products liability

Products Liability Outline Winter/Spring 2007 Historical Progression 1. Privity (claims most likely rooted in contract, not tort) a. Winterbottom v. Wright 1842 (post master general contracted for maintenance of stage coach, other employee injured when riding in it & it broke) i. RULE: can not be held liable for negligently performing or failing to perform a contract, unless there is a privity of contract (privity mean there must be a duty & a breach—actual parties to the contract 1. Contractor, manufacturer, or vender is not liable to 3rd parties who have no contractual relations w/ him for negligence in construction, manufacture, or sale of the articles he handles ii. Policy: if everyone was allowed to sue anytime an injury resulted, there would be too many claims (large # of claims liable to anyone on road, every passenger, etc.) iii. IF driver had run over child, privity wouldn’t apply, b/c would be a tort claim, no contract in issue iv. Talks about failure to perform, Wright did not do the K. What if he has, but there was still injury? 1. To this justice/time it would not have mattered, & others interpreted it as this 2. Other justices said there was only privity on omissions, not affirmative actions Privity Exceptions a. 1st Exceptions to Privity i. Huset v. Case Threshing 1903 (platform of threshing machine not strong enough to hold a person) 1. Exceptions: (3) a. You can be liable w/o privity if you manufacture something that is imminently dangerous to the life or health of mankind, & which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life (drugs, medications, guns, poisons, etc.) b. An owners act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owners premise may form the basis of an action against the owner (have to be on the manufacturers property) c. One who sells or delivers an article which he knows to be imminently dangerous to life or limb to another w/o notice of its quantities is liable to any person who suffers an injury there from which might have been reasonably anticipated, whether there were any contractual relations between the parties or not (there needs to be warning) 1) imminently dangerous—courts open this exception to apply to lots of things (don’t define what imminently means) 1. danger will happen quickly 2. severity of damage 3. catastrophic product 2. Policy for developing exceptions to privity: a. Get around difficult standard of privity w/o completely getting rid of it b. Concealed Defects/Fraud-Deceit i. Kuelling v. Roderick Lean Mfg. Co. 1905 (concealed defect in tongue of farming equipment—farmer drug by appliance & then crushed by the 700 lb. piece of equipment) 1. RULE: one who sells an article, knowing it be dangerous by reason of concealed defects, is guilty of a wrong, w/o regard to the contract, & is liable in damages to any person, including one not in privity of contract w/ him, who suffers an injury by reason of his willful & fraudulent deceit & 2. Policy: a. discourages fraud & deceit b. is worse then mere negligence b/c it is intentional—shouldn’t reward the D for bad behavior c. D essentially has knowledge that the P could become injured c. Inherently Dangerous (dangerous in nature) i. Statler v. George A. Ray Mfg. Co. 1909 (exploding coffee urn case)—privity rule essentially abandoned 1. RULE: in the case of an article of an inherently dangerous nature, a manufacturer may become liable for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, & causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction 2. Inherently dangerous—naturally dangerous 3. Imminently dangerous—where know someone could get hurt & don’t warn 4. Policy: a. if privity still applied—any manufacturer would be protected as long as they sold their product to someone else & then they were to sell—as long as used a middleman b. society’s way of doing business was changing c. manufacture becoming more normal—mass production 5. so many exceptions that the privity rule has essentially been swallowed by the exceptions 1 2. Rostron 3. 4. Negligence (looks at manufacturer conduct—not product)—no privity required (Cardozo did away w/) a. MacPherson v. Buick Motor Co. 1916 (Buick bought wheels from manufacturer—P injured when wheel fell apart— Buick held liable b/c failed to inspect the wheel properly—had duty of reasonable care) there was no fraud but negligence i. RULE: Danger simply has to be reasonably certain—negligence, abandons Privity Rule 1. Elements of negligence: a. Duty b. Breach of Duty c. Cause in Fact—but for causation d. Proximate Cause—foreseeable harm e. Damages ii. POLICY: 1. nature of automobile makes it dangerous if defectively designed 2. D knew people would use product other then retail dealer 3. D responsible for final product being put together—have duty to inspect component parts 4. people trust the Buick name, P wont take car apart to inspect the wheel—advertising by Buick reliable cars iii. Reasons for getting rid of privity—Cardozo does this 1. sign of the times—been 75 years since Winterbottom 2. industry & technology changed substantially 3. mass production, sales nationwide—privity not logical anymore b/c no longer direct dealings iv. inherent & imminent danger gone b/c privity exceptions no longer necessary v. He wants to broaden the scope & get rid of privity of contract. vi. Possibly the most famous of all products liability cases. Turning point in privity. vii. ―The Assault on the Citadel‖ – first phase of the change on products liability Historical Progression a. Res Ipsa Loquitor i. Escola v. Coca-Cola Bottling Co. of Fresno 1944 (waitress injured when bottle exploded in hand) 1. RULE: P must establish all elements necessary for res ipsa loquitor a. Elements of Res Ipsa 1) P establish condition of the bottle did not change after it left the D’s possession 2) Accident of such a nature that it ordinarily would not have occurred in absence of negligence by D 2. Traynor—there should be strict liability for a manufacturer when an article that he has placed on market, knowing that it is to be used w/o inspection, proves to have a defect that cases injury—Traynor saying using res ipsa which is pretty much strict liability so why not be straight forward about what they are doing a. Policy: 1) Manufacturer better off w/ liability b/c can afford it 2) Can spread the liability around through prices/insurance 3) Promotes better care/better products on part of manufacturer—maximum consumer protection 4) Consumers no longer approach products warily 5) Consumers are powerless & are at mercy of manufacturer  Absolute liability on the manufacture, none to the public  First time any judge proposed strict liability for defective products (minority view)  Manufactures are in the best position to pay for these types of incidents (deterrence) RES IPSA LOQUITUR - Lat. "the thing speaks for itself." Refers to situations when it's assumed that a person's injury was caused by the negligent action of another party because the accident was the sort that wouldn't occur unless someone was negligent. b. Strict Liability—looks at product (doesn’t do away w/ negligence just adds another claim) i. Greenman v. Yuba Power Products 1962 (guy injured while using the shop smith—screws holding board in place eventually came loose, he was hit in the head but waited 10 ½ months to complain) 1. RULE: Initially just has to prove that injured while using the product—latter other elements included—evolved a. Elements—additional 1) manufacturer 2) product being used w/o inspection 3) has a defect 4) causes injury 5) P unaware that it was unsafe for its intended use Rostron 2 Traynor—looking for opportunity to promote his idea of strict liability 1) Jury could have held against the D under negligence 2) Traynor attempting to make it sound like strict liability has been around for a long time—hiding fact that claim arose out of warranties claim—makes them precedent for strict liability  He was seen as one of the greatest judges in CA & he pushed the state to be less conservative & more experimental with the law ii. Why bother w/ negligence? 1. strict liability is easier 2. negligence is a fall back claim if strict liability fails 3. some states don’t allow strict liability if bought used product 4. some people think juries respond better to negligence (larger settlement?) New Restatement of Torts came out in 1965. There was more then just restating existing law, they seemingly wrote new law. c. Restatement 2nd of Torts—not reflecting majority yet (1965) reflecting strict liability, broader (all products) i. § 402A 1. ―one who sells any product…‖ 2. ―in a defective condition unreasonably dangerous…‖ 3. ―to the user or consumer or to his property…‖ 4. ―physical harm…‖ 5. ―seller…in the business of selling product…‖ 6. ―substantial change‖ 7. 2(A) – even if seller exercises reasonable care 8. 2(B) – even if not contractual relationship – you don’t need privity d. Is defective design & Unreasonably dangerous two separate requirements? i. MO uses defective & unreasonably dangerous as codified in state ii. Cronin v. JBE Olson Corp.1972 —court said weren’t going to make people prove unreasonably dangerous— just defective 1. There was an accident & the P was driving a bread truck. The truck had defective metal hasp so the suit is brought against the JBE who acted as a sales agent for the assembling of the trucks. iii. § 402A originally just had unreasonably dangerous, but then added defective to protect products such as guns, alcohol that can be dangerous if used improperly 1. Appears to be bifurcated, but it is not e. MO § 537.760 Products Liability Claim Defined i. Claim in which P seeks relief in form of damages on a theory that the D is strictly liable for damages 1. D in course of business transferred a product 2. Product was used reasonably 3. Either or both of the following a. Product defective & unreasonably dangerous, & P injured as a result of the defect which existed when product was sold b. Product unreasonably dangerous when put to reasonable use & P did not have adequate warning f. Warranties – UCC § 47-2-313-315, 607(3) i. 2-313—Express warranty 1. becomes express when is basis of bargain (element of deal) 2. most relevant to misrepresentations ii. 2-314—Implied warranty of merchantability 1. when selling product is implication that it is merchantable (key test is (c)—fit for intended purpose) 2. mainly used for manufacturing & design defects (can work for all categories) iii. 2-315—not fit for particular purpose 1. when buyer relies on expertise in selecting the product & seller knows buyer is relying on their expertise 2. mainly used for inadequate warnings but could apply to all claims iv. 607(3) v. 2-218—extension Extends to any natural person who is in the family or household , or a guest who may reasonably be expected to use Section 2-318 addresses expanding who the express warranties apply to 1. A – Narrowest. Just family or guest that are reasonable to use 2. B - Broader. Natural person 3. C – Broadest. Any person (partnerships & corporations) g. Implied warranty of merchantability i. Henningsen v. Bloomfield Motors 1960 (P injured when car steering mechanism broke—husband signed contract which really limited the remedies) Rostron 3 b. Key is that they get rid of privity for everything. 1. RULE: no longer need privity of contract for implied warranty of merchantability) a. Since the P’s husband signed the contract, D tried to argue that wife couldn’t sue—court said not true b/c reasonable she would have been driving 2. Policy: a. expanded liability b/c reasonable that other people would use product b. same public policy as Traynor—advertising increases consumer reliance on reputation— manufacturer trying to build a better reputation c. Social justice*** (big policy) Problems –  Signed a piece of paper that said the manufacture does not have any liability. Solution: But this was across the board, contract of adhesion so it did not bind the couple.  She did not purchase the car, can she even be covered? Solution: Expand beyond purchaser to family & someone reasonable to use the product. What about issues of notice? When & to whom do you have to give it to? Solution: The states are all over the board on this. Statute of Limitations – UCC has a 4 years from delivery of product. While torts apply the SOL from the date of the injury & it is for whatever the time is. In MO if they are tort-like in nature, then you have the SOL from the date, but if not tort-like then apply the UCC. States are either using the old way with the combo of first three columns or to start using the 3rd Restatement approach. This is simpler but not many use yet. MO does not use the new approach. Negligence Manufacturing Defect Failure to exercise reasonable care Strict Liability § 402A Defective and Unreasonably dangerous Warranties UCC § 2-314 Not merchantable (not fit for its Ordinary uses) 3rd Restatement § 2 (a) Departs from its intended design Design Defect Defendant failed to use reasonable care ordinary uses) - 4 states use this test 2nd Restatement § 402A Defect & unreasonably dangerous -Consumer expectations Test, Π BOP 10 states (related to warranties) -Risk-utility test Π BOP Then shifts to ∆ 7 (related to negligence) - Negligence with imputed knowledge 9 -14 do a mix of CE & NWIK, 6 are none & MO is one who refuses To make a test UCC 2-314 Not merchantable (not fit for its Section 2(B) - Foreseeable risks -Could be reduced by reasonable alternative design -Renders product not reasonably safe *Negligence proven in a particular way - no strict liability Inadequate Warning (you need Prox. Cause for all) Forseeability Injury + Forseeable Person Forseeability Injury + Forseeable Person Forseeability Injury + Forseeable Person Forseeability Injury + Forseeable Person Misrepresentation -Misrepresentation -About the material fact -Made negligently -Someone justifiably Relied on it being true 2nd Rest. § 402B -Strict liability-covers innocent misrepresentation -Uncertainties: 1. Does it cover statements not made to public? 4 UCC 2-313 Express Warranties -Cover any affirmation of fact or promise § 9 - ∏ can recover under . . . Tort law same as § 402B OR Contract Law Rostron -Plaintiff suffered Harm caused by the Reliance on the misrepresentation 2. Does it cover harm to someone who’s not consumer? 3. Does it cover harm to property? -Misrepresentation Must be part of ―Basis of the Bargain‖ 1. Covers public or private statements 2. Covers harm to anyone, not just consumers 3. Covers harm to property Manufacturing Defects—something went wrong while product being made a. Negligence i. Pillars v. RJ Reynolds Tobacco Co. (rotten toe in chew case) 1. RULE: manufacturer has duty to be careful when making product a. Kind of like res ipsa loquitor b/c no direct evidence of negligence 2. RULE: no privity required w/ food products a. There was argument in this case on is tobacco food? ii. Pouncey v. Ford Motor Co. (radiator fan blade to face case) 1. Sometimes hard to distinguish between manufacturing defect & design defect a. Generally distinction doesn’t matter that much—3rd R makes it matter iii. Krause v. Sud-Aviation 1969 (helicopter crash in Gulf of Mexico) 1. Expert testimony differs & it comes down to who the court believes 2. P say bad welding & the D said there was dangerous flying 3. No new principles in this case, but it illustrates how costly this type of litigation is iv. Flippo v. Mode O’Day Frock Shops 1970 (Spider in pants, woman gets bite) 1. The court found this was not a products liability case. Manufacturing Defects – worksheet 1. 