21. Product Liability (385-442)
392. (Continued from PRL 6A) What are the requirements for a products liability claim based on strict liability?
(Continued from back of PRL 6A) 5. CAUSATION: The damage must result.from the defect. NOTE ON PRIVl1Y: No privity is required: duty extends to anyone foreseeably endangered by the product, even one (such as a bystander) who never dealt with the defendant. MNEMONIC: Defendant Can't Conceal Bad Commercial Products (Defect; Control; Changes; Business; Causation; Privily Not Required). IMPORTANT: The seller of such a product will be liable even if she has exercised all possible care. E Ch.14-ID; D §353, pp. 972-77. See also Rest. 3d (Prod. Llab.) §§1, 2.
428. During 1991 and 1992, the Ponce de Leon Skincare Co. makes Youthful Skin Goo, an over-the-counter ointment that is advertised as making facial wrinkles disappear. Ally Gator uses the product during 1991 only. The product performs as expected, at least in the short term. But unbeknownst to Ponce at the time of manufacture, the Goo has a delayed effect, such that about 20 years after the first use, many users' skin turns bright chartreuse. Given the state of medical knowledge in 1991, there is no practical way in that year for Ponce to discover that this delayed effect would occur. At the earliest date on which Ponce does (or could) discover the problem, 2010, it sends out widespread warnings that the product should no longer be used. Ally suffers the chartreuse-skin problem beginning in 2011, and she sues Ponce in strict liability. Will she win?
No, probably. According to the majority (and Restatement) view, manufacturers are not strictly liable for design risks that were not only unknown but unknowable at the time of manufacture. That is, the manufacturer is not responsible even in strict liability for design risks that couldn't be discovered at the time by reasonably developed human skill or foresight. Similarly, when the suit is based on failure to warn, most couns will not impose liability on producers where the injury is the result of a risk that was not discoverable. See, e.g., Rest. 3d (Prod. Llab.) §2, Comment m: "llln connection with a claim of inadequate design, instruction, or warning, plaintiff should bear the burden of establishing that the risk in question was known or should have been known to the relevant manufacturing community. The harms that result from unforeseeable risks-for ex:uuple, in the human body's reaction to a new drug, medical device, or chemical-are not a basis of liability." This rule is sometimes called the "state of the art" defense. NOTE: Keep in mind that the manufacturer must conduct adequate testing and research. If, for instance, animal tests reasonably available in 1991 would have indicated that the product would likely cause delayed skin-color reactions in humans, then the product would be deemed to have been knowably defective as of that time, and Ponce couldn't defend on the grounds that it didn't have actual knowledge of the risk-the maker is responsible for what it reasonably could have known about risk, not just for what it actu:tlly knew.
442. Farley Windbag is a salesman for the De Milo Lawn Ornament Co. He is making a pitch to Art C. Tartsi, who is interested in buying a ten-foot-tall statue of Venus, the goddess of love. Farley slaps the statue and says, "Not only is she a beaut, but this is the bestbuilt lawn ornament on the market." Art buys Venus and installs her on his front lawn. Several years later, Art is walking by Venus one day, when her arm falls off, breaking his foot. It turns out that Venus was made with materials that are less durable than at least some comparable lawn ornaments. Art sues De Milo in tort, claiming that Farley made a misrepresentation of material fact. Can Art win?
No, probably. Farley probably would be found not to have made a misrepresentation of fact, but merely to have expressed an opinion in the form of permissible "puffing." See Rest. 2d §402B, recognizing a claim for physical harm from misrepresentation; Comment g says that the section "does not apply to statements of opinion, and in particular it does not apply to the kind of /nose general praise of wares sold which, on the part of the seller, is considered to be 'sales talk,' and is commonly called 'jJU.lfing'as, for example, a statement that an automobile is the best on the market for the price." E Ch.16-II(F).
404. Do breach of warranty suits require proof of fault?
No. Once the warranty (express or implied) is proved to have been made, and the representation in the warranty is proved to be false, defendant will be strictly liable for plaintiff's damages, even if the defendant had a reasonable basis for believing the representation's truth or couldn't have known it was false. D §473, pp. 1354-58.
425. The Shay-Dee Practice Building Co. purchases a large parcel of land and puts up hundreds of tract houses on it, each of wWch is built on-site using Wghly-standardized manufacturing-like techniques. Due to a repeated flaw in the techniques used, the stair treads in a number of the stairways inside the houses are subject to sudden breakage. Steve, the guest of a purchaser of one of these houses, is injured when the stair breaks while he is on it. Can Steve recover in strict liability from Shay-Dee?
Yes. Traditionally, strict product liability did not cover those who make and sell improvements on real estate together with the underlying real estate. But courts today extend product liability to those real-estate-related activities that are analogous to traditional manufacturing, such as the creation of large housing projects. See Rest. 3d (Prod. Liab.) §19, Comment e: "[C]ourts impose strict liability for defects in construction when dwellings are built, even if on-site, on a major scale, as in a large housing project." D §376, pp. 1041-45.
438. Anna Pavlova, supply clerk, is interested in taking ballet lessons. She goes to the local dancing supply store, Dance-Pelts, to outfit herself. She explains to the store owner, Ned Jinsky, that she has never danced before, and that she would like his advice about what make and model of dancing shoes to buy. Jinsky recommends the Hamstring-brand "Little Dancer" shoe. In fact, the Little Dancers completely lack arch support (a key attribute for a beginner's dancing shoe), and Anna seriously injures herself when she tries to dance wearing them. Despite the absence of arch support, Little Dancer shoes are perfectly appropriate for stronger, more-experienced dancers, so they are not overall "defective." (a) What warranty theory represents Anna's best chance of recovery? (b) Will she win under that theory?
