the assumption of risk. This shows one of the problems-
cannot get the terms down clearly. The court rewrites assumption of risk to be P knows
of the risk and P unreasonably (rather than voluntarily) uses the product despite that
DD. Obvious Dangers and Statutory Warnings
The Alcoholic Beverage Labeling Act and the Cigarette Labeling and Advertising Act
mandate container and package warnings regarding dangers connected with the use of
alcohol and tobacco. These dangers seem obvious, so the big question is why these
warnings are required.
EE. More Economics
Posner argues in favor of an economic analysis of law, which allocates risks on the basis
of efficiency. Efficiency occurs when resources are used where their value is highest.
Vandall asks how can such an economic evaluation be made when most of our most
important values lack a market and cannot be assigned a price. Furthermore, where does
the concept of justice fit into an economic analysis?
Dean Calabresi- cheapest cost avoider theory- the cost of an accident should be placed on
the party who is in the best position to make the cost-benefit analysis between accident
costs and accident avoidance costs and to act on that decision once made.
For example, a talented violinist works on a punch press- violinist in a better position to
evaluate the importance of his hands rather than a manufacturer.
This theory is rarely used, but a well-written opinion will include it.
FF. Pleading and Proof
Chaulk v. Volkswagen of America, Inc. (7th Cir. 1986)
Personal injury action arising from a car wreck. P in the front passenger seat of car, hit
on the passenger side, P ejected from the car and remained in a coma for several months.
Ps brought claims of negligence and product liability. Court gave directed verdict to D
on negligence and this court reverses.
P argues that the latch system was negligently designed and inherently dangerous- side
impact collision could release the latch.
The court held that there was evidence that Ds did not exercise ordinary care-
foreseeability of the accident. Ps evidence showed that the release was reasonably
foreseeable and there was a reasonable alternative design on the market.
Posner writes the dissent. He says that P presents no evidence of negligence. Posner
says that there is little, if any, practical difference between negligence and strict liability
in a products liability case complaining about the design of the product. To win on the
theory of strict liability the P must prove that the product was defective in its design,
which means unreasonably dangerous. To win on a theory of negligence the P must prove
that the D in the exercise of ordinary care would have should have foreseen that his
design would be unreasonably dangerous to others. Both claims have the element of
unreasonable dangerousness in common.
Posner does not like the fact that the reversal rests only on P‟s expert. Posner argues that
these types of latches are on many cars. P‟s expert‟s testimony was either that of a crank,
or of a man making a career out of testifying for Ps in car accident cases.
The buyer of a Mercedes might be willing to spend tons of money, but such a buyer‟s
willingness to buy the ultimate refinement in safety does not define the standard of care
for the whole industry.
Posner says that Mercedes does not set the standard for car safety. Mercedes had a lift
latch like the P‟s expert called for. Posner seems to set two standards. Vandall says that
there should be a minimum standard of safety that should apply regardless of the price of
the car. Vandall agrees that Mercedes does not set the standard, nonetheless there should
be a minimum level of safety.
GG. Expert Scientific Evidence
Daubert- Court said that under the FRE, the expert testimony need only be based on
reliable sources and be helpful to the fact finder. Relevant to the issue of admissibility is
whether there has been peer review of the expert‟s opinion, the error rate of the witness‟
methodology, and the existence of professional organizational standards controlling the
technique of the methodology. Hearsay may be used as the basis of the opinion if it is a
type reasonably relied on by experts in the particular field. The evidence is inadmissible
if its probative value is substantially outweighed by the danger of prejudice, confusion, or
the risk of misleading the jury.
Frye- required a showing that the expert opinion is based on a scientific technique that is
generally accepted as reliable in the relevant scientific community.
Daubert- critical to products litigation because have to come up with an expert, and the
expert has to survive a Daubert inquiry by the court. The trial court judge is that
gatekeeper and if he dings the expert, then the case is gone. In the Court, the Ps won.
Daubert replaced the Frye general acceptance standard. There were a 100+ amici brief
written, so this was an important issue. The problem with generally accepted was
determining the scientific community and who has done the testing. With
pharmaceuticals, the problem is that there were no scientists outside of the corporation
who had done any testing. So if you followed generally accepted, P would never get an
expert because they just did not exist. In this regard, Daubert is a victory for the P.
Daubert is also a travesty for Ps. The Daubert Ps actually lost on remand to the 9th
Circuit, who threw out the expert‟s testimony. It is also a travesty for the Ps because it is
expensive to do these tests. Daubert is a serious problem for Ps because the trial judge is
a gatekeeper, and the judges are throwing out Ps cases because do not think that the
experts meet the Daubert standard. Finding an expert that will survive Daubert scrutiny
is hard enough, and more expensive.
Kuhmo- extended Daubert to non-scientific testimony. this has created another layer of
problems for Ps in products cases.
The Daubert theory is correct to get rid of the general acceptance, but perhaps the trial
judges have too much power and are throwing the cases out.
The theory of junk science argues that too many cases are going to the jury, which is
destroying US drug industry and causing them all to move back to Switzerland.
The expert does not have to be qualified by professional degrees to testify, can have an
expert that is qualified as a lay expert..
Do not need an expert where there strong enough permissible inference from the
evidence. This is the exception, because generally need experts in a products case.
The standard is that if the facts are so technical that the jury will not understand them,
then an expert is required.
HH. Tobin v. Astra Pharmaceuticals (6th Cir. 1993)
P‟s theory was that the drug Ritodrine had caused her heart disease.
P must prove causation. D attacks P‟s expert- says that it is nothing but opinion and not
founded on a generally accepted scientific basis. P refutes this claim by pointing not only
to the expert‟s credentials, but also to various studies conducted, D‟s own package
inserts, and the testimony of D‟s causation expert.
The court finds that after a review of the record and the authorities cited by the parties,
that P‟s expert‟s testimony was within his area of expertise and was sufficiently plausible
to allow a jury to ground a verdict on it.
II. Wilson v. Piper Aircraft Corporation (Ore 1978)
Examines external standards.
Concerned a small airplane crash caused by engine failure resulting from carburetor
icing. The P argued that the D should have equipped the airplane with fuel injection.
Court says in uncomplicated design cases, an expert is not needed- jury can use
inferences. But in other cases, the question of practicality of feasible alternative design
cannot be properly weighed solely on the basis of inference and common knowledge. It
is not proper to submit such allegations to the jury unless the court is satisfied that there
is evidence from which the jury could find the suggested alternatives are not only
technically feasible but also practicable in terms of cost and the over-all design and
operation of the product.
In this case, there is no evidence about what effect the substitution of a fuel injected
engine would have had on the airplane‟s cost, economy of operation, maintenance
requirements, over-all performance, or safety in respects other than susceptibility to icing.
There was also undisputed evidence that 80-90% of all small planes comparable to this
one are made with carbureted engines rather than fuel injected engines and no
explanation of why this is the case.
The D was also in compliance with FAA standards, which does not preclude the
possibility of liability for a design defect, but in a field as closely regulated as aircraft
design and manufacture, it is proper to take into consideration, in determining if Ps have
produced enough evidence to go to the jury, the fact that the regulatory agency has
approved the very design of which they complain after considering the dangers involved.
The concurrence stresses the importance of the decision of the administrative agencies.
Judge Linde- if you can show that a safety agency has specifically considered the
question, then it should not be subject to reconsideration in a suit unless P can show that a
regulatory agency did not address the defective design question or the agency‟s standards
are too low. This has not been accepted. What has been accepted is that if the D
conforms to a standard of care a presumption of meeting this standard of care, then the
burden shifts to the P. This has been adopted in two states.
There is no evidence what the substitution would have had on the airplane‟s cost (this is
the key to the case as the fuel injected engine is much more expensive), economy of
operation, over-all performance and maintenance requirements.
Basically the court is saying these small planes should be available to the general public,
and if you increase the price, then public will not be able to buy it.
Another element is that there are de-icing mechanisms (in accordance with the FAA) in
the carburetor engine, and the pilot did not use them, so large amount of pilot error. The
risk was known to the pilot.
The Titantic did not have enough lifeboats because they met the standards. Clearly, the
standard was not high enough. This is another critique of the agency standard.
To respond to the federalist argument that all answers should come from the legislature
(Prof. Nagurita’s argument)- think of the Georgia crematory disaster, an editorial said
that Georgia laws regulating crematoriums are weak, and on top of that Marsh got an
exception from the weak regulations from the crematorium. Vandall is not convinced
that the legislature is doing what it is designed to do- fear that they are serving their
special interests rather than the public. So we need the courts to be open as a solution
Shipp v. GM (5th Cir. 1985)
GM appeals from a judgment following a jury trial in a products liability crashworthiness
The roof crashed on P during a roll over, and P asserts that the roof did so because it was
defectively designed and that the impact broke her back. D denied this, and said that P‟s
back broke because she fell into the roof. Jury found for P.
D argues that even if P established factual causation, she did not establish legal
causation- argues that P did not meet burden of proof for enhancement damages.
Jurisdictions are split on the burden of proof necessary for enhancement damages. One
line adheres to Huddell, which requires that a P establish the nature and extent of
enhanced injuries. Others do not require a crashworthiness P to prove with specificity the
injuries which flowed specifically from a product‟s deficiencies; rather a P need only put
forth some evidence of enhancement to present a jury issue.
The court notes that there can be more than one producing cause of an injury.
The court accepts the second view.
P had a wreck and the roof of the car crashed on her giving her permanent paralysis.
Arguing about two rules in this case.
One rule is the Huddell rule, which requires the P to establish the nature and extent of
enhanced injuries. The point of this case is how to design a headrest (in the case there
was a doctor sitting in his car, hit from behind, no injuries, but slowly goes nuts and
eventually commits suicide). The car in this case had a fire axe in the headrest that
permanently damaged the doctor‟s skull. Remember that the doctor‟s car was hit from
behind, so have two acts of negligence- the driver of the car that hit him from behind and
the fire axe in the head rest. How would the P prove the nature and extent of enhanced
injuries- Vandall does not know how this would be proven. In his opinion Huddell is
The other rule is the Fox-Mitchell rule, which says you have to show that the design
defect was a substantial factor; a P need only put forth some evidence of enhancement to
present a jury issue. In a death case, the two people at fault are joint tortfeasors that are
jointly and severally liable. Crashworthiness shifts the burden of proof to the D; if the D
fails to show that his design was not a substantial factor. If the victim dies, then the
corporation and driver become joint tortfeasors, and Ps go after the corporation because
there is more money there. When you have joint tortfeasors, then the P can collect the
entire amount from one. Defense bar has argued that liability for joint tortfeasors should
be collected on a percentage basis- should pay for the percentage of harm that you cause.
The problem with this is that it means a lot of attorneys will not take these cases to court
for the Ps if there is a percentage system- if the corporation only has to pay a small
percent and the negligent driver the rest, then there will not be enough money recovered
(negligent driver would not be able to pay) to pay for the attorney.
49 Emory Law Journal 565 (2000)- Vandall‟s law review on this.
The Trend: An early case, Evans, denied recovery for second-collision injuries on the
ground that cars are not designed to protect against collisions. It was later rejected by the
same court on the ground that such collisions are indeed foreseeable. While a few
jurisdictions follow Evans in denying recovery, the overwhelming trend is to recognize
what has become known as a crashworthiness cause of action. The court in Miller v.
Todd said that the doctrine of crashworthiness merely expands the PC requirements to
include enhanced injuries. Indeed, the trend has also been to allow recovery based on
strict liability and negligence.
Evans- dealt with the intended purpose doctrine. The product in the case was an X frame
car. There was a side impact and the passenger was seriously injured- the P argued the
product was defective because there was no frame preventing intrusion. Most cars today
do not have frames, the strength is put in through thickness and creases. Trying to raise
the issue of crashworthiness, which was rejected in Evans- the court said that the car was
fit for its intended purpose of driving.
Larsen- a case that deals with the Corvair- motor was in the back, so when it went around
corners it just kept going. The Corvair had a steering shaft that was in front of the front
wheels, there as an accident and the shaft went through the chest of the driver. The issue
was whether there can be recovery for enhanced injuries. Suing because the car is not
crashworthy. This court accepted crashworthiness. For some enhanced injuries can hold
the manufacturer liable- should be designed to withstand normal crashes without driving
a spear through the driver‟s test. In cars today, the steering shaft is shortened, so this
problem is not there.
Dreisonstock v. Volkswagon (4th Cir. 1974)
In a jurisdiction that recognizes crashworthiness.
There was no evidence in the record that there was any practical way of improving the
crashability of the vehicle that would have been consistent with the peculiar purposes of
its design. The van is cheap, the unique feature of the vehicle is to have a lot of space in
the back, and the danger is obvious.
Seattle- the facts were the same, but the jury was permitted to consider the
crashworthiness issue because of the speed- the P was going slow. At 20 mph, the
product should be able to withstand a crash.
