products liability

Products Liability Outline 2005 I. Strict Liability: A. Test (what P has to prove) a. In its intended use b. Defect i. Cronin- P does not have to prove that the defective condition made the product unreasonably dangerous to the consumer only that the product contained a defect, which caused P’s injuries. ii. Greenman- a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used w/o inspection for defects, proves to have a defect that causes injury to a human being. B. § 402 A Claims: A. One who sells any product in a defective condition B. unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if: a. the seller is engaged in the business of selling such a product, and b. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. The rule state above applies although a. the seller has exercised all possible care in the preparation and sale of his product and b. the user or consumer has not bought the product from or entered into any contractual relation with the seller. C. Bystander a. Bystander may recover in strict liability D. Public Policy a. Strict liability is an incentive to make manufactories even more careful. b. The cost of injury should be spread to the public. II. Warranties: A. Express Warranties (§2-313) a. when the seller gives an affirmation of fact, sample, or description of the good that is made part of the bargain. b. P must prove a defect. B. Implied Warranty of Merchantability (§2-314) a. P must prove a defect b. If a product is put into the stream of commerce there is an implied warranty of merchantability that it is reasonably suitable for such use. C. Implied Warranty of Fitness (§2-315) a. Knowledge on the part of the seller of the purposes for which the goods will be used b. Some reason for the seller to know that the buyer is relying in the seller’s skill and judgment c. There must be actual reliance on the part of the buyer on the seller’s skill and judgment d. Actual cause e. Proximate cause f. Harm to plaintiff i. There does not have to be a defect in the product, it need only be the wrong one for the buyer’s particular purpose. D. UCC §2-607 a. Notice must be given by the buyer to the seller within a reasonable time after they discover a breach of warranty. b. UCC has a 4 year SOL which begins from the time of Purchase i. These rules show that Implied Warranty may not be as good for P as Strict Liability. E. Privity 2-318. a. Alternative A: buyer, family, and people in the household, or someone likely to use the product. b. Alternative B: Any person c. Alternative C: Not only any human being but legal persons like corporations and partnerships. III. Manufacturing Defects- one unit of the product is bad while being made A. Negligence a. Defendant failed to exercise reasonable care B. Strict Liability §402 Aa. Product is defective and in an unreasonably dangerous condition b. Foreseeable us use of the product C. Warranties (§2-314) a. Product is not fit for ordinary purposes for which such goods are used D. 3rd Restatement (§2a) a. Product departs from intended design b. Foreseeable use of the product - applies strict liability here but not for design defects. E. Timing a. Defect must exist at the time the product leaves the manufacture or retailers hands i. Exception: Manufacturer can be liable they build it but leaves it unassembled for another store to put together. F. Prepared Food Defects a. Foreign Natural Testi. Strict liability = foreign to meal ii. No claim=Natural to meal iii. Can depend on the context of the product )plastic birds on a cake) b. Hybrid Test- Mexicali Rose i. Strict liability= foreign to meal ii. Negligence= natural to the meal c. Reasonable Expectation test- 3 restatement approach- Majority i. Strict liability if reasonable consumer would not expect presence of the ingredient IV. Design Defects: A. Negligence a. Failure to exercise reasonable care in designing product i. Requirements for foreseeability: 1. reasonably foreseeable harm and 2. person injured was reasonably foreseeable ii. Not required: 1. manner of harm foreseeable B. Strict Liability- §402-A a. Product is defective and unreasonably dangerous i. Exceptions for products like whiskey and butter ii. Adequacy of the warning can be relevant in the decision whether 1. the product is not defectively designed. i. Consumer Expectation test1. If the product has failed to perform as an ordinary consumer would expect when used un a reasonably foreseeable manner. 2. obvious danger just one factor to consider. 3. no expert testimony allowed. ii. Risk Utility Test1. A product is unreasonably dangerous if a reasonable person would conclude that the danger in fact, whether foreseeable or not, outweighs the utility of the product. 2. balance the risks the manufacturer made in designing the product (weighing risk and benefits). 3. expert testimony allowed iii. Negligence with Imputed Knowledge Test: 1. Was it reasonable for the Defendant to Sell the Product: 2. Knowing everything there is to know about its risks iv. Warranties 1. Product is not fit for ordinary purposes for which goods are used v. R3d (§2b)- Reasonable Alternative Design Requirement: 1. reasonably foreseeable use of the product that could be reduced by reasonable alternative design. a. P does not have to bring in a working prototype or call an expert witness 2. misuse of product not an affirmative defense, but can be used to negate elements. 