(a) The implied warranty of fitness for a particular purpose, imposed by UCC §2-315: "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified ... an implied warranty that the goods shall be fit for such purpose." (b) Yes. Anna relied on Ned's skill and judgment in furnishing goods for a particular purpose-ballet dancing by a beginner. Therefore, Ned will be liable for Anna's injuries reasonably suffered due to the product's unsuitability for that purpose. NOTE: Once the warranty breach is proven, Ned becomes strictly liable for Anna's injuries, regardless of his level of fault. D §352, p. 971.
390. What defenses are available in a products liability suit based on negligence?
1. Contributory negligence ( or comparative negligence, in most states); and 2. Assumption of the risk. REMEMBER: Causation. If the product was substantially altered after it left defendant's control, in a way that makes it improbable that the defect existed at the time it left that control, there's no causation and no liability. MISUSE: A common successful defense involves unforeseeable misuse (a use the manufacturer could not be expected to guard against in designing the product). Unforeseeable misuse can be viewed as a type of causation defense, in that the misuse is viewed as a superseding event that cuts off proximate cause. D §369, pp. 1020-26; Rest. 3d (Prod. Llab.) §§17-18.
439. Clyde Barrow sees an ad for a car, the Kleen Getaway, that boasts bulletproof glass. Intrigued, he goes to see the Getaway and buys it. He takes his squeeze, Bonnie Parker, for a picnic in the Getaway. As they drive through the woods, a stray bullet from a hunter's gun hits the car, pierces the windshield, and hits Bonnie in the shoulder. Bonnie sues Getaway for products liability, claiming misrepresentation of a material fact. Getaway defends on the ground that Bonnie didn't even know about the representation, let alone rely on it. Who's correct?
Bonnie, most likely. Although misrepresentation requires justifiable reliance, the reliance of the purchaser will probably suffice. Especially because the misrepresentation was embodied in an ad (which would have a vast audience), the manufacturer will probably be held liable. NOTE: This is also true of products liability based on the contract theory of breach of express warranty; the fact that Bonnie dido 't rely will be viewed as irrelevant. Also, privily is not required for claims based on express warranty, so the fact that Bonnie wasn't a purchaser won't be a bar to a breach of express warranty suit. NOTE: Where misrepresentation of a material fact is the basis of products liability, the suit is essentially one in strict liability. Plaintiff need only prove the representation, the product's failure to perform as represented, and injury; fault need not be shown. D §352, pp. 971-72.
391. What are the requirements for a products liability claim based on strict liability?
From Rest. (2d), §402A: I. DEFECT: The product must have been in a defective condition unreasonably dangerous to the user/consumer or his property; 2. CONI'ROL: The defect must have existed when the product left the defendant's control (so D can be liable even if he didn't cause the defect, if the defect came into existence before the product got to him); 3. CHANGES: The product must not have undergone significant changes before it got to the user; 4. BUSINESS: The seller must be in the business of selling the product (that is, he can't be a casual or amateur seller, or a mere user); (Please refer to the next card for further explanation.)
395. What are the primary differences between a products liability claim based on negligence and one based on strict liability?
Here are the major differences: I. Defect. The product's "defectiveness" is the essence of a strict liability suit; this element is not explicitly required in a negligence suit. 2. Fault. P must prove fault in a negligence claim; with strict liability, P need only prove sale of an unreasonably dangerous defective product that causes harm, regardless of fault. 3. Liability of wholesalers and retailers. In negligence, wholesalers and retailers are liable only where they fail to inspect; even that duty of inspection applies only where the seller has reason to believe a product is defective. In strict liability, wholesalers and retailers are liable if the product had an unreasonably dangerous defect when it left their control, even if inspection would not have shown the defect. D §352, pp. 969-72.
403. What are the differences between Restatement 2d §402B tort misrepresentation and UCC §2-313 express warranty in contract?
I. NATURE OF SELLER: Tort-seller must be one engaged in the business of selling goods. Contract-can be any seller (even one not in the business of selling goods, i.e., an amateur seller). 2. . AUDIENCE TO THE MISREPRESENTATION: Tort-misrepresentation must probably be to the public as a whole (e.g., ad, label, or brochure), rather than to a specific buyer (e.g., oral statement by store clerk to consumer). Contract-no such "public misrepresentation" requirement. 3. DEFENSES: Contract-Failure to notify seller of breach in a reasonable time after discovery is a defense in a warranty action; disclaimers can sometimes be valid. Tort-these two defenses aren't recognized. D §469, pp. 1343-45.
436. The Gree-C Spoon Diner buys a snow globe-a water-filled paperweight with fake snow and a landscape inside, such that when the paperweight is shaken, it "snows" inside. The diner does not offer the snow globe for sale - it's just there as an ornament. One customer, Fried Burger, is entranced by the snow globe and begs the diner to sell it to him. The diner agrees. Shortly after Fried takes the paperweight home, it shatters, gashing his hand. It turns out the glass in the paperweight was defective. Fried sues the diner on the basis of breach of the implied warranty of merchantability. Can he win?
No. An action for breach of the implied warranty of merchantability requires that defendant be "a merchant in goods of that kind," not a casual seller engaging in an isolated transaction. UCC §2-314(1). Because the diner does not normally deal in paperweights-and made this one sale as an accommodation-the claim will fail. NOTE: An action for breach of the implied warranty of fitness for a particular purpose, by contrast, does not have this requirement-as long as there is a sale of a product, it doesn't matter whether the seller is a merchant in that type of goods (as long as the buyer relies on the "skill and judgment" of the seller). D §352, p. 971.
