Tort Law 111 BUL3310

Liability then expanded into

"abnormally dangerous activities," and then, most recently, products liability.

Manufacturing Defect

A product "contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product." In essence, a manufacturing defect is a departure from a product's design specifications that results in products that are physically flawed, damaged, or incorrectly assembled. Liability is imposed on the manufacturer (and on the wholesaler and retailer) regardless of whether the manufacturer's quality control efforts were "reasonable."

Statue of Repose

A statute that requires a plaintiff to file a lawsuit within a specific time period after a wrongful act by a defendant, such as improper construction of a building, regardless of when the injury occurred or was discovered. They are not liable after a certain amount of time Example: A toy is manufactured in 2000, and the state of Iowa has a 12 year statute of repose for actions in product liability. In 2014, that toy allegedly causes a physical injury. Since the statute of repose starts tolling when the allegedly defective manufacturing occurs (2000), the latest the manufacturer would potentially be liable for an action involving product liability would be 2012.

Defenses to Strict Liability

Assumption of Risk, Product Misuse, Comparative Fault, Commonly Known dangers, Knowledgeable User, Statute of Limitations, Statute of Repose

Assumption of Risk

Defendant must prove that the plaintiff 1) knew and appreciated the risk created by the product defect, and 2) the plaintiff voluntarily assumed the risk, even though it was unreasonable to do so. Example: If a buyer failed to heed a seller's product recall, the buyer may be deemed to have assumed the risk of the product defect that the seller offered to cure.

Strict Liability

Defendants are held liable for harm irrespective of fault

Ethics and Strict Liability

Facts: Medicis Pharmaceutical Corp. makes Solodyn, a prescription oral antibiotic. Medicis warns physicians that "autoimmune syndromes, including drug-induced lupus-like syndrome," may be associated with use of the drug. Amanda Watts had chronic acne. Her physician prescribed Solodyn. Information included with the drug did not mention the risk of autoimmune disorders, and Watts was not otherwise advised of it. She was prescribed the drug twice, each time for twenty weeks. Later, she experienced debilitating joint pain and, after being hospitalized, was diagnosed with lupus. On what basis can Watts recover from Medicis in an action grounded in strict liability? Failure to warn. Drug design defect case; the fda approved it

Airplane accidents?

Generally no - in cases of a suit by a passenger against a carrier. It is necessary for the plaintiff to show negligence, either on the part of the pilot, the maintenance crew, the manufacturer, etc.

Knowledgeable User

If a particular danger (such as electrical shock) is or should be commonly known by particular users of a product (such as electricians), the manufacturer need not warn these users of the danger.

Market Share Liability

Imposes liability upon ALL parties in cases where a plaintiff cannot prove which manufacturer produces the defective product or cannot prove which distributor supplied the defective product which caused the injuries. Not accepted in all states

Statute of Limitations

In most product liability cases, a plaintiff must file a lawsuit within 2 to 4 years of the discovery of an injury.

Comparative Fault

Is a defense that is available in cases involving strict liability. For the purposes of comparative fault, negligence of the Plaintiff is not a defense when such negligence consists merely of a failure to discover the defect in the product or to guard against the possibility of its existence.

Example of Market Share Liability

John Smith, a resident of Hawaii, was a hemophiliac. Because of his condition, Smith received injections of a blood protein known as anti-hemophiliac factor (AHF) concentrate. Smith later tested positive for the acquired immune deficiency syndrome (AIDS) virus. Because it was not known which manufacturer was responsible for the particular AHF received by Smith, the court held that all of the manufacturers of AHF could be held liable under the theory of market share liability.

Toxic Chemicals and Flammable Liquids?

Maybe. Transporters of gasoline and propane have often been held strictly liable for spills and explosions (Siegler v. Kuhlman, spillage of gasoline from a truck). But some courts have denied strict liability in this situation, either on the grounds that the activity is not all that unusual, or on the grounds that the risk could be eliminated by the exercise of reasonable care. (Indiana Harbor Belt Co. v. American Cyanamid Co., holding that a negligence standard would adequately handle the problem of spillage of flammable materials during transportation).