1. Of the four legal theories how many impose strict liability? 3, all but Negligence (looks at your conduct)– but the closest for negligence is res ipsa. For something to be strict liability is liable even without proof of fault. No intent & no proof of negligence. There have been questioned should we have strict liability for manufacturing defect. It actually is not that controversial. 2. The cardboard packaging on beer is defective, how would the court rule? When does the defect first exist. The packaging is treated as part of the product. a. For negligence you look at did they exercise reasonable care. b. For STL you don’t look at conduct just was there a defect. c. For warranties it is simply no fit for the use it was made d. For 3rd Restatement 3. You buy a product that is .4 millionths off original design. What would the court rule on? a. For a lot of products this would not matter because most products this amount of discrepancy would not matter. But in some cases this difference may really make a difference. 4. Manufacture says there is a 1 cm margin of error built into the design of the product. The company will have the burden of proof to show this was the intended design. The court would be able to possibly not have a manufacturing defect but a design defect. 2. 1. Should there be a products liability claim in all the cases, or just the one that was decided that way? I think these were decided correctly. In the Anderson case the bananas were not actually defective & in the Flippo case the spider was in the pants. She tried to sue the manufacture, but when was the spider there? The Strawn case was in Columbia where a man got a coke that had a spider in the soda & it made him sick. This case was decided that there was a products liability case. I agree with these decisions. In Strawn the spider was actually in the product. 2. Fictitious scenario about the spider in cactus. 3rd R (Manufacturing Defects) v. SL element ―even though all possible care‖ vi. look at the product vii. Doesn’t require a product to be perfect. Possible exclusions: 1. Has to be harm for claim 2. Intended design is flexible & may have a margin of error viii. Better jury instruction b/c is very specific b. Strict Liability i. Flows Down the Chain of Distribution—never up ii. Everyone that sold the defective product can be held liable Rostron 5 5. 6. EXCEPTION: If the manufacturer has delegated part of the manufacturing process to someone else 1. Ex: bike maker sends bike to store, store assembles—court determined that b/c they delegated part of manufacturing process, the manufacturer is also strictly liable (like agency law) a. This is the process of delegation, so they remain liable for it b. Principles are liable for acts of agents Bad Stuff in Food (alimentary manufacturing defects) a. Mexicali Rose v. Superior Court of California (chicken bone in enchilada) i. CA rule: Hybrid Test 1. if the substance is foreign to the food, P may bring claim in SL, IW, or N 2. if substance natural occurring part of food—P may only bring N claim a. previous rule: just distinguishes between foreign & natural parts of food ii. Dissent (Mosk—most pro-plaintiff judge) chooses Consumer expectations test iii. Other tests: 1. Foreign/Natural Test: a. if substance foreign to the food, strict liability b. if substance natural to the food—no claim 2. Hybrid Test: a. foreign substance in food—strict liability, implied warranty b. natural substance in food—negligence c. California & Louisiana 3. Consumer Expectations Test: SL if reasonable consumer would not expect to be in food a. doesn’t matter if substance is foreign or natural 4. 3rd R § 7 - Reasonable Expectations Test a. Would reasonable person expect presence of that ingredient? b. Trend to today in favor of this test c. Majority iv. Policy: overriding concern should be public health, warranty of fitness should also apply for strict liability b. Shoshone Coca-Cola Bottling Co. v. Dolinski (decomposing mouse in Squirt) i. RULE: P only had to prove mouse in there when product reached him (burden of proof properly placed on D) ii. Policy: want manufacturers to be accountable for products—strictly liable to ultimate consumer iii. Fraud? 1. could have been, a lot of claims brought against coca-cola at time (regionally dependent) 2. possible to disprove if demonstrate really good quality control c. Lock v. Confair (woman injured when bottle exploded at grocery store after husband picked it up, bottle had been on shelf for long time) i. Illustrates that there are some types of accidents where it is impossible to know why they occurred ii. RULE: Burden on D to disprove negligence—does away w/ exclusive control rule 1. Exclusive control: a. Used to be common requirement—mostly been abandoned 1) No claim unless product under D’s exclusive control 2. MO—show under D’s control, care, or management iii. Policy: P injured through no fault of her own, unfair to make her pay d. Webster v. Blue Ship Tea Room (fish bone in fish chowder—caught in throat) i. RULE: P’s should expect there to be bones in their fish chowder—no implied warranty violation here 1. Court implies possibility of regional application e. Krause v. Sub-Aviation (helicopter crash—welding wrong v. tail dipping as cause) i. RULE: burden in case was on P ii. Note 4 – helicopter operating co had an ―admitted liability‖ coverage clause 1. Trying to avoid all liability isn’t the best strategy for a business 2. Invites more liability to get more business f. Hair in Cake case i. RULE: when people involved bound to happen—no recovery g. Cake Decorations Case (grandma swallowed plastic bird used as decoration) i. RULE: plastic decoration in context of product was natural—no recovery h. Flippo v. Mode O’Day Frock Shops (spider in pants case—bit lady, required hospitalization) i. Court would only instruct on negligence claim (implied warranty of merchantability & negligence both alleged) ii. RULE: spider not part of product, they functioned as intended—not incorporated in product i. Strawn v. Coca-Cola Bottling Co (spider & cigar butt in coke) i. RULE: P wins on implied warranty claim b/c of short amount of time product was out of manufacturer control (coke offered evidence of really good quality control) j. Anderson v. Associated Grocers (banana spider in banana’s case—guy bit, died several months latter of heart failure) 6 iii. Rostron i. RULE: product not defective—banana spider not part of banana’s (reject implied warranty & strict liability claims) 7. Design Defects Some questions & issues with design defect:  More subjective, what do we compare it to  We are saying all of these are defective, not just the one a. Consumer Expectations Test: i. Heaton v. Ford Motor Co (guy hit 6in rock & tire went flat 35 miles later—accident) 1. RULE: court determines that P looses b/c did not present evidence the wheel didn’t perform consistent w/ consumer expectations (P argued wheel dangerously defective) a. Generally more favorable to Ps because it focuses on the consumer side & what happens to P 1) P has focus of the case beyond the accident 2) Did something happen that P didn’t expect? b. Relatively simple issues of forms of proof c. Exceptions – obvious danger problem 1) Anything akin to categorical liability d. Least likely to ever become an ordinary N test 2. Criticisms of Consumer Expectations Test a. Should focus on product itself, not consumer’s thoughts about it b. Consumers might have unduly HIGH expectations—demanding perfection c. Consumers might have unduly LOW expectations—settling for what they’ve come to except d. Consumers might have NO expectations about complex of unfamiliar product 3. Dissent said there is a spectrum of size of rock, small pebble people would understand no problem, bolder no to, 5 in rock is somewhere in between so you should let the jury decide a. bad case for this test b/c too complex for jury to be able to make a determination b. Risk/Utility Test i. Baker v. Lull Engineering Co. (P injured when high lift loader tipped over, argued should have arms that would prevent from tipping when on uneven surface, & cage providing protection for driver) 1. RULE: risk of the product is weighed against it’s utility a. P has burden for consumer expectations part of test, for risk utility b. P must make prima facie case showing design caused injury c. D has burden of showing burden/risk v. utility of product 1) POLICY: makes it easier for P to win b/c D has most knowledge 2. Generally more favorable for D’s 3. Attention focused on Manufacturers decisions/views a. Complex decision making b. Competing ideas when coming up w/ design c. Pros & cons d. Financial stuff 4. Complex proof required—P forced to hire expert (increases cost of litigation) 5. Factors include: a. Gravity of danger imposed by the challenged design b. Likelihood that danger would occur c. Mechanical feasibility of safer alternative design d. Financial cost of improved design e. Adverse consequences to product & consumer resulting from the alternative design 6. Criticisms a. Risk/benefit weighing sounds like negligence & might inevitably slip into being negligence test b. Too indefinite—doesn’t narrow focus to anything c. Too cold & objective, ignores our humanity d. People may not be able to rationally assess risk ii. How do we stop SL from turning into N? 1. N focuses on conduct while R-U focuses on the product a. Fundamental distinction b. You can have a bad design w/out a bad manufacturer 2. Burden of proof is very important! a. Once P proves a prima facie case showing that injury was proximately caused by product’s design, the burden shifts to D to prove that the product is not defective 3. POLICY: Responsibility on the one who has info & fairness – easier for Ps to litigate c. Risk/utility v. Consumer Expectations i. Soule v. General Motors (toe pan of Camero crushed ankles of D when got in accident, other car hit wheel) Rostron 7 RULE: CA says judges need to decide whether something is pretty easy then can throw both risk/utility & consumer expectations test to the jury, but if too complex only use risk/utility a. Court says if using consumer expectations it doesn’t allow a lot of expert testimony—only use in situations where product is easy to understand 2. POLICY: don’t want to prevent P from bringing claim b/c can meet the consumer expectations test d. Negligence w/ Imputed Knowledge i. Phillips v. Kimwood Machine Co. (P injured when using sanding machine—too small of piece of wood put in machine & flew out & hit him—argued should prevent wood from coming back out) ii. 3 ways to think about D’s knowledge 1. was is reasonable for D to sell the product…. a. Knowing what D actually knew about its risks? Most favorable to ∆ 1) Actual knowledge kind of encourages negligence b/c less you know about dangers of product better off you are—never really used 2) Don’t really want to use in tort law b. Knowing what a reasonable person should have known about its risks? More Π 1) Negligence essentially c. Knowing everything there is to know about its risks? 1) Knowing everything there is to know is imputed knowledge (means that everything that has been found out about the product since the manufacture, even if not known at time, it is imputed to you as knowing at time of suit) 2) Most for the Π, NWIK – negligence with imputed knowledge iii. POLICY: 1. Unfair – manufacturer required to know what might have been impossible at time a. Is it fair to make manufacturer liable when they didn’t necessarily do wrong 2. Makes D’s extra careful 3. Very high expectations placed on D a. Abstract & not a fair test e. Hierarchy of Test: i. Risk utility w/ imputed knowledge—is basically strict liability (most P friendly) ii. Consumer expectations is generally better for P—allows P to focus on the accident iii. Risk utility focuses more on what happened during the design stage f. A lot of disparity between states i. 4 states don’t have strict liability at all ii. 10 doing consumer expectations iii. 7 risk utility iv. 14 using combo of above 2, like CA does v. 9 negligence w/ imputed knowledge vi. KS does reasonable consumer w/ a lot of knowledge about risks & benefits of product vii. MO has come out & said defective & unreasonably dangerous is good enough—we wont make a better test this is good enough viii. 5 other states do random variety of things 8. Reasonable Alternative Design—Encountering 3rd R a. 3rd Restatement (extremely controversial) i. Vatour v. Body Masters Sports Industries (guy injured when failed to use stops on weight lifting machine— trying to get court to adopt 3rd R) 1. 3rd Restatement § 2b a. TEST: 1) When there are foreseeable risks that 2) Could have been reduced by reasonable alternative design that 3) Renders the product not reasonably safe b. reasonable alternative design was new element—made this an absolute requirement c. uses a risk benefit type test d. only makes manufactures liable if acting unreasonably—negligence based e. moved away from consumer expectations f. okay w/ sticking w/ consumer expectations for food 2. Court declined to adopt b/c too hard to apply, too expensive (too much burden on P) a. The NH test, P must prove: 1) The design created a defective condition unreasonably dangerous to user 2) Condition existed when product was sold 3) Use of product was reasonably foreseeable by manufacturer 4) Condition caused injury to user ii. 3rd R tried to soften criticisms 1. Don’t have to have a proto type of new design—just concept Rostron 8 1. don’t have to have expert if simple product P not required to present cost & utility of new design w/ particularity Exceptions where don’t need alternative design a. When violates statute or regulation b. If design of product was manifestly unreasonable—low utility but high degree of danger 1) Ex: toy gun shooting hard plastic pellets that hurt kids 2) Ex: exploding cigar that could set a beard on fire iii. 3rd R would increase importance of distinctions that weren’t important before 1. manufacturing (strict liability is remedy if injury qualifies) v. design defect (negligence is remedy if injury qualifies) 2. deciding when have 2 different alternative design & when it becomes a different product a. Ex: turning 3 wheel ATV into 4 wheel ATV b. Ex: PO shot in line of duty wearing a bullet proof vest that has open sides, he dies b/c he gets shot where there is no protection—3rd R suggests that would be a different product if you instead make a model that had protection on all sides b. 4 approaches regarding alternative design i. P must prove feasible alternative design ii. P must prove reasonable alternative design iii. No formal requirement iv. D must prove the absence of a feasible alternative design 9. *Categorical Liability a. Buckingham v. RJ Reynolds Tobacco (woman =lung cancer from 2nd hand smoke – claims cigs unreasonably dangerous) i. RULE: in order to sue the product must be defective & unreasonably dangerous—no strict liability claim b/c cig’s are not