431. Bug Cemetery Insecticides produces a product called Cockroach Candy, consisting of poisonous pellets designed to lure cockroaches and kill them. Cockroach Candy comes in the shape of chocolate candies in a tinfoil box. On the box is a clear disclaimer, reading: "Bug Cemetery will not be liable for injuries to children who eat this product, mistaking it for chocolate candy." Calvin, age five, finds a Cockroach Candy in a corner and munches it, making himself violently ill. In the ensuing lawsuit for strict liability, will the disclaimer be relevant?
No. Disclaimers do not have any effect in products liability suits predicated on strict liability or negligence, where the suit involves personal injuries (as opposed to, say, property damage or intangible economic loss). See, e.g., Rest. 3d (Prod. Liab.) § 18: "Disclaimers and limitations of remedies by product sellers ... do not bar or reduce otherwise valid products liability claims against sellers . . . for harm to persons." D §371, pp. 1030-31.
410. Little Quasimodo, age eight, gets hold of a near-empty glass bottle of Quincy Beer left in the kitchen by his dad. Quasi goes out into the backyard and throws the bottle with all his might into a tree, hoping to see it explode. The bottle breaks apart, and a large fragment bounces off the tree and hits Quasi in the eye. (The label contained no relevant warnings.) Quasi sues Quincy for strict product liability, arguing that (a) the bottle could and should have been designed to break into much smaller pieces, like an auto windshield; or alternatively, (b) the label should have warned against the danger of large fragments from highvelocity breaking. Will Quasi recover?
No. Quasimodo's use of the product was unreasonable and very hard to foresee. There is no duty to design a product in such a way that it won't cause danger when unreasonably misused in an unforeseeable way, even if such an alternative design was technically and economically feasible. Furthermore, there is no duty to warn against an unforeseeable and gross misuse. So Quincy will be found not to have violated either its duty of safe design or its duty to warn. See Rest. 3d (Prod. Liab.) §2, Comment p ("The post-sale conduct of the user may be so unreasonable, unusual, and costly to avoid that a seller has no duty to design or warn against [it]. When a court so concludes, the product is not defective[.]") Cf. Venezia v. Miller Brewing Co., 626 F.2d 188 (1st Cir. 1980) (same essential facts as this hypo).
422. Count Dracula enters the hospital for an operation to correct internal hemorrhaging. During the operation he receives a transfusion of blood infected with the HN virus, and as a result he contracts AIDS. The virus could not have been discovered by testing under the technology available at the time. Can Dracula successfully sue the hospital in strict products liability?
No. Strict product liability can be imposed only for the sale of defective products, not services. See Rest. 3d (Prod. Liab.) §19, Comment f: "Services, even when provided commercially, are not products for purposes of this Restatement." That's true even though the service being rendered (here, a transfusion) involves or relates to a product. In fact, in the particular case of hospital services, "[i] n a strong majority of jurisdictions, hospitals are held not to be sellers of products they supply in connection with the provision of medical care[.]" Id. at §20, Comment d. D §376, pp. 1041-45.
409. Hemlock is an effective tub and tile cleaner. However, it is poisonous and its fumes are dangerous, so it is best used only in a well-ventilated room. Hemlock is the main ingredient in "He-mo," produced by the Grout 'N' Spackle Cleaner Co. Grout puts a warning on its label about He-mo's toxicity, but due to a labeling redesign, omits a previously-given warning about the need for ventilation. Socrates, a longtime user of He-mo, buys a bottle. He scrubs the tiles in his basement with the product. The basement has no windows, and Socrates is quickly overcome by fumes, suffering brain damage. He sues Grout in strict liability for failure to warn about the need for ventilation. At trial, Grout introduces unrebutted evidence that during the course of Socrates' previous uses of He-mo when the product still contained the ventilation warning, Socrates had read the warning but had decided to run the risk of using the product in his basement anyway. Will Socrates win his suit?
Probably not. Even where a product maker fails to give a reasonable warning of dangers, the plaintiff cannot recover without proof that the failure to warn was the cause of the plaintiff's injury. This requirement of causation means that "if a particular user or consumer would have decided to use or consume even if warned, the lack of warnings is not a legal cause of that plaintiff's harm." Rest. 3d (Prod. Liab.) §2, Comment i. Since you're told that Socrates previously used the product in his basement despite knowing of the ventilation issue, a court would likely decide that providing a warning here would have made no difference. In that event, absence of the warning would not be the legal cause of Socrates' injuries.
437. William Tell buys arrows from the Apple Sporting Goods Store. The store bought them from the Wreck Less Sports Wholesaler, and they were produced by the Shod-E Kwalittee Sports Co. When Tell goes to shoot an apple off a fence, one of the arrows, due to a manufacturing defect, cracks and veers off course, hitting Tell's son, Billy, who is standing several yards away. Billy sues Shod-E Kwalittee based on breach of the implied warranty of merchantability. In most states, can Billy recover?
Yes, probably. These facts present two issues, both relating to privily: (1) Does the lack of horizontal privily (i.e., the fact that Billy wasn't the buyer) block Billy's suit; and (2) Does the lack of vertical privily (i.e., the fact that Shod-E didn't make the sale to Tell directly, but via two intermediaries) block Billy's suit? Today, the answer to each of these questions would be "no" in most slates. As to the absence of horizontal privily, no matter which version of UCC §2-318 a slate has in force, that section will allow a member of the buyer's family ( or the buyer's houseguest) to sue on a warranty theory for bodily injuries. (If P had been a bystander who was not a member of the buyer's family, a few slates might deny warranty liability.) As to the absence of vertical privily, virtually all states now allow warranty-based bodily injury suits against defendants who are separated from the plaintiff by intermediaries (i.e., suits against manufacturers and wholesalers). E Ch.14-II(C)(3)(g).