Daniell- P sought recovery for injuries suffered when she became locked in the truck of
her car- alleged that the truck was defectively designed because there was no internal
lock release. The court rejected her claim because she was not inadvertently trapped, but
locked herself in on purpose to commit suicide. The court found that it was near
impossible that an adult would enter the trunk and close the lid.
Preemption- trend to find federal preemption, either express or implied, of common law
causes of action where a federal statute prescribes the standard of design or warning for
the product. For example, a majority of courts have found preemption under the National
Traffic and Motor Vehicle Safety Act regarding an alleged design defect in failure to
provide air bags.
Divisibility- 10th Circuit said tat damages may be apportioned between two causes if
there are distinct harms or a reasonable basis for determining the causes of injury, but
death is not a divisible injury.
Burden of Proof- split in jurisdictions. One line of cases, headed by Mitchell v.
Volkswagon, uses a shifting burden of proof. The P has the burden of proving that the
defective design of the car was a substantial factor in causing the enhanced injury. The
burden then shifts to the other Ds to apportion the damages. The alternative approach
had been endorsed by the 3rd Circuit in Huddell v. Levin. The P retained the burden of
proof both as to the existence of an enhanced injury and as to its extent. Georgia, in
Polston, adopted the Mitchell approach.
Crashworthiness applies to airplanes as well as cars. Mathis- There was a plane in which
a person smoked in the bathroom, the paneling caught on fire and the plane filled with
smoke. The pilots landed the plane, but all passengers dies of inhalation. The interior of
a plane needs to be designed to deal with this foreseeable action. Today, the interior of
an airplane is supposed to be fire retardant.
The aircraft manufacturers have not been faced with the burden of defending the
crashworthiness design of their aircraft to date because it has been easier for the P to
prove operational negligence on the part of the airline from which sufficient damages
could be obtained. Also, the legal development of the crashworthiness cause of action
was still in its embryonic state.
Vehicle crash cases draw attention because of the extensive use of cost-benefit analysis
used by manufacturers and regulators in determining the level of safety. The most
famous examples are the Pinto cases in the 1970s.
Ford designed the Pinto to compete with cheap, foreign cars. The Civic was a great car,
priced at $2,100. The Pinto was a crap car, and to fill a niche, Ford priced the car at
$2000. The material on p. 275 suggests that Ford knew how many people were going to
die and be injured in each kind of collision. A serious problem in this analysis is what is
the value of a life. Of course, the value of a life depends on whose life it is- the life is a
doctor is more valuable than the life of a homeless person. The problem with the Pinto
was that it was a rear wheel drive car- the motor was in the front and the differential
(changes the twist coming from the transmission into the twist necessary to drive the rear
wheels) was in the back. The drive shaft runs through the car to reach the differential.
Ford put the gas tank close to the differential. The Pinto was hit at around 30 mph in the
back, and the gas tank was driven into the differential. The gas tank hit the bolts of the
differential and broke. Since the car was so cheap, there was nothing between the trunk
and the gas tank except a thin layer of vinyl, so when the tank broke, the gas fumes went
throughout the car and there were severe burns and death. The argument was that Ford
knew about this and priced it out. The cost of preventing the injury would have been
$11. we are comparing benefits and costs. Benefits are deaths and burns avoided. The
costs are those of preventing the deaths and the burns- $11 per car for a plastic shield that
would go between the gas tank and the differential and a flexible rubber tube that would
connected the gas tank to the opening. What is amazing is that Ford had tested the Pinto
in crashes- there are tapes that show that the problem, but they put water in the tank
instead of gas so no one in the videos were hurt. All of this comes from the Grimshaw
case. The total cost to Ford would be $137 million and the benefit would be $49.5
million, which means Ford had a savings of $87.5 million. The jury took the savings
from Ford and rounded it off to $100 million. The jury also added $3.8 million for
compensatory damages. The jury also added about $20 million worth of punitive
damages, so the total damages award was $128 million.
The D moved for a new trial, so the judge did remitter and told the P if he accepts the
verdict of $6.8 million he will turn down the motion for a new trial. $128 million is
Ford‟s daily profit, can make an argument that Ford won this case. The only thing the
suit did was to surgically remove this dangerous product, and it did not even do this- Ford
just changed the name of the car and sold it to Lincoln-Mercury as a Bobcat. But it did
have the plastic put into it.
This shows us what we have to keep in mind about Enron- Vandall does not think they
are going to be put in jail because we do not like to put executives in jail. Punitive
damages are basically an alternative to putting executives in jail. We have to do
something to tell them that they really screwed up. Vandall argues that punitive damages
are a replacement for criminal prosecution. Enron guys will not go to jail just as the Ford
executives did not.
In almost every instance, courts just give damage awards rather than forcing
manufacturers to make changes through injunctions. Courts do not want to go to the
assembly lines to make sure manufacturers are doing things.
KK. Kelley v. RG Industries (Md. 1985)
The issues concern whether a handgun manufacturer or marketer might be liable under
some circumstances for gunshot injuries caused by the sue of one of its handguns in a
Maryland has a regulatory scheme that has been codified regarding the wearing, carrying
and transporting of handguns. In general, to impose strict liability on the manufacturers
or marketers of handguns for injuries resulting from the misuse of handguns by others
would be contrary to Maryland public policy as set forth by the Legislature.
The court notes that there is, however, a limited category of handguns, which clearly are
not sanctioned as a matter of public policy. To impose strict liability on the
manufacturers or marketers of these handguns, in instances of gunshot wounds caused by
criminal use, would not be contrary to the policy embodied in the enactments of the
General Assembly. This type of handgun, commonly called a Saturday Night Special,
causes special problems for law enforcement. They have characteristics that render them
particularly attractive for criminal use and useless for the legit purposes of law
enforcement, sport, and protection.
These Sat Night Specials should be treated differently from other handguns. They are
largely unfit for any of the recognized legit uses sanctioned by the Md gun control
legislation- the only purpose is criminal use, which the Legislature has sanctioned as a
Moreover, the manufacturers or marketers of these guns know, or ought to know, that
they are making or selling a product principally to be used in criminal activity.
The court holds that it is consistent with public policy and social utility to hold the
manufacturers or marketers of Sat Night Specials strictly liable to innocent persons who
suffer gunshot injuries from the criminal use of their products.
This case was appealed and the P never showed up in the appellate courts, so this
decision is of little precedential value. The Maryland Legislature superceded the case
LL. Ultrahazardous Activities
Richman v. Charter Arms (E.D. La. 1983)
Court denies SJ for D.
Regarding the Restatement 2nd §§519-520, the court said that factor(c) concerns whether
the party engaging in the allegedly ultrahazardous or abnormally dangerous activity can
eliminate the risk of serious harm by exercising reasonable care.
P argues that what is ultrahazardous or abnormally dangerous is not the marketing of
handguns per se, but the marketing of hand guns to the general public, and the court finds
legal merit in this argument.
Factor (d) concerns common usage. Handguns are not an item of general use, they are an
item of extraordinary or abnormal use.
Factor (e) is the issue of locality- whether or not an activity is ultrahazardous or
abnormally dangerous depends on where it is conducted. P argues that in this case there
is no where in the US where handguns can be safely marketed for sale to the public-
matter for the jury.
The final factor, (f), concerns the value of the activity to the community.
The D argues that it will be impossible for companies to get insurance, but the court says
that the increased insurance costs can be passed on to consumers in the form of higher
prices for handguns.
This decision was reversed on appeal in this case and Perkins. The appellate court said
that §520 did not apply to these cases under Louisiana law for three reasons- (1) the
allegedly ultrahazardous or abnormally dangerous activity must be related to land or
other immovables, (2) the activity must cause the injury and the D must have engaged
directly in the injury causing process, and (3) the activity must not require the
substandard conduct of a third party to cause injury.
These three factors have not been applied as stringently in other cases- like crop dusting-
strict liability against the seller even though not engaged in the activity. But the courts
have been virtually unanimous in denying recovery as a matter of law on the basis of
strict liability for ultrahazardous or abnormally dangerous activity against handgun
The Legislature reacted to this case, and Md passed a law saying that the manufacturers
could not be held strictly liable.
In 1991, DC voted by referendum to hold manufacturers of assault weapons strictly liable
when their weapons caused death or medical expenses. Why did DC have to pass a
referendum to hold manufacturers of assault weapons strictly liable when their weapons
cause death of medical expenses. The referendum goes to the public for a vote rather
than going through the Legislature. The legislature in DC is Congress, and there was fear
that Congress would say no. This supports Vandall‟s proposition that Congress is not
doing what people want them to do.
Florida, Iowa, and Cali passed statutes holding parents or other adult gun owners
criminally liable for damages caused by children with firearms.
If there is a gun regulation and the D is in violation of the gun regulation, P may be able
to argue negligence per se. Could argue that the legislature intended to provide the basis
of a negligence suit through the violation of the statute.
Vandall and Cigarettes- Vandall has suggested that absolute liability is appropriate for
cigarette manufacturers. His proposal has four parts and the goal of the proposal is to
reallocate the loss, from non-smokers and society in general, to the cigarette
manufacturers and smokers.
The proposal has four parts-
i. The liability of the cigarette manufacturer is absolute.
ii. The P who has regularly smoked on pack of cigarettes a
day for at least 15 years has a presumption that his cancer
was caused by smoking.
iii. The damage recovery is limited to four types of cancer-
lung, throat, esophagus, and oral cavity. P must submit a
statement from a physician.
iv. Damages are restricted to medical expenses and lost wages.
Punitive damages are not available and there is a $100,000
cap on pain and suffering.
MM. O.K. Corral Article
Remember that with these suits we are talking about two kinds of suits. With tobacco,
there are suits brought by individuals-either single or by class, and there is the state or
municipality suit (this is what we are talking about in the article). Need to understand
that there are enormous differences between the two. The problem with the state tobacco
suits is that they were argued to be subrogation suits- the theory is that the new P steps
into the shoes of the old Ps and D has all of the same defenses. The key to the tobacco
suits is that the state suits are not subrogation suits- not stepping into the shoes of the
smoker, they have their own original injuries. So the defenses of assumption of risk and
contributory negligence do not apply to the states like they do to the individual suit. The
situation of the state is different- they want money for the billions of dollars of loss in
public hospitals. Many of the states used this theory for their suits, making the point that
the states can sue on their own without the burden of assumption of risk and contributory
negligence. Led to the largest settlement in US.
Dean of East Tennessee said that these gun suits have created a new kind of tort- the
public tort. These are suits where individuals would likely be barred. For example, the
individual Ps in cigarette suits did not win cases- problems with cause in fact. The Dean
suggests that the basis for the public tort is deterrence- prevent widespread damage. The
public tort has been successful with tobacco, lead paint, and perhaps with guns.
This article suggests that there may be a new tort.
The question of OK Corral II- the point is that the shoot out in the movie destroys the
town. The title of this article reflects the second step- what about the community
destroyed by the guns?
31 cities brought suit against gun manufacturers. 35,000 people die each year from gun
shots, about half of that is from suicide. Guns cost a lot to cities- medical costs, extra
police, counseling for victims, cleaning up the city after the gun violence. Also, people
now live in gated communities because of gun violence. People live in fear.
The question is what is the cost of the deterioration of the cities. Bridgeport raised this
question. Also, what is the cost of fear- do people change their shopping and eating
habits because of this fear of guns which causes the city to lose money.
So the argument comes down to responsibility- everyone is responsible for their own
acts. Some gun advocates will say that it is all a matter of individual responsibility and
should sue those who do the actual shooting. The problem with this is that these people
rarely have money. Legal responsibility- there may be more than one cause in fact and
have to look at all of them. May be better to hold the gun manufacturers liable for
deterrence purposes. Could be argued that there are always going to be criminals, so
have to try to reduce from other angles.
Economic analysis shows that taxpayers pay the cost of gun violence. The manufacturers
pay for the internal costs- the costs of the materials, labor, and advertising. There are
externalities though- costs to the cities due to violence. The idea is to internalize the
external costs so that the economic theory of efficiency will work. The idea is to increase
the price of the gun until it reflects the costs to society, then the price of guns will
increase to a level of efficiency.
Question of what happens when manufacturers are sued- the product does not go away.
Cigarettes are still around even though the price has increased. The only thing is that the
price of the gun would increase to reflect cost to society or the gun would be redesigned
like the Pinto was or the specific gun could be taken off the market. Another option is
that nothing would happen- industry would reflect the cost. Some manufacturers may go
bankrupt, but this is not predicted by the lawsuit. There may be increased federal
Cause in fact is critical in these suits. It was one of the reasons all of the individual
tobacco suits were lost. In the state suits against the tobacco manufacturers, the suit was
stronger. There were thousands of people suffering from lung cancer, and if you know
that there are a certain number of people who get lung cancer from smoking, the it is an
easy matter of math to show that a certain number of people in your state suffer injury
from smoking and the add in the costs of public hospitals. Easier for these public tort
suits to show cause in fact that it is for individuals to show cause in fact. The problem in
the gun suits is that if the weapon is not recovered, then how do you know whom to hold
liable. Vandall thinks the resolution would come through the Sindell case- identify the
types of guns used in the community and then hold each D liable in proportion to their
market share. In cigarette cases, this is difficult because smokers switch brands.
