products liability

Products Liability: Class Notes Winter 2007 This Cumulative Chart is to be used for the majority of the first part of the semester‟s information as opposed to creating a new chart with each additional assignment. Along with the restatements, this is what we will have with us at the exam. See Restatements and statutes section for more information or clarification. 1-3 in MO today Negligence Strict Tort Liability (focusproduct) Warranties Third Restatement (focusconduct) (focusbreach) (focusproduct) Manufacturing Negligent Manufacture Second Restatement §402A Third Restatement Implied Warranty Defect §2(a)  Failure to exercise  Product is defective & of Merchantability reasonable care in unreasonably dangerous  Product departs §2-314 manufacturing from its intended  Foreseeable use of product  Product not fit product design  Actual cause for ordinary  Actual cause  Foreseeable use of  Proximate cause purposes for product  Proximate cause  Harm to Plaintiff which such  Actual cause  Harm to Plaintiff goods are used  Proximate cause  Actual cause  Harm to Plaintiff  Proximate cause Design Defect Negligent Design Second Restatement §402A Third Restatement  Harm to §2(b)  Failure to exercise  Product‟s design is defective & Plaintiff reasonable care in unreasonably dangerous – States  Product poses designing product use various tests to determine that: foreseeable risks of Implied Warranty o Consumer Expectations harm that could  Actual cause of Fitness for Test have been reduced  Proximate cause Particular Purpose o Risk/Utility Test or avoided by  Harm to Plaintiff §2-315 o Negligence w/ imputed adoption of  Product is not knowledge reasonable *focus on D‟s conduct fit for buyer‟s alternative design  Foreseeable use of product particular or  Omission of  Actual cause special purposes alternative design  Proximate cause  Seller has renders product not  Harm to Plaintiff reason to know reasonably safe that buyer  Foreseeable use of *focus on the product (the defect) requires goods product for particular  Actual cause purpose & is  Proximate cause relying on  Harm to Plaintiff seller‟s skill or Inadequate Negligent Failure to Second Restatement §402A Third Restatement judgment in Warning Warn §2(c)  Product is defective & selecting  Failure to exercise unreasonably dangerous b/c it  Product poses suitable goods reasonable care in lacks adequate warnings or foreseeable risk of  Actual cause providing warnings instructions harm that could  Proximate cause or instructions o Under “state of the art” have been reduced  Harm to approach, can be liable only or avoided by the  Actual cause Plaintiff for failing to warn about risks provision of  Proximate cause that were known or should reasonable  Harm to Plaintiff Express Warranty have been known at time of instructions or §2-313 sale warnings by  Affirmation of o Under “imputed knowledge” someone in the fact or promise approach, can be liable even chain of concerning for risks that could not have distribution product been known at time of sale  Omission of  Made part of the  Foreseeable use of product instructions or basis of the warnings renders  Actual cause bargain product not  Proximate cause  Product does reasonably safe  Harm to Plaintiff not conform to  Foreseeable use of affirmation or product promise  Actual cause Products Liability Rostron 1 Kuhl Winter 2007 Misrepresentation Negligent Misrepresentation  Failure to exercise reasonable care  Misrepresentation about material fact  Someone justifiably relies  Actual cause  Proximate cause  Harm to Plaintiff Second Restatement §402B  Misrepresentation about material fact  Someone justifiably relies on it  Foreseeable use of product  Actual cause  Proximate cause  Harm to Plaintiff    Actual cause Proximate cause Harm to Plaintiff  Proximate cause  Harm to Plaintiff Third Restatement §9  Plaintiff can sue under tort law, w/ same required elements as under Second Restatement §402B And/or Plaintiff can sue under contract law, including UCC warranties provisions The demise of privity requirements for negligence claims We begin by looking at a very basic type of tort claim – negligence – and seeing how it gradually emerged as a useful tool for people seeking to recover from manufacturers or sellers of products causing injuries. The first case, Winterbottom v. Wright, is the classic authority for the old notion that “privity” should be required for any claim against a manufacturer or seller of a product. The “privity” requirement dramatically curtailed the reach of products liability law for many years. Gradually, in cases like Thomas, Heizer, Huset, and Statler, courts began to recognize exceptions to the “privity” requirement. As the exceptions grew broader, the “privity” requirement eroded. The critical blow to the “privity” requirement is finally delivered by Judge Benjamin Cardozo in the MacPherson v. Buick Motor case. That decision had a revolutionary effect on products liability law in America. The McLeod v. Linde Air Products case signalled the adoption of Cardozo‟s views in Missouri. Winterbottom v. Wright – 1842 (faulty carriage coach; P injured; held  required privity of K; D not liable) -what kind of claim is being brought? Somewhere between tort and K -Wright (D)-----K--Postmaster General----K---Atkinson-----K----Winterbottom (P) -Privity of K – direct contractual relationship; only party who made K can sue -allowing P to bring claim opens the floodgates, so CT held for D -privity of K required for liability at this time w/ products cases -still liable for own torts regardless of privity Thomas v. Winchester – 1852 (mislabeled belladonna as dandelion; P injured; held  no privity req‟d if inherently dangerous) -mislabeled belladonna (poison) as dandelion; looked similar, smelled similar, etc… -no privity of contract (chain of contracts) required -exception to the general rule for inherently dangerous (i.e. poisonous drugs) and clearly meant to be resold Heizer v. Kingland & Douglas – 1892  MO Case -threshing machine mfr and sold; defect killed P -general rule applies, but exception noted -D did not know of defects; general rule of negligence applies b/c case does not fit into the exception -another exception noted for fraud (knowledge/concealment) Huset v. JI Case – 1903 – (p. A-9 for exceptions) -No privity; threshing accident; defect known; leg amputated -3 exceptions: no privity required 1) no privity required if imminently dangerous to life/health 2) invite someone on to property (might work if P sued owner; not mfr) 3) sell or deliver imminently dangerous product w/o notice or disclosure; injury reasonably anticipated -imminently dangerous v. inherently dangerous? -probability? Timing? Severity? Products Liability 2 Rostron Kuhl Winter 2007 -exceptions made to expand, thus, limiting privity requirement Statler v. George A Ray – 1909 – coffee urn explodes -no privity of K -wins case b/c it falls w/in an exception -exceptions are growing (see Torgesen) MacPhersen v. Buick – 1916 (Cardozo; same author as Palsgraaf fireworks case) -Buick liable when wheel/spokes crumbled -Buick liable b/c it failed to inspect the product -no privity of K -note: $900 car, model 10, 3 passengers, owner‟s manual said “do not abuse any more than you would your wife”note the times -up to 50 mph -Louie Chevrolet drove a Buick Model 10 in 1 st Indy 500 -Buick bought wheels from mfr of wooden spokes, but failed to inspect -P wins b/c D‟s negligence put human life in imminent danger -does not matter if it is inherent or imminent danger; danger = foreseeability = duty to avoid injury -the exceptions now swallow the rule! -for all practical purposes, the privity requirement is gone -75 years have passed since Winterbottom; times have changed -Cardozo putting his name on the map! -Buick is a huge name -When you buy a Buick, you are getting quality; no-one knows who Imperial Wheel is McLeod v. Linde Air Products – 1927 – MO Case -no privity of K; 15 year old hit when Oxygen tank explodes -P wins b/c foreseeable; not purchaser and user; expands MacPherson Brief Summary -Macpherson made negligence a much more useful cause of action -gradual evolution until exceptions swallow the rule -failure to exercise reasonable care -four main ways to have a problem 1) manufacturing defect 2) design defect (i.e. Gas tank explodes in back) 3) inadequate warnings 4) misrepresentation (i.e. non-addictive) -not everything applies into these four, but in general, you can bring a claim for any of these four Warranties claims Last time, we saw how negligence gradually emerged as an important cause of action for people injured by products. Warranties claims were the other significant type of claim that might be brought against a manufacturer or seller of a product, and in this assignment we see how warranties slowly evolved and became an increasingly potent tool for plaintiffs. The Langridge v. Levy case provides an early example of a product seller being held liable for making representations about a product that turned out to be false. If a warranty claim could only be brought in situations involving express statements about a product, as in Langridge v. Levy, warranty claims would not be particularly common. Merchants usually do not tell outright lies about their products. Courts soon began to decide, however, that sellers implicitly give warranties about their products even if they explicitly make promises about them. At first, these implied warranties were only applied to sellers of food, such as in Hoover v. Peters. Moreover, the implied warranties extended only to the immediate purchaser of the food. In other words, privity was required. Courts began to drop the privity requirement in food cases in the early 1900s, in cases like Tomlinson v. Armour & Co. and Smith v. Carlos. For a long time, food was the only type of product that received the special protection of implied warranties without a privity requirement. But eventually, courts began to stretch the boundaries of the Products Liability Rostron 3 Kuhl Winter 2007 food category to cover other things. The Graham v. Bottenfield’s and Midwest Game v. MFA Milling cases provide examples of that. In the Henningsen v. Bloomfield Motors case, the Supreme Court of New Jersey took the dramatic step of simply dropping the privity requirement for implied warranties claims, no matter what sort of product was at issue. Other states, such as Missouri in the Morrow v. Caloric Appliance case, soon followed. Warranties had come of age and become a second key weapon, alongside negligence claims, in the arsenal of plaintiffs suing manufacturers and sellers of products. Warranties have now been codified in statutory form, under the Uniform Commercial Code, in virtually every state. Your “Restatements/Statutes” contains the UCC warranties provisions of Missouri and Kansas. Take a quick look at the Missouri and Kansas provisions based on UCC §§ 2-313, 2-314, and 2-315. We will be dealing with those sections frequently throughout the semester. Note that while Missouri and Kansas have essentially identical provisions for those sections, the two states had adopted different versions of UCC § 2-318. Warranties are somewhere between torts and contracts -Prosser referred to them as, “Freak Hybrids born of the illicit intercourse of torts and contract” Langridge v. Levy -1837 No privity of K Misrepresentation + knowledge = D liable Forseeable Express Warranty Claim Should there be implied warranties when seller does not say anything? 