417. Acme Collectibles is a retail store featuring fine porcelain plates. It receives a shipment from the Dew B. Us China House, consisting of crates of hand-painted "Cockroaches of the World" collector plates, packed in individual boxes of 12 plates, with 24 boxes per crate. The shipping crates show clear signs of have been dropped or tampered with. Acme unpacks the boxes but does not open any box to look at the plates themselves. Acme sells a box of the plates to Mr. Gale Ibbie. When he opens the box, he slashes his hand on a shard of glass. It turns out that most plates in most boxes were broken. Gale sues Acme for negligence. Will he win?
Yes. The general rule is that a retailer has no duty to inspect unless it has reason to know the product is likely to be defective. The tattered crates triggered this exception. (Similarly, complaints from other customers, or the fact that the supplier has been unreliable in the past, would also constitute a reason to suspect problems and therefore trigger a duty to inspect.) Acme's failure to inspect once it was on notice of the need for inspection constituted a breach of the duty of reasonable care. Therefore, Acme is responsible for injuries the risk of which would have been disclosed by an inspection. Since most plates were in fact broken, we can assume that a reasonable inspection would have disclosed the problem, and would have caused a reasonable person in Acme's position not to sell the goods. Therefore, the lack of inspection was a cause-in-fact (and proximate cause) of Gale's injuries. D §375, pp. 1039-40.
434. The Glow-Boy! Toy Company sells nuclear-powered toys. Little Bobo's parents buy him a nuclear-powered tank. It suffers a meltdown, irradiating Little Bobo and destroying the floor tile in the playroom. When Glow Boy! is sued in strict liability, will it be liable for both Bobo's injuries and the damage to the house?
Yes. Under strict products liability (as well as under negligent products liability), both personal-injury and property damages are recoverable. See, e.g., Rest. 3d (Prod. Liab.) §21(c), allowing recovery in strict liability for "economic loss" if it is caused by hann to "the plaintiff's property other than the defective product itself." NOTE: However, pure intangible economic loss (e.g., profits lost due to shutting down a business to wait for a new machine) is not generally recoverable under either a strict products liability or negligence theory. D §353, pp. 972-77.
387. There are five principal ways in which a manufacturer or a supplier can be negligent. What are they?
l. Manufacturing.flaw; 2. Failure to reasonably inspect; 3. Negligent design; 4. Failure to warn; 5. Failure to take care to obtain quality components. In general, the defendant is liable for negligence in manufacturing or selling any product that, if defective, can reasonably be expected to be capable of inflicting substantial harm, as long as the defendant's act constituted a failure to exercise due care and the product in fact causes harm. (Please refer to the next card for further explanation.)
388. (Continued from PRL 3A) There are five principal ways in which a manufacturer or a supplier can be negligent. What are they?
(Continued from back of PRL 3A) As to a negligent failure to warn, a failure to warn is negligent if it involves an unreasonable danger in the product's design or intended use of which the consumer is likely to be unaware, and the unheralded danger causes harm. NOTE: A manufacturingjlaw is a condition in the particular instance of the product that makes that instance different from other instances of the same product. D §375, pp. 1039-40.
401. There are two sources of liability for products liability based on express representations. What are they?
1. The tort of misrepresentation (typically intentional misrepresentation or "deceit"); see Torts Rest. 2d §402B. 2. Breach of express warranty (a contract claim), as recognized by UCC §2-313.
398. What defenses are available in a suit for breach of an implied warranty?
First, there are the defenses that are also available in strict products liability cases-assumption of the risk, highly-abnormal misuse, the type of contributory negligence that's also assumption of the risk (knowingly, unreasonably, and voluntarily exposing oneself to risk of injury), and in some states comparative negligence. Second, there are defenses that are unique to implied warranty: l. Failure to give seller notice of breach within a reasonable time after its discovery ( courts dislike this); and 2. Disclaimers by the selkr. (But these must not abrogate a statutory duty, must be conspicuous, and must not be unconscionable, as they will often be in consumer physical-injury cases.) D §353, pp. 973-74.
412. Rottyer Teeth Candy Co. produces Dentalwork-ettes, small disks of chocolate toffee that are sold in 4-oz. packages. Rottyer is a bit slapdash in its manufacturing habits, and a beetle winds up in a package of Dentalwork-ettes. That package is eventually bought by Sarah Sweetooth, who bites into the beetle and is disgusted. Sarah sues the Stryck-9 Pharmacy, where she bought the candy, on a negligence theory. Is Stryck-9 liable?
No. Where negligence claims are based on manufacturing Daws, most courts hold that wholesalers and retailers have no duty to inspect without reason to suspect a problem (i.e., cracked bottle, complaints). There is nothing in the facts here to suggest that Stryck-9 had any reason to suspect a problem, and thus reason to inspect. Without a duty to inspect, Stryck-9 could not have been negligent, so it's not liable. Of course, Rottyer would be liable in negligence for the Daw. D §353, pp. 972-77. COMPARE: If the suit is based on a strict products liability theory, a wholesaler or retailer would be liable as long as the defect existed when the product left that party's control ( even if no inspection could have found the defect). In such a suit, Stryck-9 would be liable. NOTE: In a negligence suit against Rottyer, Rottyer's negligence could be proven via res ipsa loquitur-the defect is of a type that's unlikely to occur in the absence of negligence, there is no indication that the package was tampered with after it left Rottyer, and Sarah didn't contribute to her injury. If proven, res ipsa /oqllitur would result in an inference (not a presumption) of negligence.
402. What are the similarities between Restatement 2d §402B tort misrepresentation and UCC §2-313 express warranty in contract?
