Products Liability Outline PART I I. The Demise of the Privity Requirement for Negligence Claims Privity o Winterbottom v. Wright – 1842 Facts: Wright was in K with Postmaster General where he agreed to maintain the stagecoach for mail delivery. Wright failed to perform the K and stagecoah broke down while Winterbottom was driving it, injuring Winterbottom. Holding: Winterbottom has no claim b/c he has no privity of K. Policy: Goal is to limit liability – don‟t want too many lawsuits. Privity Exceptions o Huset v. J.I. Case Threshing Mach. Co. – 1903 Three exceptions to privity requirement: (1) Don‟t need privity of K if product is one that is “imminently dangerous to the life or health of mankind.” (2) Don‟t need privity of K when “owner‟s own act of negligence causes injury to one invited onto his property, by him, to use his defective machine or appliance while on his property.” (3) Don‟t need privity of K when “one who sells or delivers an article which he knows to be imminently dangerous to another, without notice of the article‟s qualities.” o Kueling v. Roderick Lean Mfg. Co. – 1905 Holding: No privity of K required when fraud and deceit is used. Rule: One who sells an article, knowing it to be dangerous by reason of concealed defects, is guilty of a wrong, w/o regard to contract, and is liable to any damages to any person who suffers injury by reason of his willful and fraudulent deceit and concealment. o Statler v. George A. Ray Mfg. Co. – 1909 Facts: Coffee machine explodes – plaintiff and another severely scalded and a third person was killed. No K relations between the parties. Holding: Since D knew the uses for which the machine was intended when he marketed it, he was guilty and chargeable with knowledge of defective and unsafe construction. Rule: When a product is inherently dangerous, a manufacturer may be liable for negligent construction of that product which, when added to the product’s inherent nature, makes it imminently dangerous, and causes or contributes to a resulting injury naturally following from a defective construction. o Note that the exceptions are getting broader... Negligence
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o Macpherson v. Buick Motor Co. – 1916 Most important case in Product Liability Law. Facts: While P in the car, it suddenly collapsed – one of wheels made from defective wood. No privity of K. Holding (Cardozo): Don‟t worry about difference between “inherently dangerous and imminently dangerous.” Must show two things in order to have a claim: (1) product reasonably certain to be dangerous (2) manufacturer knows product will be used by somebody other than purchaser Result: Now the test‟s so broad that there‟s really NO privity requirement anymore! Policy: Huge amount of industrial development at this time- want to hold manufacturers responsible. People began to take on the notion that cars were wellmade – they were assuming this, in part, b/c of the advertising efforts of car companies to build brand loyalty and trust. o Cardozo willing to impose liability w/o privity b/c of these sorts of changes. o Elements of Negligence: (1) duty (2) breach of duty (3) actual cause of harm to plaintiff (4) proximate cause of harm to plaintiff o Elements of Res Ipsa Loquitur – “The Things Speaks for Itself” (a type of negligence): (1) circumstances were such that someone was probably negligent (2) defendant is probably the one who was negligent II. The Development of Strict Liability Historical Design Defect o Escola v. Coca-Cola Bottling Co. of Fresno – 1944 Facts: P is waitress in restaurant – injured when bottle of Coke exploded in her hand. Unable to show any specific acts of negligence, so she relies on res ipsa loquitur. Holding: D was liable to P under the theory of res ipsa loquitur because: P established that condition of bottle was unchanged after it left D‟s possession. Accident would not have ordinarily occurred in the absence of negligence by D. Concurring Opinion (Traynor): Important b/c he uses the phrase “absolute (or strict) liability” – if you sell defective product, you should be liable for it, regardless of proof/evidence.
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New Idea: Strict liability was a new idea b/c usually under Tort law we don‟t impose liability w/o fault – but he‟s suggesting an exception to this notion when the product is defective. Public Policy: He suggests this b/c of good public policy: o (1) Enhancing safety practices of manufacturers. everything now is mass-produced – need to keep up with industrial progress o (2) People put trust into brand names, especially when these companies use advertising to build that trust. consumers rely on reputation of manufacturer keep manufacturer responsible – especially when they‟re creating this “trust” relationship o (3) Manufacturers in better positions to bear the cost of injuries caused by their products. Traynor’s Idea and Res Ipsa: Res Ipsa is important b/c, according to Traynor, if you‟re willing to use res ipsa, you‟re already going down the road where there‟s no need for proof to imply liability – so my strict liability idea is not such a stretch, after all. o Greenman v. Yuba Power Products, Inc. – 1962 (CA) Rule: A manufacturer is strictly liable in tort when an article he places on the market, knowing that it may be used w/o inspection for defects, proves to have a defect that causes injury to a human being. Importance of this case: CA becomes first state to create/recognize cause of action for strict tort liability for manufacturer‟s/seller‟s products. Sidenote: Opinion by Traynor o Restatement 2d secs. 402A and 402B Comes out 2 years after Greenman decided. Strict liability provisions added in this new Restatement. Restatement 402A (Liability of Seller of Product to User/Consumer) – amended to cover all products being subject to strict liability, emphasizing “defective condition” and “unreasonably dangerous” deals with manufacturing defect, design defect, and inadequate warnings Restatement 402B (Misrepresentation by Seller of Product to Consumer) – deals with misrepresentations and strict tort liability o Cronin v. J.B.E. Olson Corp. – 1972
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Holding: Once the injured plaintiff seeking recovery based on strict liability has established that the product was defective and that the defect proximately caused his injuries, he does not then need to show that the defective condition made the product unreasonably dangerous. Result: Court only concerned with “defective” products. Why does sec. 402 A use “defective” and “unreasonably dangerous?” “Defective” was thrown in as an afterthought to protect the manufacturers of certain products. But now, “defective” is THE emphasis of sec. 402A. o Ex. whiskey – many might think it‟s “unreasonably dangerous,” but can‟t have liability unless it‟s defective, too! o Missouri – Statute sec. 537.760 Uses both terms: “unreasonably dangerous” and “defective.” Compare to CA – uses only “defective.” CA is the exception rather than the rule, though. The Bystander o Elmore v. American Motors Corp. – 1969 Facts: Plaintiff Waters injured when defective car driven by plaintiff Elmore hit her. Holding: “Bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable.” Reasoning: “Consumers and users, at least, have the opportunity to inspect the product for defects – bystander never gets the chance.” Result: Waters allowed to recover in strict liability. Comparing Strict Tort Liability to Negligence: o Why ever bring strict negligence claim when we have strict tort liability, where you don’t have to prove fault? Strict tort liability may not always be available to you b/c of technical reasons: Ex. If product was used, like a used car, some states won‟t let you bring the strict liability claim. Some people think jurors respond better to negligence arguments. Understanding what “Strict Liability” really means: o Strict Liability: Means any sort of claim where liability could be imposed w/o requiring proof that the defendant was at fault. applies to Strict Tort Liability, Warranties, and some claims under the Third Restatement o Strict Tort Liability: Narrower than strict liability – it includes only those claims that involve strict liability (liability w/o proof of fault) AND aren‟t warranties claims.
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III. Warranties UCC sec. 47-2-313 – What Creates an Express Warranty: o Deals with misrepresentation sample or model made as part of basis for the bargain description of goods made as part of basis for the bargain affirmation of fact or promise related to goods and becomes part of basis for sale UCC sec. 47-2-314 – What Makes a Merchantable Good o Deals with manufacturing defect/design defect Merchantable goods are “fit for the ordinary purposes for which goods are used.” UCC sec. 47-2-315 – Implied Warranty that Goods be Fit for Such Purpose o Deals with inadequate warning History of Warranties o Early 1800‟s – started using “implied warranty” started off with important limitation that you needed privity of K food was only exception – didn‟t need privity of K first thing they extended privity exception to was to animal food then they extended the exception to “anything used for intimate bodily use” hair dye example –used on body Henningsen v. Bloomfield Motors, Inc. – 1960 o Key Holding: We (courts) won‟t require privity of K anymore for an implied warranty claim. Policy: desire for social justice o Did it matter that Mr. Henningsen signed the K and not his wife (who was injured)? No. Implied warranty is broad enough to cover the wife of the purchaser. o Did it matter that what Mr. Henningsen signed was an agreement that stated, in fine print, that “all other implied or express warranties do NOT apply?” No. There was still an implied warranty that the car was “to be fit for such purpose.” Court felt this was an adhesion K – thus, lack of bargaining power, etc. Differences between Warranty Claims and Strict Tort Liability Claims: o UCC sec. 2-318 Option A: Allows the following to have claims under warranty theory – any natural person who is in the family or household any guest of his home o Note: This is narrower than strict tort liability, which applies to anyone. o About ½ the states (including MO) use this option. Option B: Allows any human to recover under warranty theory. Some states have chosen this option. 5
Option C: The broadest – covers any person, plus such things as partnerships. 15 states have chosen this option. o UCC sec. 2-607(3) Notice Requirement: To bring breach of warranty claim, must provide notice to the seller within reasonable time (or be barred from remedy). Note: This is more restrictive than a strict tort liability claim. o Statute of Limitations UCC (Warranties): SOL = 4 years from time of delivery Tort Claims: usually longer than UCC, and it runs form time of injury. MO: Feels SOL should be the same for both warranties and tort claims. Result: In warranty situations that are more “tort-like” than “contract-like,” MO uses the SOL for tort claims (which is longer). o Language of the two might be different to the jury: Different interpretations of the words Warranty = “not fit for ordinary purpose; “not merchantable” Tort = “defective;” “unreasonably dangerous” IV. Manufacturing Defects Third Restatement o Two Possible Situations – REMEMBER FOR EXAM! (1) In a state that has adopted the Third Restatement Then, that‟s all you use – don‟t look to anything else. (2) In a state that has NOT adopted the Third Restatement So, then you may use: o negligence rules o strict tort liability rules, OR o warranty rules o Sec. 1: Liability of Seller/Distributor for Harm Caused by Defective Products If in the business of selling or distributing products, then you‟re subject to liability for harm to persons or property caused by a defect of the product. o Sec. 2: Categories of Product Defect A product is defective when: At the time of sale or distribution, it contains one of the following: (1) Manufacturing defect o when the product departs from its intended design (2) Defective in design
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o foreseeable risks could have been reduced or prevented by adoption of reasonable, alternative design (3) Inadequate instructions or warnings o Sec. 3: Circumstantial Evidence Don‟t need proof of specific defect when the harmful incident: (1) was the kind that ordinarily occurs as result of product defect; AND (2) was not solely the result of causes other than product defect Pillars v. R.J. Reynolds Tobacco Co. – 1918 o Facts: P buys chewing tobacco – while chewing he begins to feels sick. He ended up biting into a rotting human toe that was in the tobacco. P suffers from ptomaine poisoning as a result of the rotting toe. o Issue: Who is liable? Manufacturer or distributor or both? o Holding: Manufacturer liable, but distributor is not. o Reasoning: Distributor: Not liable b/c could not have suspected that human toes were concealed in the tobacco. Manufacturer: There was failure to exercise reasonable care in manufacturing the product. o What theory was used in this case? Negligence Theory. What proof is there that manufacturer was negligent? No real direct proof – it‟s inferred. Court emphasizes a “duty” on the part of the manufacturer. o kind of like res ipsa, according to Rostron o Pre-Existing Rule: Manufacturer not liable to end user for damages resulting from defects and impurities of the manufactured product. Why? B/c no K relationship between end user and manufacturer. Exceptions sometimes made: Manufacturers of food, beverages, drugs, condiments, and confections have been held liable. Policy for these Exceptions: Protection of people‟s health. o Did this court use the pre-existing rule? Yes – it finds a new exception. This court recognizes the pre-existing rule. The court says “the way the tobacco is to be used furnished the reason for great care in its preparation.” The court adds that the case is no different for food or beverages – emphasizing that all are “consumed.” Focus really seems to be on how the product is used and whether the “manufacturing defect” is dangerous to the consumer. Pouncey v. Ford Motor Co. – 1972 o Facts: P injured while working on his car – blade broke off radiator fan and struck him in the face. Car was a Ford; radiator blade manufactured by Ford‟s supplier. Court agrees with expert testimony that radiator fan was defective. o Decided under Negligence Theory:
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Holding: No error in permitting jury to infer negligence on the part of Ford in placing a defective radiator fan on the market – a fan which could have reasonably been expected to product injury or damage. Question: If problem is with the fan blade that Ford did not make, then how is Ford liable? Ford has responsibility to inspect the parts going into its cars –duty of inspection/quality control. o Difficulty evidenced by this Case: Distinguishing between manufacturing and design defects. o Negligence vs. Strict Liability Theories Negligence: No real set pattern for who is negligent. Strict Liability: Liability flows down the chain – manufacturer to distributor to seller, etc.) You‟ll be liable only if the defect existed at the time it left your hands. “Liability flows DOWN and not up.” o Exception: Manufacturer can still be liable, even though defect didn‟t show up until after out of manufacturer‟s hands. This happens when manufacturer has delegated part of the manufacturing process to someone else. Example: Bike shipped partly assembled to store, who puts together incorrectly and end user injured as result – manufacturer and store can be liable b/c store acting as agent of manufacturer. V. Alimentary Manufacturing Defects (aka “Bad Stuff in Food”) Mexicali Rose v. Superior Court – 1992 o Differing approaches to the situation in which the manufacturing defect is something in a food product: (1) Foreign/Natural Test (Mix case) If object is foreign to the food, then there is strict liability claim (warranty or strict tort). If object in the food is natural to the food, then there is no claim. (2) Hybrid Test Distinguishes between foreign and natural, too: o Foreign object in food – strict liability claim (warranty or strict tort) o Natural object in food – negligence claim (versus no claim) (3) Consumer Expectations Test
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Can have strict liability if reasonable consumer would not expect the object to be in there. o Which test does court apply here? Majority uses Hybrid Test Dissent suggests Consumer Expectations Test Result: Court overrules the Mix test. Third Restatement, sec. 7 – Liability for Harm Caused by Defective Food o This is a Consumer Expectations Test: Liable for selling or distributing defective food product. Harm-causing ingredient is defective if a reasonable consumer would NOT expect the food product to contain that ingredient. Shoshone Coca-Cola Bottling Co. v. Dolinksi – 1966 o Facts: D suffers physical and mental distress when he partially consumed the contents of Squirt soda (bottle) that contained a decomposed mouse! P lost below and now appeals. o Holding: P is strictly liable to D for putting this beverage, which was in a dangerous condition, into the stream of commerce, which led to D consuming the beverage and suffering injury. o Evidence that mouse was in there BEFORE Squirt soda was added? Fecal matter in bottle – D alleged it had been there for a long time. o Evidence that mouse was NOT in bottle at point of manufacturing? Mouse had hair on it. P alleges that due to the heat process the bottle goes through, mouse‟s hair would have been burned off. Thus, mouse must have gotten into bottle later. (point to fraud?) o Burden of Proof Who has it? Manufacturer How can you disprove a claim like this? Prove that you have impeccable quality control. o How is this stuff getting into soda bottles? (1) Fraud lots of publicity to be had strong regional aspect to these types of claims - South going after big companies w/lots of $ exaggerated claims related to harm suffered (2) Disgruntled Employees (3) Use of Returned Bottles Where are bottles stored before returning? o basements, garages, etc o could explain how mouse got in Webster v. Blue Ship Tea Room, Inc. – 1964 o Issue: Does the fish bone in the bowl of fish chowder constitute a breach of implied warranty? o Holding: No. The occasional presence of a fish bone in a chowder is to be anticipated and does not impair the fitness or merchantability. o Test Applied: Consumer Expectations
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Note: This test can depend on diff. things, like the region of the country where incident occurred (this case was in Mass. – common dish on East Coast is fish chowder)
VI. More on Manufacturing Defects Krause v. SUD – 1969 o Facts: Helicopter accident that results from a break or “fracture” in the steel of the helicopter‟s tail. o Holding: Because the evidence showed that the fracture was not a “fatigue” fracture common to rough handling, but was in fact a “brittle” fracture (or sudden fracture), the theory that defective welding caused the incident is supported, and thus, the manufacturer is liable. The Spider Cases o Flippo v. Mode O’Day Frock Shops – 1970 Facts: P injured when bitten by brown recluse spider, which bit her while she was trying on a pair of pants at D‟s shop. Holding: P has no claim under either implied warranty of merchantability or strict tort liability theories. Reasoning: Implied Warranty of Merchantability- pants were fit for their ordinary purpose, no evidence that pants were defective, spider not a part of the jeans, injury to P was caused by spider and NOT jeans (product). Strict Tort Liability – pants, as a product, not in defective condition; pants not unreasonably dangerous as a product; alone the pants were not dangerous at all; spider caused injury and not the pants. o Strawn v. Coca-Cola Bottling Co. of Missouri – 1950 Facts: While drinking bottle of Coke, P discovers foreign substance inside the drink – appeared to be a cigar butt and a spider or other bug. Holding: There was sufficient evidence to hold D bottler and seller liable to P for breach of implied warranty of fitness (for human consumption of Coke). Reasoning: Evidence showed that Coke was contaminated and not fit for human consumption, and that the foreign matter was in the bottle before it was capped at D‟s plant. o Anderson v. Associated Grocers, Inc. – 1974 Facts: P‟s husband died from spider bite. He had been produce manager at a grocery store and was unloading bananas when the spider jumped from wet burlap located on top of a box of radishes, and bit him on his hand. Issue: What claim, if any, is available to P? Holding: Negligence only. (No claims under strict tort liability or warranty theories)
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Reasoning: Bananas weren‟t defective or unfit for their intended purpose – the spider was not in the bananas or in their container. The product itself was not defective – the bananas, in fact, were edible and saleable.
VII. “Risk-Utility” and “Consumer Expectations” Tests for Design Defect Claims Consumer Expectations Test o Criticisms – (1) Should focus on product itself and not consumers‟ thoughts about it. (2) Consumers might have unduly high expectations – demanding perfection. (3) Consumers might have unduly low expectations –settling for what they‟ve come to expect. (4) Consumers might have no expectations about complex or unfamiliar things. o Burden – On the Plaintiff o Better for P or D? Better for plaintiffs Risk-Utility Test o Criticisms – (1) Risk/Benefit weighing sounds like negligence and might inevitably slip into being a negligence test. (2) Too indefinite – doesn‟t narrow focus to anything. (3) Too cold and objective – ignores our humanity. (4) People may not be able to rationally assess risk. o Burden – Plaintiff goes first –must show that design proximately caused the injury. Defendant is next – carry the burden on the issue of risks/utility. Why put burden on D at this point? o Risk/utility is technical and manufacturer is thus the best to answer. o Makes it easier for P to win. o Better for P or D? Better for defendants Cases o Heaton v. Ford Motor Co. – 1967 (Oregon) Facts: P driving on highway and hits rock that is 5-6 in. in diameter. This causes car to wreck. Oregon’s approach to design defects: Consumer Expectations Test: Should meet reasonable expectations of the user. o Origin of test: Warranties law
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Decision: High-speed collisions with large rocks are not so common that the average person would know from personal experience what to expect under the circumstances. Focuses on criticism #4 o Barker v. Lull Engineering Co., Inc. – 1978 (California) CA’s approach to design defects – can use either one! Risk-Utility Test: Weigh the risks versus the utility/benefits of the product. If benefits don‟t outweigh the risks, then product is defective in design. o Test influence by: Negligence theory Consumer Expectations CA will focus really hard on the word “defective.” o Soule v. General Motors – 1994 (California) Facts: Involves a possible defective “toe pan” of a Camaro. CA court cautions about usual the dual jury instruction, allowing a jury to use either test for design defects – worried that most of us don‟t know about toe pans and thus consumer expectations might not work as a test. Court proposes: First must decide whether product is a simple kind of product or if the product is something more technological. o Simple Product = Can still use either test o Technological Product = Can only use risk/utility Hypocritical Result? This court lets the decision go the jury on the dual test anyway! Later, they say it was simply harmless error! VIII. “Negligence with Imputed Knowledge” (NIK) Test for Design Defects Phillips v. Kimwood Machine Co. – 1974 (Oregon) o NIK Test: Was it reasonable for D to sell the product knowing everything there is to know about its risks? o Note: OR used consumer expectations test before (in Heaton) and now uses NIK instead. IX. The Different “Design Defect” Tests – Comparing the States Law Review Article – 1996: o No Strict Tort Liability = 4 states o Consumer Expectations Test = 10 states o Risk/Utility Test = 7 states o NIK Test = 9 states o Combo. of Consumer Expectations and Risk/Utility = 14 states KS – Combines tests: “Reasonable consumer who has been informed about all the risks and utility of the design of the product.” o No real test established for strict tort liability = 6 states
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MO – one state that has declared that they refuse to make ANY test. They say “defective and unreasonably dangerous” is enough.
X. Third Restatement’s “Reasonable Alternative Design” (RAD) Requirement for Design Defects Third Restatement, sec. 2b: Product will be defective in design when there are foreseeable risks that could have been reduced or avoided by adoption of a reasonable alternative design. o Reasonable alternative design is an absolute requirement. o Consumer expectations are much less important here. however – still important for food under the Restatement 3d o Seems to be implicitly judging the manufacturer‟s conduct – “foreseeable risks of harm” (for example). Thus, more like a negligence test and not strict liability. Vautor v. Body Masters Sports Industries, Inc. – 2001 o Uses Restatement 3d and lightens its requirements: (1) Only need to describe how the RAD would operate – no need for actual evidence of the RAD. (2) No need for expert witness if the RAD is such that reasonable people could understand it. (3) Don‟t need to present costs and benefits of RAD or prove them with particularity – P‟s proof of the pros and cons could be “general” though. (4) Exceptions where you don’t need RAD: product violates safety statute or reg. design of product was manifestly unreasonable – o product has very low degree of utility and a high degree of danger Distinctions Become Important with this Approach: o (1) Distinction between manufacturing and design defects. manufacturing defect = subject to strict liability design defect = negligence only- no strict liability o (2) Distinction between “alternative designs” and “different products.” Product could be a completely different product versus a RAD – Example: ATV is made with three wheels. Manufacturer taken to court b/c ATV believed to have defective design. P suggests ATV‟s RAD would have four wheels. Is this a RAD or simply a new product altogether? XI. Categorical Liability Buckingham v. R.J. Reynolds Tobacco Co. – 1998 o Facts: P is administrator of deceased‟s estate. Deceased woman died of terminal lung cancer. P alleges she got cancer from exposure to “environmental tobacco smoke” – basically, second-hand smoke. o Issue: Can P sue for strict tort liability? o Holding: No.
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o Reasoning: Need to show that product is defective AND unreasonably dangerous. P tried to argue that b/c cigarettes are unreasonably dangerous, then they‟re defective. Court emphasizes that there must be something WRONG with product. o Court’s Conclusion: Don’t want P to come in and say that an entire category of products is defective just b/c P believes they’re “unreasonably dangerous.” Can‟t use categorical liability with strict tort liability! P could have had a claim under negligence theory, and only negligence theory. XII. Comparing Strict Liability and Negligence Approaches Design Defects o Brooks v. Beech Aircraft Corporation – 1995 Issue: What‟s the appropriate standard for design defect cases – negligence theory or strict liability theory? Holding: Strict liability theory. Arguments for Negligence: (1) It will boil down to negligence arguments anyway – it will come down to whether manufacturer acted reasonably in the design. (2) If strict liability is used, it won‟t work b/c it puts an entire product line at risk. We don‟t want to over-deter manufacturers. (3) There is something fundamentally unfair about this. Arguments for Strict Liability: (1) Spread the costs. (2) A lot of times there‟s actually negligence, but it‟s impossible to prove b/c no one else was there when they designed it. relieves burden from plaintiff – strict liability focuses on the product (easier to prove) whereas negligence focuses on conduct/behavior (more difficult to prove) Manufacturing Defects vs. Design Defects o The Past: In the beginning, most products liability claims were as manufacturing defects. sec. 402 was written, as a result, w/manufacturing defects in mind o Today: Most of the big cases today are about design defects and inadequate warnings on products – why? (1) Manufacturing is better than it used to be – quality control is getting better.