1266 with food; evolution/development -1431 – tavern serves bad food was held liable *not required to prove seller was negligent; just that it was bad (liability without fault aka Strict Liability) Hoover v. Peters – 1869 -American case; unfit hogs -held not fit for consumption -D argues it should only be liable for express warranties -implied warranty exists, but is limited to: 1) food and drink 2) privity of contract must exist (at least at this time) Tomlinson v. Armour & co. – 1908 No privity of K P can still recover b/c of public policy and the importance of safe food and the importance of canning in that consumer cannot “inspect the product until used The defect is sealed away MFR is only one w/ control, but he would be off the hook if privity was required Privity no longer required -around this time, the Jungle (by Upton Sinclair) was written and put people on notice by describing the work environment (Upton Sincair and the socialist movement helped improve working conditions) 50% drop in sales Contemporary events effect changes in the law Smith v. Carlos – 1923 MO case Putrid fish Applies to restaurants Privity of K not required Implied warranty beginning to be applied more frequently, but privity often required, and often not strict liability Food and drink by far is still getting the best treatment Graham v. Bottenfield’s, inc. 1954 Hair preparation product; “intimate bodily use” P allowed to recover b/c expansion of rule -3 exceptions set out: Midwest game co. V. M.f.a. Milling co. 1959 Products Liability Rostron 4 Kuhl Winter 2007 -trout farm Rule expanded to include animal food (which was a rather large expansion) Henningsen v. Bloomfield motors, inc. (1960)*** Landmark case for warranties Husband purchased car for wife Warranty expressly given, but is limited and burdensome Wife injured (UCC 2-318 would have applied had it existed) Court held there was an implied warranty No privity of K b/c of intermediary -not food, drink or intimate body use or animal food product Same reasoning as Cardozo in Buick case (see B-15) “Rest upon the demands of social justice” Public policy based on social circumstances Food is important, but so are cars; exceptions expanded Unconscionable / boiler plate/ adhesion k was in a standardized form which allowed for a limited remedy Morrow v. Caloric appliance corp.(1963) Gas stove case; multiple fires Dangerous; Henningsen cited Warranties again expanded Warranties have since been codified in the UCC (p. 27) 2-313 – Express Warranty 2-314 – Implied warranty of merchantability 2-315 –implied warranty of fitness for a particular purpose -i.e. someone tells you they need hiking boots to climb, but you sell tennis shoes  you are liable) 2-318 – Warranty extended to 3rd party (mfrdealerpurchaserPlaintiff) -MO uses A (narrowest – household), KS uses B (natural person); and part C (broadest) is for any person The development of strict tort liability We have now looked at how two types of claims – negligence and warranties – became important to products liability law. Meanwhile, at the same time those causes of action were evolving and growing stronger, some people began to suggest the creation of a third, completely new, and very potent sort of claim. This new sort of claim, strict tort liability, would not be limited by the need to prove fault as for a negligence claim, or by the limitations of contract law that came along with warranties. The chief inventor of this new claim was Roger Traynor, a member of the Supreme Court of California. The idea emerges in two of his opinions, first in the concurrence in the Escola v. Coca Cola case and then in the majority opinion in Greenman v. Yuba Products. Soon after California adopted strict tort liability, the idea was promoted by issuance of the Restatement (Second) of Torts. Your “Restatements/Statutes” contains the two key provisions, § 402A and § 402B. Missouri adopted § 402A in the Keener v. Dayton Electric Mfg. case, and Kansas did the same in the Brooks v. Dietz case. The other cases in this reading assignment, Blevins and Giberson, provide answers to several of the initial questions that came up in Missouri after it created strict tort liability by adopting § 402A. Third Restatement – 1998 Goal is to simplify, consolidate, and clarify Want 1 rule for every claim Has its pros and cons and is very controversial In MO and most places, the state of the law is the first 3 approaches; not yet adopted the 3 rd Restatement Cardozo referred to the demise of the privity requirement as, “The assault on the Citadel” Escola v. Coca Cola Bottling Co. of Fresno (1944) – strict liability Exploding bottles Majority says they could win on res ipsa loquitur (the thing speaks for itself; you can‟t prove negligence, but something must have happened); it is a form of circumstantial evidence Products Liability 5 Kuhl Rostron Winter 2007 Traynor argues an “absolute liability” in his concurrence Does not care about negligence; even if fully careful, should still be liable Traynor thinks S.L. should be advanced because… 1) Maximize manufacturers incentive for safety 2) Consumers – fairness and protection of consumers as a public policy argument 3) Spreading losses (burden on the plaintiff is a lot, but defendant is in a better position to pay for it) -in the end, we all pay more for the product as prices increase to absorb losses 4) if you‟re going to do res ipsa, you are practically at S.L. already (liability w/o fault) -candor (p. c-f) Greenman v. Yuba power products, inc. (1963) - lathe Argued defective design about screws being too weak Traynor – S.L. expanded; CA under Traynor evolved from conservative to liberal/aggressive Notice requirement shot down b/c it dealt with contracts Wants something simple, clear and concise ALI in writing the restatements followed this §402(A) & (B) are the S.L. sections -if A sells defective product, unreasonably dangerous, then A is subject to liability §402(A) does not need privity Keener v. Dayton electric manufacturing co. (1969) – wrongful death from a Pump Husband electrocuted when neighbor‟s house flooded Pump installed, but defective because of design w/o a ground wire Husband went to help neighbor w/ pump and got electrocuted D argues contributory negligence; verdict overturned Blevins v. Cushman motors (1977) golf cart Defective design made the car turn over Bse should be wider 402(A) covers design defects S.L. v. Negligence (look at the product v. look at the care) Brooks v. Dietz (1976) Propane gas explosion KS follows MO Working on furnace; it exploded Giberson v. Ford motor co. (1974) – smoke / accident / cars Is S.L. to be extended to protect a bystander? Yes; left up to the states to decide; 402(A) covers -plaintiff was not driving / using the car Bystanders need a higher degree of protection What if plaintiff sues for breach of warranty in MO? Can plaintiff win? No, can‟t win on that in MO b/c MO adopted part A, the narrow application of the UCC -In KS, it is possible to bring b/c of broader application of the rule Manufacturing defects Manufacturing defects are the first of four basic types of claims that we will examine in this course. The Pillars case provides an example of a very basic, egregious, and unusual manufacturing defect. The law on manufacturing defects is relatively straightforward and uncontroversial. Take a look at the Third Restatement‟s provisions for manufacturing defects – § 1, § 2(a), and comment c to § 2. In reading the Magnuson v. Kelsey-Hayes and Richcreek v. General Motors cases, consider whether they define a manufacturing defect in a way that is consistent with the Third Restatement and with each other. Generally, a manufacturer is liable only for a defect that exists at the time the product leaves the manufacturer‟s hands. The Vandermark v. Ford Motor and Caporale v. Raleigh Industries cases provide examples of an exception to that general rule. Products Liability Rostron 6 Kuhl Winter 2007 The Tardella v. RJR Nabisco case illustrates how a manufacturer‟s strong quality control procedures can save it from liability, even in a case where it is facing strict liability. The reading assignment concludes with three cases about spiders. Why is the presence of a spider a manufacturing defect in the first case (Strawn), but not in the other two (Flippo and Anderson)? Pillars v. R.j. Reynolds tobacco co. (1918) –toe in chew Negligence claim Key idea is to see if they acted as a reasonable person would have Res ipsa loquitur type of situation Even if they have quality control in place, they are the only ones involved in manufacturing and packaging, so they are liable Where do you stop? Toe? Nail? Bug? Ant? What if you could not tell it was in there, no matter how careful? Learned Hand balancing formula applied by the company; if dangerous, better control needed At the time, exceptions existed only for the food products, but this case expanded the rule NOTE: negligence involves fault; strict liability in strict liability, warranties, and 3rd restatement because you look at the product Magnuson v. Kelsey-hayes co. (1992) – MO case Kid injured when defective wheel came off and hit the kid Richcreek v. General motors corp. Vandermark v. Ford motor co. Caporale v. Raleigh industries of america, inc. Manufacturing or design defect? How do we draw that line? In the corvette case, the design defect affects the entire line of products, whereas manufacturing defects apply to just the individual product (i.e. design is fine, but this flaw is unique to this specific product) Look at systematic manufacturing and situations surround the defect (see diagram) [Components from various companiesMFRwholesalerretailerconsumer] 1) Analyze reasonable care at each stage; in general, liable if negligent 2) \ 3) Look at who sold the defective product; even if never see product, there is liability wherever defect arose; it flows down 4) / A) look at where the defect arose B) liability then flows down Exception: Where delegation occurs; see bike case MFR has delegated part of manufacturing to someone else, invoking the application of agency principles Question to ask: Is it really the manufacturer‟s job? (assembly, adjustments, etc…) What about instillation? Not sure; depends how they installed it Tardella v. Rjr nabisco, inc. Candy bar w/ pin in it D had such sound procedures that the pin could not have been in there when it left the factory Strawn v. Coca-cola bottling co. Of missouri Cigar or spider found in the bottle P sick for 3 days, sued and won Study: smashed up spiders, lizards, etc… in coke, let it sit for days or weeks; gave to unsuspective people; no-one sick -proves people exaggerate illness NOTE: disproportionate # of cases in the South Says manufacturing defect Flippo v. Mode o’day frock shops of Hollywood Spider in the pants is not a manufacturing defect because the focus is not about the product Anderson v. Associated grocers, inc. Giant banana spider (6”) leapt and bit P, died 9mos later; D held not liable Alimentary manufacturing defects 7 Products Liability Rostron Kuhl Winter 2007 “Alimentary” manufacturing defects involve food. Courts have used three different tests for cases involving a plaintiff who is injured by something hidden in food. The first three cases in the assignment – Mix, Johnson, and Mexicali Rose – explain each of those three approaches. Read Third Restatement § 7, and comment b to that section, to find out which of the three tests is endorsed by the Third Restatement. Missouri has very little caselaw on this subject, but the Ford v. Aldi is an example of how a Missouri court dealt with one case of this sort. The last three cases in the reading assignment – Webster, Cain, and Harris-Teeter – are examples of courts applying their tests to an assortment of circumstances in which someone claimed injury from food. Mix v. Ingersoll Candy Co. (1936) – P loses (F/N test) Chicken pie contained a bone Foreign Natural Test Foreign item  can bring claims of negligence, implied warrant, and S.T.L. Natural item  no claim b/c no liability D can‟t possibly remove all bones and still fit for human consumption; reasonably expect a bone to be present Bone v. metal?  