The two theories have the following in common: 1. ELEMENTS: Representation, the product's failure to perform as represented, causation, and damages. 2. DEFENSES: Assumption of the risk, misuse, and in some states, comparative negligence. (Contract action has others, as well.) 3. PRIVITY: No privily required, so remote parties injured by the product can sue. For both Rest. 2d §402B and UCC §2-313, the remote party suing need not have known about or relied on the representation, as long as the buyer relied on the misrepresentation (in tort), or it was part of the "basis of the bargain" (in contract). E Ch.14-II(B)(l)(b). 4. NATURE OF MISSTATEMENT: Must be a statement of/act, not opinion (or "puffing," i.e., obvious hyperbole). E Ch.16.
400. (Continued from back of PRL BA) 2. DAMAGES: Under strict liability, the plaintiff can recover for both personal and property damage, but not necessarily for "intangible economic loss." Under implied warranty, not all courts allow recovery for property damage. As to intangible economic loss (e.g., lost income), few courts allow recovery on either theory (though, paradoxically, a buyer suing his direct seller is more likely to recover on warranty than on strict liability). (Continued on back of card)
(Continued from front of card) 3. DEFENSES: Under strict liability, defenses include assumption of the risk, highly-abnormal misuse, and the type of contributory negligence that is also assumption of the risk (knowingly, unreasonably, and voluntarily subjecting oneself to risk of harm). Under implied warranty, those defenses apply, plus two more: plaintiff must give defendant "notice" of breach within a "reasonable time," and disclaimers can be valid (except where "unconscionable," inconspicuous, or in derogation of a statutory duty). D §360, pp. 992-96.
418. Lucy manufactures flying doghouses, including a model called the "Sopwith Camel." Charlie purchases a Sopwith Camel for use by his dog Snoopy. This particular Camel comes off the assembly line with a structural defect in the brace that holds the left wing to the body. Under the technology in place at the time of manufacture, there is no way to identify this particular brace as defective. On the Camel's maiden voyage into the wild blue yonder, with Snoopy at the controls, the plane's left wing breaks off due to the structural problem. (a) What category of product defect claim is the appropriate one for Snoopy's estate to bring against Lucy? (b) Will the estate recover, if it shows only the above facts?
(a) Strict liability for a manufacturing defect. A manufacturing defect is demonstrated by comparing the particular unit as built with either the manufacturer's design specifications or with other similar units coming off the same assembly line. If a difference is shown, a manufacturing defect exists. Here, the flaw in the metal of the brace made it different from the as-specified brace and thus constituted a manufacturing defect. (b) Yes. If a manufacturing defect renders the product "unreasonably dangerous," the manufacturer (and any others in the chain of sale) will be strictly liable; i.e., liable without a showing of negligence. That's the case here. So the fact that the defect could not have been found by even the best technology existing at the time of manufacturer won't save Lucy from liability. E Ch.14-IV(A).
386. What are the four elements of a prima facie case of products liability based on negligence?
As in any negligence claim, plaintiff must prove: 1. Duty (which differs depending on whether defendant is a manufacturer, wholesaler, or retailer); 2. Breach; 3. Causation; and 4. Damages. As with any negligence claim, the heart of a products liability claim based on negligence is whether the defendant's conduct was unreasonable in the circumstances. D §352, pp. 969-72.
419. Lucrezia Borgia buys a Wuppertare ceramic pitcher from Acme Kitchen Stuff, a local store. When soft drinks are poured into the pitcher, the paint on the inside of the pitcher dissolves and becomes poisonous. Lucrezia serves a drink to her lunch guest, Bella Donna, from the pitcher. Bella becomes violently ill. Bella sues Acme in strict liability. Acme defends on the ground that its duty did not extend to Bella. Who wins?
Bella. The scope of plaintiffs for strict products liability extends to anyone foreseeably endangered by the defective product. (The same rule applies to products liability based on negligence.) It's completely foreseeable that a pitcher with poisonous dissolving paint may injure someone who drinks liquids poured from the pitcher, even if that person was not the purchaser. NOTE: According to most courts, this "foreseeably endangered" rule includes bystanders, as well as users and consumers. So for instance, if Lucrezia had been driving a car whose wheels were negligently manufactured and a wheel Dew off and hit Bella, a pedestrian, Bella could sue the car manufacturer in strict liability. RELATED ISSUE: Bella could not sue Lucrezia in strict liability because Lucrezia is not a commercial seller of Wuppertare goods. Only a seller-in fact, only one in the business of selling goods-can be a defendant in a strict products liability suit. D §353, pp. 972-74.
413. The Crashenburn Car Co. produces the XXX-1, a hot sports car. One XXX-1 leaves the assembly line with faulty brakes. The defective car is ultimately bought by Ruby Dubdub, who takes it out for a spin. Without touching the brakes, she reaches for her cosmetic case to adjust her lipstick. She doesn't realize she's skidding off the road into a pond; when she looks up again, the carand she-are sinking quickly. She sues Crashenburn for negligence, citing the faulty brakes. Who wins?
Crashenbum. Proof of products liability predicated on negligence, as with any other kind of negligence suit, requires duty, breach, causation, and damages. The missing element here is causation. Ruby didn't apply the brakes, so the faulty brakes were not the cause-infact of her injuries. D §354, pp. 977-79.
405. For purposes of a negligence product-liability suit, does a wholesaler generally have a duty to inspect?
Generally not. If there is a clear indication that a reasonable inspection would reveal a danger (e.g., the products came from a supplier known to be unreliable or the goods have generated complaints from other customers), the wholesaler has a duty to inspect. Otherwise, the wholesaler's only duty is to warn of known dangers. NOTE: The same rule applies to retailers. NOTE: Remember that we're talking here about product suits based on a negligence theory. If the suit against the wholesaler or retailer is based on strict liability, then by definition, it doesn't matter whether the wholesaler/ retailer inspected, or whether an inspection would have shown the defectas long as the product was defectively dangerous, it triggers liability on the part of anyone in the distribution chain. D §472, pp. 1349-54.