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(2) Strong belief that manufacturing defect cases are much more likely to simply “settle” because: test is very straight forward bad publicity for company to have mis-manufacturing of an item (3) Biggest Factor: Change in financial aspects of legal practice. not many plaintiffs with lots of $ to litigate in the past products liability has gotten more consumer-oriented to make it easier for plaintiffs to bring cases now plaintiff‟s lawyers have access to lots of resources that they didn‟t used to (ex. can borrow from banks to try these cases) result: can try more big, complicated design cases
XIII. Causation Requirements for Causation o (1) Actual Cause “But For” Test: The injury would not have occurred but for the: defendant‟s negligence product defect breach of warranty o (2) Proximate Cause (1) Injury must be reasonably foreseeable – must be w/in general type of harm that one would expect (2) Person injured must be reasonably foreseeable – must be w/in general class of people that one would expect to get hurt don‟t have to foresee EVERYTHING – as long as you can foresee the end result in a general way Daniels case o Facts: Boy sent down into room with no ventilation in order to clean off a machine, using gasoline. In the room there is a heater w/open flame. A mouse steps in gasoline and then gets into heater – heater explodes. Boy burns to death. o Point: Proximate cause satisfied b/c there was: (1) foreseeable injury; and (2) foreseeable person. Price v. Blaine Kern Artista, Inc (BKA). – 1995 o Facts: P wearing caricature of George Bush during his job as entertainer at casino. P is pushed by guest of casino – the weight of the mask strained his neck as he fell. P argues that mask should have had a safety harness. o Issue: Was this type of injury foreseeable? o Focus is on Proximate Cause: Court found it to be foreseeable. o Why foreseeable? Doesn‟t matter why/how P fell, b/c there is the reasonably prospect that among the users of BKA‟s products, some of them will sooner or later fall for any number of reasons – BKA should
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have considered and addressed this risk and resulting injury when designing its product. The Rescuer o Guarino v. Mine Safety Appliance Co. – 1969 Facts: Rooney died from gas asphyxiation when oxygen-type protective mask, manufactured by D, failed. Also, two co-workers, responding to his cries for help, died in an attempt to rescue him. Claim brought by families of deceased rescuers and injured rescuers. Court Decides: All can recover (including Rooney‟ estate) for breach of implied warranty. Court emphasizes that there was “no time for reflection at the time of this incident.” o Bobka v. Cook County Hospital – 1981 Facts: P‟s brother suffered severe burns when an oil storage tank exploded during his firefighter training. P alleges that the fire protective clothing was defective. P donated large segments of her skin for her brother‟s skin graft operation – she was injured in the process. What’s alleged: That defendant manufacturer of protective fire clothing was proximately responsible for P‟s injury incurred during skin graft surgery. Court says this is NOT foreseeable enough to allow a cause of action. o Difference between Guarino and Bobka In Guarino the rescue was immediate w/no time for reflection. In Bobka, there was time for reflection before the “rescue” involving skin graft surgery. o Notes on Proximate Cause Two Different Doctrines: (1) Rescue Doctrine: If somebody unexpectedly comes to the rescue, then you‟ll still be responsible for it (as manufacturer), b/c it‟s foreseeable. We want to encourage rescuers. (2) Treat subsequent medical malpractice as always being foreseeable: So, if injury enhanced while under doctor‟s care, then you (manufacturer) are responsible, still. o Policy: You set the ball rolling – so you are responsible if this happens under medical care when being treated for injuries caused by your product. A Caution for Proximate Cause – Be Careful When Using Strict Liability: Strict liability: We‟re imposing liability without fault. So, once you determine it’s defective under strict liability, you then look at proximate cause: At this point you must determine whether: (1) the injury was w/in the general type of harm that you would reasonably foresee
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resulting from that defect and (2) if the plaintiff was within the general class of people you‟d reasonably foresee getting hurt from that defect. Note: You also have to prove actual cause...
XIV. Automobile Crashworthiness The Crashworthiness Doctrine and Design Defects: Extends the scope of liability of a manufacturer to situations in which the design of its product caused separate or enhanced injuries in the course of an initial accident brought about by an independent cause. Trull v. Volkswagen of America, Inc. – 2000 o Facts: Driving in VW van when van loses control on black ice. Injuries an death occurred among the passengers. Claim focuses on the sons. Both sons were seated on rear bench middle seat, which had lap-only seatbelts. One son was killed; the other suffered severe brain injuries in the accident. o Claim: Van was defective b/c rear bench seat did not have shoulder safety belts AND lap belts (just lap). And lacked sufficient protection against frontal impaact o Issue: In a crashworthiness or enhanced injury case, who bears the burden of proof demonstrating the specific nature and extent of the injuries attributable to the manufacturer when the injuries are indivisible? o Two different approaches to this issue: Pre-Existing Rule: P has the burden of proof on everything. Majority Rule: Burden should be shifted to D. Minority Rule: Leave this burden on the P. This only is an issue if the injury is an indivisible thing – If held to be divisible, then burden would have stayed on P. o Holding: Court concludes in this case that D bears burden once P proves causation. (Majority Rule) Third Restatement sec. 16: Increased Harm Due to Product Defect o Discusses enhanced injuries as result of defect in product. o Burden will ultimately be on D. Although P starts off with burden (small), the larger burden ultimately shift to D. o Says product seller is subject to liability for increased harm involving its defective product. XV. Foreseeable Use and Misuse of Products with Design Defects Ellsworth v. Sherne Lingerie, Inc. – 1985 o Facts: Case with the nightgown worn inside-out, protruding pockets, and woman burned when gown came into contact with flame from stove (when she leaned over stove to reach for something). o Issue 1: Is misuse of a product a possible defense (for the manufacturer) to a strict liability claim? o Holding 1: No. o Issue 2: Did plaintiff misuse the nightgown?
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New Test for Misuse: When product used in a way that is not reasonably expected and that is not reasonably foreseeable. Old Test for Misuse: When product is used for its “intended use.” (courts don‟t use this) MO’s Test: Misuse = “reasonably anticipated” use Burden: Placed on the P b/c it‟s not an affirmative defense and it relates to causation, which P has to prove. o Holding 2: No. o What is Court doing in this case with Strict Tort Liability? Using “foreseeable use of product” as an element of P’s claim to show strict tort liability. A seller is required to provide a product that isnt unreasonably dangerous when used for a purpose and in a manner that is reasonablyF foreseeable. Design Defects and Foreseeability: o Strict Tort Liability: Makes the test narrower b/c it requires “foreseeable” use. o Third Restatement: Makes the test narrower b/c it requires “foreseeable” use. o Warranties: Narrowest of them all b/c it requires “ordinary” use. o Negligence: Broader than the others b/c you don‟t need anything beyond proximate cause. Port Authority of N.Y. and N.J. v. Arcadian Corp. – 1999 o Facts: World Trade Center bombing. Plaintiffs allege that terrorists used fertilizer products, manufactured by defendants, in that bomb. o Issue: Any theory for which D may be liable to P for the bombing? o Holding: Heck no. o Defendants not liable because: (1) not foreseeable enough that this would happen (2) by itself, the fertilizer is not a bomb or explosive – was used just as component by another party (and not the manufacturer) Daniell v. Ford Motor Co. o Facts: P locks herself in her trunk in an attempt to kill herself. She later regrets her decision and attempts to get out, to no avail, b/c car‟s trunk does not have an internal release. (She was finally let out some 8 days later). o Issue: Is Ford Motor Co. liable to P b/c they manufactured a car with a trunk that has no safety release? o Holding: No. o Reasoning: P‟s use of the trunk was highly extraordinary, and there is no evidence that trunk was not fit for the ordinary purpose for which it was intended (intended for the transporting and storing of goods – NOT people!) o Ask: Was P‟s use of the product foreseeable? According to this court, no, it was not.
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XVI. More on Foreseeability Ford Bronco case – 1980’s o Facts: Driving car on the way to work, deer jumps in front of the car, woman slams on her brakes, and her car rolls. (It‟s an SUV) o P’s Claim: Bronco was defectively designed b/c it had too much of a propensity to roll. o Ford Argues: Not defective b/c its features that make it more likely to roll are critical for its off-road purpose. Car not meant to be typical, every-day passenger car on the street. o Court: But, you are marketing it for everyday use! Finds claims for warranty, but not for negligence or strict liability. Ford: Feels this is inconsistent b/c strict tort liability and warranties claim are same thing – how can you have one and not the other? o On Appeal: Verdict is okay. Warranties claims focus on “ordinary use” and it is possible to conclude that the only ordinary use of this product was for everyday driving on the street. Strict tort liability claims focus on “foreseeable use”, which is more broad. Window Screen Cases o Lamkin v. Towner – 1990 Facts: Kid falls out of 2nd floor screened window (of an apt.) Court: Seems to say this is foreseeable harm to a foreseeable person, but then says that foreseeability is NOT everything and thus rejects liability for the builder – says builder had no duty. Why? B/c of policy reasons: (1) No proof of how to make a child-proof window screen. (2) Even if the technology exists to make such a screen, it’s not a good idea to make the builder do it – why? o costs more o maybe more difficult to maintain o too burdensome o worried that instead of doing this, builders will just stop putting windows in altogether or use windows that just won‟t open at all o too far-reaching – if we make apt. builders do it, got to make home builders do it, too Court won’t impose duty under negligence theory b/c of these policy reasons. o Lucas v. R.G. McKelvey Building Co. – 1992 Facts: Similar to case above. Court: Common knowledge that “secondary purpose” of a screen is to prevent people from falling out of window.”
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But, the “ordinary use” of a screen is to just prevent insects from getting inside the home and NOT to prevent people from falling through the window. Court can’t decide b/c of confusing precedent: Shaw: Held that LL could be liable in this case for screen failing to prevent child from falling out of windows of apt. building. Distinguishable? According to some courts it‟s distinguishable b/c it was part of the negotiation process (between lessee and LL) to have child-safety screens. Children and Fires o Brawner v. Liberty Industries, Inc. – 1978 Facts: P is 7 years old and was burned when he removed lid from gasoline storage container and the gasoline ignited. What was alleged was wrong w/the container? It needed something to make it child-proof in some way. Court’s Holding: Manufacturer is not an insurer nor must he create a product that is accident proof when that product is for adult use. A gasoline container which does NOT have a child-proof spout does not meet the definition of either defective or unreasonably dangerous. Seem to be applying consumer expectations test: This was before MO, in 1986, decided not to use the consumer expectations test. o Laney v. Coleman – 1985 Facts: Involves gasoline in a can, being poured over a small fire by children. Flashback (flame goes back into can, resulting in small explosion of can) results in severe burns. P Alleged: The can in which Coleman marketed its fuel was defective in design (under strict tort liability theory) b/c it lacked a “flashback arrester.” Court on Foreseeability: Issue is not what use Coleman intended for its product but what use of the product objectively was foreseeable. Distinguishable from Brawner: In Brawner, they said it was alleged to be defective b/c it wasn‟t child-proof. Here, anyone can have a problem with flashback – claim not just focused on child proofing. Decision: The jury was charged with determining causation in this case and a determination that the product defect caused P‟s injuries is supported by the evidence – judgment below affirmed. o Efting v. Tokai Corp. – 1999 Facts: 4-year old child gets a hold of a butane lighter, was able to move the “off” switch to “on” and ignite her room on fire. She died
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in the fire. Parents suing for design defect of lighter for causing fire. Issue: Did D have duty to make the lighter childproof? Holding: Yes, b/c D intended for the on/off switch to provide some child resistance, it owed P a duty of reasonable care in developing that child resistant design so that it was not unreasonably dangerous. Rule: A party may assume a duty even when a duty would not otherwise be imposed – but when a party does assume a duty, it is held to the standard of using reasonable care. Distinguishable from Brawner: Not complaining about lack of child-proof safety mechanism – it had the mechanism, but it just didn‟t work that well. This is about a faulty child-proof mechanism. Similar Idea: You don‟t have to help a drowning person, but if you undertake the duty to try and help him, you can subject yourself to liability that you otherwise wouldn‟t.
XVII. Design Defects that Impose Obvious Dangers – Open and Obvious Danger Rule The “Open and Obvious Danger” Rule: The manufacturer‟s failure to equip its product with a safety device is not an actionable design defect if the absence of the device is an open and obvious danger. Ogeltree v. Navistar Int’l Transportation Corp. – 1998 o Facts: P‟s husband killed when a fertilizer spreader truck (cab and chassis of truck manufactured by D), backed over him, causing his death. P claimed that D had a duty to install an audible back-up alarm on the vehicle. o Issue: Does the open and obvious danger rule apply if the risk-utility test has been adopted for design defect cases? o Holding: No – the open and obvious nature of the design is only one of many factors to be considered when determining a product‟s risk – and must be weighed against the product‟s utility. Picking on the Open and Obvious Danger Rule – o Why not allow this rule? If we can, we need to require that products be safer. Where is motivation to make them safer if we use this rule? After all, as long as the danger is obvious, the manufacturer doesn‟t need to worry! o The decision to use or not use this rule depends a lot on how the goal of Products Liability is viewed (on TEST!): Goal is to maximize everyone’s safety: Then you don‟t want the open and obvious danger rule. Goal is to get the optimal level of safety: Probably still wouldn‟t like the rule –would more likely decide on case-by-case basis.