conduct of d? Johnson v. C.F.M., Inc (1989) Ingested coffee grounds in cup of coffee Federal court predicts what Kansas could do Said too hard of a line to draw Natural item can be just as dangerous as a foreign item D held liable F/N test rejected New test of Reasonable consumer expectations being adopted Would not anticipate  negligence, STL, and implied warranty Would anticipate  no liability Note: rejected in this case too? Mexicali Rose v. Superior Court of Alameda County (1992) -P injured by chicken bone in chicken enchilada New rule enacted reasonable expectations + F/N test (hybrid) Natural  negligence Foreign  negligence, STL, + implied warranty Still retains F/N distinction, but not as harsh as natural test b/c can recover for negligence Dissent: Stanley Moss  very Pro-plaintiff Dissenters want to use the reasonable consumer expectations test Hybrid test was not the majority test §7 of restatement had consumer expectations test (and was the majority at the time) Which approach is best? Probably reasonable consumer expectations test Although not written into the test as dispositive factors or a bright line test, the F/N distinction is still considered What if it said “boneless chicken” Might make a difference w/ reasonable expectations, but might not (still don‟t expect a bone to be in there) Does this mean there is an express warranty? Possibly stronger for a claim of misrepresentation What about a rock in a can of peas? -reasonable not to expect a rock in your peas Easy claim to fake if false, but if true, it is a pretty egregious claim Not really any MO precedent on it Ford v. Aldi inc. (1992) Sees grasshopper in her spinach Loses b/c no medical substantiation of injury MO wants it to be medically significant, but allows NIED if you can prove it Webster v. Blue ship tea room (1964) Products Liability Rostron 8 Kuhl Winter 2007 Fish chowder; swallowed fish bone No recipes call for removal of fish bones Person from New England should expect to consume a fish bone (regional aspect to consumer expectations approach) What if P was not from the region? Could argue both ways Cain v. Winn-dixie louisiana, inc. (1999) Hair found in cake Rejected its own hybrid approach (now only used in CA) Court says as long as people make cakes and have hair, they can reasonably anticipate a hair being in the cake Court possibly thinks this is frivolous Harris-teeter, inc. V. Burroughs(1991) – not liable Cake requested not to have anything on it Grandma eats plastic bird Court says foreign/ natural line is not literal and bird is treated as natural (cakes have decorations) What is the effect of someone seeing it? P did not see it, so probably not much if any Why not impose liability The “consumer expectations,” “risk-utility,” and “negligence with imputed knowledge” tests for design defect claims We now turn to our second major sort of problem with a product – design defects. For decades, the most vexing question in products liability law has been how to define what it means for a product‟s “defective” and “unreasonably dangerous” within the meaning of Second Restatement § 402A. For guidance in answering that question, courts often turned to the comments accompanying § 402A, so start by reading comments g, h, and i (in your “Restatements/Statutes”). In the cases in this assignment, you will read about the two most common approaches that states have taken to this issue. One is a “consumer expectations” test and the other is a “risk/utility” test. As you will see in these cases, some states like California have made things more complicated by adopting a combination of both of those tests. o Cronin v. J.B.E. Olson Corp. – 1972  Holding: Once the injured plaintiff seeking recovery based on strict liability has established that the product was defective and that the defect proximately caused his injuries, he does not then need to show that the defective condition made the product unreasonably dangerous.  Result: Court only concerned with “defective” products.  Why does sec. 402 A use “defective” and “unreasonably dangerous?”  “Defective” was thrown in as an afterthought to protect the manufacturers of certain products. But now, “defective” is THE emphasis of sec. 402A. o Ex. whiskey – many might think it‟s “unreasonably dangerous,” but can‟t have liability unless it‟s defective, too! Phillips v. Kimwood Machine Co. – 1974 (Oregon) o NIK Test:  Was it reasonable for D to sell the product knowing everything there is to know about its risks? o Note: OR used consumer expectations test before (in Heaton) and now uses NIK instead. Heaton v. Ford Motor Co. – 1967 (Oregon)  Facts: P driving on highway and hits rock that is 5-6 in. in diameter. This causes car to wreck.  Oregon’s approach to design defects:  Consumer Expectations Test: Should meet reasonable expectations of the user. o Origin of test: Warranties law  Decision: High-speed collisions with large rocks are not so common that the average person would know from personal experience what to expect under the circumstances.  Focuses on criticism #4 Barker v. Lull Engineering Co., Inc. – 1978 (California)  CA’s approach to design defects – can use either one!  Risk-Utility Test: Weigh the risks versus the utility/benefits of the product. If benefits don‟t outweigh the risks, then product is defective in design. 9 Kuhl Winter 2007 o o o Products Liability Rostron o o Test influence by: Negligence theory  Consumer Expectations  CA will focus really hard on the word “defective.” Soule v. General Motors – 1994 (California)  Facts: Involves a possible defective “toe pan” of a Camaro.  CA court cautions about usual the dual jury instruction, allowing a jury to use either test for design defects – worried that most of us don‟t know about toe pans and thus consumer expectations might not work as a test.  Court proposes: First must decide whether product is a simple kind of product or if the product is something more technological. o Simple Product = Can still use either test o Technological Product = Can only use risk/utility The Third Restatement’s approach to design defect claims The Third Restatement‟s approach to design defect claims has sparked tremendous controversy. Start by reading Third Restatement § 2(b) and comments a, d, e, f, and g to that section. (Again, these are provided in the “Restatements/Statutes.”) Then take a look at how courts in several states have reacted to the Third Restatement‟s approach on this point. The Wisconsin court in Green v. Smith & Nephew rejects the Third Restatement‟s approach; the Iowa court in Wright v. Brooke Group adopts it. The Iowa court later, in the Parish v. Icon Health & Fitness case, grapples with what it means for a product to have a “manifestly unreasonable” design within the meaning of Third Restatement § 2‟s comment e. Flaws in every test CA puts burden of proof on D for risk utility Hybrid tests = risk utility + C.E. Which test is best? In general, C.E. is best for plaintiffs Geared towards P‟s perspective Simple forms of proof Risk / utility is focused on MFR Invites higher standard of proof Expensive for Plaintiffs D can bring experts about design and P would have to get their own experts Table is turned w/ obvious or well-known danger to it P would expect cigarettes to be dangerous (C.E.) P should argue higher risk and lower utility §2(b) – 3 parts: criticism = bad for plaintiffs b/c higher proof; higher money 1) foreseeable risk of harm 2) risk could be avoided / reduced by reasonable alternative design 3) omission rendered product unsafe / not reasonably safe A – important to recognize it is using a negligence / fault based approach Also evaluates Ds conduct as well as the product itself Asking did D make a bad decision that rendered the product not reasonably safe B – imposes requirement of showing alternative reasonable design C – rejecting the C.E. approach (see comment F) Green v. Smith & nephew ahp, inc. (2001) – WS says no to §2(b) Wright v. Brooke group limited Parish v. Icon health & fitness, inc. Missouri and Kansas approaches to design defect claims In this assignment, you will see how Missouri and Kansas courts have answered the difficult question of how to determine if a product‟s design is defective. Products Liability Rostron 10 Kuhl Winter 2007 Missouri‟s unique approach is set forth in the Nesselrode v. Executive Beechcraft case. The Supreme Court of Missouri looked at the Third Restatement‟s rules for design defect claims in the Newman v. Ford Motor case. The Kansas test for design defect claims is established in the Lester v. Magic Chef case. The Supreme Court of Kansas reaffirms that test and clarifies what sort of evidence is relevant under it in Betts v. General Motors. The Kansas court addresses whether proof of a reasonable alternative design is required in the Larry D. Hudson, LDH v.Towsend Associates case. The final two cases consider whether an inherently dangerous substance can be regarded as a defectively designed product. The Supreme Court of Missouri considers that question in the Elmore v. Owens-Illinois case, and the Supreme Court of Kansas takes on that issue in Jenkins v. Amchem Products. Nesselrode v. Executive beechcraft, inc. Newman v. Ford motor co. Lester v. Magic chef, inc. Betts v. General motors corp. Larry d. Hudson, ldh, inc. V. Townsend associates, inc. Elmore v. Owens-illinois, inc. Jenkins v. Amchem products, inc. Causation “Actual causation” and “proximate causation” are crucial requirements for any products liability. The first four cases in this reading assignment – Price, Lear Siegler, Guarino, and Bobka – illustrate the difficulty that can arise in trying to decide whether those requirements are satisfied. Causation becomes an even more complex issue in cases where the product is a toxic substance like asbestos. The Hagen v. Celotex case illustrates the Supreme Court of Missouri‟s approach to such issues. “Crashworthiness” cases involve a type of products liability claim posing special causation issues. Courts were initially reluctant to permit recovery on “crashworthiness” claims, as the Evans v. General Motors case demonstrates. In cases like Larsen v. General Motors, the tide turned in favor of plaintiffs on these issues. The Cryts v. Ford Motor case is one of the leading Missouri precedents on “crashworthiness” claims. The McDowell v. Kawasaki case addresses the important issue of which side has the burden of proof on proving how much of the plaintiff‟s harm was caused by the product‟s defect. Section 16 of the Third Restatement addresses the burden of proof issue for “crashworthiness” claims. Actual cause – is it an essential / necessary thing to the injury? „but for test” – the injury would not have occurred but for the … (negligence or defect or breach of warranty) Proximate cause: 1) injury must be reasonably foreseeable (w/in general type of harm expected) 2) person injured must be reasonably foreseeable (w/in general class of people expected to be hurt) The manner of harm doesn‟t matter approach (doesn‟t matter how they are hurt); just look at start and end v. the superceding cause approach (intervening act or forces)if not foreseeable b/c of intervention, then no P.L. Price v. Blaine kern artista, inc. Lear siegler, inc. V. Perez Guarino v. Mine safety appliance co. Bobka v. Cook county hospital Hagen v. Celotex corp. Evans v. General motors corp. Larsen v. General motors corp. Cryts v. Ford motor co. Mcdowell v. Kawasaki motors corp. Usa Products Liability Rostron 11 Kuhl Winter 2007 Foreseeable use and misuse of products with design defects Foreseeability is a crucial issue underlying many of the elements of products liability claims. While courts specifically require proof of foreseeable use of the product for strict tort liability claims, foreseeability is an issue embedded in all the other types of claims as well. For example, proximate cause is required for every claim and is largely a matter of foreseeability. Implied warranty of merchantability claims require proof that the product was not fit for its “ordinary use,” which is probably an even more demanding requirement than “foreseeable use.” The cases in this reading assignment illustrate the wide range of ways in which products can cause harm and the difficulty of deciding what is sufficiently foreseeable for