3. Exceptions: a. If the design of D’s product was unreasonable (exploding cigar) b. Product’s design violated a safety statute c. Act was illegal 4. Warnings will not save a product from needing a Reasonable Alternative Design Causation i. Actual Cause1. but for” test- but for the D’s negligence, product defect, breach of warranty the injuring would not have occurred. ii. Proximate Cause: 1. injury must be reasonably foreseeable- must be within general type of harm that one would expect 2. Person injured must be reasonably foreseeable – must be within general class of people that one would expect to get hurt iii. Special Rules: 1. Rescue Doctrine- we treat a rescue as foreseeable even though it is not. It is automatically foreseeable that someone will come to the rescue of this person. 2. Malpractice- Subsequent malpractice is always treated as foreseeable. Crashworthiness V. VI. a. Hard to decide what injury is caused by the initial crash and the injury caused because the product could not withstand a crash. b. D bears the burden of apportionment of injuries once the Ps prove causation. VII. Foreseeable Use and Misuse of Products with Design defects: Strict Tort Liability Warranties Third Restatement (all inclusive if used for all product liability claims) Negligence Foreseeable harm Foreseeable person Foreseeable harm foreseeable person + foreseeable use Foreseeable harm foreseeable person + ordinary use Foreseeable harm foreseeable person + foreseeable use o WTC- manufacturers have no duty to prevent a criminal misuse of their products entirely foreign to purpose for which product was intended. - Manufacturers never have a duty to make a product designed for adults child-proof VIII. Obvious Dangers (Design): a. Not a defense is a factor but not determinative. b. Fixing the design might save a really stupid person. (garbage truck) c. Policy - Rule makes sense if the goal is to inform people - Some argue that the obvious danger rule will come back through the consumer expectation test - Some court say the obviousness of a defect is only a factor to be considered as a mitigating defense to whether a defect is unreasonably dangerous. IX. Warnings: A. Negligence i. Failure to exercise reasonable care in providing warnings or instructions (expert standard) 1. manufacturers are treated as experts in the field ii. Actual Cause 1. requires that an adequate warning would have prevented the injury 2. p must prove inadequacy was the cause of the injury a. burden on P b. Heeding Presumption- a good warning would have been obeyed by the P. - Some states use this but 3DR rejects iii. Proximate Cause iv. Harm to the P   An adequate warning by itself does not immunize a manufacturer from liability. Post Sale duty to Warn- most courts make a duty to exercise reasonable care in post-sale warnings  a. Most courts do not require recalls or retrofits unless: i. Fail to do recall ordered by government ii. Fail to use reasonable care in doing voluntary recall. No duty to warn about risks that are obvious or generally known: a. Objective test b. Decided by the jury B. B. Strict Liability (§402A)i. Product is defective and unreasonably dangerous b/c it lacks adequate warnings or instructions. ii. Strict Liability Approaches: 1. State of the Art: a. can be liable only for failing to warn about risks that were known or should have been known at the time of the sale. 2. Imputed Knowledge: a. can be liable even for risks that could not have been known at the time of sale. 3. Comment J: a. A product bearing an adequate warning is not in a defective condition, nor is it unreasonably dangerous. b. A manufacturer has a duty to warn only of the risks that were known or should have been known to a reasonable person. 4. Burden Shifting Approach a. P proves failure to warn about risk b. D then has to prove risk couldn’t have been known at the time C. 3DR (§2c)- really a negligence approach i. Product poses foreseeable risks of harm that could have been reduced or avoided by the provision of reasonable instructions or warnings by someone in the chain of distribution ii. Omission of instructions or warnings renders product not reasonably safe iii. NO heeding Presumption  Post-Sale Duty To Warno A reasonable person in the seller’s position would give post-sale warning if (all 4 required):  Seller reasonably knows of the risk of harm to person or to property posed by the product  Can identify people unaware of the risk  Whether a warning can be effectively communicated, and  Whether the risk of harm is sufficiently great to justify the burden of providing a warning  What is required beyond duty to Warn? (§11). o Fail to do recall ordered by government o Fail to use reasonable care in doing voluntary recall D. Adequacy of Warnings: i. Decide if anything is wrong with the warning 1. content, clarity, intensity, conspicuousness 2. where the warning is may make it conspicuous 3. content lacking if does not tell you what is going to happen if you do not comply 4. decide if flaw is significant enough for liability to be imposed. 