Then we get to the question of proximate cause. With PC, there is the issue of criminal
intervening cause or superceding cause. There are cases that explain this on p.564.
Furthermore, there is a distinction between individual suits and municipality suits in this
regard- the cities suffer the same damage whether the victim was shot by a gun purchaser
of an intervening cause.
Calabresi- cheapest cost avoider- the loss in a products suit should be placed on whoever
can best analyze the problem and do something about it.
Gun manufacturers argue that this kind of liability is unheard of, but this is not the case.
Polluters pay the cost of their environmental damage, gun manufacturers should do the
same. For example, when you buy new tires have to pay a fee for the disposal of the old
ones- MARTA riders do not have to pay this fee because they do not drive and cause the
Kelly- helpful precedent. The court said that D knew product was being used for people
getting high, and therefore can be held liable. Shows that the manufacturer of a legal
product can be held liable.
In the environmental area called science forcing regulation. When there is a crisis
situation, have to regulate to deal with it. This happened in the late 1960s with pollution
from cars. Vandall‟s argument is that we can force science in regards to guns- put a chip
in the gun, he does not accept the argument that there is no safer gun available.
The next big question is whether this is for the courts or the legislature. This is where the
battle is today- who should decide the question of guns. With the demise of a large
number of the gun suits, this suggests that this is a question for the legislature, which is
something that Vandall disagrees with.
NN. Drug Design Defect
Drugs are different from other products is the general thesis for the day.
Could be argued that drugs are the same as other products. Vandall thinks drugs should
not be segregated out and treated differently. Restatement Third §6 demonstrates the
opposite view- if a doctor can prescribe the drug for any beneficial purpose, then there is
no strict liability. Vandall thinks §6c sucks. The problem with it is that it is a bucket
with a hole- always going to find a physician somewhere who will prescribe the drug for
The question of how to deal with pharmaceuticals that cause serious injury to people.
The tension comes about because there are great drugs like penicillin that save lives and
then drugs that kill like fen phen, thalidomide, and we also have very serious problems of
cause in fact in this area. The Agent Orange cases from Vietnam show the difficulties
with cause in fact. The courts have taken the position that in these cases have to show
that the father did more than fight in Vietnam to recover for children born with limb
Brown- thalidomide case. The court stressed three public policies mitigating against
imposing strict liability for prescription drugs: (1) drug manufacturers might stop
producing valuable drugs because of lost profits resulting from lawsuits or the inability to
secure adequate insurance; (2) consumers have a vested interest in prompt availability of
new pharmaceutical products; (3) the added expense of insuring against strict liability and
additional research programs might cause the cost of medicine to increase to the extent
that it would no longer be affordable to consumers. In Brown, the court held that there
was no strict liability for drugs. This is a blanket application of comment k- left only
with negligence, which is hard to prove. This is the background for Shanks.
Kerl- rejects that blanket of Brown, and applies a case by case approach looking at the
drug involved in the case.
Grundberg adopts the Brown approach.
Shanks does not adopt the Brown approach. Takes CE and modifies it into the ordinary
doctor. With RU, the court rephrases the factors- see p.287.
The holding in Shanks is that there can be strict liability for that are defectively designed.
These cases are rare, as most drug cases are brought under a failure to warn action.
Shanks v. Upjohn (Alaska 1992)
Rice had back pain and went to doctor who prescribed Xanax and Tylenol #3. He
warned Rice, a pilot, that he should not fly, drive, or operate machinery. The next day,
after taking his medication, Rice shot himself in the head after a fight with his wife.
Tests showed he had Xanax, Tylenol #3, codeine, and meprobromate in his system.
P asks for strict liability is that Xanax was defectively designed and its failure to include
During trial, the parties introduced conflicting evidence on the issue of if Xanax causes
suicidal ideation and hostile behavior. The court, over P‟s objections, refused to give
jury instructions on SL design defect.
In dismissing P‟s design defect claim, the court relied on Brown- the Cali Supreme court
held that the liability of prescription drug manufacturers for design defects should not be
measured by the Barker test. Because consumers do lack any expectations about the
performance safety of the drugs other than those related by the physician, the CE prong is
inapplicable. P says this CE prong should be applied, but the court says no.
Consumer vary widely in their knowledge of prescription drugs, would be difficult to
determine the expectations of the “ordinary consumer”. The performance safety of the
drug depends on a variety of factors. Furthermore, it is doubtful that the average
consumer has enough information to form expectations regarding the performance safety
of drugs since neither the common law nor the Federal Food Drug and Cosmetic Act
requires drug manufacturers to provide full warning information directly to the consumer.
The expectations of the ordinary consumer, even if ascertainable, are in most cases
irrelevant to whether SL is to be imposed.
The court keeps the expectation prong, but tailors it. It is the doctor‟s expectation
regarding the performance and safety of the drug that is the relevant inquiry in the
imposition of SL. A prescription drug is defectively designed and SL should be imposed
if the drug failed to perform as safely as an ordinary doctor would expect, when used by
the patient in an intended and reasonably foreseeable manner.
The court also decides to keep the RU prong, which Brown had abandoned. Does not
want to grant the same protection from liability to thalidomide as penicillin. The court
finds it speculative that restricting SL design defect cases against prescription drug
manufacturers will serve the public interest by enhancing the availability and
affordability of prescription drugs. The public policy concerns underlying the doctrine of
strict products liability must be balanced with, rather than yield to, the public interest in
the availability and affordability of safe prescription drugs. These interests are best
balanced and served by applying the RU prong of the Barker test in determining the
liability of prescription drug manufacturers
The court rephrases the RU factors for prescription drugs:
i. The seriousness of the side effects or reactions posed by the
ii. The likelihood that these side effects would occur;
iii. The feasibility of an alternative design which would
eliminate or reduce the side effects or reactions without
effecting the efficacy of the drug;
iv. The harm to the consumer in terms of reduced efficacy and
any new side effects or reactions that would result from an
In evaluating these benefits, the fact finder should be allowed to consider the seriousness
of the condition for which the drug is indicated. The trier of fact should balance these
factors to determine whether the drug confers an important benefit and whether the
interest in its availability outweighs the interest in promoting the enhanced accountability
which strict products liability design defect review provides.
The court does not adopt comment k of §402A of Restatement end, which grants
immunity from strict liability design defect claims to manufacturers of all prescription
drugs. The court has three reasons. First, it is confusing and blurs distinction between
negligence and SL. Second, courts are unable to agree as to comment k‟s scope. Third,
the RU prong of the Barker test gives the manufacturers of those products intended to be
protected by comment k a chance to avoid SL.
Hill v. Searle Labs (8th Cir. 1989)- shows the limits of comment k.
The intent of the defense of comment k is to preclude certain unavoidably safe products
from being classified as defective and unreasonably dangerous because they are, at the
time of manufacture and distribution, incapable of being safe. They benefit society to
such an extent, that placing the risk of injury on the consumer is justified unless there was
negligence in the manufacturing or distributing process or there was an inadequate
warning. This is a qualified defense to SL.
Comment k centers around concern about the Pasteur treatment for rabies, that is very
painful and distressing to receive. There are only two ways to deal with rabies- get the
treatment or die. Comment k responds to this and says that there are some products that
are unavoidably unsafe with bad side effects and the manufacturer should not be held
liable. This is an exception to §402(a). What comment k says is that strict liability does
not apply, but negligence does.
Grundberg v. Upjohn- adopts the Brown approach based on comment k.
Three public policy reasons against imposing SL for prescription drugs:
i. Drug manufacturers might stop producing valuable drugs because of lost
profits resulting from lawsuits or the inability to secure adequate insurance.
ii. Consumers have a vested interest in prompt availability of new
iii. The added expense of insuring against SL and additional research programs
might cause the cost of medication to increase to the extent that it would no
longer be affordable to consumers.
The court concludes that a case-by-case basis, like Kerl, is unworkable, and decides to
adopt the Brown test. But, the court does not agree with the Brown court‟s attempt to use
the plain language of comment k as the vehicle for exempting all prescription drugs from
SL rather than relying on the policies underlying the comment.
The court holds that all drugs should be classified as unavoidably dangerous in design
because of their unique nature and value, the regulatory system overseen by the FDA, the
difficulties of relying on individual lawsuits as a forum in which to review a prescription
drug‟s design, and the above public policy reasons.
White- holds that prescription drugs are not unavoidably unsafe per se under comment k-
this is a determination to be made on a case-by-case basis. A product is unavoidably safe
if, at the time of its distribution, there existed no alternative design which would have as
effectively accomplished the same purpose or result with less risk.
West- comment k is an affirmative defense that must be proven by the corporation.
Focuses on whether there is an alternative design.
Cunningham v. MacNeal Hospital (Ill. 1970)
The court imposed SL on a hospital for the supply to P of blood with the serum hepatitis
virus. The D tried to argue that there was no test to detect the serum in the blood, but the
court said to allow this would be to bring SL close to negligence. The court stresses that
the product was impure.
Almost all states, including Illinois, have enacted blood shield statutes exempting
suppliers of contaminated blood from SL. There is only a negligence cause of action.
The P would have lost under negligence in Cunningham because there was an inability to
The AIDS cases
In Doe v. Miles Labs, the P was given a dose of Factor IX, a highly concentrated blood
clotting agent. P was given the plasma one month before Ds started screening for AIDS.
The court stated that blood is not an unreasonably dangerous product and that the
manufacturer had no way of knowing that its products were contaminated.
The court recognized four common threads that are generally considered in most cases
which conclude that blood and blood products are not unreasonably dangerous. These
are (1) no tests to detect the contamination at the time of the injury; (2) the utility of the
product; (3) the lack of any substitute; (4) the small risk of the disease being passed by
the product. These are the four factors to be examined in the RU balancing.
The trend of cases is to extend the protection of the blood shield statutes to suppliers of
blood with the AIDS virus.
Freeman v. Hoffman-Roche (Neb. 2000)
The court does not adopt §6(c)- too strict and will never allow for recovery.
The court says that §402A should be used as an affirmative defense. The P is required to
plead the CE test, and the D may then raise comment k as an affirmative defense. The
comment will apply to except the drug from SL when it is shown that (1) the product is
properly manufactured and contains adequate warnings, (2) its benefits justify its risks,
and (3) the product was at the time of manufacture and distribution incapable of being
made more safe.
P alleges that Accutane caused lots of problems for her. She alleges that the Accutane
was defective, misbranded, and mislabeled, and that D knew this and made
misrepresentations, which P and her doctor relied on.
This case addresses the Restatement Third, which is a complete overhaul of Restatement
Second in the area of products liability.
§6 applies to prescription drugs, and §6(c) applies to design defects. Basically, severely
restricts liability- a drug is unreasonably safe due to defective design only if the
foreseeable risks of harm posed by the drug or medical device are sufficiently great in
relation to its foreseeable therapeutic benefits that reasonable health-care providers,
knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug
for any class of patients.
There are several criticisms of §6c- does not accurately restate the law, the reasonable
physician test is criticized as being artificial and difficult to apply, the test lacks
flexibility and treats drugs of unequal utility equally, and the test allows a consumer‟s
claim to be defeated simply by a statement from the defense‟s expert witness that the
drug at issue had some benefit for any class of people.
The court follows the learned intermediary concept- the idea is who should receive a
warning. The question is complicated in regards to pharmaceuticals- should the patient
receive the warning. The learned intermediary theory posits that the person to receive the
warning should be the treating doctor, who will then transmit the warning to the patient-
consumer. This has been undermined as many pharmacies now provide warnings with
prescriptions. There are advertisements on TV with warnings. Reality has outstripped
Freeman adopts a learned intermediary approach.
The P can sue for strict liability based on design defect under comment k of §402(a), and
what the court will apply is a CE test.
This is latest case in regard to §6c dealing with drugs.
What might happen in a situation where there is an important drug whose price goes
through the ceiling. There was a vaccination that all children needed and the cost went
from $21 to $100 in a period of months. The Government could step in and regulate.
Say that the drug is so important that the Government will provide it. So the idea that
holding the manufacturer liable will drive up prices and keep people from getting the
drug does not always happen. The Government would not do this with drugs that treat
An important question for the course is that is product liability making products so
expensive that people can no longer purchase them- the focus is on med mal and
What would happen to the price of drugs if there were no Medicare or Medicaid?
Vandall thinks that without these insurance programs, the prices would be more stable.