liability to be imposed on the manufacturer or seller. The Port Authority and In re September 11 Litigation cases reach different conclusions about the foreseeability of terrorist acts. Finally, the Baker v. International Harvester and Erkson v. Sears & Roebuck cases are examples of Missouri courts handling foreseeability questions. Manufacturing and Design Defects Negligence Proximate Cause Strict Tort Liability Proximate Cause Majority – foreseeable use of product Crowther v. Ross chemical & manufacturing co. Larue v. National union electric corp. Daniell v. Ford motor co. Ellsworth v. Sherne lingerie, inc. Port authority of new york & new jersey v. Arcadian corp. In re september 11 litigation Baker v. International harvester co. Erkson v. Sears, roebuck & co. Designs posing obvious dangers Giving warnings versus eliminating design defects This assignment looks at a pair of arguments that manufacturers often raise in response to design defect claims. One argument is that the manufacturer should not be liable because the danger in the product‟s design was obvious and so the user should have known to avoid it. The Siruta, Linegar, and Miller cases address whether this is a valid basis for avoiding liability for a design defect. The second argument is that the manufacturer should not be liable, even if the product‟s design was dangerously defective, because the manufacturer gave adequate warnings to inform users of the danger. The Uloth, Rogers, and Delaney cases address this issue. In particular, the Delaney case looks at the difference between what the Second Restatement (in the third paragraph of comment j to § 402A) and the Third Restatement (in comment l to § 2) say on this question. Design Defect Claims – Obvious Danger Design Defect Claims – Effect of Warnings Negligence MO – traditional Strict Tort Liability Majority Rule – just a factor (including KS) Majority – Modern – just a factor (including KS) MO? Siruta v. Hesston corp. Linegar v. Armour of america, inc. Miller v. Varity corp. Uloth v. City tank corp. Products Liability Rostron 12 Kuhl Winter 2007 Warranties Just a factor MO? Third Restatement §2, comment D Modern Rule – just a factor §2, comment D Modern Rule – just a factor Warranties Proximate Cause UCC 2-314 – fit for ordinary purpose Third Restatement Proximate Cause Foreseeable use of product Rogers v. Toro manufacturing co. Delaney v. Deere & co. The “imputed knowledge” and “state of the art” approaches to inadequate warning claims Having covered manufacturing defects and design defects, we now turn to the third basic type of problem that occurs with products – inadequate warnings. Courts have struggled to decide whether strict liability should exist for injuries resulting from inadequate warnings. There is no doubt that an inadequate warnings claim can be brought under strict tort liability and Second Restatement § 402A, as well as under the law of negligence and warranties. But should such a claim be “strict” in name only, or should it involve true strict liability without fault? In other words, should manufacturers and sellers of products merely be held liable for failure to warn of dangers about which they knew or reasonably should have known? Or should we go further and hold them liable even for failure to warn about dangers that no one reasonably could have been aware of at the time the product was sold? The Anderson v. Owens-Corning case is an example of a court adopting a negligence or “state of the art” approach to inadequate warning claims. The Sternhagen v. Dow Chemical case is an example of a court adopting a true strict liability or “imputed knowledge” approach. The Johnson v. American Cyanamid case explains the Kansas answer to this question. The Supreme Court of Missouri addressed this issue in Nesselrode v. Executive Beechcraft. The Missouri legislature did not like that decision and responded by enacting RSMo § 537.764. The Stanger v. Smith case illustrates the effect of § 537.764. Inadequate Warnings Negligence Defendant must exercise reasonable care Strict Tort Liability Warranties 1) Majority – state of the Art (liable only if knew or should have known); favors Ds (KS) 2) Minority – imputed knowledge approach (liable regardless of whether or not they knew or should have known); favors Ps 3) Burden shifting (MORSMo §537.764) Anderson v. Owens-corning fiberglas corp. Sternhagen v. Dow co. Johnson v. American cyanamid co. Nesselrode v. Executive beechcraft, inc. Stanger v. Smith & nephew, inc. Third Restatement §2(c) – negligence approach (reasonable warnings about foreseeable risks) Adequacy of warnings Adequacy and causation are two of the most major issues in warnings cases. Was adequate warning given? If not, did that cause plaintiff‟s injury? These two issues are very interrelated and the cases in this assignment address them. Negligence Warnings Strict Tort Liability Warranties Rebuttable Heeding Presumption 3rd Restatement No Heeding Presumption In general, strict liability doesn‟t really exist for warnings claims Adequacy 1) Decide if anything is wrong w/ the warnings (content, clarity, intensity, conspicuousness) 2) Decide if flaw is significant enough for liability to be imposed Actual Causation 1) Plaintiff‟s injury was caused by the product (plaintiff has burden of proof) 2) An adequate warning would have prevented the injury (defendant has burden of proof) Products Liability Rostron 13 Kuhl Winter 2007 Kearns v. Emerson Electric Co. (1987) – Weedeater case Plaintiff, using a gas powered weedeater, struck something, causing a “kickback” which resulted in the severing of his nephew‟s arm Under OK law, to recover for mfr‟s product liability, P must prove: 1) product caused the injury 2) a causally related defect existed at the time it left the mfr‟s possession and control 3) the defect made the product unreasonably dangerous to the plaintiff or his property The test you use will make a difference for design defect: 1) reasonable alternative design 2) risk utility? 3) consumer expectations test (which is used here) Warnings Problem with clarity Could a reasonable jury decide? Yes, due to clarity and inadequacy You could argue this is merely an instruction because warnings say what can happen (note: bring in an expert to do this) “If 1 more warning would have been given, it might have saved him Nowak v. Faberge U.S.A., Inc. (1992) – Hairspray, burns Hairspray, purchased can Warning was not strong enough (intensity) Heeding presumption adopted because causation is highly speculative If we don‟t know one way or the other, then plaintiff should win The 3rd Restatement says the opposite Also requires foreseeable use of the product Label and warning said DO NOT PUNCTURE Murray v. Wilson Oak Flooring co. (1973) – Adhesive; fire “Near” is ambiguous Michael v. Warner/Chilcott (1978) – Sinus Pills What does “adequate” mean? “May” is ambiguous Ayers v. Johnson & Johnson Baby Products Co. (1991) – Baby Oil 15-month old child suffered brain damage after inhaling baby oil Risk is very severe Going overboard with warnings may dilute the effectiveness Arnold v. Ingersoll-Rand co. (1992) – MO – Air compressor Application of heeding presumption and limitation that presumption used if only it added additional information If you didn‟t read the warning, argue conspicuousness But, at the same time, it weakens your adequacy claim because it eliminates the heeding presumption “It‟s like saying you didn‟t like a book without having read it” Morton v. Homelite, Inc. (1998) – MO – Court concludes presumption does not apply Difficult to decide this subtle issue On a failure to warn claim, plaintiff must establish: 1) Defendant sold the product in the course of his/her business 2) The product was unreasonably dangerous at the time of sale when used as reasonably anticipated w/o knowledge of its characteristics 3) The defendant did not give an adequate warning of the danger 4) The product was used in a manner reasonably anticipated; and 5) The plaintiff was damaged as a direct result of the product being sold w/o an adequate warning (2 parts) a) the product for which there was no warning must have caused the plaintiff‟s injuries; and b) the plaintiff must show that a warning would have altered the behavior of those involved in the accident Warnings about obvious dangers and unforeseeable uses Products Liability Rostron 14 Kuhl Winter 2007 Here, we take several issuees that we previously examined for design defect claims and consider how they should be handled for inadequate warning claims. In particular, this assignment looks at the issue of whether a manufacturer or seller ever has a legal obligation to give warnings about obvious dangers or unforeseeable uses of its product. In addition to the cases, this point is addressed by Third Restatement § 2 comment j, and in Kansas by a statute, K.S.A. § 60-3305. Warning Claims Negligence Proximate Cause Warranties Third Restatement Proximate Cause + Proximate Cause + UCC 2-314 (not fit Foreseeable use for a particular purpose); UCC 2-315 (seller has reason to know about particular purpose) *NO DUTY TO WARN ABOUT RISKS THAT ARE OBVIOUS OR GENERALLY WELL KNOWN Factual issue for the court Not an affirmative defense Strict Tort Liability Proximate Cause + Foreseeable use Plaintiff has the burden of showing Example: Signs “steep hills” v. “steep hills: take left to avoid hills” Moran v. Faberge, Inc..(1975) – “perfumed” candle Teenage girls are playing with a candle and decide to make it scented by dumping perfume on it. Burns ensue. Darwin was right. Heeding presumption Even if it didn‟t affect her actions, it could have affected the homeowner‟s by having her put it away instead of leaving it out Grady v. American Optical Corp. (1985) – MO – safety glasses Safety glasses shattered Obvious danger? Palmer v. Hobart Corp. (1993) – MO – Meat Grinder Hopfinger v. Kidder International, Inc..(1993) – MO – Water ski accident Water ski hits plaintiff in the head The plaintiff keeps winning Is it too easy to win? Campbell v. American Crane Corp. (1995) – 8th Circuit – Crane falling Two separate requirements of causation: 1) product for which there was no warning must have caused the injuries, and 2) the plaintiff must show that a warning would have altered the behavior of those involved in the accident Thompson v. Brown & Williamson Tobacco Corp. (2006) – Smoking and cancer Open and obvious danger 3 levels of information processing / acceptance If he didn‟t quit over fear of lung cancer, why would he quit over throat cancer? Corbin v. Coleco Industries, Inc.. (1984) – swimming pool Neff v. Coleco Industries, Inc.. (1991) – swimming pool Special issues for warnings – illiteracy, foreign languages, allergic reactions This assignment considers several types of situations in which a limited group of people may benefit from a warning different in content or form from a warning adequate for the majority of people. Should manufacturers and sellers giving warnings be required to account for illiterate people who may use the product? Or for people who read and speak only a language other than English? Or for people with serious allergies to products that are harmless to most people? Products Liability Rostron 15 Kuhl Winter 2007 In addition to the cases, comment k to Third Restatement § 2 addresses the issue of warnings about allergic reactions. Understanding the cost of warnings Actual causation is too speculative: 1) Would it have helped? 2) Tilted in plaintiff‟s favor because heeding presumption and/or self-serving testimony 3) Bias 4) Too easy to reason by hindsight Feasibility of technology for design defects? 