defective (can bring negligence claim) 1. P would have to show reasonable alternative design & there isn’t one 2. court refuses to impose categorical liability 3. Have to show there was something wrong with the product 4. Categorical Liability or Generic Liability or Per Se Liability b. Brooks v. Beach Aircraft Corporation (husband died when plane w/o shoulder harnesses crashed—harnesses not required by law at time of plane manufacture) i. RULE: strict liability is not the same as negligence—court rejects claim that strict liability is really just negligence & to do away w/ strict liability ii. 4 primary policies for imposing SL 1. (1) Cost-spreading available to manufacturers 2. (2) Relieving P of burden issues 3. (3) Providing a full chain of supply protection 4. (4) Interest of fairness, provide relief against the one who didn’t profit c. Design Defect Standard: SL or N? i. Going to boil down to N regardless; since there is no real unit of comparison juries are going to inquire into whether they feel D acted reasonably ii. SL is a bad thing, no easy recovery for Ds iii. Something is inherently unfair about placing requirements on products that are super old & forgetting to judge it by the standard of its own day d. Restatement 3d for Design Defects i. Only state to expressly adopt is Iowa in 2002 ii. 2-3 other states have said favorable things, but not adopted in full iii. Some states have adopted by § 1. MS, TX, LA, NC & NJ iv. NH & MO say they are not going to adopt the R3d (7-8 states) & many states have not adopted 1. If MO is ever going to adopt this it is going to have to be by legislation (alluded to in opinion) e. Policy for the R3d’s bad reception i. P lawyers hate it b/c it’s harder for them to win cases ii. Annoyed at the way it was adopted (professors aligned w/ tort reform) iii. Some people don’t think it’s fair iv. Authors of the R3d tried to claim it wasn’t new (untrue) v. Most people like the 402A f. Distinctions that matter if R3d is adopted i. Distinction b/w manufacturing defects & design defects ii. Reasonable alternative design requirement can force you to make decisions whether it’s a reasonable alternative design or a completely new product 10. Manufacturing Defects v. Design Defects a. Most products were about manufacturing defects historically, until about the 50s or 60s b. Major analysis of determining the std was written in mind Rostron 9 2. 3. 4. 6/8 cases that first adopted this were manufacturing defects i. Now this has flipped & emphasis is on design defects (not very controversial, all agree SL should be used) d. Design defect & inadequate warning are the cases that get all the attention. Reasons: i. Manufacturing & quality control much better than it used to be ii. Defect cases are much more likely to settle because it’s a straightforward answer e. More questions & room the parties to argue in a design defect case f. Manufacturing defects more likely to settle b/c it’s embarrassing & bad PPR for the company (questionable, probably depends on what the defect is) i. Conversely, worse to have the design of all a product gone bad g. Change occurred in a financial practice. Now there is a balance of resources. For most of the 20th century these people didn’t have much money & resources to bring a complicated design case. So instead, you get a relatively simple case. h. Tended to get design cases when you had an argument b/w 2 companies i. Products become more financially balanced to make it easier for Ps to win. Over the past few decades the financial gap as lessened. Now there are Ps lawyers w/ access to a lot of resources that they didn’t used to have j. Playing field is now more level than it used to be. Now about somebody suing w/ a lot of money on the line 11. Causation a. Actual Cause—―but for‖ test i. The injury would not have occurred ―but for‖ the… 1. D’s negligence 2. Product defective 3. breach of warranty b. Proximate cause 1. Injury must be reasonably foreseeable, which means it is within the general type of harm expected. 2. Person injured must be reasonably foreseeable, which means that person is within the general class of people that one would expect to get hurt. ii. Injury must be w/in general type of harm that one would expect iii. Person injured must be w/in general class of people that one would expect to get hurt 1. concentration manner—―burning rat‖ case—don’t have to foresee every detail, just injury was foreseeable & the person injured was foreseeable 2. doesn’t have to be sole cause of injury—(intervening act doesn’t cut off liability) iv. Focus on end result—the injury—not the cause—ask ―was it foreseeable to have neck injury b/c don’t have safety harness‖ c. Price v. Blaine Kern Artista (P injured when wearing a caricature mask—pushed & giant head caused neck strain) i. RULE: actual cause—P wouldn’t have been injured if had safety restraints ii. RULE: proximate cause 1. foreseeability—injury wasn’t solely caused by push from spectator, lack of safety harness was a contributing factor a. doesn’t have to be sole case of injury to satisfy foreseeability (intervening act doesn’t cut off liability) 12. Rescuer a. Bobka v. Cook County Hospital (sister gave skin graft to brother after burned when his fire gear failed—sister sued fire gear company b/c of bad skin grafting job) i. RULE: court determined there was no proximate cause b/c injury was not foreseeable b/c not the type of person expected to be harmed—no recovery b. Guarino v. Mine Safety Appliance Co. (co-workers went to rescue of co-worker whose oxygen mask failed—some of them died, estates bringing suit) i. RULE: court determined that since there was little time for reflection & it was reasonable someone would help in a situation like that, recovery allowed c. Special Foreseeability rules (court treats as though was foreseeable, even though really not) i. Rescuer Doctrine: if you start an accident negligently, you will be responsible for injury sustained to anyone who comes to your rescue 1. must be close in time—(at scene) 2. Policy: rescue a good thing ii. Subsequent Medical Malpractice: courts are supposed to treat medical malpractice that results from injury treatment as being foreseeable—foreseeable someone might need medical attention after injury 1. if you cause an accident always possible people will need medical attention 2. avoid disputes (might help Bobka—likely not) d. Proximate cause & Strict liability i. Can be liable even if took every precaution ii. Can’t say it was foreseeable if have strict liability—would be contradiction 1. have to decide if it was reasonably foreseeable w/ an imputed knowledge element (was it foreseeable knowing everything we know now?) Rostron 10 c. a. Ex: asbestos—can decide it’s defective even though harm not foreseeable at the time—ask ―knowing that we now know it causes cancer, was injury foreseeable?‖ 13. Crashworthiness a. Trull v. Volkswagen (VW van, slid on black ice & collided w/ another car, child died, mother & other child suffered severe brain injury) Crashworthiness Case – not manufactures fault for crash, but it was not safe enough as it should have been (common kind of claim) i. RULE: Burden shifting 1. majority shifts burden to D to prove allocation of enhanced injury, if can’t are liable for entire injury 2. minority leave the enhanced injury allocation burden on the P ii. 2 approaches courts can take w/ enhanced injury 1. car design doesn’t intend them to be in collision—no liability for enhanced injury due to design defect 2. enhanced injury from collision is foreseeable in normal car use & liability is imposed on manufacturer iii. enhanced injury w/ indivisible injuries—such as losing a child b. 3rd R § 16 i. puts burden on D ii. (a) P must prove initially that defect was factor in causing injury iii. (b) & (c) burden on D to apportion amount of injury 1. if can’t prove, liable for entire injury 14. Foreseeable Use & Misuse of products a. Ellsworth v. Sherne Lingerie, Inc. (woman wearing night gown inside out, got pocket caught on burner—ignited) i. RULE: misuse = unforeseeable use—court said wearing night gown inside out was not unforeseeable & therefore not a misuse(doesn’t matter what manufacturer intended the use to be) 1. Strict liability—foreseeable use is element of the claim a. Courts initially used intended use, then went to normal v. abnormal use—now standard is foreseeable use 2. Warranties—requires ordinary use 3. 3rd R requires foreseeable use b. Port Authority v. Arcadian Corp. (NY & NJ sued fertilizer company b/c their fertilizer was used in world trade center bombing—argued should have put additive in fertilizer to make it impossible to make bomb—bomb maker added chemicals to make fertilizer explosive) i. RULE: D owed no duty to P b/c their product by itself was not dangerous (not defective), & not a foreseeable use of product to make into bomb—can’t hold manufacturer liable when action of 3rd party make a product dangerous (like sciaenid in Tylenol) Rostron 11 Warranties: ordinary use (hardest to prove) Strict Liability: foreseeable use (between negligence & warranties) Negligence: foreseeable harm to foreseeable person (easiest to prove) c. d. e. f. g. h. Lamkin v. Towner (kid fell out window, even though there was screen) i. RULE: windows are to keep bugs out, not people in therefore not a foreseeable use or an ordinary use of window screen ii. Falls into a negligence classification on diagram Lucas v. RG McKelvey Bldg. Co. (kid fell out window in his own house, when leaned against screen—summary judgment in D’s favor in lower court, goes to Ap. Ct.) i. RULE: decides that there was a genuine issue of material fact b/c might be foreseeable that screen used to keep kids in (Ap. Ct. send to Mo S. Ct. to decide, don’t know what decision is) Shaw v. Butterworth (landlord said he would put child proof screen in the P’s apartment, kid fell out window)_ i. RULE: since the landlord assumed the duty, he & was liable 1. court suggests that there is 2 purposes to screens a. Primary—to keep bugs out b. Secondary—to keep kids in Brawner v. Liberty Indus. Inc. (kid burned when playing w/ gas can, P said should have duty to make it child proof) i. RULE: court said manufacturers don’t have duty to make adult products child proof 1. ct applied consumer expectations test--§ 402A—ct didn’t make clear till later that didn’t adopt this test Laney v. Coleman Co. (kid playing w/ gas can, exploded when flame traveled back up into can, argued should have a flashback arrester to prevent flame from traveling back into can) i. RULE: P’s tried to use Brawner, however court said it was distinguishable b/c would protect all people, not just children (Brawner used § 402A (consumer expectations) which MO does not use) Efting v. Tokai Corp. (kid set bed on fire w/ lighter that company had attempted to make child proof, but child proofing was easy to get around, even unintentionally) i. RULE: when attempt to make a product child proof & the child proofing mechanism fails, you will be liable b/c that mechanism was defective 1. Brawner didn’t block b/c ct didn’t use consumer expectations test -instead argued defective mechanism 2. some courts have gone w/ more relaxed approach saying no liability b/c there was no duty to make child proof in 1st place 12 Rostron Possible negative impact 1. manufacturers could decide not to attempt to make adult products child proof, b/c if don’t do it well enough expose themselves to liability a. if manufacturer hadn’t tried to make child proof there would have been no liability iii. Possible rationale for rule 1. if manufacturer uses that as a selling feature, then it would be reasonable to expect it to work & should be liable if doesn’t perform correctly i. MO CASE on Foreseeability (guy hunting on combine, fell off & run over, driver didn’t know he was on back) i. RULE: not foreseeable b/c the driver didn’t know the guy was on the back 15. Obvious Danger a. RULE: i. Manufacturer is not liable if danger is open & obvious to user (aka patent rule) ii. if danger is latent (hidden) manufacturer is liable b. Rule is no longer good law in most jurisdictions, MO has partially abandoned i. MO still applies it to negligence, but not to strict liability ii. Can still be used as a factor in risk/utility of design c. Criticism of consumer expectations: people worry that consumer expectations may allow juries to bring back the open & obvious danger rule b/c juries may think consumers should expect injury could result from that type of product d. Who Does danger have to be obvious to? i. Courts treat broadly—doesn’t have to be obvious to person injured, just someone in general e. Ogletree v. Navistar Int’l Transp. Co. (fertilizer truck w/o back up alarm backs over employee killing him) i. RULE: open & obvious danger rule doesn’t apply here b/c claim was brought as design defect—open & obvious danger doesn’t apply to design defects cases 16. Warnings v. eliminating the design danger a. § 402A, comment j—deals w/ design defects, even though talks about warnings i. ―where warning is given, the manufacturer can reasonably assume that it will be read & heeded‖ 1. seems to imply that design can be dangerous but no liability if give warning b. Uloth v. City Tank Corp. (foot chopped off when employee jumped on back of truck w/ compactor running—D had placed warning on truck about not being near compactor & only use when truck not in motion) i. RULE: reject §402A, comment j -instead giving warning is a factor to be considered, but is not determinative, rejected open & obvious danger rule (goes for claims under all categories, N, IWM, SL, & 3rd R) 1. D argued that b/c had warning the danger was open & obvious c. Rogers v. Ingersoll-Rand Co. (woman run over by heavy equipment when back up alarm on truck failed—D had warning saying should test the alarm before backing up) i. RULE: court rejects the open & obvious danger rule—just a factor (rejects § 402A, comment j) d. Hierarchy of Design i. Try to eliminate danger all together ii. Put shield/guard on exposed/dangerous areas if can’t remove iii. If can’t do above 2, give a warning e. Ferguson v. FR Winkler (employees/owner modified bakery machine so that didn’t have to shut it down when dough became stuck, instead open a door they made on side & remove dough) i. RULE: 1. if manufacturer had no reason to think people would modify & product otherwise would have been completely safe—no liability 2. if foreseeable that people would modify & manufacturer could prevent or make harder to modify—left to jury to make determination 17. Warnings a. Some have argued that don’t need warning b/c can be handled under design defects b. Sternhagen v. Dow Company (woman brings suit after husband got cancer from exposure to herbicide_ i. Strict Liability: failure to warn theory ii. Court decides to accept the imputed knowledge approach & reject the state of the art approach—feels that imputed knowledge is more in line w/ theories of SL 1. Dow argues that they can’t be liable b/c couldn’t have known of dangers iii. 3 types of risks you can have when manufacture/sell a product 1. risk that you had actual knowledge about 2. risks that you should have had knowledge about 3. risks that you simply could not have known Negligence Strict Liability Warranties R3d § 