Consumer Expectation Test

Most courts, however, have applied a "consumer expectation" test, under which the food product is defective if and only if it contains an ingredient that a reasonable consumer would not expect it to contain. Different decision of the chicken bone case

Pat Plaintiff is injured by an allegedly defective fishing pole while out fishing on a lake in 2008. The fishing pole was manufactured in 1995 and the state in which the injury incident occurs has a 10-year statute of repose. Pat Plaintiff files a lawsuit in 2010. The state has a 3-year statute of limitations. Should the manufacturer of the allegedly defective fishing pole be held liable by a court for strict liability? Yes. No.

NO

Early Cases of Strict Liability

Owners of dangerous animals, such as bears, lions, and alligators, were held strictly liable for any damages those animals caused. The owner is responsible for the animal's action even if the owner took the precautions to prevent it. (dog bites someone)

Foreign/Natural Distinction

Some courts have made a distinction between "foreign" material and "natural" material in the food. Under this approach, there is strict liability for "foreign" matter found in food (e.g., a piece of metal inside a can of tuna fish), but not strict liability for the vendor's failure to remove a naturally-occurring substance from the food (e.g., bone fragments in canned tuna, or pits in cherries). -(no strict liability for chicken bone in enchilada, because the injury-producing substance "is natural to the preparation of the food served, [and therefore] was reasonably expected by its very nature [so that] the food cannot be determined unfit or defective."). Example: defective if you find a piece of the can in the tuna. If you have a chicken taco with a chicken bone & was hurt. They lost the court because a chicken bone is natural. (California)

Restatement Third of Torts

The Third Restatement reflects trends in interpretation of strict liability/products liability from the 1960s to the 1990s. It categorizes three types of defects: manufacturing defects, design defects, and warning defects.

Commonly Known Dangers

The dangers associated with certain products (such as matches and sharp knives) are so commonly known, manufacturers need not warn users of those dangers.

Capitol City Beverages, Inc. manufactures Armadillo Ale, a popular brand of beer. A consumer of the beer, Tom, falls ill. His physician discovers that the beer Tom consumed contained a poisonous substance. Tom sues Capitol City Beverages, Inc. under a strict products liability theory. What is the best defense that Capitol City Beverages, Inc. could offer? A:Beer is an inherently but not unreasonably dangerous product. B:The poisonous substance was injected into Tom's beer by the retailer who sold it to him. C:Tom assumed the risk of injury when he consumed the beer. D:There is no defense to strict products liability claims

The poisonous substance was injected into Tom's beer by the retailer who sold it to him.

Design Defect

The product corresponds to the design, and the manufacturer built the product exactly as intended, but the design itself is faulty, and the injury has resulted from the design defect Entire product is defective To successfully assert a design defect, a plaintiff has to show that a reasonable alternative design was available and that the defendant's failure to adopt the alternative design rendered the product not reasonably safe.

Failure to Warn Defect

The product is defective in neither design nor manufacture, but it poses some inherent danger about which the manufacturer has failed to provide adequate warning. Courts apply a "reasonableness" test to determine if the warnings adequately alert consumers to the product's risks. For example, children will likely respond readily to bright, bold, simple warning labels, whereas educated adults might need more detailed information. Coffee with label hot contents

Abnormally dangerous activities that could result in liability under the doctrine of strict liability include: A:Keeping household cleaners under the kitchen sink. B:Storing fireworks in one's garage only. C:Using dynamite on one's land only. D:All of the above.

Using dynamite on one's land only.

Product Misuse

When a product is used for a purpose for which it was not intended. Even if the injured party does not know about the inherent danger of using the product in a wrong way, if the misuse is reasonably foreseeable the seller must take measures to guard against it.

Crop dusting or spraying?

Yes

Manufacturers of Fireworks?

Yes

The running of a nuclear reactor?

Yes

Use and storage of explosives?

Yes - a party who uses or stores explosives is generally held strictly liable for any damages that may result.

Restatement (Second) of Torts § 402A - "Defective and Unreasonably Dangerous"

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer One who sells any product in a defective condition unreasonably dangerous to the user or consumer, or to his property, is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if: The seller is engaged in the business of selling such a product, and It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Plaintiff only needs to prove that: 1) A product was defective; 2) This defect caused the product to be unreasonably dangerous 3) The product has not been changed or modified by the plaintiff 4) plaintiff has suffered damage using the product. Strict liability is imposed on manufacturers and designers of goods, as well as businesses engaged in the business of selling the products, including distributors, wholesalers, and retailers. The general rule is that strict liability does not apply to the sellers of used goods that are not in the regular course of business of selling goods.