1) Jury says it is just not possible for defendant to do what plaintiff says or calls for 2) For warnings, that is not an issue People are skeptical of expert testimony With warnings, you are just talking about information, so it can be shaped Sympathetic judge willing to award plaintiff for warnings claims Warnings claims foster an “atmosphere of lawlessness” Criticisms that rules are not being rigorously applied or enforced and weeding out non-meritorious claims Content v. process? Obviousness in defects: 1) for design, it is just a factor 2) for warnings, it is a bar to liability (but rarely applied) Henry v. General Motors Corp. (1995) Defendant wins Plaintiff, an illiterate, became a paraplegic when a GM pickup truck fell of a jack and struck his shoulders Hubbard-hall Chemical co. v. Silverman (1965) – Parathion dust (poison) Should we have a standard vocabulary for warnings? 1) if they couldn‟t understand it before, how can we expect them to now 2) standardized tends to lessen the effect because people ignore them (i.e. Airplane warnings given by flight attendant) 3) Classic symbols for each (i.e. skull and crossbones)? a) does that mean danger, or does that mean pirates? Campos v. Firestone Tire & Rubber Co. (1984) Problem with the jury instruction for the causation side Stanley industries, inc. v. W.M. Barr & Co. (1992) - fire Fire caused by spontaneous combustion of rags soaked in Kleanstrip Boiled Linseed Oil Wants warnings in Spanish Ramirez v. Plough, Inc. (1993) – Reye‟s syndrome and aspirin Plaintiff contracted Reye‟s syndrome from ingesting nonprescription St. Joseph Aspirin for Children Braun v. Roux Distributing Co. (1958) Should manufacturer be English only or multiple languages? See Amicus briefs If you target a market, you should have the warnings in the target languages FDA regulations? All or Nothing translation Allergic Reactions  could have liability Robbins v. Alberto-Culver Co. (1972) – Allergies to hair product Plaintiff used hair product on ex-mother in law & had severe allergic reaction, causing aches, chills, swelling, hives & blisters Is 2 in 1 Million enough people? It‟s a foreseeability issue See RS 3rd Comment K for the substantial # of people requirement Allen v. Delchamps, Inc. (1993) – allergies to celery hearts Plaintiff allergic to Celery hearts Is .096 enough? Products Liability Rostron 16 Kuhl Winter 2007 Reasonable expectations test for determining if food is unmerchantable or unreasonably dangerous The # it would take depends on the severity 1/1000 is enough? 2/1000000 is not? Goes beyond failure to warn Accidental contamination i.e. Hersheys; Mr. Goodbar v. Hershey‟s 100% Milk Chocolate could prove manufacturer defect Rubin v. Marshall Field & Co. (1992) – makeup remover Misrepresentation and implied warranty of fitness for a particular purpose Plaintiff had severe allergic reaction to eye makeup remover Bulk suppliers & sophisticated users; Post-sale warnings This assignment looks at warnings in several special situations. The Hoffman v. Houghton Chemicals and Donahue v. Phillips Petroleum cases discuss rules about “bulk suppliers” and “sophisticated users.” There is also a brief discussion of these rules in comment i to Third Restatement § 2. The other cases discuss whether a manufacturer or seller ever has a duty to do something after a product has already been sold, such as a duty to give warnings about a newly-discovered danger, to retrofit or modify the product to make it safer, or to recall the product. Comstock v. General Motors is the first case in which a court found a defendant liable for failure to give post-sale warnings. Lovick v. Wil-Rich is a more contemporary case on post-sale warnings. There is no precedent in Missouri that squarely addresses the issue of post-sale warnings, but Morrison v. Kubota Tractor examines whether a manufacturer may have a duty to retrofit a product and Horstmeyer v. Black & Deckerconsiders a claim about negligence in conducting a recall. In addition to the cases, read Third Restatement § 10 and § 11 and the comments accompanying them. Negligence Warnings Strict Tort Liability Bulk Supplier Sophisticated User Warranties 3rd Restatement §2 Comment I; Bulk Supplier  use chain to warn Sophisticated User user already knows *§10 Not meant to be too strictly applied -1) question of law for the judge to apply, then -2) jury uses the same 4 factors Even if you drop out of the business, you are still liable for post-sale warnings, but difficult to apply (i.e. pesticide) §11 for recalls Post-Sale Warnings Post-Sale Warnings -18 states say yes -3 states say no -29 uncertain -No precedent in MO X X No duty to X X recall/retrofit *What if your product doesn‟t exist anymore? -battery leaks radiation, caused cancer -might have obligation if the warnings could have detected / prevented the cancer Recall Bulk Supplier – use chain to warn; limited to bulk items Sophisticated user – user already knows, so no duty to warn is owed Affirmative defense? -more common to treat them as rules or elements instead of a duty or burden of the defendant Products Liability 17 Rostron Kuhl Winter 2007 3rd approach is that the intermediary already knows and can tell the user This is not required in Missouri, but is accepted in other jurisdictions, including Kansas Most courts accept this, as well as the Bulk supplier and Sophisticated user doctrines -MO follows the first 2, but is not required to follow the intermediary already knows approach Hoffman v. Houghton Chemical Corp. (2001) – explosion and fire Donahue v. Phillips Petroleum Co. (1989) – propane gas explosion Comstock v. General Motors Corp. (1959) – breaks went out, injured leg, had to amputate 1st case to acknowledge post-sale warnings Duty to warn? or to recall? Duty to warn even after the product has been sold, as opposed to point of sale warnings Lovick v. Wil-Rich (1999) – farm cultivator; folding wings; RS 3rd §10 (see 4 factors) 1) seller knows or reasonably should know 2) identifiable and unaware of the harm 3) warning can be effectively communicated and acted upon 4) risk of harm is sufficiently great Need to give better instructions on post-sale warnings Morrison v. Kubota Tractor Corp. (1994) – 4 wheeler; roll-bar Does settlement by another defendant get allowed into evidence? Does it prove guilt? Out of hand to have to make post-sale warnings for everything because it creates an endless stream of warnings How could you possibly find everyone? (see §10) Retrofit or recall? In this case, it was an optional feature, and did not err in finding there was no duty to retrofit this tractor, but left the door open for possibility to retrofit 84 Fiero recall example Voluntary recalls?  there are not true “voluntary recalls” Opens the door to liability Horstmyer v. Black & Decker, Inc. (1998) – hand injured; recall §11 Two types of recalls: 1) Government says you have to or 2) Someone else says you have to Courts reluctant to force a recall (because it is not a judicial thing to do) Misrepresentations Misrepresentations are the fourth and final of our four major types of problems that arise with products. The Second Restatement covers misrepresenstation claims in § 402B, and the Third Restatement covers them in § 9, so start by reading those sections and the comments accompanying them. The first two cases in the reading assignment, Baxter v. Ford Motor and Crocker v. Winthrop Laboratories, illustrate how misrepresentation claims can involve a strict form of liability. The other three cases illustrate some of the issues that come up frequently for misrepresentation claims, such as justifiable reliance and puffing. Misrepresentation Negligence 1) Misrepresentation 2) Material Fact 3) Negligence – failure to use reasonable care (strict liability – even if misrepresentation was an innocent and Strict Tort Liability RS 2nd 402(b) Covers only misrepresentations made to public Covers only misrepresentations 18 Warranties *UCC 2-313 – Express warranty (most likely used) Covers an affirmation of fact or promise The misrepresentation Third Restatement §9 can be used same as §402(b) (use elements) Can use UCC too Not limited to public Not limited to Kuhl Winter 2007 Products Liability Rostron reasonable mistake) 4) Someone justifiably relied on it 5) Plaintiff suffered harm caused by that reliance on that misrepresentation made to consumers Covers harm to property as well as people must be part of the basis of the bargain UCC 2-315 – Implied warranty UCC 2-314 – Implied warranty of merchantability consumers Covers harm to property Baxter v. Ford Motor Co. (1932) – shattered windshield Crocker v. Winthrop Laboratories (1974) – addicted to “non-addictive” drug American safety Equipment Corp. V. Winkler (1982) – helmet case Not many cases for §402(b) Only expressly adopted in 10 cases? In MO, just never been mentioned because we have the same thing Overshadowed by warranties provisions of the UCC, especially 2-313 Misrepresentation to the public  no cases address this Harm to property or misrepresentation to consumers is not resolved Warranties “basis of the bargain” v. Negligence and Strict Tort Liability”; Justifiable reliance Generally RS 3rd resolved in plaintiff friendly provisions Ladd v. Honda Motor Co. (1996) – ATV Puffing  fact v. Opinion (can‟t be liable for an opinion) Factors are: 1) Specificity (the more specific the assertion, the more likely it will be considered a fact) 2) Verifiability (the more verifiable the assertion, the more likely it will be considered a fact) 3) relative knowledge of the parties (the more knowledgeable the party, the more likely it will be considered a fact) 4) equivocal phrasing (will v. may; the higher the degree of certainty, the more likely it will be considered a fact) Only someone has to justifiably rely on it in some way that caused the harm (i.e. buy it, use it, or let someone else use it) Collins v. Wayne Corp. (1980) – Bus Accident Design defect claim Activity bus and school bus are 2 different things Loses here on §402(b) More about misrepresentations The first four cases in this assignment provide more examples of courts trying to determine whether a manufacturer‟s or seller‟s statement about a product was an actionable misrepresentation or just puffing on which no consumer could justifiably rely. The Maize v. Atlantic Refining and Stevens v. Parke, Davis cases do not involve misrepresentation claims, but instead illustrate how a manufacturer‟s promotion of a product can help a plaintiff on another type of claim even if not actually giving rise to liability for misrepresentation. Intentional Misrepresenations 1) misrepresentation 2) material fact 3) defendant knew it was false or recklessly disregarded whether it was true or false 4) defendant intended for someone to rely on it 5) some did rely on it 6) that reliance caused harm to the plaintiff Hauter v. Zogarts (1975) – golfing gizmo Intent means the desire or purpose or actual knowledge of a substantial certainty that an event will occur (very high level of certainty) Was it 1 statement or 2? What about precautions? Committee on Children’s Television v. General Foods corp. (1983) – cereal case Products Liability Rostron 19 Kuhl Winter 2007 Post factual issues for jury to try it Accused of marketing sugared breakfast cereals possessing “magical powers” Tylka v. Gerber products co. (1999) – baby food The more you say, the less you have to back it up Holmes, “…words of hope or expectation are converted by an interested memory into statements of quality and value, when the expectation has been disappointment” In re general motors corp. Anti-lock brake products liability litigation (1997) – MO case on ABS brakes Maize v. Atlantic refining co. (1945) – inhaling poisonous fumes Stevens v. Parke, davis & co. (1973) – ingesting Chloromycetin for her lung condition Prescription drugs and medical devices This assignment looks at whether prescription drugs and medical devices should be treated any differently than other products when it comes to design defect claims. For many years, this controversy focused on the meaning of comment k to Second Restatement § 402A, so start by reading that. The first three cases in the reading assignment lay out three alternative approaches to the meaning of commentk and the treatment of design defect claims concerning prescription drugs and medical devices. The fourth case, Pollard v. Ashby, reveals which of those approaches Missouri has opted to use. The Third Restatement proposed a dramatic change on this point, so take a look at Third Restatement § 6(a), (b), (c), and (e), plus comments b, c, f, and h to that section. The Bryant v. Hoffman-LaRoche case is an example of a court‟s consideration of whether to adopt the Third Restatement‟s approach. Design Defects (general) Prescription Drugs Negligence Fault Strict Tort Liability Strict Warranties Strict 3rd Restatement §2(B) – fault (reasonable alternative design) §6(C) – liable if foreseeable risks are so great, compared to benefits, that no reasonable health care provider would prescribe it for any class of patients 3rd Restatement is very favorable to defendant‟s and manufacturers Fault Adopt comment K: -Blanket Immunity (CA) --No strict liability for any prescription drug (best for defendant) -Case by Case (NE/MO) --No strict liability if defendant proves: ---(1) drug could have been made safer at time of sale, and (2) drug‟s benefits justified the foreseeable risks Reject comment K (AK): -no special protection (best for Plaintiff) Unavoidably unsafe – comment K -worthwhile products (similar to comment I) -broader, so it can apply to more than just drugs Example: Accutane Accutane poses at least 1 known risk (birth defects) It is known by the FDA Hypo: no way to change accutane, but there were other products that were not as effective, but do not cause birth defects? 