Without the co-pay, people would think twice about buying drugs. Insurance is one of
the drives of the increased cost of health care.
Perhaps without products liability, there would be many more dangerous drugs on the
market that kill people.
OO. Multiple Counts
Denny v. Ford (NY 1995)
P injured when her vehicle rolled over. P had claims for negligence, SL, and breach of
implied warranty of merchantability.
P produced evidence that small utility vehicles in general present a significantly higher
risk of rollover accidents than do ordinary passenger cars due to their low stability index,
shorter wheel base and suspension system.
D argues that these design features are necessary for the vehicle‟s off road capabilities
and that the vehicle is only supposed to be used for off road.
Ps introduced D‟s marketing manual, which predicted that many buyers would be
attracted to the Bronco II because utility vehicles were suitable to contemporary
The jury found that the vehicle was not defective and therefore no SL, but found for the
Ps on the breach of implied warranty claim. D argues that these two verdicts are
The court says that D‟s argument is flawed because it overlooks the continued existence
of a separate statutory predicate for the breach of warranty theory and the important
distinction between the two theories that arises from their different historical and
History- originally products cases were based on warranty theories, but then the doctrine
of SL emerged. The establishment of this tort remedy has significantly diminished the
need to rely on the contractually based breach of implied warranty remedy as a means of
compensating individuals injured because of defective products. The two doctrines are
similar, but the continued vitality of the warranty is approach is evidenced by its retention
and expansion in NY‟s version of the UCC. This belies any argument that the breach of
implied warranty remedy is a dead letter.
The core element of defect is different in the two causes of action. A design defect many
be actionable under SL if the product is not reasonably safe and a RU test is used, which
brings this cause of action close to traditional negligence cases. This negligence-like RU
component differentiates the two- the UCC‟s concept of a defective product requires an
inquiry only into whether the product in question was fit for the ordinary purposes for
which such goods are used.
There is also a difference in doctrinal underpinnings- UCC is contractually based, while
the SL is torts based.
As a practical matter, the distinction between the defect concepts in tort law and in
implied warranty theory may have no effect in most cases, but in this case the nature of
the proof and the way in which the fact issues were litigated shows how the two causes of
action can diverge.
Importantly, what makes this case distinctive is that the “ordinary purpose” for which the
product was marketed and sold to the P was not the same as the utility against which the
risk was to be weighed.
The dissent argues that SL is broad and encompasses implied warranty claim.
In Castro (1998), Calabresi says that Denny established a dual purpose requirement. The
fact that a product‟s overall benefits might outweigh its overall risks does not preclude
the possibility that consumers may have been misled into using the product in a context
in which it was dangerously unsafe. And this, could be so even though the benefits in
other uses might make the product sufficiently reasonable so that it passed the RU test.
What would be the P‟s argument under §2b- where P would have to prove a reasonable
alternative design? Could say that they are building the SUVs on car platforms and
therefore the clearance is not that high. Could argue that as an alternative design, the
manufacturers should lower the platform so that the clearance is higher and the SUV is
not as tippy.
PP. General Motors Movie
QQ. Banks v. ICC Americas, Inc. (Ga. 1994)
Ps brought action after son dies from eating rodent poison found in a cabinet in an
unmarked container. Brought actions of negligence and SL that the product was
defectively designed and inadequately labeled.
Court rejects the reasoning of Mann.
The court adopts the RU test. The balancing test that forms the RU analysis is consistent
with Georgia law, which has long applied negligence principles in making the
determination whether a product was defectively designed.
The dissent agrees with the adoption of the RU test, but does not agree with the
formulation, thinks that P should have to show reasonable alternative design.
FEFRA Act (statute at issue): the question is whether the federal regulation preempts the
state action in regard to warnings. Federal law is superior to state law so the concept of
preemption is that if the federal regulation has spoken, then you have to follow that.
FEFRA preempts state warning argument. This is an upcoming defense to be aware of.
The black letter law is that if you have a federal statue or an agency regulation on point,
the D attorney should argue that it preempts the state cause of action.
IX. Georgia Law in the Products Area
There is a 10 year statute of repose- have 10 years from the date of the sale of the product
for the action to accrue. This is an issue to address in each case, make sure to mention
the statute of repose.
Georgia provides that there is only one cause of action for punitive damages. Punitive
damages are so injurious that they should go to the state. Georgia holds that 75% of
damage award goes to state government, 25% goes to the P. Routinely, the attorney‟s
share will come out of the 75%, so there is pressure for the P‟s attorney to settle the case.
Georgia v. Mosely upheld the constitutionality of this.
Georgia adopted remittur and additur. Remittur is where there is a huge verdict and D
asks for a new trial and judge says to P that he will deny d on damages if P will take less).
Additur, this is the other side, the P gets a low verdict and moves for a new trial and
judge says to D that he will deny the motion for a new trial if the D pays more. So
basically, this is giving the trial judge discretion to give more appropriate settlement
when jury has been moved by bias.
Additur is unconstitutional in federal courts. Remittur is constitutional in federal courts.
Obviousness is rejected as an absolute defense.
X. Warning Defects
A. General Principles
The general theory behind warnings is to decrease consumer information costs regarding
products dangers. There are two reasons to warn. The most common is to provide the
consumer with information necessary to use a dangerous product in relative safety. Such
warnings combine instructions for use with the disclosure of the consequences of
improper use. The second reason to warn implicates a product which cannot be used with
relative safety. In such a case, the consumer requires information about the product‟s
characteristics in order to make an individualized, cost-benefit decision whether or not to
use the product at all.
Warning litigation has exploded in the past 20 years. In large part because of the relative
ease with which Ps could phrase an adequacy issue before a jury. But the last decade has
seen what may be the beginnings of retrenchment. State legislatures and some appellate
courts have slowed the growth of warning law.
There is an idea of putting pictures on cigarette packs to show people the damages of
smoking rather than just having printed warnings. Pictures would have a stronger effect.
Canada does this, and this is now being proposed by the DOJ. Reflects the dichotomy
between the DOJ‟s rank and file and President Bush. Remember the battle is against the
cigarette manufacturers, who are the most talented advertisers on the market. They
advertise cigarettes to look sexy, and putting pictures on the cigarette packs would help to
B. Ross v. Thies (Alaska 1986)
P fed Polycose to her daughter who became severely dehydrated. Polycose is a solution
of glucose and water which is dangerous to infants if it is not sufficiently diluted. P
contends that D and the store placed Polycose on its baby products shelf and are liable for
A product is defective if the uses of the product in a manner that is reasonably
foreseeable by the D involves a substantial danger that would not be readily recognized
by the ordinary user of the product and the manufacturer fails to give adequate warning
of such danger.
The Ds argues that there is a issue of material facts as to whether it was reasonably
foreseeable that Polycose would be fed to infants. The label has no warning that the
product is dangerous if it is not sufficiently diluted, it is sold in a nipple-ready bottle,
Ross markets many products for consumption by infants in the same bottles, label
resembles in pattern that of 5% Glucose. These factors required Ross to forsess that
some consumers would mistakenly believe that Polycose was a product to be fed to
The cost of giving an adequate warning is usually so minimal that the balance must
always be struck in favor of the obligation to warn where there is a substantial danger
which will not be recognized by the ordinary user.
The Ds also argue PC. They argue that it is a question of fact whether or not an adequate
warning, if one had been given, would have been followed. The court says there is no
evidentiary support for this argument. There was nothing that suggests that any of these
parties were incapable of understanding an adequate warning or that such a warning
would not have been heeded by them.
Ross also argues that the store‟s misuse of the product, stocking it on the wrong shelf,
caused the injury. The court says that the duty to foresee extends beyond only careful
uses. Ross should have placed a warning on the product to protect consumers against
mistakes by stores. The safety of infants should not rest on the stocking wisdom of the
Twerski argues that if there are too many warnings, then people will stop paying
attention. Vandall disagrees. Vandall agrees with Twerski that the warning issue is
highly polycentric- every time you change the design of a product, you have to change
other aspects of the product. The warning has to be appropriate and do not want to
frighten consumers away from useful products. Vandall agrees with this viewpoint, but
does not think that we have reached this stage yet.
C. P can plead SL on both design defect and failure to warn, even if the set of
facts is the same.
D. Walton v. Avco (Pa. 1992)
Discussion of who must warn.
A helicopter seized in mid-flight killing all of the occupants. AVCO, the engine
manufacturer (who settled), had learned of the defect in its engine and issued a service
bulletin which it forwarded to Hughes, the helicopter manufacturer. Hughes failed to
forward this notice to helicopter owners or service centers.
The court concluded that Hughes had an independent duty to warn, derived from its
knowledge of the defect in the engine. Hughes‟ duty to warn begins with its
incorporation of the defective engine into the helicopter.
Hughes‟ liability stems not only from having incorporated a defective part into its
helicopter, but also from its subsequent, undisputed knowledge of the defect.
The peculiarities of the industry also go far to support the imposition of responsibility.
Helicopters are not ordinary goods. By their nature they are not the types of objects that
could get swept away in the currents of commerce becoming impossible to track or
locate. They are sold in a small and distinct market. Additionally, establishments that
service helicopters are convenient and logical points of contact. Even more important, in
this case, the manufacturer of the crucial component part remained in contact with
Hughes for the very purpose of keeping Hughes informed of all pertinent information.
Vandall thinks that some courts would not find sending a letter a sufficient warning
because it might not get there in time. He suggests that they might have to call or send
and email. Also, if there are people missing from the list, then need to research and find
the people. Could just get a list of people who are licensed to fly and then call all of
One point of the case is that cannot delegate the responsibility to warn.
The court does not discuss the frequency of the problem because since Pinto, we are not
going to wait for 100s of people to die before doing something.
Hypo: there is a batch of infected insulin, how are you going to warn the diabetics?
Full-page advertisement in every newspaper in the country.
E. Karns v. Emerson Electric (10th Cir. 1987)
This case discusses adequacy of warning.
D sold a weed eater with attachments, one of which was a circular steel saw blade.
The accident occurred while 13 year old was helping his uncle clean the yard. His uncle
was using the machine while the boy picked up trash. The boy stooped to pick something
up 6-10 feet behind his uncle when the blade of the machine hit something near the
ground which caused the machine to swing violently around to the uncle‟s left, cutting
off the boy‟s arm.
P argue that the machine‟s propensity to kickback when the blade strikes something it
cannot cut, together with the D‟s failure to provide adequate warnings concerning this
phenomenon, rendered the machine defective and unreasonably dangerous.
The court concludes that there was a basis for the jury to conclude that the warnings and
instructions accompanying the machine were inadequate to overcome its inherent danger.
The court says that a manufacturer cannot defend on the basis that perfect compliance
with its instructions would have prevented the accident when the warnings are given are
unclear or inadequate to apprise the consumer of the inherent or latent danger.
In addition, the effectiveness of a warning or instruction is likely to be somewhat
diminished when, as here, the risk created by the product extends to bystanders who have
no access to such warnings or instructions.
Remember that warnings should have graphic and pictures- Vandall likes them.
but do not want to be too graphic, or they might stop selling the product.
A number of states have adopted statutes that if a product conforms to state or federal
regulations, then the product is presumptively safe.
G. Ayers v. Johnson & Johnson (Wash. 1991)
Baby drank baby oil and it caused serious injuries. The mother consulted the label to
verify her understanding and found no warning. She thought there was no need for
The D argues that the P did not show PC. To show PC, the P must show both cause in
fact and legal causation. The cause in fact issue concerns whether had there been an
adequate warning, the parents would have kept the bottle out of reach. The family
testified that they kept items they knew to be dangerous out of the reach of the babies.
On the basis of this evidence, the jury was entitled to infer that if the Ayres‟ had known
of the dangers of aspiration, they would have treated the baby oil like they treated it with
the caution they use in relation to items they recognized as highly dangerous. The
evidence of causation was sufficient.
The D also argues that there is no evidence that a warning could have prevented the
injury. The court rejects this argument because they did not know of the risks of
The D also contends that Ps were required to prove the exact wording of a warning they
allege would have been adequate to prevent the injury. This argument is based on a
statute, and the court rejects this reading. The court says that this would be too great of a
burden on Ps.
The D also claims the legal causation prong of PC is not met. They assert that the
likelihood of a child aspirating baby oil is extremely low, and that requiring
manufacturers to deluge consumers with warnings about a vast assortment of other
products, including liquids and solids sold for human ingestion, would lead to warnings
being less effective. The American Tort Reform Association said that this would impede
the development of new products and cause manufacturers to withdraw existing products.
The court does not buy this argument, says that baby oil is distinguishable from other
products. It poses special risks if inhaled and the manner of its use creates a significant
risk of aspiration. Doctors agree that baby oil is dangerous and its risks should be
What makes baby oil unique is that it is intended to be used on babies. When he drank
the oil, David was acting in conformity with the behavior to be expected from any child.