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Goal is to make sure that people are fully informed of the risks/benefits of products so they can make up their own minds on how they want to live their lives: Obvious danger rule makes sense here – why? o If danger is obvious, then it‟s achieved the goal of transmitting the information to the people – we‟ve given people the info. they need and we can leave it at that. Who does the danger have to be obvious to, when using this rule? o When courts use this rule, they tend to treat it broadly – as long as it was obvious to someone involved. Ex. – Lawnmower case: Girl loses an eye b/c lawnmower being used outside her classroom has no debris deflector, so it kicks up a rock that goes through the window and hits her in the eye. Court says it was obvious – but it clearly wasn‟t obvious to her! Court says that since it was obvious to somebody, that‟s good enough. What is the prevailing rule now? o Obvious danger is merely a factor to consider when determining liability – it’s not determinative in determining whether a product is defective. Missouri: Obvious danger rule has been only partially abandoned. Use the rule for negligent design claims, but not for strict liability claims (for those they use the prevailing rule). Concern for Obvious Danger Rule and Consumer Expectations Test o Worry that consumer expectations test would allow the rule to “creep back in” when used by the jury.
XVIII. Giving Warnings Rather than Eliminating Design Defects The Big Question: Can a good/adequate warning help a manufacturer escape liability? The Big Answer: No! A warning is merely a factor and is not determinative of liability! o Note: This is the position of the Third Restatement, too. Cases: o Uloth v. City Tank Corp. – 1978 (garbage truck/cut off foot case) Issue: Can there be no negligent design if the danger is obvious or if adequate warnings are given? Holding: No. There are merely factors to be considered when evaluating a claim of design negligence. o Rogers v. Ingersoll-Rand Co. – 1998 (repaving road – machine backs over woman co-worker) Issue: Did the machine have “sufficient warnings” to as to prevent the liability of D? (i.e. warning sign on back of machine and warning in operation manual) Holding: No. A manufacturer may show that warnings “reduced” the dangers of its product – but warnings are just a factor to be considered and NOT determinative.
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Note on Product Design Hierarchy: At the top- Best thing to do is to get rid of the danger altogether. In the middle – But, if you can‟t do that (let‟s say it would ruin the purpose of the product), then you must minimize the danger. At the bottom - If you can‟t do either of these things, then give people a warning –but this is your LAST resort! o Ferugson v. H.R. Winkler – user modifies the product Facts: Deals with a device called a “string-line poofer” used on a bakery assembly line. The poofer could get clogged with dough, and to unclog it, the worker was supposed to shut down the line before unclogging the machine. P‟s employer modified the poofer, replacing the usual exterior panel with a hinged door, which could be opened while the poofer was moving (assembly line still on). While using this “modified” poofer, the employee‟s arm was injured by the still-moving poofer. Issue: Was the poofer unreasonably dangerous? Court: The manufacturer could not have reasonably foreseen that its product would be modified in such a dangerous way, and there was little chance that such injury would have occurred if the poofer had not been modified in such a way. So, is there an absolute rule for when a product hurts someone, but it’s been modified or altered in some way? No – it’s merely a factor to consider – o If modification is foreseeable, then the court is more likely to find liability. o If the product is safe and non-defective before the alteration, then court will be less likely to find liability.
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PART II Foreseeability – Proximate Cause Negligence o Fault Notion Were the type of harm and sort of person harmed reasonably foreseeable to D at the time (of injury)? STL: o No Emphasis on Fault Are the type of harm and sort of person reasonably foreseeable to us today? No fault issue with strict liability. I. DUTY TO WARN – INADEQUATE WARNINGS Negligence STL Negligent Failure to Second Restatement Inadequate Warn 402A Warning
(1) Failure to exercise reasonable care in providing warnings or instructions (2) Actual cause (3) Proximate cause (4) Harm to P
Third Restatement
Third Restatement – sec. 9 (1) Product poses foreseeable risks of harm that could have been reduced or avoided by the provision of reasonable instructions or warnings by someone in chain of distribution (2) Omission of instructions or warnings renders product not reasonably safe (3) Foreseeable use of product (4) Actual cause (5) Proximate cause (6) Harm to P
(1) Product is defective and unreasonably dangerous b/c it lacks adequate warnings or instructions State of Art, OR Imputed Knowledge (2) Foreseeable use of product (3) Actual cause (4) Proximate cause (5) Harm to P
Warning Claims – Imputed Knowledge vs. State of the Art approaches Generally: o Some argue that they should be treated as design defect claims. o Most, however, think they should be treated as separate category. Different types of risks with warnings: (1) Risks you had actual knowledge about (2) Risks you should have had knowledge about (3) Risks you simply could not have known about Second Restatement (STL): o (1) Product is defective and unreasonably dangerous b/c it lacks adequate warnings or instructions
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State of the art approach: Can be liable only for failing to warn about risks that were known or should have been known at the time of sale. This is essentially a negligence approach, under STL. Imputed knowledge approach: Can be liable even for risks that could not have been known at the time of sale. So, can be liable under any three of the possible “risks” listed above – must give warnings in all three situations – why? o Knowledge of any undiscovered or undiscoverable dangers should be imputed to the manufacturer. This test is NOT absolute liability. Note: This test is aka the “negligence with imputed knowledge approach,” or NIK. Burden shifting approach: P must prove failure to warn about a risk, and then D has the burden of proving it neither knew nor should have known about the risk at the time. It‟s essentially the state of the art approach with the burden ultimately being on the D, rather than being on the P the whole time. View this approach as the middle ground between the other two approaches. o (2) Foreseeable use of the product o (3) Actual cause o (4) Proximate cause o (5) Harm to plaintiff Negligence v. STL v. Absolute Liability o Negligence looks at conduct of manufacturer; STL does not look at conduct – it just evaluates the warning (was it adequate?) o Absolute liability is very severe and means “you‟re liable for any injury caused by your product, no matter what.” Policy for using NIK approach: o (1) Don‟t need to spend a lot of time or money trying to figure out what risk arose in which category. o (2) Very hard to determine when something “should” have occurred. o (3) Manufacturers have a big role in determining what should have been known in the industry at the time. o (4) How much time and effort they put into testing and research will affect what should have been known. Policy for using the State of the Art approach: o (1) Unfair to make manufacturers warn about unknowable things. o (2) State of the Art approach is the majority rule, whereas NIK is minority. What’s MO’s position? Burden Shifting o Supreme Court of MO – used to use NIK approach – why? (1) Don‟t want any excuses from manufacturers.
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(2) Consumers can‟t be expected to avoid the danger, and if someone has to bear the cost, then it should be the manufacturer. o MO Legislature overrules this decision MO sec. 537.764: Not liable as long as you gave a state of the art warnings: what knew or should have known. Burden of Proof: Place on the D. Result: MO, essentially, uses a Burden Shifting approach. Adequacy of Warnings – In addition to being present, warnings must be adequate! Two Steps in determining “Adequacy of Warnings:” o (1) Test 1) Decide if anything is wrong with the warning Content Intensity Clarity Conspicuousness 2) Decide if flaw is significant enough for liability to be imposed o (2) Actual Causation 1) P‟s injury was caused by the product Burden on P 2) An adequate warning could have prevented the injury Most states have created the “heeding presumption” – o If the improved/better warning had been given, it would been heeded/followed. o As a result, the adequate warning would have prevented the harm. Burden, thus, on D. Third Restatement uses the heeding presumption, too. Instruction v. Warning: o Instruction doesn‟t become warning until you‟re told what the consequences can be if you DON‟T follow the instruction! Example from Karns v. Emerson Electric Co. (arm of bystander cut off by blade of weedeater when the weedeater “bounced” and user lost control) User‟s manual deals with safety rules and precautions – “Keep children away at least 30 feet from work area; be prepared for „bounce‟ by keeping feet spread apart when using the weedeater.” But, was there really a warning? Court found that such instructions were “unclear or inadequate to apprise the consumer of the inherent or latent danger.” o Flipside: Worry that if there are excessive warnings, people will eventually become desensitized and thus, unresponsive to such warnings. Nowak v. Faberge USA, Inc.
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o Facts: P punctured can of Aquanet hairspray and was injured when the propellant inside caught fire. P said she didn‟t read warnings b/c didn‟t stand out (on back of can, in the middle, written in small type). o Holding: Manufacturer may be liable for failure to adequately warn where its warning is not prominent, and not calculated to attract the user‟s attention to the true nature of the danger due to its position, size, or coloring of its lettering. o Result: Jury found for P. o Design Defect Claim: P claimed hairspray can was defectively designed b/c it clogged up, and if it never would have clogged, she wouldn‟t have punctured it to empty it contents. Foreseeable that someone’s going to puncture the can? Yes, b/c included in the warning on the can was “do not puncture.” Difficult to say it was unforeseeable when they warned about it! Ayers v. Johnson and Johnson Baby Products Co. o Facts: Baby drank baby oil and inhaled some into lungs – he suffers severe brain damage. o Was there adequate warning? There was NO warning on product! o 2001 Regulations: Child-proof containers for such products (baby oils, cleaning products, etc.) The Courts are Taking a Pretty Demanding Approach… o Sinus medication case: Bottle has warning that says medication “may damage kidneys if used in large amounts and for a long period of time.” Guy suffers severe kidney damage after taking four pills a day for years. Claim: Warning should have said “will” instead of “may.” o Adhesive used to install flooring: Warning says “don‟t use near fire or flame; extinguish flames, including pilot lights.” Guy doesn‟t extinguish his pilot lights b/c they weren‟t in the same room (although only 4 feet away). Court said this could be valid warning claim b/c warning not specific enough. Court said warning should not have just used word “near,” but should have specified the appropriate distance. Henry v. General Motors Corp. o Facts: Henry is illiterate man working for logging company. He‟s under the truck, changing brake pads when truck suddenly comes off jack. He had improperly used the jack. o Warnings available to Henry: On the jack: Yellow sticker with warnings to follow jacking instructions and to not get under the jack-lifted vehicle. GM warnings (truck): Jacking instructions in owner‟s manual and under hood of truck (on a decal). Illustrations depict the jacking process, although jacking points aren‟t highlighted. o Did Henry get these warnings? Owner‟s manual no longer in truck at time of accident.
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According to Henry, decal under hood was covered with grime and thus difficult to see. Henry noticed jack sticker and knew its yellow color depicted a warning – but he did NOT ask anyone to read it to him. o Holding: No inadequate warnings here. o Reasoning: The warning was communicated – Henry testified he saw the yellow sticker. Henry‟s failure to examine the warning once he noticed it negates causation. The proximate cause of his injury is deemed to be his failure to read the warning, not the warning itself. o Warnings as symbols – are they really better? Example: Skull with crossbones to symbolize poison. Studied effects of symbol – discovered that children are MORE drawn to the product b/c it makes them think of pirates! Ramirez v. Plough o Facts: Warning on aspirin bottle and in package insert is in English – purchaser is literate only in Spanish. Thus, never got warning. o FDA: It has to be all or nothing. If you‟re willing to put a bit of Spanish on the label, then that label must have the exact same thing and amount in English as in Spanish.
Warning About Obvious Dangers and Foreseeable Uses General Concept: o (1) No duty to warn of dangers that are already known to be reasonable to the consumer. When a danger may be known: (1) If the risk of the product is a matter of common knowledge. (2) If the risk is open and obvious o (2) No duty to warn unforeseeable users or to warn against unforeseeable use. Brown Forman Corp. v. Brune o Facts: Girl is 18 and drinks all afternoon and evening. Included in the alcohol she consumed was tequila manufactured by Brown Forman. Girl dies – her death related to her ingestion of large amounts of ethanol. o Issue: Can Brown Forman be held liable for damages b/c it failed to: (1) warn of the possibility of death following over-consumption of alcohol w/in a short period of time, and (2) provide instructions about the safe use of its tequila? o Holding: No. o Reasoning: Danger is generally known or recognized – thus, no duty on either count. o Class Notes:
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“Heeding Presumption:” A lot of states have this – it assumes that you read the warning and heeded it. But, it is a rebuttable presumption. Burden of Proof on P: P must show that warning is inadequate. Show that danger was NOT obvious and was NOT a known risk. Two Conflicting Rules? (1) Design Defect: Even if danger is obvious, you can still have a claim. (2) Warning: Warning claim is over if the danger is obvious. o Concern for reason by hindsight: Just b/c one guy doesn‟t think the danger is obvious, the jury might agree with him!
Children o Jonescue v. Jewel Home Shopping Service 18-month old child drinks all-purpose cleaner. Court held that manufacturer had “no duty to warn of the patent danger of drinking (the cleaner).” o Bean v. BIC Corp. 4-year old and 5-year old allegedly start fire while playing with a butane lighter manufactured by D. Ps win – “The assumption that children will expose themselves to danger in ways that a reasonable adult would not precludes the manufacturer‟s reliance on the obviousness of the product‟s danger to the child plaintiff.” o Spruill v. Boyle-Midway, Inc. 14-month old dies from drinking furniture polish. Court held that manufacturer inadequately warned b/c environment in which product was being used was home and manufacturer should “anticipate the reasonably foreseeable risks of the use of the product in that environment.” Causation Issues o Kelly v. M. Trigg Enterprises Facts: 16-year old inhales ethyl gas from an air freshener can that she purchased from gas station. She is “high” and gets in car accident while driving. Family sues gas station and manufacturer. Was there actual causation? Debatable that the ethyl gas actually causes the injury. This was a car wreck, after all. Would a better warning have prevented the injury? o Probably not. Was this a foreseeable use of the product? Debatable – how it was used in this case was known as using “poppers.” It was also sold in stores that sell drug paraphernalia.