1) under AK approach, Plaintiff would have a good chance 2) Under the NE/MO approach, the plaintiff would have a good chance 3) Under §6 of RS 3rd, there is NO chance for liability because reasonable health care provider could prescribe it for men or post-menopausal women (thus, the risk of birth defects would not exist) Why is this? Could have a product that is terrible for 99% of the population, but if it benefits 1%, it is not defectively designed Products Liability Rostron 20 Kuhl Winter 2007 i.e. Thelidaminde – pregnant women; FDA never approved it because the application was given to a new doctor thinking it was an easy one to pass because it had been approved all over the world, but she became cautious when the manufacturer was not answering questions. The doctor was stubborn enough not to give in and shortly after, the defects became known. -note: Thelidamide is now approved to combat Hanson‟s disease (leprosy) The case by case approach seems to make sense Effects of over or misprescribing drugs -3rd RS says it is the doctor‟s fault The other unique twist to RS 3rd involving the use of other alternatives What is the limit of what the plaintiff can argue? Under §6, you can‟t talk about anything that wasn‟t approved by the FDA or available for sale at the time (different than §2) i.e. Blood factor concentrates, hepatitis, and HIV In the 80s, manufacturers were accused of not having the heat treatments sooner to prevent the passing of HIV by prescribing these products for hemophiliacs even though there was a known risk Must be on the market and approved by the FDA and at the time to bring a claim Brown v. Superior court of the city & county of san Francisco (1988) – overview of prescription drugs Shanks v. The upjohn co. (1992) – drugs combined; shot himself Drugs combined and he killed himself Alaska does not follow the California approach Favors ordinary doctor expectation test and rejects comment K Says you can bring strict tort liability claim Freeman v. Hoffman-la roche, inc. (2000) – Accutane Case by case basis 402(A) – comment K applied (see s-1) -treats comment K as an affirmative defense Pollard v. Ashby (1989) – chymodiactin injection to treat back injury Mo applies case by case Bryant v. Hoffmann-la roche, inc (2003) – heart medication (Posicor) Learned intermediary rule Last time, we looked at whether special treatment should be given to design defect claims in the medical context. In this assignment, we do the same thing for inadequate warning claims. The Kirsch v. Picker International case provides a simple explanation and illustration of the “learned intermediary” rule. The remaining cases discuss whether various exceptions to that rule should be recognized. The learned intermediary rule is also addressed in Third Restatement § 6(d) and comment e to that section. Warnings about prescription drugs & medical devices Negligence Strict Tort Liability Warranties Learned Intermediary Rule (everyone agrees) Exceptions recognized by some courts: (1) vaccines (mass immunization) (2) oral contraceptives & IUDs (3) products for which FDA requires warnings for patients -products advertised directly to the public Imputed knowledge? --not used for prescription drugs and medical devices State of the art approach (note imputed knowledge) will apply for medical devices and prescription drugs 3rd Restatement §6(d)(1) – learned intermediary rule §6(d)(2) – Exception: if MFR knows or should know health care providers will not be in position to reduce risks in accordance with warnings & instructions Vaccines in Comment E (but the other 3 are undecided) Products Liability Rostron 21 Kuhl Winter 2007 Applies to: prescriptions and medical devices; and health care providers Kirsch v. Picker international, inc. Reyes v. Wyeth laboratories Humes v. Clinton Edwards v. Basel pharmaceuticals Perez v. Wyeth laboratories inc. Accounting for a plaintiff’s fault Having learned about what plaintiffs must prove to establish various kinds of products liability claims, we turn to defenses that can be raised in response to those claims. In this assignment, we look at situations where the defendant argues that the plaintiff‟s own careless behavior contributed to the accident and injury suffered. The traditional rule was that a plaintiff‟s contributory negligence or assumption of risk was a complete bar to any recovery on a negligence claim. When courts began adopting strict tort liability in the early 1960s, they had to decide whether to apply these defenses to strict tort liability claims. Most courts followed the advice of comment n to Second Restatement § 402A on this point, and thus held that assumption of risk was a defense to strict tort liability claims but contributory negligence was not. At some point during the next several decades, most states switched over to using some kind of comparative fault rule, so that a plaintiff‟s negligence would reduce but not completely bar recovery on a negligence claim. Courts then had to decide what to do about strict tort liability claims. Should comparative fault apply to strict tort liability claims? Or should a plaintiff be able to recover fully on a strict tort liability claim even if plaintiff‟s negligence contributed to the accident and injury? The Daly v. General Motors case, from California, reflects the national majority view on this question. The Supreme Court of Missouri, quite bitterly divided over the issue, went the opposite way in the Lippard v. Houdaille Industries case. That decision was quickly overruled by the Missouri legislature‟s enactment of RSMo § 537.765. As a result, Missouri law is now consistent with the majority of states on this point. In addition, take a quick look at Third Restatement § 17(a), which takes the same position as Missouri and most other states. The other three cases in this assignment deal with one special sort of faulty behavior by a plaintiff – failure to wear a seat belt. Most states, including Missouri (RSMo § 307.178) and Kansas (K.S.A. § 82504), have enacted statutes specifying whether evidence of a plaintiff‟s failure to wear a seat belt is admissible and can be a ground for reducing a plaintiff‟s recovery of damages. The LaHue, Newman, and Gardner cases address whether these statutes apply in “crashworthiness” cases. Negligence Contributory Negligence Implied Assumption of Risk Comparative Fault (% base instead of all/nothing)  46 states (MO – uses Pure comparative fault and goes by the %; KS is modified comparative fault; P >=D, then can‟t) Daly v. General motors corp. Lippard v. Houdaille industries, inc. Products Liability Rostron Strict Tort Liability Implied Assumption of Risk Comparative Fault (%base instead of all/nothing) Warranties Implied Assumption of Risk Comparative Fault (%base instead of all/nothing) 3rd Restatement §17 Comparative Fault 22 Kuhl Winter 2007 Lahue v. General motors corp. Newman v. Ford motor co. Gardner v. Chrysler corp. Drawing the line between tort and contract law – notice, disclaimers, statutes of limitations, economic loss rule This assignment looks at several more defenses. Each relates in some way to the fact that products liability law, particularly warranties claims, can touch the border between tort law and contract law. Courts therefore must decide how to draw and maintain the line between tort law and contract law. Economic loss rule. Courts have held that plaintiffs should not be allowed to use tort claims (negligence and strict tort liability) to recover in situations that really should be handled by contract law. The trick is that it is difficult to decide exactly what situations deserve to be covered by tort law and what situations should be left exclusively to contract law. The first several cases in this reading assignment address this issue, as does Third Restatement § 21 and the comments accompanying it. In reading the cases, note that Missouri and Kansas take somewhat different approaches to drawing the tort/contract line. Disclaimers. One of the key things that separates warranties claims from negligence and strict tort liability claims is that it is relatively easy for manufacturers and sellers to disclaim warranties. In other words, a manufacturer or seller can declare that it is not giving any warranties with the product. The reading assignment does not include cases on this, but read Third Restatement § 18 and the comment with it, as well as the Missouri (RSMo § 400.2-316) and Kansas (K.S.A. §§ 50-639, 84-2-316) statutes addressing this. Notice. The Uniform Commercial Code (UCC) generally allows a breach of warranty claim to be brought only if the plaintiff notified the seller within a reasonable time after discovering the breach. Missouri law (RSMo § 400.2-607) and Kansas law (K.S.A. § 84-2-607) contain this requirement. But should the notice requirement apply in the products liability context, where the plaintiff was injured by the product rather than merely being disappointed by its quality? The Hansen, Carson, and Ragland Mills cases address this question. Statutes of limitations. Just like any other sort of claim, products liability claims are subject to statutes limiting the amount of time within which the plaintiff may sue. The tricky issue is what to do about warranties claims brought in situations where a product injured someone. Should the claim be subject to the UCC‟s 4-year statute of limitations? Or should the claim be subject to the same time limit that would apply to a negligence or strict tort liability claim? The cases in the reading assignment on this point refer to the Missouri (RSMo §§ 400.2-725, 516.100, 516.120) and Kansas (K.S.A. §§ 60-513, 84-2-725) statutes, which are in the Restatements/Statutes part of the reading materials. Statutes of repose. Some states have further limited the time in which a plaintiff can bring products liability claims by enacting statutes of repose. The Kansas statute of repose (K.S.A. § 60-3303) is discussed and applied in the Gorman v. Best Western case. Economic Loss Rule Negligence Strict Tort Liability Can‟t use these rules unless you suffered personal injury OR harm to property other than the product itself (MO) Warranties 3rd Restatement §21 (3rd RS does not take a position as to property) §18 – not allowed to waive or disclaim for harm to person from new product (3rd RS does not take a position as to old products or not new products) Notice UCC §2-607 (3) *Buyer – only need to warn your immediate seller Waivers & Disclaimers Generally disfavored (but is