It is this kind of predictable infant behavior that necessitates that consumers and parents
be alerted to the dangers of a product promoted for use on babies.
The next issue is whether the Ps provided sufficient evidence that D‟s baby oil was not
reasonably safe because adequate warnings were not provided at the time of manufacture.
The court says that once the balancing test of the statute has been applied and the product
is found not to be reasonably safe because adequate warnings were not provided, the
manufacturer is liable for harm proximately caused by the inadequate warnings. P is not
required to prove foreseeability because it is not an element of a SL claim.
Applying the CE test provides and independent basis of liability. Under a CE test, baby
oil is equivalent to mild soap and water in terms of safety around children. Considered to
be very safe, the bottle says that the product is “pure and gentle”.
With PC, the question becomes whether the warning is adequate in light of all factors
considered- remoteness and foreseeability are not elements of this analysis.
Fundamental thought underlying SL- the manufacturer bears the cost of injury for
a bad product, not the consumer.
The trend has been to move away from a Beshada standard and has moved towards
a negligence standard.
H. Also remember to look at the seriousness of the injury, death or
something serious versus a rash caused by a drug or product- this
usually is important in determining the manufacturer’s liability.
I. The difference between the Spruill and the Jonescue cases are that in the
first case the substance was cherry red, which would be attractive to
children, while in the latter the liquid was brown.
Professor Phillips has argues that the assumption that children will expose themselves to
danger in ways that a reasonable adult would not precludes the manufacturer‟s reliance
on the obviousness of the product‟s danger to the child P. his basic argument is that the
obvious defense does not apply to children and this should force courts to look more at
better product design.
J. Michael v. Warner/Chilcott
The court focuses in on verb choice- should have said that the product will cause damage
to the kidneys, not may cause injury.
Accutane is a modern example of this- the warning says that it will cause injury to the
fetus, not may cause injury to the fetus.
Latex case- ignited when P was spreading it and the P was severely burned. The
adhesive ignited when fumes reached some pilot lights.
The D argues that the adhesive can had a warning that said do not use near fire or flame
including pilot lights.
The court does not like the use of the word “near”. The court does not think that it was
sufficient to inform P that his spreading of adhesive within four feet of a pilot light
located behind a closed door and within 8 feet of stove pilot lights three feet off the floor
exposed him to the risk of an explosion and attendant fire damage.
Vandall says that this is a good warning even though the word near is a bit fuzzy.
The point of the case is to show that language is not the only thing that you look at
in a warning. Do not get hung up on the thought that language is the only thing
involved. What is important in this case is the dangerous nature of the product- it is
so flammable that people are going to die. Perhaps it should only be available to
professionals after they have training.
Vandall does not think that if the product had a label that said professional use only, it
would have been enough to protect the manufacturer- everything today is for professional
L. Polycentric Theory and Warnings
Polycentric nature of Henderson‟s warning discussion:
The polycentric nature of design basically means that if you want better brakes on a car
they are likely going to be heavier and more expensive. Any change that you make in the
design is going to affect other parts of the design.
Polycentric warnings- Henderson in his article argues that warnings can be compared to a
phone booth. Judges often think of warnings as a list. He suggests that warnings should
be thought of more like a phone booth and how many people can fit into a booth. If you
keep on pushing warnings in a booth, people will stop paying attention to some and no
longer consider them. Warnings should be thought of as inter-connected, and need to
make sure that they do not start negating each other.
One court that we have read rejected this argument.
There are warnings with highway construction- reduce speed signs, large signs with
computer programming, flags, warnings and 2 miles and 1 mile, pylons, sign with 10 year
in jail warnings, appeal to sensitive side with signs that say my mom or dad works here.
Vandall thinks this is in contrast to Henderson‟s “boy who cried wolf” scenario, and it
suggests that they do not quite have it on this polycentric design idea.
M. Warning Theory and State of the Art Evidence
State of the art is defined as scientifically available technical knowledge at the time of
Products liability defense attorney has said that asbestos cases are unique and may not
apply to other cases- need to keep this in mind while citing asbestos cases. Also, if you
take these cases out, there has been no expansion in litigation.
Beshada- Absestos Case
P argues that we should impute knowledge, and D says that cannot warn something that
they do not know- have to look at the existing knowledge at the time of manufacture.
The issue is whether state of the art evidence can be introduced to show that the D did not
know of the danger. The court agrees with the P- knowledge is a negligence concept, and
this case is about SL.
It is a question of who should bear the cost, and the court thinks is the manufacturer
based on Calabresi‟s cheapest cost avoider theory. The imposition of liability for failure
to warn of dangers which were undiscoverable at the time of manufacture will advance
the goals and policies sought to be achieved by our strict liability rules. The burden of
illness from asbestos should be placed on the manufacturers who profit from it, not the
A major concern that the Beshada court addressed was that the absence of a state of the
art defense would discourage innovation, but the court says that there is no empirical
evidence for this and in the case of products on the market, the manufacturer will keep up
with new safety features. In terms of new products, market competition and profit
incentives probably determine whether a manufacturer will undertake to produce such a
The question becomes what happens to Beshada, and so we turn to the Feldman case.
Feldman allows the D to show that they had no knowledge of the dangers, and Beshada is
limited to its facts. P is going to have to show that the risk is known. The court stated
that in SL cases, unlike negligence cases, the D should bear the burden of proving that the
information was not reasonably available or obtainable and that it therefore lacked actual
or constructive knowledge of the defect.
Anderson v. Owens Corning Fiberglas Corporation (Cali)
Reaches the opposite conclusion of the Beshada case based on Brown. The driving force
in Brown was comment k and it was explicitly stated that it was limited to
pharmaceuticals, but it was not limited to that case. This was also an asbestos case.
The court holds that state of the art evidence is admissible when the P argues SL failure
to warn. A D in a SL action based on failure to warn of a risk or harm may present
evidence of the state of the art, evidence that the particular risk was neither known nor
knowable by the application of scientific knowledge available at the time of manufacture
or distribution. The court does not want to make the manufacturer an insurer.
Vandall says that as soon as the court starts to talk about knowledge, they are
stepping away from an SL action and towards negligence standard.
The court says that negligence is a matter of care and SL is a matter of knowledge of the
risk. There is a difference between the two standards. With negligence failure to warn
cases, the Ps has to prove that a D did not warn of a particular risk for reasons that fell
below the acceptable standard of care. With SL failure to warn cases, the P only has to
show that the D did not adequately warn of a risk that was know or knowable.
The concurrence says that with a case based on CE, state of the art evidence would not be
admissible because what the D knew or should have known has no relation to what a
consumer thought. It limits the scope of the holding.
The key question is whether Anderson will extend to all products.
Vandall says that to some extent it does not matter what the Ds knew or should have
known. The question is who do we want to bear the cost- the innocent people or the drug
companies. Vandall stresses that the body is very frail.
Vandall thinks that Anderson has gained, so that now in the warning area there is more
negligence, and less SL. There is not much SL left in warnings.
Shanks (Alaska 1992)
The court says that the jury instructions constitute reversible error because they focus on
negligence concepts and this is a SL failure to warn case.
The core of the case is in the middle of 342- the D has the burden of proving knowledge-
the court gets this from Patricia R, who gets it from Barker- once P shows the product
causes injury, then the burden shifts to the D to prove unknowability. (Remember that
this is Alaska court, which generally follows the California courts.) Do not want to put
the burden on the P to show knowledge- the D is in a better position to know about the
drugs. The jury instructions were erroneous because they presented P‟s claim as a
negligence one rather than SL and because they placed on P the burden of showing that
the risks inherent in Xanax were risks which D knew or should have known.
N. Restatement Third- Post Sale Duty to Warn
The one good thing that came out of the Restatement Third was the post-sale duty to
warn and recall notices. This is seen in the handout.
If you are a corporate attorney, think about what kind of post-sale warnings would be
required for insulin, helicopters, and cars. For the car and the helicopter, think about
mechanical problems that might develop- such as the red button to release the seat belt
gets worn out. Have to look at whether the situation is life threatening or an
inconvenience. Examine the need for immediacy.
Suppose you find out that the packaging of insulin went wrong, and batch X is highly
infected. What kind of post sale warning are you going to issue? Would want to remedy
as quickly as possible. This is a serious situation- put a recall notice in every major paper
or call pharmacies. The problem with this is that it puts the corporation in a bad light and
makes them less competitive. Vandall is trying to give us a continuum- look at the
gravity of the situation to determine what measures to take.
As part of the settlement in the Dalkon-Shield case (IUD), the Ps negotiated with the Ds
and made them put a full-page ad in all papers telling women about the dangers of IUD
and saying that they would remove it for free. So, when thinking about settlements, do
not just think about money but also about what you can do to help and protect the
Statute of repose- the manufacturer is relieved of liability after 10 years. Need to look at
Why does the court not require a post-marketing warning?
The product was sold without a roll cage. The manufacturer said that the D did not have
to tell the P that there was a new design. The court said that this design was not in
existence at the time that the machine was sold to D. The court notes that this tractor was
manufactured in 1963. Roll bars were first introduced in the mid-1960s, OSHA
regulations did not require them on new tractors until 1976 and American Society of
Agricultural Engineers did not mandate them until 1985.
Vandall thinks an important element is the obviousness of the danger- anyone would see
that there was no roll cage when they walked up to the machine. Also need to see the
other side of this- farming is very dangerous, and a lot of farmers are killed from
machines like this rolling over and not having a cage. Vandall does not think all courts
would have come out like this.
This could be a negligence case with a state of the art defense argument.
Contrast this case with Bell-Helicopter, where that court did find liability.
O. Obvious Dangers
Glittenburg v. Doughboy (Michigan 1992)
Above ground pool case- they are all similar, someone dives into the pool and breaks
their neck. The court again addresses the scope of the duty to warn.
The Ds said that they had no duty to warn because the danger was obvious and the P
knew of the dangers- the depos showed that Ps knew that the pool was shallow. The P
says that the danger may be obvious, but the extent of the danger is not obvious.
The issue is whether the manufacturer has to warn of the specific injury, or if obviousness
is a defense.
The court says that the D does not have to warn of the risk of quadriplegia. The court
says that the risks are obvious, and an above ground pool is a simple tool. A simple tool
is a product all of whose essential characteristics are fully apparent. The manufacturer of
a simple product has no duty to warn of the product‟s potentially dangerous conditions or
characteristics that are readily apparent or visible upon casual inspection and reasonably
expected to be recognized by the average user of ordinary intelligence.
Because the P was aware of the shallow condition of the pool‟s water and the dangers
inherent in a headfirst dive into observably shallow water, the absence of a warning
conveying those facts could not be a proximate cause of the P‟s injuries. Providing a
warning does not serve to make the product safer.
The court says the standard for obvious is objective- what the reasonable person should
know. It is not a subjective standard based on what each D knows.
The court says that design and warning are different- obviousness is not a complete
defense to design defect because even if the risk is obvious, may still want to consider
making the product safer through an alternative design.
The case says that the question of obviousness is for the court, but they agree that in some
situations it might go to the jury.
The summary of the holding is that when a D claims that it owes no duty to warn because
of the obvious nature of a danger, a court is required, as a threshold matter, to decide that
issue. The court must determine whether reasonable minds could differ with respect to
whether the danger is open and obvious. If they cannot differ, the court determines the
question as a matter of law. If they could differ, the obviousness of the risk must be
determined by a jury.
The dissent takes the position that a reasonable person does not know of the risk of
Vandall says that this is a superb defense case- the defense takes contributory negligence
and turns it into no duty, and since there is no duty there is no jury, and no jury means no
comparative fault. Ordinarily, contributory negligence goes to the jury and you get
comparative fault. This defense attorney was great because he convinces the court that
they are talking about obviousness and not contributory negligence. Big firms do not like
to go before the jury.
The loop of an exercise device comes off of P‟s foot, hits her in the eye and causes a
detached retina. The court says that there is no duty to warn of a detached retina in this
case. It was obvious that the loop might come off, hit P in the face, and cause an injury.
The court stresses that the exercise machine is a simple tool. The court says kids play
with rubber bands and know that they contract.
The problem with this argument is that we do not think of rubber bands hitting us in the
eye at this high speed. The court also says that the detached retina is rare and the court
does not have to warn about this case. Vandall says to keep in mind Wagon Mound II-
the court says a foreseeable small risk is sufficient to potentially make an actor negligent.
This is another way that the case can come out. Vandall argues that the manufacture
should bear the cost of the small risk. But this is not what drives the case, what drives the
case is the D‟s argument that this is a simple product.
The problem with obvious, and what makes it dangerous, is that there is no clear
definition and it can be thrown around. One thing that will up the obvious defense is if
the D can show that the case involves a simple product. The problem is that even simple
products can have complex physics behind it.