2(c) ii. Rostron 13 Requires reasonable warnings about foreseeable risks (failure to warn) (objective expert standard—not lay person) -We do look at the conduct of the D Warnings ―State of the Art‖ Approach (majority rule)—requires warnings about dangers that D knew or should have known about at the time (objective expert standard)  Truly Negligence  Can be heard about in 2 ways o (1) highest level of technological advancement at time product was made o (2) was the most common, standard in industry at time  State of art industry knowledge for cure for particular danger o Argument—it was not defective at time of sale even though it was dangerous b/c a change in design was not feasible at time product was sold  State of art industry knowledge of the danger itself o argument—no obligation to reduce danger or warn against b/c D could not have known of existence -we look at the conduct of the defendant (same as neg.) -Treat the manufacture as the expert in these cases & negligence Imputed Knowledge Approach—requires warnings about all dangers, even those that were unknown & unforeseeable at the time (minority rule)  Is not absolute liability b/c still requires warning to be adequate o Absolute liability—imposes liability for every injury cause by product no matter what (even if warning is adequate) o Strict Liability—liability only if product is defective Policy for imputed knowledge  Easier to apply b/c covers all knowledge elements/categories  Better to place blame on innocent manufacturer then innocent consumer  Hard to prove what someone actually knew (time consuming & expensive)  Extent to which info is in knowledge categories is dependent on D—able to control knowledge about own products Policy against Imputed Knowledge  Very counterintuitive  Unfair  Not promoting any kind of effective behavior (doesn’t encourage people to actually do the right thing) -We don’t care about the conduct of the defendant & what they knew, this only looks at the warning itself - Was it reasonable -Did it cover all that it should have Requires reasonable warnings about foreseeable risks (same as Negligence)— does not use imputed knowledge approach Can divide products liability world into categories 1) negligence—looking at conduct of D (state of the art approach) a) knew b) should have known 2) negligence—looking at product of D (imputed knowledge) c. Vassalo v. Baxter Healthcare Corp. (silicone breast implant ruptured & caused a lot of health problems including immune system deficiencies—P complaining b/c didn’t receive adequate warnings, the warnings came in box given to Dr., but not delivered directly to P) i. Massachusetts doesn’t actually have a SL law, instead they use Implied Warranty of Merchantability (IWM)—felt that § 402A & IWM were redundant so declined to adopt § 402A ii. State of the Art approach is adopted—courts feels that it is the majority rule & feels that it is more fair 14 Rostron If warning is state of the art for the time when it is made, you have included everything that a person at that time in that business would have 1. Courts feel this is more fair d. Burden Shifting Approach (in between ―state of the art‖ approach ad ―imputed knowledge) (is SL) a 3rd approach i. P must prove failure to warn about a risk, then ii. D has burden of proving it neither knew or should have known about the risk at the time 1. basically the same as the state of the art approach, but shifts burden to D instead of P e. MO uses state of the art approach, made it an affirmative defense i. Puts burden on the D—essentially is the burden shifting approach ii. Originally MO courts emphatically adopted the imputed knowledge approach, but MO legislature instituted by statute state of art approach (essentially is burden shifting) the next year 1. this arose out of a case where a plane crashed in 1986 2. MO Supreme Court was in favor of imputed knowledge, if we have SL then have it across the board 3. 1987 the legislature overruled this decision 18. Adequacy of Warnings (not standard identifiable way to determine, varies state to state & case by case) a. Steps – Adequacy of Warnings (he made this up it is not an exact thing, but major points) i. Decide if anything is wrong w/ warning 1. Content: many not include factual information (not mention toxic, flammable, etc.) 2. Clarity: if not understandable, it does no good 3. Intensity: strong enough, appropriately scares people, degree/severity of danger 4. Conspicuousness: format of warning, location, placement on product, appearance, size ii. Decide if flaw is significant enough for liability to be imposed 1. compare advantages & disadvantages of enhanced warning 19. Actual Causation for Warnings a. Elements i. P’s injury was caused by the product (burden on P) ii. An adequate warning would have prevented injury (changed someone’s conduct) (could change conduct of P, P’s employer, P’s family member, doesn’t matter) 1. most states have heeding presumption: if the better warning had been given the P would have heeded it & the injury would have been prevented a. it is Rebuttable by D b. basically has effect of putting burden on D c. used across the board for N, SL, warranties d. 3Rd rejects heeding presumptions 1) both steps of causation have burden on the P 2. Policy for heeding presumption a. Testimony is often self serving, so might as well have presumption that would have followed warning instead of allowing people to lie about whether would or not 1) Possible alternative 1. switch fro subjective approach to objective approach a. would an adequate warning be followed by an ordinary, average, reasonable person? i. P not under pressure to give self-serving testimony ii. D does not look as bad iii. D does not have to bring in bad character testimony that would normally not allowed in b. However may impose liability on D’s where cause may not have been the problem c. Burden on the Defendant iii. For SL: proximate cause question should be—are the type of harm & the sort of person reasonably foreseeable to us today? iv. Third Restatement: No heading presumption – they don’t want it too easy on the Plaintiff b. Karns v. Emerson Electric Co. (Uncle cut nephews arm off w/ weed whacker, when blade attachment struck object & bounced back, warning about bounce back located in manual, but not on product) i. Court determines that adequacy of warning was factual question for the jury 1. some experts say that this doesn’t qualify as warning b/c was an instruction ii. Policy: 1. don’t want to over-warn people (ex: terror alerts) b/c then people begin not to pay attention 2. worry that there is always a presumption that warning was inadequate b/c of injury to P c. Nowak v. Faberge (Aqua-Net hairspray, teenage girl punctured can in same room as stove, ignited, argument that b/c had changed packaging to comply w/ government standards & tried not to make package look different didn’t put large enough or enough warnings about flammability of product) i. Jury finds that warning was not adequate, too small, not strong enough Rostron 15 iii. Design defect claim, argued became clogged & it was defect, D argued wasn’t foreseeable that people would puncture can to get product out 1. Court determines that risk was foreseeable b/c the company had warned not to puncture can b/c contents under pressure iii. Indifference to safety on part of Aqua Net 1. some evidence that consumers not realized the product had been changed 2. marketing dept. tried to make look the same d. Ayers v. Johnson & Johnson Baby Products Co. (15 month old baby inhaled baby oil that had been put into another container & was left in purse on floor of sisters room—baby died, no warning on bottle that aspirating baby oil can kill you) i. Case illustrates importance of heeding presumption b/c case presented causation problems b/c had been placed in different packaging, etc. 1. mother stated that if there had been warning about inhaling baby oil that would have kept it up high & warned daughter to do the same a. mother seems to heed risks, but no indication that daughter would, has to rely on mother to give warning to daughter ii. any product containing hydrocarbons now has to have a warning on it by federal mandate—includes baby oil e. Michael c. Warner/Chilcott (guy took sinus medication for several years & caused kidney failure, package had warning saying not to take for long periods of time—guy eventually developed kidney failure from prolonged use) i. Warning said ―may cause damage‖—court said use of MAY was not strong enough & found liability f. Murray v. Wilson Oak Flooring (guy used floor adhesive in another room & did not extinguish pilot light in other room—caused fire) i. Court said that b/c warning said do not use NEAR pilot light it wasn’t specific enough 20. Open & Obvious Danger Rule a. General Rule: no duty to warn of dangers that are already known to the reasonable consumer i. Judge decides if danger is open & obvious enough ii. Two rules dealing w/ obviousness 1. in design defects cases, obviousness is just a factor when considering liability—not dispositive 2. warnings—no duty to warn about risks that are obvious or generally known a. concerns deal w/ 1) too predictable 1. how obvious does it have to be 2. how to apply it 2) too P-biased 1. bias of hindsight for P b. Rationale: there can be no causal link b/w a failure to warn & injury if the danger is already known to the consumer— danger may be known if the risk of product is a matter of common knowledge (but may be a duty to design something more properly) c. Brown Forman v. Brune (underage drinker died after consuming large quantity of tequila w/in a relatively short period of time, sued tequila manufacturer & said that tequila contained a marketing defect b/c it was unreasonably dangerous b/c didn’t have warning or instructions for appropriate use) (SL & N claim) i. Court held that there is not duty to warn for risks that are open & obvious danger rule ii. Some courts have incorporated the open & obvious danger issue into their product liability statutes iii. Causation in this case is also missing—not realistic to think that if daughter would have read warning it would have changed her behavior iv. Federal government required alcohol manufacturers to put warnings on containers 1. if they did this, they were relieved under state law to have to give any other warnings a. pre-empted tort claims b. Cipollone—this was case that did this d. 3Rd i. no duty to warn about risks that are obvious & generally known 1. this is burden on the P, not an affirmative defense 2. this is an objective test e. Spruill v. Boyle (14 month old child died from drinking furniture polish that was cherry-red color) i. Court found in adequate warning b/c manufacturer should have known product would be used in the home & there is risk of children consuming them f. Bean v. BIC (fire started by kids playing w/ lighter) i. Court held that summary judgment couldn’t be granted in BIC’s favor b/c even though lighter said ―keep away from children‖ it still may have been inadequate b/c they didn’t warn about attractiveness to kids, that kids could easily operate, or that serious dangerous fires have started by this play g. Kelly v. M. Trigg Enterprises (P injured while riding in their car when struck by driven by girl who was under influence of Ethyl, product was kept behind counter, & girls got someone who was of age to buy for them) ii. Rostron 16 Foreseeability is at issue here—court said there was a genuine issue of material fact w/ regard to foreseeability & it was reversed ii. D’s say not liable b/c product used in an unforeseeable & misused way 1. court thinks it was foreseeable but ultimately agrees that warning claim should be dismissed a. there were warnings not to inhale & girl didn’t heed them 1) foreseeable use b/c 1. evidence that it was commonly used as inhalant 2. some things are used by teen frequently as inhalants 3. name made it sound like inhalant 4. must show proof of age to buy air freshener—kind of strange 5. slang name of poppers 6. air freshener is sold in places w/ drug paraphernalia iii. to win, P’s would have to say actual use of Ethyl was an inhalant, calling it air freshener is just a pretense h. Morgan v. Faberge (cologne manufactured by Faberge, was 80% alcohol, girl burned when cologne caught fire when poured on a candle—case cited b/c people can’t believe that damages awarded in case) i. Negligence claim bought—need to show that was foreseeable—able to do b/c it was 80% alcohol & is always foreseeable that alcohol could cause fire ii. Determined negligent b/c there was no warning iii. Dissent says this is ridiculous b/c clear misuse i. Trivino v. Jamesway (cosmetic puffs were put on costume & caught fire) i. Court didn’t think this was a foreseeable misuse j. Silman v. ALCOA (eye injuries by consumers using pilfer proof band, P removed band from soda w/ pliers & the cap exploded hitting in eye) i. Liability b/c evidence introduced that ALCOA had actual knowledge of consumers using tools to remove cap k. Henry v. GM (illiterate guy put jack in wrong place under car & fell on him, warning in car manual & not in truck, under hood of car but covered w/ grime, instruction on jack that referred to owners manual, sues GM b/c thought warning was inadequate) i. P wanted instructions in way that P could understand—able to understand for illiterate people ii. Court said no duty to give instructions in way P can understand, instead P had duty to get them read to him l. Ramirez v. Plough (aspirin given to baby which caused Reye’s syndrome, argued that b/c company advertised in Spanish to high immigrant areas that should have duty to warn in Spanish also) i. No duty to warn in languages other then English by FDA regulations—court therefore didn’t require warning ii. Some courts have gone other way saying do need to give warning in way people can understand iii. Rule now that if give directions in Spanish—have to do everything on package in Spanish 21. Bulk Suppliers Doctrine a. Hoffman v. Houghton Chemical Corp. (explosion in ink factory due to failure to property store chemicals & failure to properly follow safety precautions, spark ignited chemicals—company supplied sheets describing proper handling & use were supplied to company) i. Bulk transfer doctrine: notion that you use the chain to pass warning on to people who will ultimately be using the chemicals are one who need warning (essentially a reasonableness question) ii. Sophisticated User Doctrine: no warning needed b/c end user is sophisticated enough to know how to properly use product (was it reasonable to think didn’t need warning b/c factory adequately training workers) iii. Court adopted bulk supplier doctrine as affirmative defense—limits holding to products actually sold in bulk 1. policy behind limitation a. packaging changes (product likely to be repackaged, put into smaller containers) b. bulk products have a diversity of uses (product could be additive in variety of products) iv. Reasonableness tests: (apply to N, SL, Warranties, 3Rd) 1. was it reasonable to trust that the intermediary would pass on the warning 2. was it reasonable to think that your warnings were unnecessary v. 3Rd uses 3 factor test to determine reasonableness (found in comments) 1. severity of risk 