still possible) Never Allowed Generally Allowed East river s.s. Corp. V. Transamerica delaval Products Liability Rostron 23 Kuhl Winter 2007 Sharp brothers contracting co. V. American hoist & derrick co. Elite professionals, inc. V. Carrier corp. School district of the city of independence, missouri, no. 30 v. U.s. Gypsum co. Hansen v. F.m.c. Corp. Carson v. Chevron chemical co. Ragland mills, inc. V. General motors corp. Witherspoon v. General motors corp. R.w. Murray co. V. Shatterproof glass corp. Winchester v. Lester’s of minnesota, inc. Seguros popular v. Raytheon aircraft co. Gorman v. Best western international Other defenses – contract specifications defense, government contractor defense, federal preemption defense, regulatory compliance defense, plaintiff’s illegal acts This section looks at a variety of other defenses to products l iability claims. Contract specifications defense. Courts have held that a manufacturer should not be liable for a design defect in a product it manufactures according to specifications provided by the purchaser, unless the design is obviously defective. While courts agree this should be a defense for negligence claims, there is a split as to whether it should also be a defense to strict tort liability and warranties claims. The Lenherr and Bloemer cases illustrate the views on each side of the issue. Government contractor defense. Manufacturers who supply products to the federal government receive even greater protection from liability, as explained in the Boyle v. United Technologies case. Federal preemption defense. Virtually everything that we are learning in this course is a matter of state law. Occasionally, however, a federal law will override and preempt state law on some products liability issue. The Geier v. American Honda Motor case is an example of a situation where the U.S. Supreme Court had to decide if a federal law preempted state products liability law. Regulatory compliance defense. In general, a product‟s compliance with statutory or regulatory safety standards is not necessarily a defense to liability. In other words, a product may be defective under products liability law even if the manufacturer complied with all relevant statutes and regulations. This point is made by Third Restatement § 4 and the comments to it. Some states have enacted laws increasing the extent to which regulatory compliance is a defense. Kansas is one of the states, as you will see in K.S.A. § 60-3304 and the Duffee v. Murray Ohio Manufacturing case. Plaintiff’s illegal acts. Some courts have held that a plaintiff cannot recover for claims based on plaintiff‟s commission of a serious illegal or immoral act. The Oden v. Pepsi Cola case discusses and applies this rule. Contract Specifications Defense (nondesigning MFR is liable only if design defect should have been obvious to it) Government Contractor Defense – 1) US Gov‟t approved reasonably precise specifications; 2) The equipment conformed to the specifications; and 3) the supplier warned the U.S. about dangers known to the supplier, but not to the U.S. Products Liability Rostron Negligence KS – Yes MO – Yes GA – does not have it Strict Tort Liability KS – NO MO – Yes Warranties KS – NO MO – Yes 3rd Restatement Yes Yes Yes 24 Kuhl Winter 2007 States can create their own too (KS has) Compliance with statutes and regulations  generally just a factor to consider (3rd RS 4(B)); UNLESS you can show federal preemption or special state law (like KSA 60-3301); (presumption of non-defectiveness if comply w/ federal standard) Violation of statute or regulation – negligence per se (form of strict liability) – 3rd RS f(a) – P has to be the kind of person and suffer the kind of injury the statute was designed to protect Lenherr v. Nrm corp. Bloemer v. Art welding co. Boyle v. United technologies corp. Geier v. American honda motor co. Duffee v. Murray ohio manufacturing co. Oden v. Pepsi cola bottling co. Of decatur, inc. Allocating liability We have now learned a lot about when a defendant could be liable on a products liability claim. The issue in this assignment is what to do about the fact that we may have more than one defendant who is liable to the plaintiff in a case. How should the responsibility for actually paying the plaintiff‟s judgment be allocated among the defendants? The first big question is whether “joint and several liability” should be imposed, so that each defendant is potentially liable for the entire judgment, or whether instead each defendant should be liable only for its share of the judgment. You will find Missouri‟s answer to this question in RSMo § 537.067, and Kansas‟s answer in K.S.A. § 60-258. (You will also see that the Third Restatement, in § 17(b), declines to take a position on this one way or the other.) The next question is whether, after plaintiff has been paid, a defendant can bring contribution or indemnity claims against another defendant to re-distribute the burden of paying the judgment. The Welkener v. Kirkwood Drug case explains Missouri law on that point. Finally, many states have enacted statutes that allow “innocent sellers” to be dismissed from cases where the manufacturer is a defendant and is likely to be able to pay the judgment, if any. Take a look at Missouri‟s “innocent seller” provision (RSMO § 537.762) and the Kansas statute (K.S.A. § 60-3306), and then read about their application in the Malone v. Schapun and Alvarado v. J.C. Penney cases. Third Restatement § 14 and the comments to it discuss the concept of “apparent manufacturers,” which can be significant in determining to whom an “innocent seller” statute will apply, and which plays a role in the Alvarado case. Welkener v. Kirkwood drug store co. Malone v. Schapun, inc. Alvarado v. J.c. Penney co. Special types of defendants and products – occasional sellers, service providers, used products, giveaways, temporary loans or rentals We now know a great deal about products liability law in general, and so we can turn to some special situations that depart in some way from the standard products liability scenario. The big question is always what to do about strict liability claims. Negligence is a universal sort of claim that essentially applies to everything. But it can be more difficult to decide whether strict tort liability or warranties claims should be allowed. Occasional or non-business sellers. We know that a defendant engaged in the business of selling a product can be liable under any theory – negligence, strict tort liability, or warranties. But what about someone who is not in the business of selling the product, and instead just happens to sell it occasionally, such as to a friend, at a garage sale, or on Ebay? Answering this question will require us to piece together a number of Restatement and statutory provisions. We will do that in class, but to be ready for it, read comment f to Second Restatement § 402A and comment e to Second Restatement § 402B, and take a quick look at RSMo § 400.2-104 and K.S.A. § 84-22-104. Products Liability Rostron 25 Kuhl Winter 2007 Services v. products. Courts have held that strict tort liability and warranties claims should be reserved for situations where defendant provided a product, rather than merely providing a service. Sometimes it can be tough, however, to decide what is a “product” and what is a “service.” The first several cases in this assignment address this question, as does comment f to Third Restatement § 19 and comment d to Third Restatement § 20. Used products. Should the seller of a used product be treated the same as a seller of a new product? A federal court answers that question under Missouri law in the Harber v. Altec Industries case, and the Stanton v. Carlson Sales case provides an example of a court taking the contrary view. In addition, check out Third Restatement § 8 and the comments accompanying it. Product giveaways. Should strict liability apply where the product is given away for free? The Levondosky case and comment b to Third Restatement § 20 address this. Temporary loan or rental. Should strict liability apply where the product is temporarily loaned or rented to someone? Missouri‟s answer to that question appears in the Katz, Gabbard, and Bailey cases, and the Third Restatement‟s answer is in comments c and f to § 20. Pre-purchase injury. What if someone is injured by the product before even purchasing it? The Shoppers World v. Villarreal case looks at that unusual situation. Non-business Sellers Negligence Check (allowed) Strict Tort Liability Engaged in business of selling the product (§402(A) & (B)) Warranties 2-314 Merchants 2-315 Sellers w/ special skill or judgment 2-313 any seller X Check 3rd Restatement §1 & §9 – engaged in business of selling the product Services Used Products Check (allowed) Check (allowed) X Courts Split Free Products Check (allowed) Rented or Borrowed Pre-Purchase Injuries Check (allowed) Applies if circumstances justify treating it as a sale Applies if circumstances justify treating it as a sale Courts split Article 2A covers leases ? (there hasn‟t been a sale) Check (allowed) X §8 – liable if: 1) seller is negligent 2) defective under §2(a) or 3 and marketed in a way that makes reasonable person expect it to be as safe as new product 3) remanufactured 4) violates statute or regulation §20 – “other distribution” covers free things §20 – “other distribution” covers rentals, loans, etc… ? Kennedy v. Providence hockey club, inc. Pena v. Sita world travel, inc. Appleby v. Miller Royer v. Catholic medical center Budding v. Ssm healthcare system Harber v. Altec industries, inc. Stanton v. Carlson sales, inc. Levondosky v. Marina associates d/b/a harrah’s marina hotel casino Katz v. Slade Gabbard v. Stephenson’s orchard, inc. Bailey v. Innovative management & investment, inc. Products Liability Rostron 26 Kuhl Winter 2007 Shoppers world v. Villarreal Special types of defendants and products – component suppliers, franchisors, trade associations, corporate successors, In this assignment, we look at additional situations that depart in some way from the standard products liability scenario. Component suppliers. We have seen a number of cases, going all the way back to MacPherson v. Buick Motor in the first reading assignment, where the defective item was a component part of a larger product. Third Restatement § 5 and the accompanying comments summarize the law on liability of component part suppliers. Franchisors. We know that products liability claims can be brought against the manufacturer of a defective product, or against the manufacturer of a defective component part. What about a franchisor who did not actually produce anything that was defective? The Harris v. ALCOA and Tyler v. Pepsico cases arrive at different answers to that question. Trade Associations. Most industries have some sort of trade association, such as the American Plastics Council, the Alliance of Automobile Manufacturers, or the National Frozen Pizza Institute. Are there circumstances in which a trade association should be held liable to someone injured by one of its member‟s products? The King v. National Spa & Pool Institute and Meneely v. National Spa & Pool Institute cases address this issue. Corporate successors. What happens if a manufacturer or seller of a product goes out of business? Does a successor corporation that acquires its asssets or stock become liable to people injured by products made and sold by the predecessor corporation before it went out of business? The law on that issue is explained in § 12 of the Third Restatement and the accompanying comments. Missouri law on this is described in the Tucker v. Paxson Machine case. A closely related but slightly different issue is whether a successor corporation ever has a duty to give warnings about products sold by its predecessor corporation. That question is covered in § 13 of the Third Restatement and accompany comments, and addressed in the Tucker and Sherlock v. Quality Control cases. Franchisor Trade