Holds that obvious was a defense, which was reversed by Micallaf, which said that
obviousness was not a separate defense, part of assumption of risk or contributory
What problem is there with manufacturing a smoke alarm that is hooked up to the
electrical wiring in the house? Could burn out when there is a fire, and this what
happened in this case. (bottom of 354). The idea behind hooking it up to the electrical
system was making sure that the people did not forget to change the batteries, but now
smoke detectors beep when they are running low.
Case involving injury caused by Super Tube hitting a boat.
The court says that there is no merit to D‟s contention that it is obvious that there is a
danger of colliding with a fixed object. The P never asserted that the Ds should have
warned of this danger.
The court holds that the D should have warned that the boat should not go above a certain
speed, excessive arching, lack of control, and lack of visibility, which P asserts were a
primary cause of the collision.
Champagne Cases p.361-363
The court rejects that argument that the cork spontaneously ejected and said the jury
could believe that P was trying to pull it out when it exploded.
The difference in these cases shows that this will be a case by case analysis.
P. Intended or Foreseeable Use
Uloth (Mass. 1978)
P‟s foot severed from his leg while operating a refuse machine- Loadmaster
The court accepts that the danger is obvious- do not want to put your foot in there.
The court says that an obvious defense is not enough to get a D off when a product is
poorly designed. Do not want a poorly design product to escape liability because the
danger is obvious. The court stresses that a worker must work on the dangerous machine
or lose his job, and there are factors that must be considered by a jury in evaluating a
claim of design negligence. Notice that the court is sending the case to the jury, but also
note that this is a worker case and workers often do not have a choice.
The court rejects any inflexible rule that negligent design of an obviously dangerous
product precludes finding a manufacturer or designer liable.
At the time of this case, it was not certain whether SL would be applied to asbestos, so
this is an important case. It talks about SL, but seems to use negligence- reasonable care.
But the SL punch is at the top of 326- the manufacturer will be treated as an expert,
which is relevant in determining various factors.
This could be a way to approach problems- some negligence concepts, but use expert
Kelly v. M. Trigg Enterprises (Alabama 1992)
Young women who got someone to buy them Ethyl Gaz at Tootie‟s and then got high in
the parking lot. Nix then drove the car and her friends say that she spun out and crossed
the median. P was then hit by Nix and sued the manufacturer of Ethyl Gas.
The issue is one of intended use and misuse. The defense is that the product was misused
and therefore no liability, and they wanted summary judgment.
The court says that the intended use of the product may be to get high.
There is a warning that says do not use as an inhalant, so the Ps are stopped because there
is a statute that says the Ps have to show misuse, so the Ps would have been stopped in
this case. Remember the definition of misuse is unforeseeable. The court says that the
potential use of the product as an inhalant is so clear, that it is a jury question.
Vandall thinks this case is important because it shows the court reaching past the driver
of the car. The court also lets the P get around the warning.
Key point is that the product cannot be sold to minors and it is sold to a liquor store.
Shows the court looking past the jargon and at what is really going on.
Summary of warnings on cause in fact- the P must show that the product was a cause in
fact of the injury. The court will assume that if an adequate warning was given, it would
have been read and followed. Court will analyze whether the P would follow the warning
if given, there is a presumption that the warning will be followed, but this can be rebutted
by the D with the evidence that the P was drunk or high ,etc.
In terms of PC, which is a policy question, it is not an issue in warnings cases but
sometimes the court will use PC to see if there was a foreseeable injury- the best case for
this was the Johnson & Johnson case.
Randy put some Faberge on a candle, and it burned P. The court says that the
environment, including flame, was foreseeable. Vandall says that this is an expansion of
the term foreseeable risk.
What is not involved in the case is that spray Tigress cologne had a warning, so it shows
that the manufacturer was aware of the risk and was capable of putting a warning on it.
This case has been called the most ridiculous case in law by the manufacturing coalition
because there is so much negligence with the kids playing around.
The court observes that in cases such as this the cost of giving an adequate warning is
usually so minimal, that the balancing process will almost always weigh in favor of an
obligation to warn of latent dangers, if the manufacturer is otherwise required to do so.
Q. Foreseeable User
Ramirez v. Plough (Cali 1992)
Stanley- the workers used linseed oil to prepare wood and then threw the rags in a can.
The rags ignite spontaneously and the building is destroyed. The employees were
Spanish speaking, and there was an English warning but no Spanish warning. The issue
was whether had to warn of the risk in Spanish. The linchpin of this decision is the
targeting of the Latino community by advertising in Spanish. The holding is that you
must warn in Spanish, but Vandall thinks it should be that you must warn in Spanish
when you target the Latino community.
Ramirez involves an aspirin. The aspirin can cause Reye‟s Syndrome in children, which
happened to P. There is a warning on the product in English.
The issue is if D has to warn in Spanish. The COA says that they should have to warn in
Spanish. The FDA encourages warnings in Spanish, the product was advertised in
Spanish media, and it does not hurt public policy.
The Cali Supreme Court reverses. It is for the FDA or the legislature to require a
warning in Spanish. They cite the FDA regulations that do not require a warning in
Spanish, and they also discuss public policy reasons. The court also discusses the
problems and costs of second-language warnings- problems in translation. There are 148
foreign languages spoken in the US, with different concentrations throughout the
country- what do you warn in what language. One argument is that if the manufacturers
can market the product to certain language groups- they have the skills to do that- then
they need to be able to warn in that product. Vandall does not think this is a strong
enough argument- what if the manufacturer does not market to a particular group but the
product still ends up in their hands.
The court says that pictorial warnings should have been used.
R. Particular Products
Coyle v. Richardson-Merrell (Pa 1991)
The court says that a pharmacist does not have a duty to warn.
The point is that the doctor is a professional intermediary, and his job is to warn the P of
the risks of the product. The distribution system for prescription drugs is highly
restricted. Pharmacists, as suppliers, do not freely choose which products they will make
available to consumers and patients do not freely choose which product to buy. Do not
want pharmacists and physicians giving conflicting advice and pharmacists do not know
about the full medical history of the patient, and do not want to engineer second guessing.
Vandall thinks SL should be applied to pharmacists because their decisions are without
discretion- if the prescription says penicillin, then you should get penicillin.
Illinois Supreme Court recently agreed- Wal-Mart pharmacy has a duty to warn a patient
or her physician of the risks of an allergic reaction. The duty was narrow- the patient‟s
history was in the computer and the pharmacy knew of the danger. Should have called
the doctor or the patient- the pharmacy had a history of doing so. The court said it was
reasonably foreseeable that the failure to warn the patient would lead to injury. The
learned intermediary theory is not a bar. Happle v. Wal-Mart
Most courts do not go this way- shows how flexible the doctrine can be, with the
computer system and history of warning patients, the duty can shift.
Stevens v. Parke-Davis (Cali 1973)
A warning was given, but the court disregards the warning because of watering-down and
over-promotion by the D through sending out Dr. Doctor letters and detail men (drug
Shortly after Choloromycetin went on the market, competitors started saying that there
were a lot of problems with the drug. The FDA negotiated with the D, the whole time the
FDA was ratcheting up its concerns with the drug. What is disturbing is that the FDA
seems more concerned with the profitability of the D rather than the safety of consumers.
So D is allowed to keep on promoting the drug, and they mention the hazards but in a
When you read the whole case there was negligence on the part of the D, but there was
also failure on the part of the FDA.
The doctor is not an intervening or superceding cause in this case. He did not commit a
criminal or intentional act- said that he was cognizant of the dangers of the drug, but he
still prescribed it. The court says that this is negligence, but this is not sufficient to cut
off D‟s negligence. To be a superceding cause, the intervention must be intentional or
criminal. Furthermore, it was reasonably foreseeable that that doctors would continue to
prescribe the drug.
A good question is what is the scope of Stevens and could it apply to cigarette
manufacturers. A lot of individual cigarette cases are based on fraud because of
advertising by the cigarette companies that cigarettes will help you lose weight or make
you look better. Vandall says that you could argue that Stevens would apply.
This case suggests that you cannot misstate the health concerns or promote in such a way
that undermines the risks of the product when dealing with prescription drugs. The
question is how far does this extend beyond prescription drugs. An issue that would be
involved is the 1st Amendment- can the manufacturers‟ speech be regulated in this
Comment j of §402A establishes a presumption that an adequate warning, if given,
will be read and heeded.
Mazur v. Merck (3d Cir 1992)
Have to understand the background of this case- Davis (1968) and Reyes (1974)- they
had a combined warning that the drug manufacturer must warn the learned intermediary
or must warn the patient directly (remember that we are dealing with vaccines in these
cases). The amicus briefs in these cases on the part of the pediatricians was that vaccines
are to protect against epidemics, so if warning the patient is going to take too long, then
we need to forget it and get the inoculation out. The fear is that the manufacturers will
decides just not to deal with the whole thing and stop making vaccines if they have to
warn. Then along came President Ford and he heard of an outbreak of Swine Flu in NJ-
there were three cases (this is discussed on 869-873) and Ford wanted to develop a
national inoculation program. At first the CDC refused to call it a national epidemic
because on three cases, but eventually, under duress, the CDC agreed with the President.
The vaccine was developed and program started. Shortly thereafter, people started to die-
there was a reaction to the egg whites used in the vaccine. There was a legal structure
developed to bar suits against the manufacturer for SL- only negligence suits allowed in
state courts. The CDC ended up agreeing with the President because they wanted to keep
their budget and funding- this is the same reason that they will not do research into guns.
Have to keep in mind that the CDC is a Government funded agency and therefore they
are not pure. The CDC is great when dealing with non-product diseases, but when
products get involved, the purity of the CDC substantially decreases.
In this case we are looking at a measles vaccine. The P says that she was not warned, so
we have the historical background of Davis and Reyes.
The court does not discuss the warning given to the nurse because the nurse is not a
learned intermediary- she is not trained in the field. Nurses are not learned intermediaries
because they work under the supervision of a doctor.
The court says that it is okay for D to contract with the CDC uses a reasonable care
negligence standard. The court says that the package circular given to the CDC was
okay- sufficiently warned the CDC of the risks.
The court also says that it was reasonable for D to rely on the CDC, given the CDC‟s
expertise. (But think of this in terms of the Swine Flu vaccine- took the CDC three
months to write the warning, and death was only mentioned in small letters on the back
of the last page).
The CDC cannot be sued- protected by sovereign immunity. What has basically
happened is that the manufacturer and CDC are immunized from suit, and the loss and
costs are placed on the P. A legal barrier is erected around the manufacturer by the CDC.
In the next case, the P could argue that it was not reasonable to rely on the CDC.
There is also a political solution- adopt the Childhood Vaccination Act. It provides for a
full menu of assistance for the child who develops adverse reactions from vaccinations.
The problem is that when Congress enacted it, they did not fund it. Vandall thinks that it
is now funded.
*the court does not mention that the child‟s mother never signed the school‟s permission
slip for the vaccine.
Where the vaccine is not dispensed by a learned intermediary, but to all comers at mass
clinics, courts in other jurisdictions have said that it is the responsibility of the
manufacturer to see that warnings reach the consumer, either by giving warning itself, or
by obligating the purchaser to give warning mass immunization exception to the
learned intermediary rule.
Learned intermediary rule was first adopted by the PA supreme court in Incollingo.
The court‟s official holding was that a vaccine manufacturer may satisfy its duty to warn
in the mass immunization context by obligating the CDC to warn users directly if it
informs that agency of the facts which make its vaccine dangerous and reasonably relies
on it to communicate such information to users in lay terms. The manufacturer‟s
responsibility is continuous, and it must therefore apprise the CDC of any risks it later
discovers, or in the exercise of reasonable care, should have discovered.
Brown Forman Corporation v. Brune (1994)
P was an 18-year-old college student who died from ethanol poisoning after consuming a
large amount of D‟s tequila in a short amount of time. The issue is whether D has to
warn about this.
In the previous case, the court said that there was a jury question of whether or not a
manufacturer has to warn about the risk of serious injury from the consumption of a large
amount of alcohol within a short amount of time.
The COA now says that there is not duty to warn. Regardless of whether the theory of
liability is based on SL or negligence, the threshold question is whether D had a duty to
warn of the risk of death,
It took 10-11 years for this case to move through the courts. This is one factor to take
into consideration when you take a products case. These cases usually involve questions
of serious public policy and take a lot of time to get through the courts.
In 1988, the federal Government said that there had to be warnings, but the court said that
they would not look at this because it happened in 1983 and therefore there is no federal
preemption. The court notes that if the facts of this case had arisen after November 1989,
the only warnings that could appear on alcoholic beverages bottles would be these
federally mandated warning regarding drinking during pregnancy and driving after
Federal laws occupy the field and the statute did provide warning, so state actions are
The court does not think that a warning would be effective- deceased had health classes
and disregarded those warnings. There would also be an inability to fashion effective
The court says that the responsibility rests on the consumer.