2. likelihood that the intermediary will pass on warning to end users 3. feasibility of giving the warning in some other way than through the intermediary 22. Post-Sale Duty to Warn a. Lovick v. Wil-Rich (guy transporting cultivator properly, w/ wings in upright position, when went to lower wings got under machine & wing fell on him b/c hydraulic system holding wing up had failed, manufacturer became aware of problem & tried (not very hard) to get information to consumers) i. Court had to decide if 1. point of sale warning was adequate 2. Whether post sale warning is adequate ii. Court rejected the 4 restatement factors 1. supplier knows or should have known that product posses substantial risk of harm to persons; and Rostron 17 i. those to whom a warning might be provided can be identified & reasonably be assumed to be unaware of risk of harm; and 3. a warning can be effectively communicated to & acted on by those to whom a warning might be provided; and 4. the risk of harm is sufficiently great to justify the burden of providing a warning iii. Court adopted R3d § 10 iv. Courts are reluctant to impose very strong post sale warnings 1. Policy: a. Costly b. Manufacturers reluctant to improve products c. Manufacturers make products less durable d. Let legislature handle this 2. degree of difficulty will depend on the product 3. court draws distinctions b/n two different kinds of situations a. where the product turns to be more dangerous then anyone initially thought b. product was reasonably safe when made, but have learned ways to make it even safer 1) more reluctant to impose warning in this 2nd situation 4. KS not duty to recall ever 5. Mo said might require, but not done—would depend on product & facts b. WI case (manufactured machine for sausage stuffing & made safety feature that would release pressure, was an option you could get added on to machine—didn’t advertise or try to sell this feature) i. How far back does duty to warn go? 1. very fact driven analysis 2. KS has 8 factor test—some of them are a. Degree of danger b. Practicability of giving warning c. Timing—if short term use product, probably not required d. Draw distinction between 1) Where surprised something went wrong AND 2) Where technology came along & now product is safer (not as likely to impose) c. things to know i. whether the duty to post-sale warn exists is a question of law for judge, then up to the jury to determine whether they breached their duty 1. have analyze duty at each level of the chain (duty may not be required at one level, but is at another) a. analyze separately for each seller b/c it’s negligence 2. duty can continue even if you no longer manufacture product 3. may have something that is not foreseeable at the time of the sale, but may kick in later & then have a post sale duty to warn 4. still may have duty to warn even after no one using product anymore (ex: products that cause cancer) Negligence Strict Liability Warranties 3Rd Most courts have held that duty to (courts generally have no developed § 10—reasonable person exercise reasonable care can include duty post-sale duties under strict would give warning if: to give post sale warnings liability/warranties law) 1) knows or should know product poses substantial risk 2) can identify people Warnings unaware of risk 3) can be effectively given & acted upon 4) risk is great enough to justify cost/burden *must satisfy all 4 factors Most courts have not required recalls or (courts generally have not developed § 11 – Liability only if: retro-fits unless: post-sale duties under strict 1) fail to do recall ordered by 1) fail to do recall ordered by government liability/warranties law) government OR 2) fail to use reasonable care in doing 2) fail to do reasonable care in doing voluntary recall Misc./Other voluntary recall (this is a little controversial that it will deter recalls) (in truth, R3d says not really voluntary anyway, just trying to do it before government does it)—(not a big enough effort to notify everyone) 23. Allergic Reactions to Products & Duty to Warn a. General Rule: duty to warn about allergic reaction arises only if: (applies to N, SL, warranties) Rostron 18 2. i. Substantial number of people are allergic ii. Presence of ingredient is not generally known to consumers iii. Presence of ingredient is known or should be known to D b. How many people is substantial number i. depends on severity of allergy—less people = substantial ii. 1/1000 is probably enough iii. 1/1,000,000 is probably not enough c. 3rd Substantial number i. not precisely quantifiable ii. must be suffered by more people then just P iii. depends in part on the severity of the reaction d. 1/20,000 is probably not enough e. Livingston v. Marie Callenders, Inc. (guy informed restaurant that he was allergic to MSG & asked waitress if had in soup, waitress said no, ordered, ate, & had severe reaction) i. Why failure to warn, when it seems like she outright lied—wasn’t definitive enough ii. Court determines issue can go to jury iii. State of art to warn claims 1. really a negligence approach 2. judges was trying not to abandon strict liability, so can’t really distinguish between negligence & state of art approach f. Duty to warn about allergic or other idiosyncratic reactions if: 1. Substantial number of people are allergic 2. Presence of ingredient not generally known to consumers 3. Presence of ingredient is known or should be known to defendant g. Can also have other claims i. Misrepresentation (tell you something in there when it’s not) ii. Manufacturing defect (candy bar contaminated by peanuts) 24. Learned Intermediary Doctrine Negligence Strict Liability Warranties 3Rd § 6(d) Learned Intermediary Rule (recognized in all 50 states) Learned Intermediary Rule  Duty to warn of dangers in the prescription drug context Exception: must warn patients if you runs from manufacturer to the Dr. know or should know health—care  The Dr. then has the obligation, as part of Dr.-patient providers will not be in position to Warnings— relationship, to warn the patient Prescription Drugs & o Basis of challenge is generally insufficient warning reduce risk Medical Devices  Comments say includes vaccines to physician No Position on: Exceptions recognized by SOME courts: 1)Vaccines in mass immunizations  Oral contraceptives & IUD’s 2) Oral contraceptives & IUD’s  Products advertised to consumers 3) Products for which FDA required warnings to consumers  Products for which FDA requires 4) products advertised directly to consumers warning to consumers 1st products to be made into exceptions i. Immunizations (1st exception, polio 1960’s) 1. don’t want people to know risks of immunizations—want people to get b/c good for society 2. no real Dr.-patient interaction ii. Oral Contraceptives & IUD’s (2nd exception, 1980’s) 1. Not something people have to have—elective (more patient input) 2. Product taken for long time 3. FDA issued requirement that warning be included w/ product Ways to Bring Claims i. Dr. didn’t have enough information to warn ii. Dr. did know & didn’t warn iii. Or try to get exception to add additional way of information Warnings given to Dr.’s by i. Pharmaceutical reps ii. Written letters to Dr’s iii. Advertise in medical journals iv. Sample products w/ warnings Policy for sticking w/ Learned Intermediary i. Whether DTC (direct to consumer) warnings may interfere w/ Dr.-patient relationship 1. depends on what your view of the Dr.-patient relationship is 19 a. b. c. d. Rostron a. old—Dr. knows best b. new—patient takes assertive, active role in relationship 2. some indication anecdotally makes patients more assertive (Phen-fen) a. this could be bad or good, depending on your view 3. who would the warnings be more effective coming from—Dr. or manufacturer 4. whether there are effective ways for drug manufacturers to give warnings DTC a. where can manufacturer put warning 1) sold to pharmacists/packaging often changes 1. w/ technology more advancement in ways to get information 5. whether warnings to the patients are going to be useful or not since medical information is complex (have to give warnings in comprehensible fashion) e. Causation is left up to the jury f. Edwards v. Basel Pharmaceuticals (guy wore 2 nicotine patches & smoke, OD on nicotine causing heart attack & died, in package warning indicted that it MIGHT faint, warning to Dr.’s was good & strong warning, this was a huge difference) i. Court decided guy has a claim b/c compliance w/ FDA warnings does not preclude liability ii. Meeting minimum FDA standards does not mean adequate g. Perez v. Wyeth Laboratories (Norplant case, company did a lot of advertising & didn’t warn about dangers) i. Wanted to avoid learned intermediary theory, so argued that should be exception for products advertised directly to consumers 1. manufacturer said bad to require warnings b/c a. would interfere w/ Dr.-patient relationship b. raise of managed health care c. which means of warnings patients is more effective h. Post-sale warnings for prescription drugs i. Courts are not reluctant to impose this duty 1. easier for them to do then for other manufacturers—know who Dr’s are who know who patients are 2. manufacturers have an on going duty to warn under FDA—not that much of extra burden to impose i. Other ways (besides learned intermediary) in which prescription drugs are different w/ warnings, others are: i. State of art ii. Imputed knowledge (small minority who use this will not apply to prescription drugs) iii. Duty to give post sale warnings iv. Claim that type of drug has been over-promoted 25. Learned Intermediary Rule – Negligence, Strict Tort Liability, & Warranties a. Similar to bulk transfer doctrine in industrial settings. In bulk transfer the test was reasonable & case by case, BUT here there is more of a general rule with categorical exception b. KS applies this rule & does not use exceptions, MO does c. Drug manufactures don’t have to give warnings to each individual patient; they just have to give them to the Doctor. i. It is sufficient to give warnings to health care providers, rather then directly to patients d. Exceptions: these are recognized by SOME courts: i. Vaccines administered in mass immunizations ii. Oral contraceptives & IUDs 1. The patient initiates, not really a necessity, the patient has more of an input 2. More of a traditional consumer, not really doctor/patient relationship iii. Products for which FDA requires warnings to be given to consumers iv. Products advertised directly to customers e. What can you do if you bring one of these suites? i. Medical malpractice ii. There should be direct warnings as well. Falls within one of the exceptions discussed or the court should expand. 26. Third Restatement - Section 6(D) – Learned Intermediary Rule a. Exception: must warn patients if manufacturer knows or should know health care providers will not be in position to reduce risks i. Includes vaccines in mass immunizations ii. They did not take any position on the other three exception discussed above in the old methods of negligence, strict tort liability, & warranties 27. Design Defects—Unavoidably Dangerous Products in Prescription Drugs a. Freeman v. Hoffman-La Roche, Inc. (P proscribed Accutane & alleged it caused her life threatening conditions—more dangerous then necessary b/c it was an acne medication) i. R2d § 402, comment k—products out there that are dangerous but okay b/c it’s still a worth while product (Ex: Rabies Vaccines) ii. Court rejects previous use of blanket immunity & adopts case-by-case test 1. P has met the burden to allow claims to go forward Rostron 20 General Negligence Strict Liability Warranties Fault required Strict Liability Strict Liability Liable if: 1) product could have been made safer at time of sale OR 2) product’s foreseeable risks exceeded its benefits 4 Approaches/Theories:  FDA Approval—no liability if drugs is FDA approved (policy: drugs are so special that no liability at all) o FDA says that their regulations is the bare minimum that manufacturer must do (view has shifted slightly)—Most pro P  Blanket Immunity (initially was majority view) o NOT having SL for design defect in drugs (all drugs treated as unavoidably unsafe = can’t be defective o Can have liability for negligence  Case-by-case (essentially a risk-utility)—(now majority view)—(MO) o Weigh risks & benefits of drugs trying to decide which drugs are unavoidable unsafe & which are more unsafe then necessary o Most courts treat this as an affirmative defense—must prove 2 things  1) drug made as safe as possible AND  2) is it a product where benefits justify risks (ex: rabies vaccine)  if D proves both = no liability—unavoidably unsafe o no negligence claim  if can’t prove both go back to regular products liability law—defective, negligence, & warranties, etc.  No special rules for drugs, treat like any other product—bring any claim o Most pro D Prescription Drugs & Medical Devices 3Rd § 6(c) Reasonable Alternative Design Liable if foreseeable risks are so great, compared to benefits, that no reasonable healthcare provider would prescribe it for any class of patients * ―any class of patients‖ is what makes this test yield sometimes strange results  Only things that can be considered for reasonable alternative design are things that are on market & currently approved by FDA (b/c FDA approval process takes so long) Gives manufacturers a complete defense all have to say is that they hadn’t developed it yet o Ex: Hemophilia concentrated blood treatment  Design Defects for Prescription Drugs & Medical Devices b. Negligence, Strict Tort Liability, & Warranties Third Restatement 1. No liability if FDA approved it Section 6(C) 2. Blanket immunity Approach Liable if … Foreseeable risks are so great, -Treat all drugs as ―unavoidably safe‖ no strict liability Compared to benefits, that no reasonable -No strict tort liability or warranties claims allowed for a any drugs  Health–Care provider would prescribe i. Plaintiff must try to prove negligence It for any class of patients 3. Case-By-Case Approach -This test is completely new to the -Affirmative defense 3rd Restatement -Defendant can try to prove that the drug was ―unavoidably safe‖ -Pro Defendant provision 1. It could not have been made any sager at the time -Class of Patients Approach because it is 2. It benefits justified its foreseeable risks Limited by prescription -If defendant proves drug was ―unavoidably safe‖  -Important difference: Normally we are i. No strict tort or warranties claims Not limited to comparing things just ii. Negligent design claim is theoretically possible, but seems very On the market, we can look down the unlikely to work Road: HERE § 6(c) you can consider -If defendant CAN’T  Drugs that were on the market at the i. Plaintiff can bring any type of claim Time of the manufacturing of the drug. 4. No special rule 3Rd—can produce unusual results when applied i. Accutane 1. causes birth defects if taken by pregnant women—Dr.’s supposed to do pregnancy test before giving it to women (voluntary participation in program) 2. Hypo—if accutane were only 2% more effective then other acne medications a. Under N, SL, & warranties would be defective b. 3Rd—there would never be liability b/c could be prescribed to men w/o causing birth defects (―any class of patients‖—hard b/c a drug will almost always be beneficial for some class of patients) ii. Thalidoide 1. sedative that was found to help w/ morning sickness—marketed as completely safe even though no testing had ever been done 21 Rostron 2. 