411. Ben Hur gives Helen of Troy a ride in his chariot. It turns out that one of the axles is defectively made, a wheel comes off, and Helen is thrown out and severely disfigured. She sues the chariot manufacturer, Acme Chariots, on negligence grounds. Acme defends on lack of privity, as there's no direct connection between Helen and Acme-she didn't buy the chariot from them. Who wins?
Helen. Anyone foreseeably endangered by a negligently-caused defect can recover in negligence from any negligent party in the chain of distribution, be it manufacturer, wholesaler, or retailer. RELATED ISSUE: Strict liability covers the same class of potential plaintiffs as negligence does. However, if Helen sued on a breach-of warranty theory, she could in theory be barred because she is not a member of Ben's household or a guest therein (as required by UCC §2-318 Alt. A, on the books in most states). But in practice, courts tend to ignore the privity requirement for warranty claims involving personal injury. D §353, pp. 972-74.
396. What are the possible defenses in strict products liability cases, and under what circumstances are they available?
Here are the major defenses: l. Assumption of the risk ( where P actually recognizes the danger and voluntarily and unreasonably exposes himself to it); and 2. Abnonnal misuse of product (i.e., a misuse that is not reasonably foreseeable to the seller). NOTE: In contributory negligence states, ordinary contributory negligence (e.g., P carelessly fails to notice the danger) is not a defense to a strict products liability claim. However, the kind of contributory negligence that is also assumption of the risk (i.e., P knows of the danger and unreasonably and voluntarily exposes himself to it) is a valid defense. Comparative fault statutes often modify these defenses, so that only an unreasonable assumption of risk would be a partial defense (as a type of fault). E Ch.14-VIII; D §369, pp. 1020-26; D §370, pp. 1026-31.
397. There are two basic warranties covered by the implied warranty type of products liability claim. What are they?
I. Warranty of Merchantability: This warranty applies automatically unless disclaimed: goods (if sold by a merchant-Le., one who deals in goods of that description) must be "fit for the ordinary p11rposes for which such goods are used." UCC §2-314. 2. Fitness for a Particular Purpose: This warranty arises where (a) seller knows of a partie11/ar purpose to which buyer intends to put the goods, (b) seller recomme111Js a particular product for this use, and (c) buyer relies on seller's skill and judgment in supplying goods for that purpose. NOTE: In many states, implied warranty claims require that P be a purchaser (rather than a mere user or bystander). E Ch.14-II(C)(3)(0. For this reason, implied warranty claims have largely been replaced by strict liability claims, which are less restrictive. (But one situation where it would be wise to sue a remote seller on implied warranty in lieu of or in addition to strict liability is where P has suffered only intangible economic loss rather than physical injury or property damage.) D §363, pp. 1004-8.
441. Icarus buys a pair of wax wings from the Fabb U. Luss Flying Machine Co. On the package is the headline: "Will not melt, no matter how high you fly!" Further down, the package reads, in bold type: "Fabb U. Luss disclaims all warranties, express and implied." Icarus flies too close to the sun, the wings melt, and he falls to earth, badly injured. He sues Fabb U. Luss for breach of express warranty. Fabb U. Luss defends on the basis of the disclaimer. Who wins?
Icarus. Disclaimers are valid only to the extent they are consistent with e.rpress warranties, by clarifying the meaning of the warranty. See UCC §2-316(1 ), making words of "negation or limitation·· "inoperative to the extent that such construction is unreasonable." Comment I says that the section "seeks to protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of e.rpress wa1Tanryl.)" NOTE: Suppose that the label, instead of disclaiming all warranties, contained the following statement as a footnote to the main "Will not melt" statement: "Wings will not melt as long as the protective outer covering remains intact." Icarus removes the covering before flying, and the wings melt. Here, the limitation/disclaimer would be valid because it would be a reasonable clarification, not an unreasonable taking away of evecy1hing that was granted in the main express warranty. NOTE: Disclaimers of liability have no effect in strict products liability cases. D §352, pp. 971-72.
393. In the context of strict liability, what are the two main tests used by courts to determine whether a product is defective?
Most courts apply one of the following two tests for whether a product is defective: I. The consumer expectation ( or contemplation) test: The product is in an unreasonably dangerous condition "not contemplated by the ultimate consumer." Rest. 2d §402A, Comment g. (Example: Whether a large chicken bone in an enchilada is or isn't defective would be determined by a reasonable consumer's expectations about finding bones in enchiladas.) 2. In the case of design defects, the danger-utility (or risk-utility) test: A product is defectively designed if its danger outweighs its utility, considering the feasibility of a less dangerous, alternative design. NOTE: Consumer contemplation is the more popular test. Some courts (e.g., CA) allow the plaintiff to establish a defect by either test. D, §356, p. 981.
406. The class of possible plaintiffs varies in products liability suits, depending on the basis of the suit (e.g., negligence, strict liability, or warranty theories). Who are members of the class of possible plaintiffs under each theory?