Remember that this is basically a food case.
Vandall wants to comment on how people receive information. One suggestion is
parents, but many parents are working or unfit. Another suggestion was health class- but
these classes were taught by gym teachers and no one really pays attention. Vandall says
that young kids get most of their ideas and information from movies, TV, and peer
groups. There are warnings on alcohol bottles, but these federally legislated warnings
were written by the alcohol manufacturers. Vandall does not think the only people
involved should be the child, the parents, and the health class- as the Perez case suggests
the manufacturer is in the best position to warn.
Report by the National Alcohol Abuse Center reported that alcohol caused 1400 deaths a
year amongst college students and ~7500 date rapes amongst college students. Is there a
role for the court in this?
Alcohol ads- Bacardi ads emphasize that alcohol leads to fun and partying, Tanqueray ad
that emphasizes sex, champagne ad with two people kissing- suggests that smoking
means love. There is a Capri cigarette ad that features a Roman scene- the idea is that
smoke these cigarettes and go to Rome- suggests a lifestyle. There is a Misty cigarette ad
that features rainbows- suggests that if you smoke then you will be happy.
S. Reliance, Consideration, and Foreseeability
Hon v. Stroh (3d 1987)
P‟s husband died from pancreatitis caused by drinking. He drank 2-3 cans a night on the
average of four times a week. P had two experts who said that excessive and/or
prolonged use can lead to health problems stemming from alcohol.
P introduced TV advertising boards showing commercials that have been aired to
promote Old Milwaukee Beer.
The court also concludes that the story boards of D‟s commercials provide additional
evidence from which a jury could conclude that the general public is unaware of the
hazard that allegedly led to Mr. Hon‟s death. D was basically representing that moderate
consumption was safe and was part of a healthy, robust lifestyle. The court sends the
case to the jury.
This is one of the only P‟s cases for alcohol.
D and other beer companies still do not advertise the risk of pancreatitis, the disease is so
rare that they have instead decided to settle these cases.
The general rule in the alcohol area is that there is no duty to warn beyond what is
Would the states have suits against alcohol manufacturers as was done with tobacco?
One difference between the two is that tobacco has no beneficial use, while alcohol does.
But does this outweigh the social costs of alcohol. The statistics show that 60% of
alcohol purchasers are alcoholics.
The states have not gone in this direction.
Carlin v. Superior Court (Cali 1996)
The court holds that a P alleging injury from a prescription drug (Halicon) can state a
claim against the manufacturer for SL and breach of warranty for failure to warn about
the known or reasonably scientifically knowable dangerous propensities of its product.
Applies the Anderson principle to prescription drugs. Looking at the evolution of Barker,
Brown, Anderson- to understand this case look back through these cases. Court extends
holding of Brown to all products. The policy reason is that the manufacturer should bear
the cost of the injury.
The D argues that a negligence standard should apply, but the court rejects this argument.
The court said that there is a difference in negligence failure to warn cases and SL cases.
With SL liability have to first determine if there should be a warning, and there should be
then whether the warning is reasonable. With negligence cases, there may or may not be
a warning depending on the facts. The court is saying that there still is a kick to SL
failure to warn cases, SL has not totally been subsumed by negligence in failure to warn
cases. So, although the court has introduced some negligence principles through the
knowledge standard, it did not adopt a simple negligence test.
The court addresses preemption- says that it will be on a case-by-case basis. FDA
regulations are a factor to take into account. The D argues that applying Anderson will
place manufacturers of drugs in an untenable position because the must comply with
FDA regulations, which may preclude them from labeling drugs with warnings of certain
side effects. The court says that Congress evinced no intention of preempting state tort
liability for injuries from prescription drugs. In appropriate cases, FDA action or
inaction, although not dispositive, may be admissible under Anderson to show whether a
risk was known or reasonably scientifically knowable.
The basic idea behind preemption is that federal law is superior to state law, so if there is
a federal statute or regulation on point it may preempt state law. The question then
becomes what does law mean, and it has been interpreted to mean either statutory or case
law. This is what the Court held in Chipalloni- this was cigarette case, and the Court said
pictorial warnings of diseases on cigarette packs are not required because the 1966
federal statute preempts the case, it says what warnings cigarette manufacturers have to
put. So if there is federal law on point, then it gets rid of state law. This is a new
defense- if there is a federal statute or regulation, argues that it obliterates the state
case. (we will not discuss this in the defense section, so add it). The court in Carlin says
that not everything in a federal statute obliterates all of the claim- this is a point that the
P‟s attorney has to litigate. It is debatable whether or not legislative history should be
used in these cases.
What about Twerski‟s polycentric argument- too many warnings causes “boy who cried
wolf syndrome”. The court says that the, P must still show cause in fact of the injury by
this particular risk. Furthermore, the duty to warn runs to the physician, not to the
patient. The risk has to be more than merely speculative.
The dissent argues that the failure to warn must be unreasonable. Wants to limit recovery
to negligence principles.
Perez v. Wyeth (NJ 1999)
Norplant case. Norplant is a contraceptive that is inserted into the arms of women. The
Ps say that they were not warned about scarring from removal and bad side effects.
We are in the middle of revolution- direct marketing, compared with learned
intermediary theory, compared with HMOs, compared with the cost of health care, and
compared with how often you see your doctor.
The issue is what happens when a prescription drug is substantially advertised, how does
this effect the case law.
The D argues that the learned intermediary principle applies and the manufacturer does
not have to warn the public directly in advertisements.
The court holds that the manufacturer does have a duty to warn the public directly.
The learned intermediary theory must be altered because of the advertising and direct
marketing. The premises for learned intermediary; reluctance to undermine the doctor
patient relationship, absence in the era of “doctor knows best” of need for the patient‟s
informed consent, inability of drug manufacturers to communicate with patients, and
complexity of the subject are absent in the direct-to-consumer advertising or prescription
Manufacturers spend a great amount on advertising. There were advertisement in several
major women‟s magazines. These advertisements focused on the simplicity and
convenience of Norplant, and did not warn of the side effects. Vandall says that this is
the first time he has seen the amount spent on advertising used as a policy argument, and
he thinks that it is a good idea. Also, TV and print ads provide a diluted version of the
The Restatement Third does not prohibit it. Furthermore, if the court does not decide the
question that it will be decided that the learned intermediary theory does apply. Also, the
relationship between doctors and patients has changed significantly, and this is in part
due to direct marketing. These days, the consumer is an active participant in deciding
which drug is appropriate. Vandall says that the first example of this was the pill.
The manufacturer could give out 1-800 numbers to call or websites with warning
The FDA regulations say that advertisements must have a major statement of the major
risks of the drug. A duty to warn is presumptively met if there is the required labeled.
The court said that they will only invade this if there is deliberate concealment.
The court says that D must warn in print and ad media, but then the remand issue is
actually narrow- whether there is sufficient evidence for a reasonable jury to determine
that the absence of information or presence of misinformation was a violation of FDA
requirements and whether such violations, if any, were a substantial factor in bringing
about the harm suffered.
To meet the requirements of PC, the misinformation must have actually affected these
The court holds that when mass marketing of prescription drugs seeks to influence a
patient‟s choice of drug, a pharmaceutical manufacturer that makes direct claims to
consumers for the efficacy of its product should not be unqualifiedly relieved of a duty to
provide proper warnings of the dangers or side effects of the product.
In the case of direct marketing of drugs, the court does not believe that the physician or
the manufacturer should be relieved of their respective duties to warn. Pharmaceutical
companies may seek contribution, indemnity, or exoneration because of the physician‟s
deficient role in prescribing that drug. In each case, a jury must resolve the close
questions of whether a breach of duty has been a PC of harm, and how that causative
harm, if found, may be apportioned among culpable Ds.
There are bone screw and fen-phen cases that have been preempted because they are
common law actions that conflict with FDA regulations. Medtronics case is in our
material to show that there are cases that do not preempt. The Court distinguishes
Medtronics by saying that Medtronics has a common law basis and Buckman has none.
The FDA used to prohibit the advertising of drugs. Perez is the first step in saying that if
manufacturers are going to advertise, then they have to warn- it appears that the tide is
beginning to change. A good exam question would be if there is an internet chat room
with a representative of the company and they are telling you information about the
product without telling about the risks. Have no idea who the person in the chat room is
or if they are qualified.
The FDA does no testing during the approval process before the product goes on the
market. All the FDA does is review paperwork of tests done by the manufacturer to
determine if the product meets the standards.
A. P‟s Case
One of the best defenses is to undermine an element of the P‟s cause of action- show
there was no duty, or in negligence show that the client did exercise reasonable care.
See Carlin case
C. Punitive Damages
BMW v. Gore (1996) Supreme Court
Vandall thinks this could stand as precedent in a products case in which there is just
economic harm, and could stand in a case where there is physical harm- could bootstrap
this case up to apply to physical harm.
BMW repainted part of P‟s new car and the value of the work was $601 and they did not
tell P. At trial, the P won $4000 in compensatory damages and $4 million in punitive
The purpose of punitive damages is to further a State‟s legitimate interests in punishing
unlawful conduct and deterring its repetition.
The Court develops a three-part test to determine excessiveness in punitive
damages. The Court says that excessive damages violate the 14th Amendment.
The first criterion is the degree of reprehensibility of the D‟s conduct. Here, this is pure
economic harm; no injury to health or safety, there is no false statement. There is nothing
reprehensible. Vandall thinks in some cases economic harm is just as bad as physical
harm and can be as reprehensible. Vandall also thinks that there is a false statement- D
sold the car without telling P is was repainted. The Court does note that recidivists can
be punished more harshly.
The second criterion is ratio. The punitive damages must bear a reasonable relationship
to compensatory damages.
The third criterion is to look at the sanctions for comparable misconduct.
The question we should keep in mind is what will be impact of this case on $4000
Scalia‟s dissent says that this is not a constitutional issue and that these guidelines are not
Vandall thinks this is a bad case and punitive damages are needed to punish corporations.
*P had an interesting argument that the D had change his policy after the trial to include
informing of minor repairs pre-sale, but the court did not accept this argument.
*Another interesting point that the Court notes is that states cannot make policy for each
other and cannot have punitive damages to influence policy in other states.
Three types of reforms in punitive damages cases- caps, payments to state agencies, and
bifurcated trials. (Georgia does caps and payment to state agencies.
Do not get punitive damages for negligence- have to show willfulness and knowledge.
Always look at the cheapness of the repair.
Professor Eaton analyzed 25,000 cases in Georgia, and there were only punitive damages
in less than 20, and the amount was small. Eaton was responding to Professor Melinsky,
who said that punitive damages bludgeon the D into settlement. Eaton and Mustard
found nothing in the data to support this idea.
C. Contributory Negligence, Comparative Fault and Assumption of Risk
Contributory negligence, assumption of risk and misuse can all be considered factors of
Daly v. GM (Cali 1978)
A survey of the concept of defenses and how the court is going to deal with defenses.
In this case, there is a drunk attorney driving an Opel. The argument is that the car went
out of control and hit the guard rails and the alleged defect is an improperly designed
The D says that P was contributorily negligent- drunk, did not wear seat belt, did lock
door, there were warnings in the owner‟s manual telling P to lock the door and wear seat
belt while car was in motion.
Until this line of cases, CN was a total bar to recovery
There are two approaches to comparative fault- pure and modified.
Li- in a negligence case, contributory negligence is compared.
The issue in this case is can SL be compared with CN in a product suit.
The P argues that it cannot- SL cannot be compared with negligence.
Assumption of risk that is CN is compared and CN is compared.
The court holds that CN does not violate SL policy- the manufacturer is not an insurer.
The goals of SL are still met if there is CN.
The second argument of P‟s is that the manufacturer‟s incentive to produce safe products
will be reduced- the court says not true, D is still liable for conduct, D cannot assume that
the P will be blameworthy, and if comparative principles are a complete bar it could
encourage Ds to make products totally defective so they can say that P‟s assumed the
The third objection was that jurors will not be able to assess comparative fault and
allocate blame, but th cour says that they will be able to.
Mosk‟s dissent says that by allowing CN to be compared in an SL suit, the court has
injected negligence into SL and this violates the pure form of SL the court had struggled
so hard to create.
Part of the question becomes is this a bad case for the P? Prior to this, assumption of risk
was a complete defense, now CN and assumption of risk are compared, so the P may
*In some states, like Alabama, CN is not a defense in an action of SL in tort.
Knight v Jewitt- female playing touch football with boys, she asks them not to play
roughly, next play gets hurt and has to have finger amputated. The female brings suit.
The court said that in sports cases there is no recovery unless P can show that the injury
was intended. This is basically assumption of risk. Vandall‟s question is that are there
some cases in which assumption of risk is not compared.
Where there are numerous parties, comparative fault becomes very complicated.