3. 4. 5. 28. Misrepresentations FDA very reluctant to approve for use in US, drug company getting mad & said FDA unreasonable b/c selling all over rest of world eventually found out leads to major birth defects Biggest credit for FDA for not approving it for sale in US Drug is now approved & used in US but only for treating Hanson’s disease (Leprosy) Misrepresentations Negligence Negligent Misrepresentation  Misrepresentation  About MATERIAL fact  Made negligently  Someone justifiable relied on it being true (doesn’t have to be P that relied, just has to change decision somehow) o Can’t disregard common knowledge or common sense  P harmed b/c of that reliance Warranties § 402B UCC § 2-313  Liability even if innocent  Express Warranty misrepresentation (adopts  Strict Liability theory of Baxter)  not always best for P, due to SOF, SOL, etc Strict Liability: covers even innocent misrepresentations as well as N or fraudulent ones Uncertainties—not a lot of case Unique aspects law about § 402B: (1) covers ―any affirmation of (1) ―makes to public‖ covers fact‖—not just material facts only representations made to (2) requires representation to be ―part general public (?) of basis of bargain‖—does not (2) ―ultimate user‖ covers only require ―justifiable reliance‖ injuries to consumers—What (something more then basis of about bystanders (?) bargain‖—courts have a hard time (3) omits the use of the word defining when something is the basis property—covers only harm to of the bargain…but, definitely people—not property (?)— something < than justifiable reliance. different wording then § 402A - ―was it a term of sale?‖ is the question…does not matter if buyer even knew about it Strict Liability 3Rd § 9 § 9—P can recover  Tort law—same as § 402B  Contract law—UCC warranties Unique aspects - not really unifying like other areas of 3Rd—only allows recovery for tort of contract law Clarifying law Uncertainties: (1) Doesn’t have to be made to public (2) covers anyone—including bystanders (3) covers property harm a. b. c. Intentional Misrepresentation/Fraudulent Misrepresentation i. D know it is false (or recklessly disregards the truth) ii. D intends for someone to rely on it iii. Need the rest of elements from negligence 1. Negligence Elements a. Duty b. Breach of Duty c. Causation 1) But for 1. substantial cause 2. minority rules a. market share 2) Proximate/legal cause 1. foreseeability a. nature of harm b. thin skull rule c. second injury rule d. superseding intervening cause e. termination of risk f. comparative probability d. Damages 1) To person or property 2) Types of damages 1. nominal 2. compensatory 3. punitive Cunningham v. CR Pease House Furnishing Co (1908) (woman bought stove blacking & asked salesman if could be used on hot stove, he replied ―the hotter the better‖, stove exploded when daughter used blacking on hot stove) i. Court said privity was not required—were going to treat as though mother was the one harmed Baxter v. Ford Motor Co. (1934) (Pebble struck windshield which shattered & P lost eye—upset b/c Ford advertised that all new Fords had this super glass which wouldn’t shatter & had advertised feature heavily) i. Strict Liability—was a blatant misrepresentation so there is liability 22 Rostron ii. Liability for even totally innocent misrepresentations Bargaining for Safety i. American Safety Equipment Corp. v. Winkler (D made 2 types of helmets—1 for general use & 1 for motorcycles, packaged in same box—Police dept. purchased both & after worn out, put in box & allowed officers to just take them (painted different color to tell difference)—P took general use helmet & wore on motorcycle—injured) 1. Court said no justifiable reliance b/c P had been trained at the police academy that certain colors of helmets were fore certain activities—can’t now claim that he relied on the picture on the box (b/c came in same packaging) when hadn’t been issued helmet in box & had been trained to tell the difference 2. RULE: can’t disregard common knowledge or what common sense tells you 29. Intentional Misrepresentations a. Intentional Torts – first area of products liability that mentions intentional torts i. Two types of intent 1. desire for things to happen a. not often going to happen in products liability 2. knowledge of substantial certainty a. where you threw a rock, you were substantially certain it would hit something, even if didn’t know exactly what b. Misrepresentation i. Material fact ii. Knows it’s false OR recklessly disregards truth iii. Intended for someone to rely on it iv. Justifiable reliance v. Causes harm c. Crocker v. Winthrop Laboratories Division of Sterling Drug, Inc. (P prescribed Talwin (pain killer) told it had no addictive side effects—went to rehab, got out & got injection of another pain killer OD & died) i. Abreaction: very unusual/severe reaction that people develop to product—extremely rare 1. P developed on of these to drug—drug company had told Dr.’s that it was ―as harmless as aspirin‖ ii. Warning claim failed—wasn’t proof of negligence b/c weren’t unreasonably careless iii. Misrepresentation—was liable for ―as harmless as aspirin‖ statement iv. SL—strong consensus that should have SL for manufacturing defects & misrepresentations b/c is clear standard 1. Ex: statement was true or false, product was or was not defective v. Design defects—not a consensus b/c not a clear standard vi. Warnings—not a consensus b/c not a clear standard d. Puffing i. Ladd v. Honda Motor Co, Ltd (12 yr old injured on ATV, father sues distributor, bike owner, & manufacturer—father claims allowed son to ride bike b/c saw kids riding on commercials—Honda claims was different model in commercials) 1. Puffing claim—Honda said showing kids riding was just puffing a. Factors to consider for puffing: 1) Fact v. opinion (can’t prove opinion false, so can’t be misrepresentation) 2) Specificity—more specific the more factual 3) Verifiability—is it something that can be corroborated & checked 4) Relative knowledge of parties—court more likely to treat as fact if seller knows a lot about it & can tell that buyer doesn’t—if mutually observable then have equal knowledge 5) equivocal phrasing—look at way it’s worded 1. Ex: it will not break v. it should not break 2. sellers often try to state things pretty equivocally so can’t be pinned down b. court dismisses puffing defense—says it was not puffing 1) hard to tell model’s apart, not fair to hold no liability unless models are extremely different 2. Reliance—Honda says no evidence that father relied on advertisement to buy bike a. Court says doesn’t matter why bought, just that let kid ride 3. Claim against retail dealer—have to look at each part of chain—see role in misrepresentation a. If Honda runs national ad—dealer not liable b. If Honda makes ad & dealer can use locally, then would be liable ii. Collins v. Wayne Corp. (church went on ski trip on ―activity bus‖ that in brochure stated was in compliance w/ highest safety standard for ―school buses‖—got in accident—D claimed that was puffery) 1. court said was just puffing & only applied to school buses, not activity buses d. Rostron 23 Hauter v. Zogarts (mom bought golf Gizmo for kid (golf ball on string)—said it was ―completely safe ball will not hit player‖—ball flew back hit kid in head, caused brain damage, experts said extremely unsafe product, D said was just puffing) 1. Meaning of claim, could depend on how read, where you place punctuation a. Could mean if hit ball correctly it will be completely safe b. Or that no matter how hit ball it will be completely safe 2. argument that should get rid of reliance b/c just encourages people to lie a. father said was impressed by safety of product iv. Halbrook v. Honda (guy driving motorcycle too fast, hit people in car, 2 kids & motorcycle man died, P’s claim Honda ads misrepresentation b/c encourage young kids to drive too fast, Honda made bikes too fast) 1. court said ads are too vague—no recovery 30. How Misrepresentations Can Effect Design Defect Claims (claims about product/name of product negate warning) a. Maize v. Atlantic Refining Co. (woman cleaning carpet w/ product that was to be used in well ventilated areas, died b/c chemical cause liver & kidney failure, product called ―Safety-Kleen‖—argument that name was deceptive) i. Court found for P b/c name of product implied it was safe (essentially a misrepresentation)—was also inadequate warning b/c not prominent enough b. McCully v. Fuller Brush Co. (supposed to dilute in 1 gallon of water, P didn’t follow directors & product burned hands) i. Court found for P b/c product also said it was ―kind to hands‖ (misrepresentation) c. Brown v. Glaxo, Inc. (P taking Imitrex injection, began having side effects of chest pain, eventually had heart attack & eventually died—drug company had written brochure saying could cause heart attack, but drug reps told Dr.’s that chest discomfort/pains were not coronary in nature) i. Court found for P’s b/c sales rep’s statements negated the warning 31. Alcohol Advertising/Claims for Nullification & Misrepresentations a. Nufflification Theory: a manufacturer is liable for injuries caused by a products known dangers if the manufacturer through advertising representations, unrealistically minimizes the known dangers or implies that the dangers do not exist (measured through objective standard) b. Gawleski v. Miller Brewing Co. (inmates sued Miller saying that ads were proximate cause of their alcoholism b/c the ads nullified dangers of alcohol b/c portrayed alcohol as being happy, fun, successful, etc.) i. Court rejects claim b/c showing beer in positive light doesn’t negate common knowledge c. Hon v. Stroh Brewing Co. (guy died at 26 of Pancrentitis caused from drinking 4 beers/night 4 times a week) i. Issue: most people don’t realize can die from even moderate drinking over prolonged period 1. D moves for summary judgment ii. Court determines that widows action survives SJ & can go to jury to decide if liability exists b/c ads negated risks associated w/ alcohol d. Malek v. Miller Brewing Co. (17 yrs. old in car accident after drinking lite beer, ads implied lite beer was less intoxicating—failure to warn about dangerous of drinking & driving) i. Majority said not a valid misrepresentation claim ii. Dissent said is good claim b/c some people think lite beer is less intoxicating e. Seagram & Sons, Inc. v. McGuire (alcoholics suing Seagram’s b/c didn’t warn them about symptoms of alcoholism & if would have known, would have gotten help) i. Court dismissed claim said no duty to warn or instruct f. Class Action Against General Mills (claim that cereal is really candy b/c 5 of their cereals were 40-55% sugar, advertisements said part of well balanced breakfast, make you bigger, stronger, happier) i. Manufacturer argued no justifiable reliance b/c parents buy & they are not influenced by ads ii. Lower court—threw case out b/c said it was puffing iii. CA S. Ct.—said valid claim iv. Case ultimately settled iii. REVIEW TABLE Manufacturing Defect Design Defect Inadequate Warnings Misrepresentations Negligence N Manufacture N Design N Failure to Warn N Misrepresentation Strict Liability § 402A § 402A § 402A § 402B Warranties Implied Warranties of Merchantability (UCC § 2-314) Implied Warranty of Fitness for a Particular Purpose (UCC § 2-315) Express Warranty (UCC § 2-313) Mis. Other Rostron N Entrustment N Distribution 24 Seller remains liable under negligence law for 3Rd § 2(a) § 2(b) § 2(c) §9 N Repair g. mis. Other product related behavior What is not in table i. Manufacturing Defects in Food 1. Modern special test—what a consumer would reasonably expect to be in there ii. Design Defects for prescription drugs & medical devices iii. Special areas of warning claims 1. sophisticated buyer 2. learned intermediary 3. post-sale warnings iv. for warnings, one important rule is that you don’t need to give a warning if a danger is obvious or well-known v. some of the states use the heeding presumption, sometimes the burden of proof is shifted that an adequate warning would have been ―heeded‖ 32. Common Defenses/Damages a. Even if this is true, it was plaintiff’s fault too b. Heuristics—rules of thumb that people use to get through their daily lives (don’t really know why this is here) i. People will under estimate risks if they get some positive feelings about something c. Comparative Fault/Assumption of Risk v. Comparative Fault (pure v. modified) Negligence Strict Liability Warranties 3Rd This is what was used prior to Contributory Negligence Contributory Negligence No old rules 1960’s in the majority of cases. -Writers of § 402A determined -Majority did not apply to that contributory negligence warranties should not apply to SL OLD Contributory Negligence -P who fails to use reasonable care, -B/C not about the ∆ being at Assumption of the Risk & that P’s action is an actual & fault so didn’t care if Π was -If someone assumes the proximate cause of the injury either risk, D should have a -this is a total defense—P has no defense (allowed as liability at all, even if P was slightly Assumption of the Risk defense for SL) N -If someone knows about the -This was a total defense defect & goes ahead—is defense for D (allowed as defense for Implied Assumption of Assumption of the Risk SL) Risk -P voluntarily encountered a known risk Implied Assumption of Risk -Total defense Implied Assumption of Risk -Know something is dangerous & do it anyway Comparative Fault (negligence): -Instead of being an all or nothing rule it uses % allocation for liability NEW Implied Assumption of Risk -must courts merge w/ comparative fault -pure comparative fault: (P can always recover something)—only 1/3 of statue sue this (very pro P) (MO follows this) -Mo initially said no to -Modified Comparative Fault: at comparative fault for SL, but some point P fault is so high, that P legislature stepped in & made gets nothing (KS if P’s fault is = to comparative fault standard for D, no recovery) SL d. Other Types of Situations that Strict Liability may exist besides just products i. Owning wild animals – ie tigers ii. Abnormally dangerous activities – ie blasting with dynamite e. Economic Loss Rule i. Limits the amount of loss you can have w/ tort claims—ensures tort law & contract law have boundaries ii. A defense in the loosest sense, not literally a defense iii. The types of injuries that may result: bodily, other property, property itself , & other economic losses Comparative Fault: -Swallows Assumption of Risk (like negligence) -Daly v. GM (guy drunk driving gets in accident & dies, family sues b/c said that door latch defective)—court decides that assumption of risk of mergers w/ comparative fault Comparative Fault: -adopted comparative fault for warranties -same as SL & N Comparative Fault: -§ 17 adopts comparative fault -doesn’t take stand on pure v. modified comparative fault -can’t recover if doing serious illegal or immoral act Injury Rostron Negligence Strict Liability 25 Warranties 3RD 1) personal injury 2) Economic Lass resulting from personal injury 3) Damage to property (other then product itself) 4) Economic losses resulting from damage to property other then protect itself 5) damage to product itself 6) economic losses resulting from damage to product itself 7) Pure economic loss §1 § 21(a) §1 § 21(c) Economic Rule To (can never recover this) Loss Applies These (can never recover this) X X X X = economic loss rule applies * can only recover under economic loss rule for 4 boxes (in lines 5 & 6)—if have injury in category 1 or 3 (allows recovery in categories 1 -6) *Boxes 1 & 7 are mutually exclusive, in have 1 or 7 can’t have the other f. Disclaimers Negligence Strict Liability Warranties 3rd § 18 Disfavored: may allow if NEVER ALLOWED *Easy to disclaim  Definitely no waiver warranties  Very clear for tort claim for Void as against public harm to person for  Understood by P policy Generally allowed— new (v. used)  Have to consider against anyone in World, product each person * You can never waive not just purchaser (can’t  Can for used separately strict tort liability be conscionable) products (does not effect others) -Whose claims does it Waivers & Disclaimers P could just come in &  Leaves questions block? If effective to the say didn’t see it or about used products purchaser, then effective understand & harm to to all. Even if they did propensity, etc. not see the disclaimer Only have waiver on case-by-case basis -can be effective even if (person by person) person just didn’t read it *Middle of the road, it UCC § 2-318—section would have to be very that describes clear & understood that it alternatives for who can was seen by the injured make warranty claim… person. A—Narrowest (this is *Pass a public policy test MO) *in most consumer B—Broader than A situations it would not C—Broadest pass g. Statutes of Limitation i. Need to know: 1. how many years you have to sue under statute 2. whey your cause of action accrues a. what makes time begin to run 1) usually when the injury occurs/sometimes when you become aware of injury 2) not dependent on the date of manufacture or sale of item b. different under UCC/warranties—time begins to run on delivery of product h. Statutes of Repose i. Usually limited to 10 yrs.