NEGLIGENCE: Any person as to whom the risk of injury was reasonably foreseeable may sue. (So non-purchaser users and bystanders may sue.) STRICT IJABILI1Y: Virtually the same as in negligence cases: anyone who uses or consumes the product may sue, and an injured b)'stander may sue in the vast majority of stales. WARRANTY (contract): Express warranty-P need only be a member of the general class that the manufacturer should expect to be reached by the warranty. Implied warranty-Almost any purchaser (even if she didn't buy directly from D) may sue on the implied warranty of merchantability; however, couns are split as to whether nonpurchaser users or bystanders may recover. NOTE: In practice, couns dislike denying liability in products liability cases on the basis of "class of possible plaintiff" constraints. That's especially true for suits based on personal injury or property damage (as opposed to suits for intangible economic loss, like lost profits). D §376, pp. 1041-45.
407. Gentle Ben's Rice Co. sells boxes of Instant-O-Rice, whose directions say, "Add boiling water; wait one minute for the mixture to cool." There are no warnings on the package. Sally Cottonbrain buys a box, takes it home, eats the entire package raw (with no water added), and washes it down with a quart of very hot water. When the hot water interacts with the rice in her stomach, the rice dramatically expands in volume, bursting Sally's stomach. She sues Gentle Ben's, claiming that Gentle negligently failed to warn her about the stomach-exploding dangers of ingesting still-boiling water together with raw rice. Will Sally win?
No, probably. Negligence requires acting unreasonably in the circumstances. In the case of a negligent failure to warn, this translates into a duty to warn of an inherent danger concerning the product of which the consumer is likely to be unaware. Manufacturers are under no duty to warn of (1) completely obvious dangers, or (2) a wholly unforeseeable type of misuse. A court would likely conclude that Gentle Ben's could not be expected to foresee that the user would down a box of raw rice and chase it with scalding water-that seems like a wholly unforeseeable misuse. (However, if the company had previously received reports of such misuse, this might make the misuse no longer wholly unforeseeable and trigger a duty to warn of this danger.) D §369, pp. 1020-26.
414. The Tictoc Rubber Co. manufactures car tires. One shipment of Silver Streak X-ls, delivered to Blowout Tire Mart, is defective and particularly susceptible to blowouts. The steel belts in the tires in this shipment visibly poke through the rubber, a fact that would prompt any reasonable retailer to inquire further about whether the tires are defective. Blowout does not conduct any sort of inspection or inquiry and sells a set of the tires to Captain Hook. The tires blow out under normal use, injuring Hook and wrecking his car. Hook sues Tictoc in strict liability. Will Blowout's negligent failure to inspect let Tictoc "off the hook"?
No. A wholesaler's or retailer's negligent failure to inspect does not absolve the manufacturer of liability for defectively-dangerous manufacture. That's because that failure to inspect is considered foreseeable, and foreseeable intervening causes don't break the chain of causation from the tortfeasor to the injury. (The same would be true if Hook's suit against Tictoc was based on negligence in manufacture.) NOTE: As a general rule, it's very unusual for someone else's failure to act to be considered a superseding cause, insulating the original culpable party (here, Tictoc) from liability. D §369, pp. 1020-26.
426. Arnold, a lawyer, owns a very cool-looking convertible. One day, Arnold's friend Gerald is watching Arnold drive down the street with the top down on the car. Gerald says, "Hey Arnold, can I buy your car?" Arnold agrees to a deal and transfers title to Gerald. A few months later, the steering wheel falls off while Gerald is driving due to a defect in the manufacture of the car. Can Gerald recover against Arnold in strict liability?
No. Because Arnold is not in the regular business of selling automobiles, strict liability does not apply to him, regardless of whether a defect existed in the convertible at the time of its sale to Gerald. See Rest. 3d (Prod. Llab.) §1, limiting strict product liability to persons "engaged in the business of selling or otherwise distributing products [.]" RELATED ISSUE: If Arnold had had knowledge of the steering wheel problem and sold it to Gerald without any warning, Gerald could recover from Arnold for negligence (or perhaps even "decelt," a tort discussed in a later section of these cards). RELATED ISSUE: Most courts have also held that even professional sellers of used goods, including cars, are generally not strictly liable for defects that the seller did not create. E Ch.14-ID(B)(2) & VI(A)(2); D §375, pp. 1039-40.
424. The Splinter Glass Co. sells plate glass to the Fate-2The-Winds Boat Co. Splinter doesn't know that Fate-2 intends to use the glass to make glass-bottomed boats for touring coral reefs. Such a use is highly unusual for the type of plate glass in question. A Fate-2 boat sinks when Splinter's glass shatters on a reef, injuring passengers. Will Splinter be strictly liable for the injuries?
No. Component manufacturers can be strictly liable if their defective component results in the overall product's being defectively dangerous. But where the component is put to an unusual use, as here, the component manufacturer is liable only if it knew or should have known about the unusual use intended for the component. Here, because Splinter didn't know or have reason to know about the unusual use, it will not be strictly liable. (Another way to get to the same conclusion is to say that the component itself was not "defective"-only the unusual use made the overall product defective.) D §376, pp. 1041-45.
416. Batman buys the Batmobile from the Superhero Car Co. Among the features is an ejector seat. Unbeknownst to Batman, the ejector seat is defective, in that it is likely to go off at any time ejecting the unfortunate passenger - without the driver's hitting the eject button on the dashboard. One day when Batman and the Boy Wonder, Robin, are out driving, they are rear-ended by the Penguin. Batman is thrown against the dashboard, and the Boy Wonder is ejected, resulting in serious injuries to him. Robin sues the Superhero Car Co. for strict products liability. In Robin's case in chief, he proves only the above facts. Is this sufficient to allow Robin to get to the jury on his claim?