5. take into account who your audience is E. Allergic Reactions: i. SL- where a product contains an ingredient to which a substantial number of the population is allergic, and the ingredient is on whose danger is not generally known, or if known is one which the consumer would reasonably expect to find in the product. (Livingston v. Marie Calendars) ii. Duty to Warn if: 1. a substantial number of people are allergic 2. presence of ingredient is not generally known to consumers. 3. presence of ingredient is known or should be known to D. F. Bulk Suppliers: i. Allows a manufacturer to discharge its duty to warn by reliance on people in the chain as intermediaries. G. Sophisticated User Doctrine: a. no need to warn because people already have the knowledge 3 factors To Decide Reasonableness: a. take into account the severity of the risk b. likelihood that the intermediary will pass on the warning to workers c. feasibility of giving warnings in some way other than passing it down through the factory. d. the jury determines whether the reliance on the intermediary was reasonable. b. can be an affirmative defense to liability. H. Prescription Drugs I. Learned Intermediary Rule: the duty to warn of dangers in the prescription drug context runs from the manufacturer to the physician. i. the physician has the obligation as part of the doctor-patient relationship to warn the patient ii. Advertising a. Direct to consumer advertising - A manufacturers duty runs to the consumer when it markets its product directly to the consumer - When mass marketing of prescription drugs seeks to influence a patient’s choice of a drug, a pharmaceutical manuf. Makes direct claims to consumers for the efficacy of its product should not be unqualifiedly relieved of a duty to provide proper warnings of th3e dangers or side effects of the product. iii. Two Exceptions to the Rule: 1. mass immunizations 2. FDA mandates that a warning be given directly to the consumer a. Compliance with FDA warning requirements does not necessarily satisfy the manufacture common law duty to warn the consumer. J. Obvious Dangers (warnings): - you do not have a duty to give warnings about an obvious or well known danger. (Tequila case). - Because these are the type of people that would not look at a warning. K. Warranties: II. § 2-315 Implied Warranty of Fitness for Particular Purposes J. a product is not fit for buyer’s particular or special purposes K. seller has reason to know that buyer requires goods for particular purpose and is relying on seller’s skill or judgment in selecting suitable goods X. Prescription Drugs: Warranties Strict 3d R Reasonable alternative design §6c Liable if foreseeable risks are so great, compared to benefits, that no reasonable heath-care provider would prescribe it for any class of patients (important to realize you cannot take into account what was possible when the product was designed – P cannot argue this)  You cannot come in and say you could have made it safer at the time, you can only talk about what was approved by the FDA at the time and on the market. PRESCRIPTION DRUGS & DESIGN DEFECTS Negligence Strict tort General Fault Strict Prescription drugs & devices Liable if:  Product could have been made safer at time of sale or  Product’s foreseeable risks exceeded its benefits (P can come in and say that you could have made it safer at the time) 1. Negligence Exceptions: vaccines oral contraceptives and IUDs products advertised to consumers products for which FDA requires warnings to consumers - over-promotion of drug (diluting the message can be negligenct). 2. Strict Tort Exceptions (§402 A): a. vaccines b. oral contraceptives and IUDs c. products advertised to consumers d. products for which FDA requires warnings to consumers  Comment K to section 402(a):    No liability if FDA approved it- rare position and FDA is advocating for this position. Blanket immunity- there is no strict liability. All drugs- no strict liability. If the product is unavoidably unsafe- then you can sue for negligence only. Case-by case- risk/utility because of the benefits of the product. Some drugs are unavoidably unsafe and others are more dangerous than is necessary so this test helps decide this. Most courts achieve this by creating an affirmative defense for the defendant to prove 1) the drug was made as safe possible 2) is it a product where the benefits justify a. b. c. d. the risks. If the defendant can prove both then there is no liability. If the D cannot prove both then we are back into regular products liability law.  No special rules for drugs- just treat them under the regular rules like negligence and strict liability. This is the best position for plaintiffs.  3. Warranties Exceptions a. vaccines b. oral contraceptives and IUDs c. products advertised to consumers d. products for which FDA requires warnings to consumers 4. D. 3dR (§6c )2. Remember... a. Π cannot come in and say you could have made it safer at the time, you can only talk about what was approved by the FDA at the time and on the market 3. Exception a. Must warn patients if you know or should have known health care providers (not just doctors) will not be in position to reduce risks. 