—time begins as soon as product sold ii. Allows manufacturer/insurer to know exactly when claims for product will stop 1. time may have run before ever get hurt iii. only about 3% of claims take 10 yrs. to occur 1. Ex: air plane crashes, pharmaceuticals 33. Liability—who & when a. Joint & Several Liability Joint & Several Liability Joint & Several Liability Rostron Joint & Several Liability w/ Pro Rata Split Joint & Several Liability w/o % fault allocation 26 No Joint & Several Liability MO Rule -Wherever easiest to get money, you can do it, so if get verdict of $3, can get from, Manufacturer (M), Retailer (R), or Dealer (D)—or only 1, rest have to pay none -only state that still does this is AL -Have same as above, but then have 2nd stage -contribution claim, where D’s can sue one another— was pro rata split, so if 3 D’s split 3 ways (4 D’s split 4 ways) -VA, MD, NC all do this Split evenly through the contribution claims 1 state here 3 states here b. Contribution Claims v. Indemnity -Joint & several liability to P & contribution claims but not pro rata split, instead based on % fault -so jury would decide what % liable M, D, R were -would sue one another in contribution claim if 1 paid more then their share -P still allowed to collect from only 1 (M, D, or R— whichever easiest) -Contribution Claims -each D liable only for its % of fault -You could never be required to pay more then your percentage. * There is a push to move to this with the new tort reform & get rid of one ∆ getting stuck with the entire bill even if they are only a % liable -use 50% rule -if 1 D is at least 51%, then stay in column 3, but if below 51% then move to column 4 Joint & Several Liability if more then 51% liable, but ∆ below 50% then only liable for that % Contribution Claim Brought by Brought against To Get Indemnity Strict Liability Negligence Any D paid more then their share Down the chain seller Any D paid less then their share Manufacturer of defective item Partial reimbursement Full reimbursement i. Jones v. Areo-Chem Corp. (D wants to indemnify maker of value on gas can, which would make indemnified party fully liable) 1. The gas can discharged & injured the Π, the ∆ tried to bring in the person who designed the valve 2. Indemnification would be full reimbursement c. Innocent Seller Statutes i. Jackson v. Thomas (P using solvent & brought suit against supplier who purchased solvent in bulk & sold to people requiring smaller quantities, supplier never opened contents—began purchasing from new seller—P developed reaction to new solvent b/c contained higher amounts of chemicals) 1. supplier—court dismisses claim b/c KS has statute saying can’t sue people w/ no knowledge a. pushes liability on to the person who truly should be liable 1) requires that have an innocent seller in situation where P is likely to be able to collect from manufacturer (gives special protection for innocent sellers) 1. if can’t sue manufacturer, can’t dismiss claim—P always has to be able to collect/sue (only applies to SL) a. dismissing innocent seller is inter locketory (not final) b. helps to limit claims b/c don’t need contribution of indemnity claims ii. MO has similar statute d. Ostensible Manufacturers i. Seller removes label of true manufacturer & replaces w/ own label (Ex: banana republic having clothes made by various companies & replace labels w/ their own—most major clothes companies do this) ii. Court said that can be liable b/c will treat as manufacturer if you are going to act like you are one iii. 3Rd § 14 e. Non-Business Sellers Negligence Strict Tort Liability Warranties 3rd Restatement Anyone can be liable Only those engaged in 2-314 Merchants only Only those engaged in Non Business Sellers business of selling that business of selling that product 2-315 Seller with product special knowledge or expertise that buyer is relying on 2-313 Any Seller Anyone can be liable Used Products Anyone can be liable Courts Split Section8: Liable if: 1.Seller is negligent 2.Defective under § 2(A) or 3 & sold so reasonable person expects it to be as safe as new 3.Remanufactured 4.Violates statute or regulation Rostron 27 i. ii. Negligence Anyone can be liable Stiles v. Batavia Atomic Horseshoes, Inc. (P injured by punch press that was purchased from D, D had bought bunch of equipment from other company & sold excess—D in possession of press for 1 hour, never unloaded from truck) 1. court said no SL b/c D not in regular business of selling punch presses, D only had press for 1 hr. & sole off truck, made large profit, but didn’t matter, had only been in business for 2 yrs. & made this type of sale 3 times Have to be able to distinguish between types of sellers Distinguishing Between Types of Sellers Strict Liability § 402A & § 402B only apply to those engaged in business of selling product Warranties 2-314 merchants only 2-315 any seller w/ special knowledge that buyer relies on 3Rd § 8 § 1 & 9, only those engaged in business of selling product 2-313 any seller Used Products i. Allenberg v. Bentley Hedges Travel Serv. Inc. (P sued all P’s in chain of manufacture & sale of bus, most people dismissed from suit) 1. Issue: can sellers of used products be strictly liable? 2. No they did not extend to cover SL for used products Negligence Strict Liability Warranties 3Rd § 8 Can be liable for used products Court split Can be liable Liable if: a) negligent b) § 2(a) or § 3 marketed as good as new c) statute violated f. Negligence Liability Strict Tort Liability Applies to rented products – But not if product is merely made available for incidental use of customers with no separate rental fee Liability NO NO Liability Warranties Article 2A Covers Leases 3rd Restatement Section 2C ―Other Distribution‖ includes rentals Rented Products Free Products Liability NO Section 20 Services Liability NO NO Designers Liability NO NO MFR of Component Liability Liability Liability Part g. Rented Products i. Wilson v. Dover Skating Center (P hurt from rented skates, D argued that business was running rink & rental was only incidental to business, P argued D has exclusive control & duty to inspect skates & insure safety) 1. court determined were liable—just like renting cars, renter has duty to insure safety if it is necessary to business ii. Golf Cart Case (P injured when rented golf cart crashed, argued D liable) 1. court determined no liability b/c golf cart rental is not necessary to sport, it is a mere convenience 2. No strict liability here Negligence Strict Liability Warranties 3Rd § 20 Can be liable for rentals Generally applies—not if Article 2—can be liable for ―other distribution‖ covers merely available for incidental rented products leases & rentals use w/o charge or convenience Manufacturer can still be liable, even if can’t sue renter h. Free Products—must be genuinely free i. Tire Gauge Case (service station operator had tire gauge on hand for free use to customers, didn’t sell them in business, customer borrowed & tire ended up exploding later) 1. court ruled no SL b/c not in business of selling gauges, DID NOT matter that was free 2. it was a service, & they are not in the business of selling tire gauges, SL is limited in free products area Negligence Strict Liability Warranties 3Rd Liability exists Liability exists N/A b/c not a sale § 20 i. Service Providers Rostron 28 i. Negligence Liability exists j. Designers i. Liable for negligence only k. Suppliers of Component parts i. 3Rd § 5—have liability in 2 situations 1. where component part is defective 2. if you substantially participate in the integration of your component part into their product a. have to determine what substantial participation is l. Successor Liability i. 3Rd § 12 1. 4 circumstances where successor liable a. agree to accept liability b. participating in fraudulent conveyance c. merger or consolidation d. if the new company is mere continuation of old company (sale of assets, not stock) 2. not liable if a. sell some assets b. buy entire product line, but not company ii. 3Rd § 13—obligation to give post sale warnings 1. might if have an ongoing relationship w/ customers who bought from old company 34. Evidence a. Evidence offered by P i. Evidence that others in industry do something safer (relevant)—always allowed b. Evidence offered by D i. Evidence that others in industry do same thing as D 1. Easterly v. Advance Stores Co. a. Child injured by product that was not supposed to be sold to children b. D wanted to present evidence that other stores do same thing & sell to kids c. Negligence is relevant but not conclusive, given to jury to decide 2. Lenhardt v. Ford Motor Co. a. Using consumer expectations test for design defects b. D wants to introduce evidence that other manufacturers are building transmission same way c. Can’t present this evidence in SL case b/c focus is supposed to be on the product, not actions/fault of manufacturer 1) Must be relevant to issue other then fault b/c fault isn’t required d. Dissent said should allow b/c could show feasibility of alternative design c. Evidence offered by P i. Evidence of D’s poor quality control procedures—yes, always allowed b/c it’s relevant d. Evidence offered by D i. Evidence of D’s good quality control procedures 1. For D’s in negligence claims, always allowed by its relevant 2. For SL, must be relevant to issue other than fault a. Ex: general mills case where people found rotten banana peel which caused a lot of problems, GM wanted to present evidence of their quality control, but court said no, then GM claims that peel never in box & then court allowed evidence in b/c was now relevant for SL e. Evidence offered by P i. Evidence of similar accidents—P must prove substantial similarity between those accidents & ones that happened to P 1. Mercer v. Pittway Corp. a. Some detector case, where failed to go off & people lost 1 child & other severely burned b. Evidentiary issue was that company had large # of complaints about their smoke detectors c. P said that similar b/c same brand, model, etc.—that’s enough d. D said there are lots of reasons detectors don’t go off, so have to prove batteries worked, properly placed, etc. e. Trial court let all evidence in, but SC of IA said it was mistake to allow all evidence in f. Evidence offered by D i. Evidence of safe product history Rostron 29 Roger v. Catholic Medical Center (P got knee surgery at hospital, continued to have pain, found out that knee implant was actually defective & had to have it replaced, wanted to sue hospital who was not manufacturer of implant b/c manufacturer bankrupt) 1. hospital argued no liability b/c they provided services 2. court dismissed claim b/c hospital provided service Strict Liability Warranties 3Rd N/A N/A N/A g. h. i. j. Jones v. Pak-Mor Mfg. Co. a. Courts will generally not admit this kind of evidence unless D can prove that it probably would have heard about the problem if injuries were occurring 1) Can do by surveying customers, etc. b. D must also prove there was an adequate amount of use of this product under similar conditions c. One problem w/ this evidence is that could expand issue beyond what is necessary d. Some concern that juries may over react to this type of evidence e. Courts more cautious w/ SL then w/ negligence, etc. 2. Goins v. Wendy’s Int’l, Inc. a. Woman ill after eating salad bar at Wendy’s & alleged food poisoning b. Wendy’s wants to put manager on stand to say that sold 117 salad bars that day & no one else complained & didn’t get sick c. Court excluded evidence b/c can’t track people down & no way to tell what they are Evidence Offered by P i. Evidence of violation of statue or regulation—negligence per se (easier to prove negligence b/c violation of statute = negligence)—kind of form of SL 1. Negligence per se (3RD § 4A) a. Must show 1) Statute violated 2) Proximate cause/actual cause 3) Injury suffered was type of harm legislature trying to prevent 1. Exception: if have a good reason to violate statute, aren’t subject to negligence per se (ex: speeding b/c of medical emergency) b. Ex: kid fell by car w/ 10 in spike hood ornament that stuck out, CA had passed law forbidding having those types of ornaments—court said no negligence per se b/c statute wasn’t meant to protect pedestrians who fell on car Evidence offered by D i. Evidence of compliance w/ statutes & regulations—is allowed b/c it’s relevant 1. Wilson v. Piper Aircraft a. Would give more deference to compliance w/ administrative agency b. 3RD § 4B P offers evidence i. Evidence of subsequent remedial measures 1. Negligence its inadmissible b/c would give bad incentives to manufacturers to not fix problems b/c could be used against them a. SL—courts very divided 1) Mosk thinks that products manufacturers would fix problem b/c too risky not to 2) CA allows evidence 2. Federal courts almost always excludes this evidence for SL a. 8th & 10th Circuits have minority view where do allow this evidence for SL, but exclude for negligence 3. State courts a. ½ (including KS) say exclude it for SL & Negligence