Jimenez v. Sears
Keep in mind the conduct of the P- he failed to wear a protective apron and held the
grinder incorrectly. The disc shattered and caused injury to the P. The P argues that
misuses must be the sole PC to be compared. A misuse is a use that is not foreseeable to
the manufacturer. Sole PC is whatever the court wants it to be. Vandall urges us not to
use this concept, and when someone uses it with us, they are trying to pull the wool over
The court defines CN as failure to discover a defect in the product which the P should if
he was reasonably diligent, assumption of risk is if the P uses the product
notwithstanding the discovery of a defect and misuse is the P‟s use of the product for
certain purposes or in a manner not reasonably foreseen by the manufacturer.
The court rejects CN as a defense to SL. Assumption of risk is a defense to SL. There is
no duty on a consumer to search for a defect. Vandall does not think this is an
appropriate definition of CN.
The D argues that misuse is to be compared under the statute, even if only a contributing
The holding is that misuse, short of sole PC, can be compared with SL under the statute,
and also that comparative fault does apply to SL. If misuse is the sole PC, then it bars
Misuse is not an all or nothing defense- it is compared.
Vandall thinks that misuse in this case is really CN and the court still goes ahead and
compares it. Shows how ready a court will be to redefine terms to accomplish a just
result. This should be a message to us.
In the past 10 years, preemption has become an important defense. We need to be alert to
the possibility that if there is a federal statute on point, we can argue that it supercedes
state law. State law is defined as statutory or common law.
Medtronics v. Lohr (Supreme Court)
Cipollone- P argues that the warnings on cigarettes were not sufficient. It went to the
Court and they said that the 1966 Cigarette Act preempted the state action, and that the
warnings in this Act were all that were required to be given, so do not have to put
pictures on the cigarette packs. Vandall says that the Cigarette Act does not say what
Scalia says that it says.
Airbag Cases- in about 1991, the federal Government gave the car manufacturers the
choice between an airbag or a mechanical seat belt. The seat belt decapitated people.
The cases went through the courts, and the courts said that the suits about the defective
seat belts were preempted by the Federal act that allowed manufacturers to have a choice.
Many seat belt cases were preempted in this manner.
The point of Medtronic is that all of this might not hold- there might be an exception to
preemption. A federal state might not preempt the state action. Must look at the intent of
Congress. The Court said that the purpose of the Act was to keep everything status quo,
and if the manufacturer did not keep the product up-to-date, the he may be liable for
negligence. Neither the statutory scheme nor legislative history suggests that the §510(k)
process was intended to do anything other than maintain the status quo, which included
the possibility that a device‟s manufacturer would have to defend itself against state-law
negligent design claims.
Preemption can only occur where a particular state requirement threatens to interfere with
a specific federal interest.
Green v. Sterling Extruder Corporation
The facts would lead you to the opposite conclusion of that the court decided, but this is
an employment case. P got his hand smashed in a machine. The machine is supposed to
be turned off before any attempt to unjam. There is no evidence that P was ever warned
of this in a training class. P argues that there should have been an interlocking guard-
used in the industry for awhile and could have been installed without messing up the
utility of the machine.
Is CN of a factory worker a defense in a negligence case? Basic tort law says yes, but
here the court says no- in the negligence case it is not a defense. The reason is because
this is the very injury that the design was supposed to prevent. The court also stresses
that a worker does not have a choice. The economists take the opposite approach and say
that there is always a choice.
The holding is that CN is not a defense in a SL case or in a negligence case. Vandall
thinks this holding applies only to working Ps- has to be part of the fact pattern.
The court does not reach the question of assumption of risk.
One question to think about is why does SL not apply in this case? The press was sold at
a court ordered option- bankruptcy, and the court holds that this is not a sale of a product
so SL does not apply according to §402A.
A number of courts hold that an employee‟s claim cannot be barred or reduced on the
basis of contributory fault or assumption of risk, since an employee does not voluntarily
or unreasonably assume the risks of employment simply by accepting employment or
performing required job rules.
Courts are divided on whether the P‟s failure to wear a seat belt should reduce her
recovery, where such failure contributes to the P‟s injuries.
The issue of damages reduction may depend on whether there is a statute requiring car
users to war a seat belt. Some courts do not impose a common law duty saying that this
is a legislative area.
Some legislatures limit the extent to which failure to wear a seat belt can reduce recovery.
One holding is that the failure to wear a seatbelt is not compared. Another approach is
that the failure to wear a seatbelt is compared. Some jurisdictions have allowed it to
reduce recovery only by a certain extent. Another approach is to allow for the
consideration of seatbelts to reduce the amount of recovery that could have been
prevented by wearing a seatbelt. There are a number of different approaches.
Fire extinguisher did not work, but there were careless employees. Paper plates were
stacked near the stove and caused a fire, Ps tried to put it out but the fire extinguisher did
not work, and the whole restaurant was damaged.
The holding is that only assumption of risk is compared in this SL suit, CN is not
The court held that comparative fault was inapplicable when P‟s conduct does not
constitute an unreasonable and voluntary exposure to a known risk. In this case, Ps did
not know the fire extinguisher was not going to work.
Vending machine fell on a kid who was trying to rob it. The machine kills the boy. Can
he sue even though he is guilty of a crime. Pepsi sent a warning to by put on machine.
There is a design defect- the machine rocks and can fall over.
The court says that the criminal act bars any action seeking damages.
It has been held that the defense of CN as a complete bar to recovery does not apply in
an action based on intentional misconduct of the D.
Types of P misconduct constituting assumption of risk or CN may well involve the
misuse of a product. The general position on misuse is that it is a subset of foreseeable
use and therefore handled as part of the P‟s prima facie case.
Express Assumption of Risk
Moore- express assumption of risk case. The question becomes what does express
assumption of risk mean in a skiing situation. The court is helpful is drawing a
distinction between the risks of the mountain and the risk of a defectively designed
binding on a ski. The court says that people assume the risk of the mountain, but they do
not assume the risk of a defective binding.
Vandall thinks the express assumption of risks is much clearer today, and includes the
condition of the skis. The question now becomes whether this can be done. For
example, doctors cannot force patients to sign a waiver saying that they cannot be sued
for negligence. There is also the issue of whether this violates public policy.
It is widely held that obviousness of danger does not bar recovery as a matter of law, but
like assumption of risk (its legal twin), it is a component in calculating the reduction of
damages in a comparative fault jurisdiction. In the workplace, it may be ignored entirely.
Wilson v. Bicycle South
P fell off a bike and was seriously injured- claimed that the helmet only covered part of
The court said that it was obvious and she assumed the risk.
Erdman v. Johnson Brothers
The apartment caught fire due to a TV. There were 24 service calls on the TV because of
sparking. The court holds in favor of the service people because of CN. The court says
that the P should have unplugged the TV, but Vandall does not think this is practical. He
thinks what is really going on is that the P recovered from insurance company and the
company has brought a subrogation suit and the court does not want to get involved.
Vandall thinks the P should have won because the D was the expert.
Kotecki v. Cyclops Welding
P brought an action for personal injury against D for negligence in the design and
construction of an agitator, used on the premise of P‟s employer (Carus).
The sole issue on appeal is whether an employer, sued as a third-party D in a products
case, is liable for contribution in an amount greater than its statutory liability under the
Worker‟s Compensation Act.
Before the Worker‟s Compensation Act, employees lost most of their suits because (1)
they were CN; (2) they assumed the risk of the workplace; (3) fellow servant doctrine-
worker next to you was the reason for the accident.
Worker‟s Comp- if there is injury in the course of the employment, the worker recovers-
the question is how much. The worker recovers according to a schedule of damages.
Vandall thinks the schedule of damages is inadequate. The problem is that employees are
prohibited from suing their employers, so they sue the manufacturers.
The question is whether the manufacturer can recover from the employer- both were
The rule in 45 states is that the manufacturer cannot get contribution from the employer-
the employer is immune. This suit would not go forward.
Illinois decides not to permit the suit and allows the manufacturer to get contribution.
The amount is limited to the statutory amount for workers compensation.
In NY, the D manufacturer can get an unlimited amount of contribution.
There is a policy tension between two policies of law- allowing compensation between
joint tortfeasors (can recover whole amount from either), but the law grew to hold that if
two parties are at fault and they cause an indivisible injury, then those two parties can be
held as joint tortfeasors.
What is the difference between contribution and indemnity?
Indemnity is an action to recover the whole amount.
Contribution is a action to get a part.
When the employee sues the manufacturer, some states allow the employer to attach lien
on the worker‟s comp payment amount- so he could get this back.. (middle of p.748)
Government contract immunity
Federal Torts Claims Act- can only sue the Government in certain situations.
Here the pilot of a military plane drowns.
Feres Doctrine- the Government cannot be sued by military employees for injuries in the
course of military service.
The issue becomes is a military contractor immune from liability under state law for tort.
Looks like preemption, but there is no statute directly on point.
The Court holds that there is a unique Government interest here- getting the work done,
procurement of equipment. Do not want the Government contractor to refuse to build the
planes or raise the prices. Vandall does not buy this because the contractors usually only
have one employer- the Government.
The Court indicates that Government approval of specifications must be reasonably
precise in order for the defense to apply.
p.754- three requirements- when liability for design defects in military equipment cannot
be imposed pursuant to state law: (1) the US approved reasonably precise specifications;
(2) the equipment conformed to those specifications; and (3) the supplier warned the US
about the dangers in the use of the equipment that were known to the supplier but not to
the US. The first two requirements are necessary for the discretionary function.
Brennan Dissents- the argument that the prices will be higher is not sufficient and argues
that the Court is making common law, which is prohibited by the Erie Doctrine.
The Court has held that the government contract defense applied only to military
equipment, and not to a postal cart manufactured according to government regulations.
Some lower courts have held that the government contract defense does apply to non-
The 5th Circuit has held that the government contract defense only extends immunity in
design defect cases, not in manufacturing defect cases.
Lonestar Ammunition- court says that there is a manufacturing defect, not a design
defect, so the Boyle case does not apply. This illustrates the importance of being able to
skate between the two doctrines.
Illinois has applied the state contract defense.
The settlement of $206 billion rested on rethinking subrogation. In the concept of
subrogation, the state steps into the shoes of the injured party and brings the suit, like an
insurer. All the defenses that are available against the P are available to the subrogee.
The key to the tobacco settlement was to show that the state was not suing as a subrogee,
the state was suing in its own stead. The state had suffered injury- had to pay for the
1966- an important line in cigarette litigation. It may be true that smokers did not assume
the risk before 1966, but after 1966 going to be faced with a strong argument that the
smoker has assumed the risk because every pack has a warning. What is important in the
recent suits is fraud- revolving around the manufactures saying that they did not know the
product was addictive, and then a whistleblower released the documents that show that
the manufacturers did know.
Statute of Limitations and Repose
There is a sale in 1992, a discovery in 1995, and a three year statute of limitations- so
until 1998. So if your jurisdiction follows the discovery rule, then you have three years
from the time of discovery to file the complaint.
This discovery rule has been modified in many jurisdictions, especially med mal. With
med mal, the statute begins to run at the date of surgery. The statutes that modify the
discovery rule often say things like unless there is material left in the body, which
extends the discovery rule. The defense to this would be that the material was intended
to be left in the body.
The Statute of Repose
A statute of limitation typically begins to run when the P discovers or should have
discovered that she has a cause of action. A statute of repose begins to run from a fixed
date- such as the date of manufacture or sale of a product- and the period of the statute
may expire before the P has ever been injured.
The cause of action may die before it occurs.
The statute runs at the date of sale 1990, there is a ten year statute of repose, which is
until 2000. If the incident occurs in 2002, then it is outside of the statute of repose and
this cuts off the product‟s suit. Most products problems occur within the first three years.
The statutes of repose have been attacked on two constitutional grounds (1) violates EPC-
why should products consumers be treated differently and (2) access to courts- the statute
of repose bars people from getting to the courts.
2/3s of the statutes of repose have been held as constitutional and 1/3 have been held as
Failed penal implant.
P argues that the statute of limitations runs from the day of surgery. D argues that the
statute of limitations should run from the time that P learned the implant had failed (60
The court says that the statue of limitations runs from the time the P has an objective
basis for cause in fact, which in this case was the surgery. P was not sure that the product
was defective until the surgery.
What statute of limitations applies? Torts or UCC? There are three approaches- (1) look
at the warranty and say UCC; (2) look at the damages- personal injury is tort and
economic injury is UCC; (3) UCC applies only when P and D are in privity. There is a
split of authority regarding these three approaches.
Another problem is when might the statute of limitation be tolled (stopped in place)?
There may be exceptions that stop, or toll, the running of the statute of limitation or
For example, with children, the statute is tolled until the age of majority.
There are four approached
v. Addition of a component part;
vi. Age of P- minority;
vii. Concealment from P- fraud;
viii. Failure to warn concept extended- each day that the failure
occurs re-applies the duty.