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Example that something can be “bad” to do, but it may still be foreseeable. Court said there’s a way P could still win in this case: If P could show that manufacturer was really selling this as an inhalant and that characterizing it as an air freshener was merely a pretense. o Do you see more of a design defect case here? o Moran v. Faberge Facts: P is burned when someone poured cologne onto candle to make it “scented.” Result: P won $20,000 judgment! Causation Issue: Would a warning have made any difference? After all, what happened was kind of done on impulse…not really thought out. Bulk Suppliers Rule General: The argument that the original (bulk) supplier had no duty to warn the plaintiffs can be classified in two ways: o (1) Failure to Warn Claim: P argues that original supplier had duty to convey a warning directly to the P. o (2) Defense: Original supplier argues that purchaser of the product was a sophisticated entity and that any duty to warn the P belonged to the purchaser. (Note: “Purchaser” is the middleman between supplier and P). Hoffman v. Houghton Chemical Corp. o Facts: Explosion at plant kills two workers – explosion blamed on mishandling of chemicals – Houghton is bulk supplier of them. o Issues: (1) Is bulk supplier doctrine an affirmative defense? (2) Is Houghton protected by that doctrine here? o Holding: (1) Yes. (2) Yes. o Reasoning: (1) This doctrine is very appropriate for bulk sales. 1) Nature and function of bulk sales. o Bulk product usually has a lot of different uses – too difficult for bulk suppliers to warn of every possible use directly. o Stored in bulk by intermediary who generally repackages or reformulates bulk product. 2) Intermediary vendee has its own independent obligation and bulk suppliers should be able to rely on this. 3) Goal of products liability law is to “induce conduct that is capable of being performed.”
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(2) In order to avoid liability for failure to warn, the bulk supplier must have “reasonable assurance that the information will reach those whose safety depends on their having it.” D reasonably relied b/c D had reason to believe that Gotham was a knowledgeable purchaser of their product, able to understand warnings and to pass warnings on to their employees. o Class Notes: What kinds of warnings was D giving with its products? (1) Warning labels on some of the drums of chemicals. (2) MSDS: Warning on a sheet of paper regarding the chemicals. (3) Other documents supplied to Gotham concerning the properties and the safe handling of the chemicals. Bulk Transfer vs. Sophisticated User doctrines: Bulk Transfer: Instead of going down the chain to warn end user yourself, you use chain to pass on the warning. Sophisticated User: Look at end user – no warning needed in situations where user is classified as “sophisticated.” o Both are reasonableness tests. o Both apply to all warnings claims. Restatement’s Three Factors with Bulk Suppliers: (1) How severe are the risks? (2) Likelihood that intermediary will adequately warn the workers. (3) Feasibility of giving warnings directly to the users. Bulk Supplier Rule: Was the supplier reasonable to think the warning would get to the end user? This is a fact-specific determination based on what supplier knew about the intermediary and their practices. Post-Sale Duty to Warn Generally: o Application of Post-Sale Duty to Warn: (1) Done only under negligence, which makes it lighter on manufacturers. (2) More of a case-by-case determination. (3) Treated as question of law for judge to decide b/c it relates to your duty under negligence law. (4) have to analyze this separately for each seller. (5) Duty could continue to exist even if you‟re no longer in business of making the product. (6) Could have this obligation even after no one is using your product anymore – if it could make a difference if people get that information. Ex. Cancer-causing product and getting early treatment. 31
o Factors to Consider in Post-Sale Warnings: (1) Practicality to giving warnings (2) Importance of timing (3) Recently sold versus sold a long time ago (4) Different circumstances – Dangerous in way people didn‟t expect: o More apt to require warnings Came up with safer way to make product: o Less likely to require warnings b/c: (1) products are always changing; and (2) don‟t want to deter manufacturer form innovating for safety. o Third Restatement – uses four factors in considering whether seller or distributor had post-sale duty to warn: (1) Knows or should have known of substantial risk (2) Can identify people who are unaware of the risk (3) Warning can be effectively given and acted on (4) Risk is enough to justify burden Lovick v. Wil-Rich o Explains difference between point-of sale duty to warn and pose-sale duty to warn: When considering the warning at the point of sale, the focus in on the foreseeability of a defective product and not much else. So many other factors must be taken into consideration post-sale when determining reasonableness of manufacturer’s conduct. o Note: Post-sale duty to warn is much harder. Warranty registration cards may help (but return rate is low!) Could try to do general advertising. Comstock: First case on this issue o Facts: Problems with the power brakes failing on line of cars. o Court: Duty to take all reasonable means to give effective warnings to those still driving the defective cars, once the manufacturer knows of the defect, the harm the defect has caused, and its potential harm to others. Wisconsin case: Sausage-stuffing machinery – come up with new safety device for the machines. But, not everybody bought the device and someone gets hurt. o Court: Don‟t want to require post-sale warnings for every product – product innovations always happening. But, an industrial-strength sausage-stuffing machine is different. It‟s not something that everyone buys and it‟s not too onerous to give post-sale warnings. What about Recall? o Courts are less likely to require recall than post-sale warnings – why? (1) Recall is even more expensive. (2) Concern that manufacturers will refuse to come up with safe designs if they‟re just going to have to recall. (3) Concern that ordering recall will encourage manufacturers to make their products less durable so they‟ll just wear out before they can be recalled.
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(4) Would rather let administrative agencies deal with recall issues – they‟re better suited for it. o States and Recall: Kansas: Won‟t allow courts to recall. Missouri: There may be a duty to recall – in limited circumstances. o Third Restatement and Recall – reasonable person standard: D liable for failure to recall if: (1a) gov‟t directive to recall has been issued; or (1b) in the absence of recall requirement, seller or distributor undertakes to recall the product; and (2) seller or distributor fails to act as a reasonable person in recalling. o Negligence Theory and Recall: D liable if: (1) D fails to do recall ordered by gov‟t; or (2) D undertakes recall, but does so negligently. Allergic Reactions Livingston v. Marie Callenders, Inc. o Facts: P suffered severe allergic reaction when consuming soup which contained MSG. No warning was given to P regarding the MSG. o Issue: Was it error for the court to strike P‟s failure to warn claim? o Holding: Yes. o Reasoning: CA uses Restatement Second 402A as it applies to warning claims. Thus, there is triable issue of whether D is liable for failure to warn of an ingredient to which a substantial number of population are allergic. (MSG is such an ingredient). Further, CA uses the state of the art approach to warning claims, which is actually more of a negligence approach. o Class Notes: Everyone seems to agree on when there is a duty to warn about allergic or other idiosyncratic reactions to a product: (1) Substantial number of people allergic, o Questionable – how much is “substantial?” Third Restatement: Not precisely quantifiable, but must be more than one person. Depends on severity of allergy – the more severe or threatening, the fewer are required to make it “substantial.” Previous Cases: 1 out of 1,000 is probably enough; 1 out of 120,000 is not. (2) Presence of ingredient is not generally known to consumers; and (3) Presence of ingredient is known or should be known to D. o This is really the state of the art approach. Learned Intermediary Rule
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Learned Intermediary Doctrine: Duty to warn of dangers in the prescription drug context runs from the manufacturer to the physician. (This is the same idea as behind “bulk transfer.” Here we‟re just in the medical context). o What’s Covered: Warning claims for prescription drugs and medical devices. o Exceptions recognized by some courts (where manufacturer has some obligation to give warning directly to patient, but does not eliminate manufacturer‟s duty to warn doctors, too – just adds a second requirement) (1) Vaccines in mass immunizations (2) Oral contraceptives and IUDs (3) Products for which FDA requires warnings to consumers (4) Products advertised directly to consumers o Missouri, Kansas, and the Exceptions: Missouri: No precedent on the exceptions Kansas: Rejected exceptions for vaccines, oral contraceptives, and IUDs. o Third Restatement, sec. 6(d) – Learned Intermediary Rule: Exception: Must warn patients if manufacturer knows or should know health care providers will not be in position to reduce risks. Comments to this section indicate that this exception includes mass immunizations. But, it takes no position on the other exceptions. o State of the Art vs. Imputed Knowledge Approach to the Rule? Imputed knowledge is the minority rule and even in those states that use it, it‟s NOT used on prescription products for failure to warn claims. Edwards v. Basel Pharmaceuticals o Facts: D manufactures nicotine patches. P‟s husband died from nicotineinduced heart attack as a result of smoking cigarettes while wearing two patches. Claim is that warnings were inadequate. o Warning from manufacturer to user: Insert in the nicotine patch‟s package did not mention the possibility of fatal or cardiac-related conditions to nicotine overdose- although it did caution that overdose “might cause you to faint.” o Court’s Holding: D can be held liable for inadequate warning. o Reasoning: In this case, the FDA has required that warnings be given directly to the patient (b/c it‟s a prescribed drug). Just b/c a manufacturer complies with FDA regulations for its warning does not mean that the manufacturer‟s duty has been completed. The common law duty to warn is governed by state law. Norplant contraceptive case o Facts: Capsules are inserted into a woman‟s arm. Advertising campaign is launched – product is touted as being “easy, effective, and convenient.” But, no warnings ever given.
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o List of problems/side-effects associated with this product: dizziness, numbness in the limbs, vision problems, etc. Furthermore, it was difficult and painful to remove the capsules from the arm, and it could leave scars. o Ps want this to be an exception to learned intermediary rule: Since at this time some states didn‟t have the oral contraceptives exception, Ps argue that b/c manufacturer advertised directly to the consumer, the manufacturer must thus directly warn the consumer (and the physician). FDA Regs o Up until 8 years ago: Could advertise prescription drugs as long as you included brief summary of product‟s risks – could do in magazine ad, but very difficult to do on TV. Exception: If nowhere in ad does it mention the purpose of the drug, then you don‟t have to mentions the risks/warnings. o Today: Whether on TV or radio, you can just warn about the major risks. You can tell people to talk to their doctor and can give out a toll-free # they can call for more information. Result: Explosion of advertising on TV for prescription drugs. Duty of Post-Sale Warnings? o Most courts are reluctant to require post-sale warnings on manufacturers b/c of: (1) cost; and (2) difficulty involved. o Courts are different with drug manufacturers, though. Court are VERY willing to impose this duty on drugmakers: (1) Easier for drugmakers to do it than other manufacturers Drugmakers know who the doctors are. (2) Drugmakers already have ongoing duty to let doctors know of warnings b/c of FDA regulations Required to investigate problems, discover risks, and inform the FDA. Thus, this requirement is not really an extra burden.
II. PRESCRIPTION DRUGS AND DESIGN DEFECT CLAIMS Prescription Drugs Freeman v. Hoffman-La Roche, Inc. o Facts: Accutane and its side-effects (such as ulcerative colitis) o Issue: Was Accutane a defectively designed product? o Comment K and the Different Approaches: (1) No liability if FDA approved it Most favorable to manufacturers – leaves issue to FDA o Won‟t allow design defect claims when FDA approved it Few states have used this – it‟s a very rare position o Ex. Michigan (2) Blanket immunity Courts: All prescription drugs will be treated as being unavoidably unsafe.
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Consequence: Won‟t have strict liability for design defects in prescription drugs. What about negligence? Most courts still allow claims for negligence Used to be dominant approach Regarded as more manufacturer-friendly (3) Case-by-case Majority Rule – MO and KS both use it More plaintiff-friendly Uses risk-utility analysis o Some drugs are treated as unavoidably unsafe and other aren‟t o If unavoidably unsafe, then no liability Most courts use this to create an affirmative defense – o D must prove: (1) Drug was made as safe as possible. (2) Do benefits justify the risks w/this drug? o If D proves both, then no liability. o If D cannot prove both, then affirmative defense is not allowed any claim under products liability law can be brought. (4) No special rules for drugs Treat them under regular rules of products liability. Best position for plaintiffs. Very rare position for courts to take, though. o Third Restatement – wanted to give more protection to drugmakers: Section 6c Drugmaker liable if foreseeable risks are so great compared to benefits that no reasonable health care provider would ever prescribe it to any class of patients. Situations where Third Restatement provides strange results: (1) Accutane o Although it‟s undisputed that this product can cause birth defects, the Third Restatement looks at it on class-by-class basis. o Reasonable health care provider might want to prescribe to men b/c no risk of getting pregnant. o Result? No liability. (2) Thalidomide o Caused severe birth defects – like missing limbs. o However, the drug is approved for those suffering from Hanson‟s disease (lepercy). Limited group taking this medicine. o Under Third Restatement, since reasonable doctors would prescribe for certain class of patients, it would pass! Thus, no liability. 36
Reasonable Alternative Design Must propose a drug that‟s been approved by FDA. Case involving hemophiliacs taking a prescription product that helps them clot – the product is a combo of blood donations. HIV outbreak in these patients. Later, discover heat treatment to rid the blood of the virus before using for treatment. o Under traditional tests, there‟s possibility of having a claim. o But, under Third Restatement, manufacturer has complete defense b/c there was nothing else on the market at the time. Bottom Line: Really hard to bring design defect claim under Third Restatement – only allowed in rare situations where product is SO bad that FDA never would have approved it.