Association Someone who influences design choice Non-Manufacturing designer Negligence Check If voluntarily assumed duty X Strict Tort Liability Courts split X X Warranties Courts split X X 3rd Restatements Check X X Harris v. Aluminum co. Of america Tyler v. Pepsico, inc. King v. National spa & pool institute Meneely v. National spa & pool institute Ford v. Gacs, inc. Tucker v. Paxson machine co. Sherlock v. Quality control equipment co. Evidentiary issues This assignment looks at certain evidentiary issues that are often significant in products liability litigation. The first four cases – Easterly, Johnson, Miller, and McCoy – address the admissibility of evidence about industry custom. A plaintiff might want to offer such evidence to show that a defendant was doing something less safe than its industry colleagues, or a defendant might want to offer such evidence to show that it was doing the same thing as everyone else in the industry. The Brown v. General Foods and Hazelton v. Safeway cases look at whether a manufacturer should be allowed to present evidence that it had very strong quality control measures in place. Products Liability 27 Rostron Kuhl Winter 2007 The last four cases consider the admissibility of evidence about whether the product has a track record of being safe or dangerous. In the Drabik v. Stanley-Bostitch and Peters v. General Motors cases, plaintiffs want to present evidence that the product caused similar harm to other people in the past. In the McJunkins v. Windham Power Lift and Goins v. Wendy’s cases, the defendant seeks to present evidence of a safe product history or lack of similar accidents. Easterly v. Advance stores co. Johnson v. Hannibal mower corp. Miller v. Yazoo manufacturing co. Mccoy v. Whirlpool corp. Brown v. General foods corp. Hazelton v. Safeway stores, inc. Drabik v. Stanley-bostitch, inc. Peters v. General motors corp. Mcjunkins v. Windham power lifts, inc. Goins v. Wendy’s international, inc. More about evidentiary issues This assignment looks at several other evidentiary issues that are important in products liability cases. Evidence of subsequent remedial measures. Courts traditionally have not allowed plaintiffs in negligence cases to present evidence of subsequent remedial measures. Should that rule apply to strict liability claims as well? State courts have split on this issue. The Ault v. International Harvester case from California is the most frequently cited case on this question. Missouri‟s approach is described in the Stinson v. E.I. DuPont case. There was also a circuit split among federal courts of appeal on this issue until the Federal Rule of Evidence 407 was amended in 1997 to resolve the question. Circumstantial evidence. The other cases in this assignment look at situations where a plaintiff relies on circumstantial evidence in trying to show that a product was defective and caused injury. This issue is covered in the Third Restatement in §3 and the comments to it. Evidence of Subsequent remedial measures Evidence that product was recalled Circumstantial Evidence Negligence Excluded Strict Tort Liability Warranties Allowed – CA, MO (1/2 states) Exclude – KS (1/2 states); FRE 407 Check (allowed) Malfunction Doctrine (or indeterminate defect or general defect) §3 3rd Restatement Check (allowed) Res Ipsa Loquitur Ault v. International harvester co. Stinson v. E. I. Dupont de nemours & co. Patterson v. Foster forbes glass co. Aetna casualty & surety co. V. General electric co. Donovan v. Mishy sportswear, inc. Peters v. General motors corp. Hickerson v. District pride mobility products corp. Childproofing In some cases, a plaintiff claims that a product was defectively designed because it was not sufficiently “childproof.” The Missouri court in Brawner v. Liberty Industries case establishes a rule on this issue. The federal courts in the Laney v. Coleman, Eads v. BIC, and Efting v. Tokai case deal with that rule and try to decide whether it applies to the situations before them. Cigarette lighters have sparked a great deal of litigation of this sort, and courts are split over whether a lighter may be defective if it lacks a safety feature to prevent its use by a child. The Robins v. Kroger and Jennings v. BIC cases are examples of decisions going each way on this. Brawner v. Liberty industries, inc. Products Liability Rostron 28 Kuhl Winter 2007 Laney v. Coleman co. Eads v. Bic corp. Efting v. Tokai corp. Robins v. Kroger co. Jennings v. Bic corp. Definition of a “product”– real estate, electricity, animals It is generally easy to determine whether something should be considered a “product” for purposes of products liability law, but there are a few unusual situations in which courts have had more difficulty. The key concern in these cases is whether a plaintiff will be able to pursue strict tort liability or warranties claims, since negligence law applies to everything and does not depend on whether the case involves a product or not. Real estate. Is land a product? Is a building a product? If a piece of lumber or a brick is a product, does it continue to be a product after it is incorporated into a building? Comment e to Third Restatement § 19 briefly discusses the law on this issue. The Levitt & Sons case is an example of one of the rare instances in which real property has been treated as a product, and the Chubb Group case addresses this issue under Missouri law. Electricity. Is electricity a product? The second paragraph of comment d to Third Restatement § 19 gives a brief summary of the law on this. The Balke case explains Missouri‟s rule on this, and the Pierce case is an example of a court from another state reaching a different conclusion. Live animals. Is a live animal a product? Comment b to Third Restatement § 19 contains a brief discussion of this issue. The Andrews, and Worrell cases illustrate the split of opinion among courts on this question, and the Latham case decides this issue under Missouri law. Negligence Covers Anything Strict Tort Liability §402(A) – Product §402(B) – Chattel Warranties “Goods” – all movable things (includes crops) 3rd Restatement §19 products – tangible personal property distributed commercially for use or consumption §19 leaves it up in the air, but general rule is that it does not cover real property Real Property Check (allowed) Electricity Live Animals Check (allowed) Check (allowed) Generally does not cover real property (MO) Some courts make exceptions: 1) mass produced buildings (i.e. NJ homes after WWII) 2) Pre-fabricated housing/buildings 3) Equipment attached to real property Courts split Courts split Article 2 does not cover real property (but implied warranties exist under common law) Courts split Check (allowed); UCC applies Will not apply Blood or other human tissue Check (allowed) Will not apply §19 - generally, we don‟t know Check (allowed); nothing that excludes live animals Not a product; Will not apply Schipper v. Levitt & sons, inc. Chubb group of insurance companies v. C. F. Murphy & associates, inc. Pierce v. Pacific gas & electric co. Balke v. Central missouri electric cooperative Anderson v. Farmers hybrid companies, inc. Worrell v. Sachs Products Liability 29 Rostron Kuhl Winter 2007 Latham v. Wal-mart stores Definition of a product – information This assignment considers the extent to which liability may arise from provision of information, such as in a book or magazine or on a map or flight chart. In addition to the cases, there is a brief discussion of this issue in the first paragraph of comment d to Third Restatement § 19. Information Negligence Incitement? Endorsement? Strict Tort Liability Warranties Some courts – charts and maps 3rd Restatement §19 Herceg v. Hustler magazine, inc. Fluor corp. V. Jeppesen & co. Walters v. Seventeen magazine Winter v. G. P. Putnam’s sons Rice v. Paladin enterprises, inc. Collective liability theories In some instances where multiple manufacturers produced similar or identical products, a plaintiff cannot identify which manufacturer made the product that caused plaintiff‟s injury. This assignment looks at several different theories under which some courts would allow a plaintiff to recover despite inability to identify the manufacturer. Concert of action. The Dawson and Shackil cases discuss concert of action, the oldest and least controversial of the collective liability theories. Alternative liability. The Garcia and Russo cases discuss alternative liability; one case finds that theory applicable and the other does not. Enterprise liability. The judge in the Hall v. E.I. Du Pont case invented a new collective liability theory that has never been applied in any other case, but which nevertheless significantly influenced the thinking on this issue. Market share liability. The Sindell case represents the first time a court applied the concept of market share liability. Dawson v. Bristol laboratories Shackil v. Lederle laboratories Garcia v. Joseph vince co. Russo v. Material handling specialities co. Hall v. E.i. Du pont de nemours & co. Sindell v. Abbott laboratories Market share liability This assignment looks in more detail at the theory of market share liability. The Zafft case reflect‟s Missouri‟s position on this issue. The Santiago and Thomas cases involve plaintiffs seeking to use market share liability against lead paint manufacturers. The two cases explore the “fungibility” aspect of market share liability and reach different conclusions about whether market share liability can apply in lead paint cases. The plaintiffs in the Hamilton cases seek to rely on market share liability in their lawsuits against handgun manufacturers. The federal district judge‟s opinion explains why he thinks market share liability should apply, and the New York Court of Appeals‟ opinion explains why it rejects that notion. Zafft v. Eli lilly & co. Santiago v. Sherwin williams co. Thomas ex rel. Gramling v. Mallett Hamilton v. Accu-te Hamilton v. Beretta u.s.a. Corp. Products Liability Rostron 30 Kuhl Winter 2007 Guns Lawsuits against the gun industry have been one of the more controversial issues in products liability law in recent years. The Smith v. Bryco and Halliday v. Sturm Ruger cases illustrate the very different attitudes that courts have taken in these cases. The plaintiffs in the McCarthy v. Olin case take aim at an ammunition manufacturer. The Merrill v. Navegar case represents an attempt to hold a gun manufacturer liable without proof of a conventional “defect” in the product. The California Court of Appeal‟s decision suggests that liability could be imposed, while the Supreme Court of California concludes that a statute blocks plaintiffs‟ claims. The last page of the reading assignment shows how California‟s statute was amended in the aftermath of the Merrill case. Smith v. Bryco arms Halliday v. Sturm, ruger & co. Mccarthy v. Olin corp. Merrill v. Navegar, inc. Merrill v. Navegar, inc. Alcohol Should alcohol manufacturers be subject to liability under any of the products liability theories about which we have learned? This assignment contains a number of decisions in suits against alcohol makers, most but not all of which have gone in the defendants‟ favor. Hon v. Stroh brewery co. Malek v. Miller brewing co. Gawloski v. Miller brewing co. Brown forman corp. V. Brune Evaluating products liability law Having learned all about products liability law and seen many examples of claims that have been brought, we will consider whether products liability law is doing a good job of accomplishing its goals. Is litigation of products liability claims having positive or negative effects? We have had cases in this course involving some of the products that have generated the most products liability litigation, such as tobacco, asbestos, and DES. The Tetuan case involves another product that generated a large number of products liability claims, forcing its manufacturer into bankruptcy. Tetuan v. A.h. Robins co. Products Liability Rostron 31 Kuhl Winter 2007