4. No position on: a. Oral contraceptives and IUDs b. Products advertised to consumers c. Products for which FDA requires warnings to consumers Most courts use the case-by-case approach. This is more plaintiff friendly. XI. Misrepresentations: A. Negligence (negligent misrepresentation) 1. Π must prove a. Misrepresentation b. About a material fact c. Made negligently (failure to exercise reasonable care) d. Someone justifiable relied on it (doesn’t have to be Π or purchaser) -The misrep of a particular fact reasonably influences the purchase or use of the product. In considering if this reliance existed, the reasonable objective belief of the purchaser or user is determinative. e. Actual cause -Π suffered harm caused by that reliance on the misrepresentation f. Proximate cause Justifiable reliance = whether a reasonable consumer, possessing knowledge about the manuf product that is common to the community, could have justifiably relied on the manuf alleged representation concerning the character or quality of that product; reasonable for someone to do what they did in reliance on misrep? B. Strict tort (§402B) – strong consensus to have SL 1. Π must prove a. Misrepresentation b. About a material fact -Material if a reasonable person would attach importance to it. c. Justifiable reliance -Need not be that of the injured consumer but may be that of the purchaser who passes the product along to the ultimate consumer. (Honda) -Cannot rely on it if you did not see it. C. Warranties (§2-313) – express warranties 1. Π must prove a. Any affirmation of fact or promise concerning product b. Part of basis of the bargain -Product has failed to conform to the fact that was made about it 2. Unique aspects a. Covers “any” affirmation of fact – not just material facts b. Requires representation to be “part of the basis of the bargain” – does not require justifiable reliance D. 3d R (§9) 1. Π can recover under: a. Tort law – same as §402B and/or b. Contract law – UCC warranties provisions 2. Clarifying the uncertainties a. Representation does not have to be made to the public b. Covers anyone – including bystanders c. Covers property harm E. Fraudulent misrepresentation (intentional tort in the products area) 1. Π must prove: a. Misrepresentation b. Of a material fact c. Knows its false (or recklessly disregards the truth) (defendant knows the truth) d. Intend for reliance (defendant knows someone will rely on it) e. Justifiable reliance f. Causes harm F. Puffery 1. Fact (not puffery) v. Opinion (puffery) a. Specificity (more specific, then most likely fact) b. Verifiability c. Relative knowledge of the parties d. Equivocal phrasing (“I believe” – “I think”) 2. Watered down language used to get away from being found as stating a fact, rather than an opinion or mere puffery. 3. Future predictions are not facts 4. Important to think of the context (ie-movies are usually hyped) 5. Even if false facts underlie the statement, this is not puffery (can have liability for opinion with underlying facts) -Verbal misrepresentations can interdict or supersede written warning (Brown v. Glaxco) G. Nullification 1. The manuf affirmative representation that the product is safe despite the known dangers, may act to nullify either the product’s warnings or the consumer’s knowledge about the product’s known dangers 2. If the jury finds that a manuf marketing of its product has effectively taught the consuming public something, the jury may consider this in determining whether an express warning was necessary to make the beer safe for its intended purpose. A. Negligent entrustment 1. R3d – seller remains liable for negligence law for miscellaneous other product related behavior B. Negligent distribution 1. R3d – seller remains liable for negligence law for miscellaneous other product related behavior C. Negligent repair 1. R3d – seller remains liable for negligence law for miscellaneous other product related behavior XII. Alcohol Advertising: A. alcoholism is generally known and there is no duty to the manufacturer to instruct and educate on the effects and danger of alcohol. XIII. Comparative Fault and Assumption of Risk: A. Traditional defenses to each cause of action (IT WAS Πs FAULT TOO) 1. Negligence a. Contributory negligence (elements): i. failure to exercise reasonable care ii. Actual and proximate cause of the Πs injury -Total bar to liability for the Δ b. Assumption of risk (elements): i. Voluntarily encountered ii. Known risk 2. Strict tort a. No contributory negligence b. Assumption of risk 3. Warranties a. No contributory negligence? i. Cases go both ways, but majority says no b. Assumption of risk 4. R3d a. Not written yet B. Modern defenses (IT WAS Πs FAULT TOO) 1. Negligence a. Comparative fault (merged w/ assumption of risk) -Defn: A Ps own negligence that proportionally reduces the damages recoverable from a D. 2. Strict tort a. Comparative fault (merged w/ assumption of risk) -Daly -Missouri §537.765 3. Warranties a. Comparative fault 4. R3d (§17) a. Comparative fault XIV. Economic Losses: A. - it is a defense argument. It is not an affirmative defense or else you might waive it. A judicially created rule. Exists in order to eliminate the types of harms and applies to negligence and strict liability claims. Meant to ensure that tort law does not swallow up contract law, so it is to maintain the boundary between both of them. A defective product and then the plaintiff says that you are not happy with the product, but should you be able to bring a negligence claim. No, if you want to sue for this then you need to use contract law or warranties. Torts are things that cause a real serious physical injury like it burnt our eyes or something like that. *1. Personal injuries. 