III. MISREPRESENTATIONS Misrepresentations, Generally Negligence Misrepresentation
Negligent Misrepresentation (1)Failure to exercise reasonable care (2)Misrepresentation about material fact (3) Actual cause (4) Proximate cause (5) Harm to P
STL
Second Restatement 402B (1)Misrepresentation about material fact (2) Someone justifiably relies on it (3)Foreseeable use of product (4) Actual cause (5) Proximate cause (6) Harm to P
Warranties
Express Warranties (1)Affirmation of fact or promise concerning product (2) Made part of the basis for the bargain (3) Product does not conform to the affirmation or promise (4) Actual cause (5) Proximate cause (6) Harm to P
Third Restatement
Sec. 9 (1)Tort Law: Same required elements as 402B; And/Or (2) Contract Law: Use UCC warranties provisions
Cunningham v. C.R. Pease House Furnishing Co. o Facts: P relies on statement made by clerk at store that the blacking could be safely used on a hot stove. Explosion occurs when blacking used on hot stove and injuries result. o Issue: (1) Privity of K? (2) Does privity matter? o Holding:
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(1) No – this is third party situation where mother bought it but daughter was injured. (2) Liability w/o privity in order to deter wrongdoing and to allow compensation.
Baxter o Facts: Manufacturer‟s catalogs advertise windshields as being made from “shatter-proof glass… so made that it will not fly or shatter under the hardest impact.” P in this case lost an eye when the windshield of his car shattered as a result of being struck by just a pebble! o Issue: (1) Privity of K? (2) Does it matter? o Holding: (1) No. (2) No. o Strict Liability for Misrepresentation: All we care about is whether statement made was true or not. Thus, you can have liability even if it is a totally innocent misrepresentation. o “Justifiably Relied on” Misrepresentation Requirement: Someone has to justifiably rely on the misrepresentation (negligence and STL requirement) Third party can still have claim, even if third party not the one who justifiably relied on it (stove case – mother relied on it, and that was enough). Negligent Misrepresentation vs. Intentional/Fraudulent Misrepresentation: o Negligent – Requirements: (1) Misrepresentation (2) About material fact (3) Made negligently (4) Someone justifiably relied on it (5) P harmed b/c of that reliance o Intentional/Fraudulent – Requirements: (1) Misrepresentation (2) About material fact (3) D knows it is false (or recklessly disregards truth) (4) D intends for someone to rely on it (5) Someone justifiably relied on it (6) P harmed b/c of that reliance Second Restatement (STL) and Misrepresentation o 402B has not really been used – it‟s been overshadowed by warranties. o We do know that you don‟t need negligence or privity of K, but there are still some uncertainties: (1) “Made to public:” What about misrepresentations made in private?
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Comments to the section say they‟ll leave up to state courts to decide. Comments claim they don‟t take one side or other in the Second Restatement. (2) “Ultimate user or consumer” Used in 402A (for manufacturing/design defects and inadequate warnings). But, does 402B go that far? Courts have said 402B includes anyone who uses the product = consumer. o But what if you‟re bystander who‟s injured? Courts haven‟t resolved this. (3) “Property” Property damage covered in 402A, but what about 402B? Professor thinks it‟s just a drafting inconsistency. Cases go both ways on this. Warranties and Misrepresentation o Doesn‟t need to be misrepresentation about “material” fact. Can be “any” affirmation of fact or promise. o Don‟t need to prove “justifiable reliance.” As long as misrepresentation was a “part of basis of bargain,” there‟s a legit claim. Courts say this is easier to satisfy – just need to show that misrepresentation was part of the sale! Third Restatement and Misrepresentation o P can recover under tort law (use 402B) or contract law (use Warranties). o Sec. 9 solves mysteries of 402B: No mention that “needs to be made to the public.” Doesn‟t limit harm to consumers or users – it covers everybody. Includes harm to persons or property. American Safety Equipment Corp. o Facts: Helmets used by police dept. All helmets come in same box – all pics on box depicting use of helmet are the same – used on the street and used by a motorcyclist. Station takes these helmets and paints motorcycle helmets one color and street helmets another color to avoid confusion. Used helmets are placed in bins – officers can take them for their own personal use – motorcycle helmets in one bin and street helmets in another. P takes helmet from “street” bin, he paints it the color of motorcycle helmets, and then he uses it and it fails to protect him when he gets into wreck b/c it was a street helmet with a “special release.” o Issue: Is manufacturer of the helmet in this case liable to P for his injuries b/c of a misrepresentation regarding its helmets? o Holding: No. o Reasoning: A reasonable person would not have relied on the pictures on the box. Note: This case shows that a misrepresentation doesn‟t have to just be in words – it can be visual. 39
o Principles for determining whether reliance is justifiable: (1) You can justifiably rely on what someone says even if you don‟t investigate it yourself. Thus, you don‟t have to do your own investigation. (2) But, you‟re not free to disregard what you know or disregard your common sense – you can‟t rely on something if it‟s obvious to you or if you know it‟s false. That‟s basically what happened in this case – P knew better and yet disregarded what he knew! Third Restatement essentially says you have to act like a normal, half-way sensible person. Crocker v. Winthrop Labs o Facts: Talwin was a painkiller. There were possibilities of addiction. However, the drug company rep. (D) told P‟s doctor that Talwin was “as harmless as aspirin and can be given as long as desired.” The rep. also told his doctor that the drug had “no addicting effect.” P did get addicted to Talwin –later died b/c of a weakened condition due to his detox – detox from Talwin addiction. o Issue: Is D liable for the harm caused to P as a result of D‟s misrepresentation? o Holding: Yes. o Reasoning: Under STL (402B), D represented its product to be free and safe from all dangers of addiction, and when the treating physician relied upon that representation, D was liable when the representation proved to be false and harm resulted. o Court says that D is liable on the misrepresentation claim but not the warning claim – why? (1) Warning – brought under negligence, but there was NO proof of negligence. Not unreasonably careless FDA approval for label (2) Misrepresentation: Strict Liability used – NOT negligence Makes it easier for people to have claim when SL used. o Easy to know what to compare – ask whether statement was true or false. Ladd v. Honda Motor Co., Ltd. o Facts: ATV accident leaves minor a paraplegic. o Alleged Misrepresentation: P claims that D misrepresented that children could safely operate ATVs b/c on D‟s TV ads, which marketed its ATVs generally rather than of particular models, children were shown using the ATV. o Issue: Is there a claim for misrepresentation when D‟s representations were general and did not apply specifically to the ATV model at issue? o Holding: Yes. Case illustrates that there can be a misrepresentation based on an image.
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o Policy: Manufacturers should not be permitted to insulate themselves from liability under 402B simply by using general ads of an entire product line. o Note: Even though guy who let the minor use ATV did not “buy” the ATV b/c of the ads, he allowed the minor to use the ATV b/c of the ads, and that was enough for justifiable reliance, according to the court. o Was these mere “puffing?” No, according to the court. Puffing – what courts consider: (1) Fact v. Opinion o B/c can‟t prove whether opinion is true or false, there can be no misrepresentation claim. (2) Specificity o More specific, the more factual it becomes o More vague/general, the more apt to be an opinion (3) Verfiability o Can you corroborate/check it out, or not? (4) Relative Knowledge of the Parties o If it‟s something that each can observe for themselves and then form their own judgment amount, then more of a matter of opinion. (5) Equivocal Phrasing o “Will not” versus “Should not” o Dealer Liability? There can be dealer liability for misrepresentations in such ads where they are made available to dealers by the manufacturers to run in the local papers and on local TV. Baughn v. Honda Motor Co. o Facts: Child injured while operating mini-trail bike on a public road. TV ads for these bikes did depict children operating them, but it did not depict them operating them on a public street. They were meant for off-road use. o Issue: Can D be held liable for P‟s injuries? o Holding: No. o Reasoning – Compare to Ladd Justifiable reliance was present in Ladd – not so here: Children here were injured when using the product in a manner in which it was not intended to be used. The advertising for the bike never said it was okay to use the bike on public streets. Further, it did not depict children riding the bike on public streets – it depicted children using them appropriately – in “off-road” settings. Hauter v. Zogarts o Facts: Ds sold Ps the Golfing Gizmo – golf training device. While using this device, P‟s child was injured when he hit underneath the ball – the cord connected to the ball was drawn up and toward him and he was hit on the left temple with the ball.
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o Alleged Misrepresentation: “COMPLETELY SAFE BALL WILL NOT HIT PLAYER.” Note: No punctuation – punctuation could affect how you interpret this statement! Example: “COMPLETELY SAFE. BALL WILL NOT HIT PLAYER.” o Issue: Was this a misrepresentation of material fact on which P justifiably relied, thus allowing P to recover for false representation? o Holding: Yes. o Was the alleged misrepresentation puffery? No – why? Not mere opinion – it instead factually describes an important characteristic of product. It‟s so broad that it falls under 402B analysis. More on Puffing o Collins v. Wayne Corp. What was considered puffing? Sales brochure statements (1) “Outstanding for field trips.” o Considered puffery. o No claim for misrepresentation when statement is mere puffery. What was not considered puffing? Statement made in sales brochure for the bus: “Wayne busses exceed state and national school bus safety standards.” Still no claim, however: The bus involved in the accident which caused the injuries here was an activity bus. The brochure only applied to D‟s school buses, and not D‟s activity buses. Thus, no misrepresentation. o Halbrook v. Honda Puffing: Ads show D‟s motorcycles being driven at fast speeds. P was not a child and there is no duty for advertiser to change its advertising pitch b/c adult targets may be “swayed.” The claims of speed and fast acceleration were mostly puffing. o Chic Promotion, Inc. v. Middletown Security Systems Puffing: Brochure is merely a pre-sale inducement to purchase the security system. Mere puffing to say what the alarm system “can” do. o Pfeiffer v. Empire Merchandising Company No puffing: Following statements in ad regarding knife were not considered puffing and D was held liable under a misrepresentation theory (breach of express warranty) for injuries incurred when the knife slipped from P‟s grip: “It cannot slip or turn in the head.” “No hilt to get in way of cutting action. Knife is of such perfect design the hand cannot slip.”