b. ½ (including MO) say allow for SL, but exclude for negligence Evidence offered by P i. Evidence of recalls 1. Courts allow this evidence for all claims 1. REVIEW CHART Evidence Offered by P Evidence Offered by D Evidence of Subsequent Remedial Measures - N – not relevant/not allowed - SL – courts are split, it is an evidence rule Evidence of Recall Evidence that others in industry do something safer - Relevant Evidence that others do same things as D (Depends on the claim) - Relevant to N, but not conclusive - In Strict Liability claim, must be relevant to some issue other than showing lack of fault (they do it too so it is ok) - definitely admissible if recall by the gov’t - most courts tend to make it relevant (just not concerned Rostron 30 Evidence of D’s poor quality control procedures - Relevant Evidence of D’s strong quality control procedures - Relevant to N, but not conclusive - In Strict Liability claim, must be relevant to some issue other than showing lack of fault * Excuses don’t get you off in SL Evidence of Safe product history - D must prove it probably would have heard about other accidents - D must prove adequate amount of use under similar conditions Evidence of compliance with statutes & regulations - relevant, but not conclusive - R3d §4(b) - something that can be considered by the jury Evidence of similar accidents - P must prove substantial similarity (depends on whether in federal or state) - majority in federal is not let the evidence in - 8th & 10th are in minority - state courts are split even - MO will let in for SL with manufacturers not recalling b/c of this one case) Evidence that D violated statute or regulation - Neg per se (R3d §4) (sort of a form of SL  triggered by violation of statute  do not require proof of further fault) - no counterpart for SL - do not have to worry about reasonable care - have to show violation of statute, causation & harm (the harm/injury meant to be prevented by the statute…person & injury had to be foreseen by statute) - violate statute = N - deemed to be N w/o regard to care exercised 35. Circumstantial Evidence Negligence Strict Liability Warranties Res Ipsa Loquitur Malfunction Doctrine (aka Indeterminate Defect Doctrine or General Defect Doctrine)  ∏ cant id defect, ex evidence is destroyed  Type of accident wouldn’t happen unless there was a defect  Just means enough to go to jury—have to be careful that don’t let get out of hand  Courts much more likely to allow if chance to prove defect is lost b/c there product is destroyed or it’s fairly new product  More you can rule out other possible causes, better chance of being allowed to use this doctrine a.      3Rd § 3 Kind of thing doesn’t happen w/o defect Rules out other causes Comments suggest generally applies to manufacturing defects, very rare to apply to design Must be malfunction Can’t use b/c product should have had more safety features State Farm Fire & Casualty v. Chrysler (people had car that continued to have electrical problems, had been repaired several times, smelled smoke & took to repair shop, repair shop refused interim rental car, took home & car caught fire & burnt house down—people suing car manufacturer) i. Issue: can circumstantial evidence be enough when suing manufacturer if experts can’t determine exact cause of fire? ii. Court determines no recovery b/c have to be able to prove that defect existed at time product left manufacturer—since car had been worked on by repair shop & exact cause of fire couldn’t be determined b. Pagnotta v. Beall Trailers of Oregon, Inc. (guy driving semi—felt trailer pull & couldn’t control, ended up going off road & rolling over, Sheriff & insurance adjuster said trailer axel cause, D’s experts disagreed—didn’t want Sheriff & insurance adjuster to testify b/c not experts) i. Court determined that lower court was incorrect in not allowing the sheriff & the insurance adjuster to testify b/c lay people can give opinions, they examined same evidence as D’s expert, & both would be required to testify as to their experience, etc. 36. CONSPIRACY OR CONCERTED ACTION a. Two or more people agreed & worked together to accomplish the tortious act that harmed plaintiff b. Each can be held liable for entire harm 37. ALTERNATIVE LIABILITY a. A group of defendants b. Every defendant did tortious thing c. One or more defendants, but not all, caused injury to plaintiff d. Plaintiff can not determine who actually caused the injury Rostron 31 38. 39. 40. Rostron Every person who might have caused the injury has been sued & is defendant in case Burden shifts to defendant i. If defendant cannot prove it was not cause, it can be held liable for entire harm ENTERPRISE LIABILITY a. Manufacturers adhered to an insufficient, industry-wide standard b. Plaintiff proves it is probable that manufacturer who actually caused harm is joined as defendant in case c. Burden shifts to manufacturers i. If manufacturer can not prove it was not cause, it can be held liable for the entire harm MARKET SHARE LIABILITY a. Plaintiff injured by product b. Plaintiff cannot determine who made it c. Each manufacturer’s conduct was tortious d. Product was fungible e. Each manufacturer can be held liable for portion of damages equal to its market share percentage Market Share Liability Issues a. Concerted Action/Conspiracy i. Two or more people worked together to accomplish the tortuous act that harmed P (each can be liable for entire harm) 1. Ex: 2 cars decided to drag race on public street, can sue anyone involved in the drag race, doesn’t matter whether the car was the one that hit you or not b. Market Share Liability i. P was injured by product ii. P cannot determine who made it (doesn’t cover when P loses the evidence) iii. Each manufacturer did something tortuous (works best w/ design & warnings) iv. Product is Fungible (all units are equally dangerous) 1. each D can be held liable for portion of damages equal to market share v. very narrow time period c. Enterprise Liability i. Manufacturers adhere to an insufficient industry-wide safety standard (all doing the same bad thing, this from concerted action but makes it easier to prove b/c only have to show parallel) AND ii. P proves it is probable that manufacturer who caused harm has been joined as D (from alternative liability but easier to prove) 1. burden shifts to manufacturers a. if they cannot prove who did it or that they were not the one who did it, then each can be held liable for entire harm d. Alternative Liability i. Two or more people could have caused the harm to the P ii. P cannot determine who did it iii. Each person’s conduct was tortuous (must have been negligent) iv. Each person that might have caused the harm is joined as a D 1. Burden shifts to D a. If they cannot prove who did it, then each can be held liable v. Summers v. Tice (3 hunters together, 2 shot in direction of 3rd buy, he was shot, impossible to tell which of the other 2 actually shot 3rd guy) 1. court determines that both liable b/c pretty good chance of liability vi. harder to use when have more D’s b/c chance of liability continually decreases when add more people—not clear how little is too little (Ex: 10 D’s = 10% chance of liability v. 2 D’s = 50% chance) e. Hymowitz v. Eli Lilly & Co. (synthetic estrogen given to mothers to prevent miscarriages, thought there was no side effects—ended up causing defects in reproductive organs of mainly daughter of mothers who had taken DES) i. Court determined that would allow create market share liability so P’s could recover 1. DES unique product b/c inventor didn’t patent product, so all companies who manufactured DES used exact same formula, P’s could identify narrow time frame (9 months mother pregnant) ii. Holding mean to only apply to VERY NARROW situations—hard to satisfy iii. MO rejected market share for DES cases iv. 12 adopted v. rest no opinion f. Brenner v. American Cyanamid Company (P’s son ate lead chips from paint got lead poisoning, developed a variety of attention disorders, P’s sued the producer of Cyanamid (one of lead ingredients used in some paints)) i. Court dismissed claims b/c (P’s tried to use market share liability) 1. lead isn’t fungible (different ingredients used in products in different quantities) 2. can’t identify appropriate national market (not all same, not all national producers, hard to determine market) 3. couldn’t identify narrow time period (1926-1955) 32 e. f. 4. 5. 41. Guns a. manufacturer didn’t have exclusive control over riskiness of product (consumer controls where to put paint & how many coats, etc.) injury was not always the same (wide variety of disorders alleged by sufferers) Merrill v. Navegar, Inc. (Guy goes into law office with 3 guns, 2 TEC-DC9 kills/injures 14, Π win) i. The pistol is different from normal pistols; it is made so you can spray fire with two hands. It is not an accurate weapon but you can fire many bullets at once. ii. The Plaintiffs brought three claims; common law negligence, negligence per se, & strict liability for ultra hazardous activities. The claim for common law negligence is the only claim that survived summary judgment. iii. Appellate court, 2-1 decision that there are some activities you can’t make safe but you do have a duty to make that activity reasonably safe. They say the ∆ made the gun more dangerous then need be. iv. It ultimately failed in the Supreme Court of California. b. Hamilton v. Beretta U.S.A. (relatives of gunshot victims sue handgun manufacturer, Π lose) i. Tried on Negligence & Market Share Liability theories ii. Not fungible so there is no MSL, there is an indeterminate number of plaintiffs & defendants c. Smith v. Bryo Arms (teenagers bought a gun legally, were playing w/ it w/ the magazine removed, unaware that gun kept bullet in chamber & could still fire w/o magazine, kid shot, parents brought SL & N claim b/c no magazine out safety feature, was a warning on the gun & indicator that it was loaded) i. D claimed that there was no case/claim b/c the gun functioned as it was supposed to & was therefore not defective or unreasonable dangerous ii. NM court said that the claim could continue iii. Could have defense that if a gun has too many safety features, it leads people to be more careless d. Halliday v. Strum, Ruger & Co., Inc. (3 yr old child shot himself w/ a gun the father kept on a shelf in the bedroom, the manual supplied w/ the gun gave detailed descriptions about how to safely store gun, none were followed, mother brought suit wanting more safety features) i. P argued that court should use the consumer expectations test ii. D argued that the court should use the risk/utility approach iii. The court ultimately decided that it didn’t matter which approach was used b/c under § 402 no claim 1. the gun did what it was supposed to do, it was not defective, & it listed as exception under § 402A w/ butter & whisky so the it is recognized that guns are dangerous e. Generally people argue for 3 kinds of liability w/ guns i. Design defect b/c more appealing to criminals ii. Negligent entrustment (sell a gun to a drunk person) iii. Defect in way gun is sold 42. Crashworthiness a. How to tell when might have this issue i. One person dies & the other person walks away w/ minor injuries ii. Serious injuries resulting from low impact collisions b. Duty of auto manufacturer i. Have duty to build reasonably safe vehicle c. Claims i. Manufacturing defects ii. Design defects iii. Warning defects d. Cause of action i. Negligence ii. SL iii. Breach of Warranty iv. Important to allege both SL & N b/c you can bring in different kinds of information e. Examples of defects that cause enhanced injuries i. Fuel system defects 1. In-cab gas tanks 2. Side saddle gas tank 3. Fuel siphoning 4. Tank location f. How to determine if have a claim in a fire case i. Evidence of survivability—is there something that would have killed them even if there wasn’t a fire 1. Good survival space 2. Witness testimony of survival g. Keys to vehicle fire cases i. PRESERVE THE VEHICLE!!!!!!!! 1. Key evidence might be in the vehicle Rostron 33 DON’T SETTLE CLAIMS AGAINST OTHER DRIVERS 1. Joint & several liability h. Examples of defects that caused enhanced injuries i. Seat belt defects 1. Center seat lap belts 2. Injuries a. Spinal cord injuries b. Abdominal injuries ii. Inertial release 1. When seat belt just pops off in the crash 2. Eyewitness testimony 3. Habitual seat belt use 4. Physical evidence iii. Passive restraint systems 1. Where the belt goes on you automatically 2. Door mounted seat belts 3. Neck injuries 4. Abdominal injuries 5. Injection from vehicle i. other restraint system defects i. overly aggressive air bags ii. air bag design defects iii. reclined seats 43. Outer Limits of What Counts as a Product Negligence SL Warranties Anything 402A-Products Goods Terms 402B-Chattels None = all movable things Definition ii. 3Rd § 19 Products = tangible personal property commercially for use or consumption Covered if analogous to distribution & use of tangible personal property Real property Covers Electricity Live animals a. Covers Covers Generally not covered some courts make exceptions for - equipment fixed to real property - pre-fabricated buildings - mass produced housing Courts split Courts split No Courts split Covers Covers What is a product i. Real property 1. Strict liability a. Generally not covered, but some courts make exceptions 1) Equipment affixed to real property 2) Pre-fabricated buildings (manufacturer homes) 3) Mass produced housing (large development, all homes same) 2. 3Rd a. if circumstances analogous to distribution 1) seems like it should be similar to SL exceptions—leaves a lot of discretion to the courts to determine if product ii. Electricity is questionable b/c it seems like a product like water, but it’s not tangible in the same way as water, like cable TV, more of service b/c not left w/ anything 1. Courts often left in middle ground position a. Not a product until it passes through the meter & comes into your house iii. Live Animals 1. Animals are not manufactured, courts often refer to animals as being mutable b/c wasn’t defective when sold but kind of grows & becomes defective a. Courts come out both ways 1) Animals giving people diseases (especially birds) 34 Rostron b. c. 2) Was liability in NY for sale of rabid skunk 2. UCC covers animals largely b/c of the contract law aspect 3. 3Rd, nothing that excludes them, so likely covered Rice v. Paladin (Paladin publisher that sold a book entitled Hitman: A Technical Manual for Killers, the family of a victim sued when Paladin b/c the book had been used to plan the murder of the mother & child) i. Court drew distinction, 2 kinds of property at issue 1. the actual physical book 2. the information contained in the book (essentially intellectual property) ii. court decided to allow the case to be brought to trial b/c the publisher did an unusual thing, they admitted they made the book to help people who wanted to kill, but said so what, 1st A allows us to do so iii. Case ended up settling before trial, so there is no verdict Possible Future Issues if this would have been allowed i. Computer software: what if system failed & plane crashed, or hospital gave wrong medications 1. no precedent on this topic Rostron 35