2. Economic losses resulting from personal injuries. *3. Damage to property (other than the product itself). 4. Economic losses resulting from damage to property other than product. 5. Damage to product itself Economic Loss rule applies to this 6. Economic losses resulting from damage to product itself Economic Loss rule applies to this 7. Pure economic loss (if you have none of the other 6 things). Economic Loss rule applies to this * as long as you have something in category 1 or 3 (personal injuries) you can recover for everything on the list.  You can recover for anything under warranties. XV. Disclaimers: A. Waiver/Disclaimer (LIABILITY WAS WAIVED) 1. Negligence a. Disfavored – may allow if: i. Very clear ii. Understood by Π 2. Strict tort a. Never allowed 3. Warranties (UCC §2-318) a. Generally allowed 4. R3d (§18) a. Not allowed for harm to person from a new (as opposed to used) product b. No position on i. Used products ii. Harm to property XVI. Statute of Limitations and Repose: A. Statute of limitations- give a certain time limit for a plaintiff to bring suit which starts at the time of the injury B. Statute of repose- sets a time limit that has nothing to do with the occurrence of the injury; rather, the time period for filing suit is delineated by some other date, usually the manufacture of the product. XVII. Allocating Liability Among Defendants: A. joint and several liability to the Plaintiff- the P can collect from any of the three defendants whoever it is easiest to get it from. (one state AL). B. joint and several liability to the P with reasonable allocation amongst the three defendants. The P can still get it from the easisets person and then once P gets paid then the D’s can sue each other in contribution claims among defendants. A pro rata split and it gets split 1/3 if there are 3 defendants. (3 states VA, MD, NC). C. Joint and Several Liability to the P based on Percentage of Fault- and continue to have the Contribution Claims but instead of a Pro Rata Split we will have contribution Claims based on Percentage Fault Shares Decided By The Jury. This works if everyone has money but not if one of them is bankrupt and the other defendants will still have to pay more than his share and will bear the costs of the insolvent defendant. Preferred by the plaintiffs D. No Joint and Several Liability- allocate money to each defendant liable only for their fault even if there are other insolvent defendants. E. MO if you are at least 51% fault you stay in the third column then you are on the hook for joint and several liability. If below 51% then you have no joint and several liability and are in column Contribution Claim Claim Brought By Brought Against To Get negligence Any defendant pays more than its share Any defendant paid less then its share Partial reimbursement Indemnity Strict liability Downstream seller Manufacturer of defective item Full reimbursement XVIII. Innocent Seller Statutes: A. Pushes the liability of the seller onto the manufacturer. Because the innocent seller has no knowledge of the product and the liability would be solely based on their status as a seller. XIX. Ostensible Manufacturers: A. a non-manufacturing seller may be held liable as a manufacturer if it sells another’s product as its own. Non-Business Sellers: Negligence Anybody Non-Business Sellers XX. Strict Tort Liability 402A & 402B Only those engaged in business of selling the product Warranties 2-314 Merchants only (professionalism) 2-315 Any seller w/ special knowledge that buyer relies on 2-313 Any seller (breach of express warranty claim) 3rd Restatement §§ 1 & 9 Only those engaged in business of selling product XXI. Used/Rented/Free/ Products: Used products Negligence Applies Strict tort Courts split -unresolved issue under MO law Warranties Applies 3dR §8 Liable if: -Seller is negligent -Defective under §2(a) – manuf defects or §3 – circumstantial evidence – and marketed in way creating expectation its as safe as new -Product is remanufactured -Violates statute or regulation §20 “other distribution” includes rentals -In a mixed sale-service transaction the product component of the transaction will involve a product sale Applies Rented products Applies Free products Applies -Applies to rentals -Does not apply if product is merely made available for incidental use, with no separate rental charge Applies Article 2A covers leases Does not apply -only applies if there is a sale XXII. Designers: A. only be negligent for their design. XXII. Supplier of Component Parts: A. Section 5- liable for component parts id integrated them into their own parts and it caused harm. XXIII. Successors: A. Corporate law: can be liable as the successor of old products: if you sign for liability