How Misrepresentations can Affect Design Defect and Warning Claims
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Maize v. Atlantic Refining Co. o What kind of claim is this? Inadequate warning claim. o What ways were warnings inadequate? These warnings may have otherwise been adequate, but b/c of the prevalence of the name “SafetyKleen” all over the product, they were easily ignored. “Safety-Kleen” is the name of the product, but the word “safety” naturally lulls user into false sense of security. Further, the word “safety” was so prominent (conspicuous) and was displayed on all four sides of can that it made the smaller word “caution” and the warnings against inhalation of flames of comparatively minor importance. McCully v. Fuller Brush Co. o Instruction in question: Label on the cleaner directed that solution be properly diluted before use – even gave measurements. o Court says inadequate – why? (1) Directions on the label were inadequate to warn that, “unless used exactly as directed, injury to skin may result.” Warning v. instruction distinction becomes an issue. (2) The label also contained the words, “It‟s Kind to Your Hands.” These words were conspiculously displayed and this message “naturally lulls the user into false sense of security.” Brown v. Glaxo, Inc. o Can a written warning be superseded by a verbal representation? Yes. Here, the written information provided to doctor regarding the rare possibility of serious “coronary events” as a potential side effect of taking the medication. This warning was held to be sufficient. Learned intermediary doctrine: Warning given to doctor, and doctor expected to convey warning to patient. But, verbal information was given to the pharmacist from D‟s rep that: “Chest tightness can occur but it will resolve itself and it‟s not cardiac in origin, so there‟s nothing to worry about.” This representation was held to “dilute or confuse.” Further, this representation may have lulled P into a false sense of security concerning her sometimes “alarming” chest pains. General Mills cereal case o Facts: Class action brought on behalf of children. General Mills was attacked b/c of large amount of sugar contained in their cereals = 40%. o Alleged misrepresentations in advertising: (1) Say they‟re “breakfast cereals.” Ps argue they‟re really just candy b/c of high sugar content. (2) Statements that they‟re part of “well-balanced breakfast.” (3) Eating these cereals will make you “bigger and stronger.” (4) Honey Combs contains honey – but it really does not. 43
o Is there justifiable reliance on a material fact? Parents are the ones buying the cereal. So, even if children are being misled, reasonable adults won‟t be misled by the ads. But, doesn‟t general public think that cereal is healthy? So, arguably there are some things that an adult could justifiably rely on. o Procedure: Originally this case was rejected b/c believed the alleged misrepresentations were mere “puffery.” But, Supreme Court later said it was a valid claim. III. ALCOHOL ADVERTISING Alcohol Advertising Misrepresentation - Gawloski v. Miller Brewing Co. o Appellants advance a Nullification Theory: Under this theory, a manufacturer is liable for injuries caused by a product‟s known dangers if the manufacturer, through its advertised representations, unrealistically minimizes the known dangers or implies that the dangers don‟t exist. o Holding: No claim b/c a reasonable consumer could not ignore basic common knowledge about the dangers of alcohol and justifiably rely upon beer advertisements and their idyllic images to conclude that the prolonged and excessive use of alcohol is safe and acceptable. Inadequate Warning leads to Defective Product – Hon v. Stroh Brewery Co. o Facts: Victim, who drank D‟s beer moderately (two to three cans of beer/night on average of four nights a week), died of pancreatic at age 26. Victim‟s wife felt D‟s ads had effect of cultivating a belief among the consuming public that moderate consumption of its product was safe. o Holding: The absence of a warning of latent risks could constitute a defect and could be a proximate cause of an injury. Therefore, there was genuine issue of material fact to be decided by jury as to whether D‟s product was safe for its intended purpose. Latent: Present or potential (risks) Inadequate Warning – Malek v. Miller Brewing Co. o Facts: P injured in car accident – drunk driving accident. o Alleged: (1) Failure to warn about the dangers of excessive beer consumption and driving; and (2) failure to instruct on safe use of its product (beer). o Holding: Drinkers are bound as matter of law (through state statutes) to recognize the danger of intoxication – Miller thus had no duty to warn and the product, as marketed, was not unreasonably dangerous. Inadequate Warning - Seagram & Sons v. McGuire o Facts: Respondents suffer or used to suffer from alcoholism. o Alleged: Seagram had duty to warn and instruct respondents of danger of developing alcoholism from prolonged and excessive consumption of alcoholic beverages.
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o Holding: No duty to warn b/c the danger of developing alcoholism from prolonged and excessive consumption of alcoholic beverages is w/in the ordinary knowledge common to the community. Restatement 402A, Comment j: Excuses a seller from duty to warn as to dangers that are “generally known and recognized.” Seller of Alcohol: Not excuses from warning of ALL product dangers – just those that the public has “common knowledge” of. Advertising Limits for Alcoholic Beverages – Are they being followed? o (1) Can‟t advertise alcohol in any manner associated with violent or abusive relationships. o (2) Can‟t show people drinking while driving. o (3) Not supposed to do anything that suggests that alcohol would help you attain financial success. o (4) Not supposed to rely on sexual success as a selling point. IV. DEFENSES Comparative Fault and Assumption of the Risk Negligence STL Warranties 3rd REST. OLD
Contributory Negligence Even if D was at fault, P was also unreasonably careless. Elements: (1) P failed to exercise reasonable care. (2) Must be a cause AOR Could be express/contractual to waive liability Implied AOR: o Weren‟t trying to take liability, but you did something dangerous – “voluntarily assumed a known risk.” o You have to know fairly specifically of risks. 1960s: SL adopted in CA by Traynor Contributory Negligence: 402A Comments says no CN in SL. WHY? B/c there is no concern w/fault in STL. Implied AOR: If you voluntarily encountered a known risk, it should be a defense to that. Contributory Negligence: Not a defense Implied AOR: This is a defense
NEW
Comparative Fault Ask how much of fault was P‟s. 46 states have this. (1) Pure CF o P can always recover something, even if 1%. o MO does this, but not many others. (2) Modified CF o KS o If D‟s fault is greater than or equal to P‟s fault, P can recover. But, can‟t recover if D‟s fault less
Comparative Fault: Not a complete defense MO 547.765: Did what CA Sup. Ct. did in Daly Recognize that Comp. Fault can be used in STL cases. Result: AOR is
Comparative Fault: This is used Don’t worry about implied AOR.
Sec. 17:
Use Comparative Fault Does not recommend a particular model – allows CF of P to reduce recovery of damages.
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than 50%. Implied AOR Some courts keep it as sep. defense Most have merged Implied AOR into Comparative Fault.
swallowed. Most states follow this.
Daly v. General Motors – Supreme Court of CA o Issue: Should comparative fault principles apply to SL actions in products liability? o Holding: Yes. Comparative fault is now extended to actions in strict products liability. o Reasoning: SL is NOT absolute liability – injury must have been caused by the defect. o Argument against comparative fault: o (1) We want to keep best incentives for manufacturers to make safe products – don‟t want them to think they can escape a good chunk of liability. o (2) Don‟t want to get STL and Negligence confused – we don‟t look at “fault” in STL – so why use comparative fault? o (3) Too hard to compare one‟s carelessness with a defective door latch (as was the case here) – too hard to analyze comparative fault here. Apples and oranges – not comparable when comparing human action to inanimate object.
Economic Losses Economic Loss Rule: Not clear whether it‟s an affirmative defense that you must plead in your answer; also not clear whether burden is on D. o Purpose: To limit the types of harm you can claim under tort law. o The Analysis: (1) Did P suffer a personal bodily injury OR damage to property (other than product itself)? YES P can use tort claims (negligence and/or STL) to recover damages for the following: o A) Personal bodily injuries; and o B) Harm to property (other than product itself); and o C) Harm to product itself; and o D) Economic losses resulting from any of these things (A-C). NO Then ask: Did P suffer harm to the product itself? o YES P can try to recover under warranties or contract or consumer claim for : A) Harm to the product; and B) Any economic losses resulting from that. BUT: The economic loss rule prevents P from recovering for this harm under tort law. o NO Did P suffer any economic loss? 46
YES P suffered “pure economic loss.” P may be able to recover for this harm under warranties claim or some other contract or consumer claim. But, may be difficult if the injury was too remote or derived entirely from harm suffered more directly by someone else. o BUT: Economic loss rule prevents P from recovering for this harm under tort law. NO P didn‟t suffer any harm and should quit complaining and just shut up! o What does this rule apply to? Negligence and STL – it prevents P from recovering from certain types of harms. Does not apply to warranties claims or Third Restatement (which has its own rules) o Third Restatement sec. 21: Harm to person or property includes economic loss if caused by harm to: (1) P‟s person; or (2) Person of another when harm to other interferes with P‟s interest protected by tort law; or (3) P‟s property other than defective product itself. Disclaimers What can be waived? What cannot? o Warranties Claims: Generally allowed Easiest type of claim to waive/disclaim is a warranty claim. If there‟s a disclaimer and its effective, the it operates against anyone in the world. Thus, doesn‟t just apply to purchaser. o Strict Tort Liability: NEVER allowed o Negligence: Disfavored, but possible May allow if: (1) It‟s very clear; and (2) If understood by P. o Third Restatement, sec. 18: Depends on whether product is new or used. Example: If you buy used car, you can have a waiver or disclaimer. But, if you buy a new car, you can‟t waive any claim for personal injury. V. MISCELLANEOUS CONCEPTS Statutes of Limitation and Repose (1) Statute of Limitations o Definition: Time starts to run when P suffers injury – it gives P a certain period of time after an injury occurs within which to file suit.
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Length of time: Court will apply the limitations period of the forum jurisdiction. (2) Statute of Repose o Definition: The time period for filing suit is started as soon as the product is sold. Length of time: Limits to usually about 10 years. o Effect: Manufacturers escape liability after SOR has run. It gives manufacturers and their insurance companies the opportunity to know when their potential liability ends. o Why is this used? Don‟t think it‟s fair to use SOL and thus never have a limit on when claims may be brought. o Criticism for SOR: SOR can end before your injury even takes place! The concept of SOR is pretty controversial. There was an attempt to pass a 15-year SOR for all products when Clinton was in office, but he rejected it.
Allocating Liability Among Defendants Negligence o HYPO: P killed by product. Three Ds involved (manufacturer, retailer, seller). Ds found negligent. There are different approaches to take: (1) Old Approach: Joint and several liability to P. Result: P can collect from any D. Criticism: Not fair b/c some who are still liable might not have to pay – even though all are found to be negligent. Alabama still uses it – only state to do so. (2) New Approach: Continue to have joint and several liability (go after one D), but have a way to “divvy” up the liability. Result: Once P is paid, the Ds can now sue each other (contribution claims among Ds). Pro Rata Split: If three Ds, then split 1/3, 1/3, 1/3. Three states use this: VA, MD, and NC (3) Alternative Approach #1: Keep joint and several liability. Continue to have contribution claims, but instead of using pro rata for contribution claims, use contribution claims based on % of fault. % Fault: How much at fault is each D? That will affect how much each D pays. Ps prefer this approach – why? They can keep the protection of joint and several liability. Most states use this approach or the next one. (4) Alternative Approach #2: No joint and several liability – each D is liable only for their % of the fault. Ds prefer this approach, as do tort reform proponents: Don‟t want unfair risk of paying more than your share of the fault. (5) Missouri’s Approach: 48
If you are at least 51% liable, then you are “on the hook” for joint and several liability. If you are below 51% liable, then you have the protection of not having joint and several liability. o Thus, there‟s no risk of having to pay more than your fair share based on your fault.
Strict Liability o Jones v. Aero-Chem Corporation Indemnification: Claim based on strict liability; Brought by the downstream seller; Brought against the manufacturer of the defective item; and Done to get FULL reimbursement. Policy for Indemnification: Public desire to impose liability for an injury on the person or entity primarily responsible for that injury. Ultimate responsibility should not be fixed merely by the fact that an injured customer chooses to seek compensation from one commercial entity rather than another. Compare to Contribution: Claim based on negligence; Brought by any D who pays more than its share; Brought against any D that paid less than its share; and Done to get PARTIAL reimbursement.
Innocent Seller Statutes Kansas o Two requirements for “innocent seller” to be dismissed from an action: (1) Truly “innocent” seller: A) No knowledge of defect. B) Could not have discovered the defect while exercising reasonable care. C) Not the manufacturer of the defective product or component. (2) P likely to be able to collect the appropriate damages from the manufacturer. Missouri – sec. 537.762 o If merely a seller, then can be dismissed from the action in certain circumstances: Basically the same requirements as the KS statute: (1) Innocent seller; and (2) P likely to be able to collect from manufacturer. Question: What if it initially looks like manufacturer can pay, but then they can’t? o Missouri: Order to dismiss seller is NOT final.
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Thus, if manufacturer can‟t pay, then seller can be brought back into the suit! o Kansas: Unclear. Ostensible Manufacturers Definition: An ostensible manufacturer may be held liable as a manufacturer if it sells another‟s products as its own. o Ways to be liable: (1) Attaching its label to the product, or (2) Failing to identify the actual manufacturer of the product. Idea: Not really the manufacturer, but sells the product as though they are. Courts have held in these situations that the seller can be liable. o Deals with statutes like in KS and MO which allow the innocent sellers to opt out of the suit. Third Restatement: If one sells or distributes a product as one‟s own, when it is actually manufactured by another, then one is subject to the same liability as though one were the actual manufacturer. Non-Business Sellers Stiles v. Batavia Atomic Horseshoes, Inc. o Issue: Was D a regular seller of used goods and thus liable under STL (for injuries incurred by used punch press sold to P by D)? o Holding: No. o Reasoning: (1) In the horseshoe business and not in the business of selling used goods such as this punch press. (2) Only had punch press in their possession for an hour. (3) Never unloaded punch press – given to P right off truck. (4) Only did this type of transaction three times. o Comparing different theories of liability and non-business sellers: Negligence: Anyone can be liable on negligence claim. STL: Only those engaged in business of selling that particular product can be held liable. Thus, the section does not apply to the “occasional seller” who is “not engaged in that activity as part of his business.” Bulk Sales: Consider how often the sales are made. The more often, the more apt to be considered a business seller. Warranties: UCC 2-314: Merchants only (implies “professional”) o Merchant: Certain knowledge or skill who deals in goods of the kind, or holds self out to have such knowledge and skill. UCC 2-315: Any seller with special knowledge that buyer relies on. UCC 2-313: Any seller (not limited like other sections)
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Third Restatement: Sections 1 and 9 – only those engaged in business of selling products.