participating in a fraudulent conveyance the new company is a mere continuation of the old company merger B. Third Restatement section 12C. Third Restatement section 13- successor duty to give post-sale warnings. XXIV. Evidentiary Issues: Evidence offered by plaintiff Evidence that others in industry do something safer -Relevant Evidence offered by defendant Evidence that others do same thing as D -Negligence – Relevant, but not conclusive -SL – Must be relevant to some issue other than showing lack of fault Evidence of Ds strong quality control procedures -SL – Must be relevant to some issue other than showing lack of fault Evidence of safe product history (difficult for D to get in) -D must prove it probably would have heard about other accidents -D must prove adequate amount of use under similar conditions (courts do not really say what it means to be adequate) Evidence of compliance with statutes and regulations -Relevant, but not conclusive Evidence of subsequent remedial measures (Note 2, pg. 258) -Negligence – generally not allowed (FRE 407) -SL – courts are split (8th Cir. says under SL this evidence gets in) Evidence of Recall (Note 4, pg. 261) -Admissible if recall ordered by the government -Relevant Evidence of Ds poor quality control procedures -Relevant Evidence of similar accidents -P must prove substantial similarity Evidence that D violated statute or regulation -Negligence per se (R3d§4) P and injury must be something that was trying to be prevented by the statute or regulation XXV. Market Share Liability: A. Proof 1. P was injured by product 2. P cannot determine who made it 3. Each manuf did something tortious 4. Product is fungible (all units equally dangerous) – essential for making market share liability fair 5. Result is: each manuf can be held liable for portion of damages equal to its market share B. Non-Fungibility (fungible = same) a. Products are different – not inherently the same i. Renders the market share theory inapplicable, since the risks created by each Ds product is not the same and therefore is not equally likely that each Ds product may have injured the P. XXVI. Guns: 1. Ds compliance with a penal or regulatory statute does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions. 2. The manuf does not owe the relatives a duty to exercise reasonable care in marketing and distribution. Foreseeability alone does not define duty – it merely determines the scope of the duty once it is determined to exist. Xxv: Mass Tort Cases/ Alternatives to the Tort System: 1. If the products liability system is not working, can turn to other systems (compensation system for vaccines – set amount of money you can get from a compensation trust, which comes from an excise tax on vaccines) 2. These alternatives are done b/c we want vaccine makers to continue what they are doing – will not do this if we do not care what they are making very much (asbestos) 3. Evidence of what an admin agency decided to do is relevant, but not dispositive. XXV. The Outer Limits of What Counts as a Product: Terminology Definition Negligence Covers anything Strict tort 402A – products 402B – chattels None Warranties Goods All movable things 3dR Products Tangible personal property distributed commercially for use or consumption Covered if sufficiently analogous to distribution and use of tangible personal property Real property √ Covers anything Electricity √ Covers anything Generally not covered, but perhaps: -Equip affixed to real property -Pre-fabricated buildings -Mass produced building Courts split XX Courts split Live animals √ Covers anything Courts split √ Covered as goods (contract law) Covered if sufficiently analogous to distribution and use of tangible personal property √ Does apply A. Relationships 1.Before 3dR, had other three columns. 2. All separate and are available to the P if 3dR has not been adopted 3. What if you do adopt 3dR?2 a. 3dR does not replace the 2dR. b. 3dR wants to unify all three columns. c. If adopt 3dR, it replaces all the three columns. 3.On exam, guidance about what law to apply – if it says you adopt 3dR, only worry about last column. If have not adopted 3dR, then consider all first three columns. B. Electricity 1. This is a product the moment it passes through the meter and enters your house or office. C. Live animals 1. Negligence yes – b/c it applies to anything 2. Strict tort? Some courts have said no b/c the product is mutable – others have said yes b/c they are items of personal property 3. Example: pet shop found SL for sale of a rabid skunk D. R3d § 19 (definitions) 1. Defines a product as tangible personal property E. Book publishers 1. Courts have tended not to impose SL on book publishers for defective information contained in their books, and have found that the publishers have no duty to inspect the contents of their books. 2. Some courts have held that SL against publishers may apply to the narrow area of published maps or charts b/c if instruments are used w/ it, when defective, will prove dangerous. 3. If defect stems from the intangible party of the product (video game on a videotape, then tape is not defective and unreasonably dangerous – the fact that it is interactive does not make a difference.