VI. PRODUCTS AND SELLERS Used Products Used Products and Comparing the Theories of Liability: o Negligence: Applies o STL: Courts are split. Arguments For: 402A not limited by its terms to commercial sellers of new products. Furthermore, there‟s policy concern in making the downstream seller liable so that they‟ll pick a reputable manufacturer. Arguments Against: Can‟t expect the same things from used products as new products; general understanding that used goods seller makes no representations as to quality of the used product just by offering it for sale; typically no ready channel of communication by which the dealer and the manufacturer exchange information about possible dangerous in used products or about actual and potential liability claims. o Warranties: Applies o Third Restatement: Liable if – (1) Negligent (2) Manufacturing defect and marketed as “good as new” (3) Manufacturing defect when used product has been remanufactured It‟s been back through the process; it‟s viewed as being manufactured again. Thus seems fair to treat is at new product. (4) Statute violation Even if not new, it shouldn‟t violate any legal standards. Rented Products Rentals and the Different Theories of Liability: o Negligence: Applies o STL: Generally applies – not if merely available for incidental use w/o charge, though. This exception, however, only comes into play when suing the store/seller. If you‟re suing the manufacturer, you can always use both negligence and STL for rentals. o Warranties: Article 2A covers leasing (don‟t worry about) o Third Restatement sec. 20: “Other Distribution” covers renting/leasing. Can be liable as one who “otherwise distributes” if one is a manufacturer, wholesaler, retailer, lessor, bailor, or one who
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provides products to others as a means of promotion for the use of the product. Wilson v. Dover Skating Center, Ltd. o Issue: Can D be held liable under SL b/c D is a lessor of the roller skates which allegedly caused P‟s injuries? o Holding: Yes. o Reasoning: (1) Owner/lessor of skates in best position to inspect them and to prevent rental of defective skates; (2) imposing SL should result in risk reduction by encouraging inspection and testing of skates before they‟re made available to public. MO cases o 1970 case: Court won‟t apply SL when P went to golf course, pays fee to play golf, rents golf cart, and is injured by golf cart. o Later case: Applies SL here. Three legged ladder was used at orchard when customers came to pick apples. Ladder collapsed on P.
Free Products Free Products and Different Theories of Liability: o Negligence: Applies o STL: Applies o Warranties: Does not apply b/c UCC only concerned with actual sales. o Third Restatement: Sec. 20 – applies to forms of product distribution other than when there‟s actual charge. Note: Must be “really” free – free gift bag w/purchase of cologne is NOT free! Illinois case involving service station and tire gauge: o Facts: Service station gratuitously supplied tire gauge to P – it allegedly malfunctioned, resulting in P‟s tire‟s explosion, injuring P. o Holding: No STL on D (service station). o Reasoning: D not in business of selling tire pressure gauges. If they had been, then they could have been liable, even if they offered gauge for free. Services Services and Different Theories of Liability: o Negligence: Applies o STL: No o Warranties: No o Third Restatement: No Royer o Facts: Came to hospital for total knee replacement surgery. P argues that P paid the hospital for the prosthetic knew, and thus it was the purchasing of a product. o Holding: This was not like the normal sale of a product – rather this is a service relationship between the doctor and the patient. o Reasoning: A patient does not enter a hospital to purchase a prosthesis, but “to obtain a course of treatment in the hope of being „cured.‟”
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Designers Rule: Can be liable for Negligence, but nothing else! Suppliers of Component Parts o 3rd R. §5 – manufacturer of component part is liable when – Component itself is defective Substantially participate in integration of component into final product ok to give advise or comply w/ specs – can be responsible for helping w/ decisions about final design of product Successor Liability o 3rd R. §12 - Circumstances of liability: Agree by K to be liable Participate in fraudulent conveyance (purposefully reshuffle organization) Merger or consolidation If company is mere continuation of old company – same products, EE‟s, equip… o No liability – Sell assets to another company or person Purchase entire product line o 3rd R. §13 - When successor has duty to give post-sale warnings Successor agrees to provide services for maintenance/repair or enters ongoing relationship w/ consumers, and Reasonable person would provide warning successor knows or should know product poses substantial risk consumers unaware of such risk can be identified warning can be effectively communicated risk of harm is great to justify burden of providing warning Negligence Yes SL Courts are split Warranty Yes 3rd Restatement §8 – Liable if: -Negligent -§§2(a) or 3 and marketed as good or new -remanufactured -statute violation §20 – “other distribution” covers rented/leased products §20 No
Used
Rented
Yes
Free Services
Yes Yes
Generally applies – not if merely available for incidental use w/out charge Yes (Δ must be in business) No
Article 2A – leasing No – only applies to sales No
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Designers Supplier of Component Parts
Yes
No
No
No §5
VII. EVIDENTIARY ISSUES o Relevant & admissible evidence offered by Π – Evidence that others in industry do something safer Evidence of Δ‟s poor QC procedures o Evidence offered by Δ – Evidence that others in industry do same thing as Δ industry custom evidence is evidence towards standard of care in negligence claim – not conclusive o Easterly – Π claiming Δ store negligently sold product to kids; Δ allowed to introduce evidence of retailers w/ similar products & circumstances industry custom evidence is not admissible in strict liability claims o admissible if not relevant to issue other than fault o Lenhardt – Π’s van slipped into reverse when motor was left running; Δ was not allowed to enter industry evidence re design of transmissions b/c SL focuses on product Evidence of Δ‟s good QC procedures negligence very relevant SL generally not allowed unless relevant to issue other than fault AZ case – court allowed evidence of Δ’s QC on issue that moldy banana wasn’t in cereal at time product left manufacturer but irrelevant to lack of fault in SL Evidence of Other Accidents o Generally admissible & relevant to any elements of proof o Must decide whether other accidents are sufficiently similar to accident in present case Burden of proof is on Π Mercer v. Pittway Corp. – Δ maintained records of “no response to smoke” complaints for smoke detectors; Π argued these were
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similar but court said no b/c detectors didn’t respond for various reasons Safe History o Δ wants to offer evidence that there have been no previous incidents o Generally not admitted unless Δ can prove it would‟ve heard & known of other accidents o Must prove adequate amount of use of product under similar situations Adequate amount – absence of previous accidents is meaningful o Courts are hesitant to allow safe history evidence – especially in SL claims Collateral issues are time consuming & distracting Juries may overact to this type of evidence o Jones v. Pak-Mor – president of company stating there’d been no previous accidents was not sufficient o Goins v. Wendy’s – Π sick after eating salad bar; court didn’t allow Δ’s evidence that other 117 customers didn’t get ill – too far of a stretch Regulatory Standards o Evidence of violation of statute or regulation is negligence per se Δ is deemed to have failed exercise of reasonable care Good excuse for violation statute is not negligence per se o Must show – Violation of statute/regulation Actual & proximate cause of harm to Π 3rd R. §4(a) - Accident is what legislature intended for statute to cover CA case – boy fell on car’s hood and stabbed in eye by ornament; local law didn’t allow such ornaments on cars but Π failed to prove this element b/c law was enacted to minimize damage in collisions o Compliance with statute or regulation Relevant – not conclusive 3rd R. §4(b) Evidence of Subsequent Remedial Measures o Courts do not generally admit this evidence Definitely inadmissible for negligence claims otherwise bad effect on behavior of Δ‟s – won‟t wan to fix products for fear of looking guilty courts are split for SL claims federal courts – o majority holds this evidence is always excluded o minority (8th & 10th Cir.) excludes evidence for negligence but admits under SL state courts – o half of courts (KS) exclude evidence for all claims
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o other half (MO) exclude for negligence only & allow for SL Alt v. International Harvester (Mosk opinion) – should all this evidence under SL b/c it’s unrealistic to think Δ’s will refrain from fixing defect Evidence of Recalls o Court will allow evidence o Δ may be less likely to recall if it can be used as liability evidence – however, almost all recalls are involuntary, so it‟s really not an issue w/ the courts
Circumstantial Evidence o Negligence – res ipsa loquitor Strict liability o Malfunction doctrine – Product functions in way that there‟s most likely a defect Not automatic win for Π – but enough to get to jury ☼ Courts are more likely to apply the doctrine when product was destroyed More you can rule out other causes – better chances of using doctrine Better chance if product is newer and not old 3rd R. §3 o Infer defect if: Accident wasn‟t caused by something else Doesn‟t normally happen w/out defect o Primarily meant to apply in manufacturing defect claims With design defects – can look to other products for proof o Cannot use when product worked as supposed to but you believe it should‟ve had additional safety features o State Farm v. Chrysler – court was tough in not allowing circumstantial evidence to weigh in on Π’s claim; Π bought new car and had history of wiring problems – caught on fire in garage; court held further causation was required b/c circumstantial evidence not enough to infer liability o Expert testimony does not have to consist of scientific & engineering experts o Pagnotta – Π allowed to use state trooper and insurer to asses Δ’s fault in accident
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VIII. MARKET SHARE LIABILITY Conspiracy Concerted Action o 2 or more people worked together to accomplish the tortious act that harmed Π Each can be liable for entire harm Alternative Liability o Group of defendants o Each did something tortious o One or more caused harm to Π o Π is unable to determine which caused the harm o Everyone that might have done it is a Δ in this case o Burden shifts to Δs o Each could be liable for entire harm Summers v. Tice – 3 quail hunters ☼ Difficult to use w/ large amount of Δ‟s b/c it‟s impossible to get them into one case Enterprise Liability o Manufacturers adhered to insufficient, industry-wide safety standard and o Probable that cause of injury is a defendant Burden shifts Each could be liable for entire harm o Theory was only used in one case (blasting caps) – best for centralized industry Market Share Liability o Π was injured by product o Unable to determine who made the product o Each manufacturer did something tortious o Product is fungible Liability is proportional to market share ☼ CA and Judge Most were first to adopt o Hymowtiz v. Eli Lilly – DES daughters want to sue manufacturers but b/c of unique nature of product are unable to prove which manufacturers caused their harm; court applies market share liability o Courts will not apply market share liability if national market is not easily defined, unable to narrow down time period that injury occurred and product is not fungible Brennar – boy became ill after ingesting lead-based paint chips; court denied applying market share liability b/c rare exception in product liability cases where Π doesn’t have to prove causation IX. GUNS o Same rules apply to guns as any other product
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Smith v. Bryco Arms – one boy accidentally shot another believing gun was not loaded when magazine was removed; Π’s claim that gun was defective b/c it didn’t have suggested safety features can go to jury
o Some courts will apply different rules for guns than other products o Risk-utility approach will only apply when product malfunctions – fails consumers‟ expectations Halliday – 3-yr.-old managed to shoot self w/ semi-automatic pistol; father failed to heed many of the warnings accompanying the gun – court held gun worked as ordinary consumers would expect, so risk-utility would not apply o Theories of gun liability – Lack of safety features Types of guns used by criminals are defective Albertstan v. Daniel – Palestinian in NYC opened fire on van of Jewish kids; gun was purchased through mail order company in parts – jury found no causation on part of Δ Negligent entrustment – retailer unreasonably sells gun jury found Kmart liable for selling gun to drunk who went to bar & shot girlfriend X. WHAT COUNTS AS A PRODUCT Negligence Anything Strict Tort Liability §402A Products §402B Chattels None Warranties Goods All movable things 3rd Restatement §19 Products Tangible personal property distributed commercially for use or consumption
Terms Definition
Real Property
Covers
Electricity Live Animals Books
Covers Covers
Generally not covered Some courts make exceptions for - Equipment affixed to real property - Pre-fabricated buildings - Mass produced housing Courts split Courts split
No Covered if analogous to distribution & use of tangible personal property
Courts split Covers
Covers
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o Tangible item – the book itself covered by SL o Information contained w/in the book – intangible, intellectual property not covered by SL Policy: May affect 1st Amendment Huge burden on Δ publishers Products liability law is geared toward the tangible world o Δ can be (criminally) liable if it goes to great lengths to encourage and promote criminal behavior – beyond merely providing information o Rice v. Paladin Enterprises – Δ publications provided detailed information on how to commit murder for hire; Δ admitted it was to be informational – even for those wanting to know how to commit such acts; someone used the manual to kill 3 people – court held Δ could be liable for aiding & abetting commission of the murders o Mushroom book case – Π using book to hunt mushrooms; ate poisonous mushroom – court held Δ publisher was not liable b/c book was not defective Maps & Navigational Charts o Courts are split on whether to treat as book or compass Electricity o Courts are generally split o Some circuits have adopted a middle ground defining electricity as a product when it passes through the meter and enters a person‟s home Live Animals o Some courts do not allow SL claims b/c animals are mutable and constantly changing Mo court held diseased parrot was not defective for this reason o More likely to be defective if claimed defectiveness is not an inherent behavior
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