No. Negligence requires duty, breach, causation, and damages. Each of these is part of P'sprimafacle case, i.e., an element as to which he must bear the burden of production in order to avoid a directed verdict. The missing element here is causation. Even if the ejector seat was unreasonably unsafe because of its tendency to go off unintentionally, Robin must bear the burden of producing enough evidence to justify a reasonable jury in concluding that this defect caused his injuries. Here, in the rearend collision, what may have happened was that when Batman was thrown against the dashboard, he accidentally hit the eject button, thereby ejecting Robin. This would not be a result of the defect (since a manufacturer would not be expected to guard against this particular way of physically pushing the eject button). Since Robin has not proved that "but for" the seat's defective tendency to go off unpushed he would not have been injured, he has not established his full prima facie case. Therefore, the court would be justified in directing a verdict for Superhero. D §354, pp. 977-79.
433. The P. U. Cheez Co. buys an industrial-sized cheese shredder from the manufacturer, Runnko. The Cheez-AMatic can shred 3,000 lbs. of cheese a day. There was a fault in manufacture such that the blades are defective. After three days' use, a blade flies out of the machine across P. U.'s factory and lands on the floor without causing any harm to anyone. P. U. has no backup shredder and loses $ I 0,000 of profit for six days until the machine can be fixed. May P. U. recover these lost profits as damages from Runnko based on strict liability?
No. Personal injury and property damages are generally the only types of damages available under strict product liability. Where the only claim is economic loss (e.g., repairs or lost profits), recovery under strict liability generally will be denied. That is especially true where the loss stems from interruption of the business due to harm to the defective product itself. Rest. 3d (Prod. Llab.) §21, Comment d, gives the following illustration of this principle: "[A] machine that becomes inoperative may cause the assembly line in which it is being used to break down and may lead to a wide range of consequential economic losses to die business that owns the machine. These losses are not recoverable in tort under the rules of this Restatement." NOTE: In order to recover its lost profits, P. U. would have to pursue a breach of warranty claim (express or implied). Thus, where the only loss is intangible economic loss, a warranty claim in contract ls better than a strict liability claim. D §353, pp. 972-77.
427. Clover Fourleaff buys a ticket on the first voyage of the supposedly unsinkable ship the Titanic, operated by Star Cruise Lines and built by Shipco. The Titanic hits an iceberg and sinks, due mostly to a defectively designed hull. Clover survives. Clover sues Star in strict liability. Will she win?
No. Strict liability is applied only to commercial suppliers of products, not services. A cruise line offers a service and does not sell a "product." Therefore, to recover against Star, Clover would have to sue in negligence and prove that Star's negligence contributed to the sinking. NOTE: Had Clover sued Shipco, the ship's builder, then strict liability would likely be appropriate. That's true because Shipco sold the product to Star, and Clover as a passenger was within the class of persons who would be foreseeably injured if the product were defective. D §376, pp. 1041-45.
440. Acme Skincare Co. makes Day 'N' Night Skin Goo, which Acme claims is 100% safe and will make wrinkles disappear. The goo does, in fact, make wrinkles disappear, but in their place grow unsightly, hairy warts. Dr. Jekyll, a customer, brings a products liability suit against Acme based on misrepresentation of a material fact. Can Acme defend by proving that there is no known technology for making skin cream that doesn't exchange wrinkles for hairy warts?
No. The essence of a misrepresentation claim in product liability is that the seller has made afalse promise about the good's character. See, e.g., Rest. 2d §402B, imposing liability for physical injuries on a merchant who "makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him [.] " The fact that no one could have manufactured an item having the characteristics claimed by the seller is irrelevant. D §352, pp. 971-72.
420. Anne Boleyn buys a set of Ev-R-Sharp kitchen knives via mail order from Slice-M-Up Knife Co. When she is slicing onions with one of the knives, the knife slips in her hand, and she loses a finger. There is nothing unusual about the knife-like many other knives, it has a wood handle and a sharp metal blade, and it was carefully constructed. Anne sues Slice-M-Up in strict liability for her injuries. Will she recover?
No. The ordinary consumer realizes knives are dangerous, and the utility of knives is considered to outweigh their danger, there being no reasonable alternative way to make them safer. As such, although the knives are dangerous, they are not defective or "unreasonably dangerous," so no liability will attach. In fact, knives are part of a category called "unavoidably unsafe" products, and such products do not give rise to strict liability when the injury comes from the unavoidably-unsafe aspect of the product. D §354, pp. 977-78.
415. The Deathwish Motorcycle Co. produces the Killer 1500-a mean, gleaming, cruising machine. Zoom Crashbang buys a new Killer I 500 for $5,000. He is injured when he's riding the Killer on local roads and is hit by a car traveling through an intersection at right angles to him. Zoom sues Deathwish in strict liability, alleging an inadequate design. He shows that for an extra $5,000 in manufacturing costs, the cycle could have been equipped with an ejector seat and parachute, making it materially safer in those situations where the rider has some time to react. (Zoom concedes that no motorcycles in this price range have such a safety system.) Zoom also shows that in this instance, he had enough warning prior to the accident that with such equipment he could have safely ejected. Will Zoom win his suit?
No. To recover on a defective-design theory, the plaintiff must prove that "the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ... and the omission of the alternative design renders the product not reasonably safe." Rest. 3d (Prod. Uab.) §2(b). So Zoom has to show that the ejector-seat-and-parachute mechanism was a "reasonable alternative design." An alternative design is "reasonable" only if it could have been implemented "at reasonable cost." Id., Comment d. A safety device that would more than double the retail cost of the product, and that would work only in those situations in which the user had meaningful advance warning of the accident, almost cenainly would not be "reasonable" by this standard. Furthermore, Zoom would have to show that without the proposed safety device, the product was rendered "not reasonably safe." Rest. 3d (Prod. Uab.) §2{b). Since no other motorcycles ln this price range have such a system, it's very unlikely that the maker's failure to lnstail such a system would be held to make the product "not reasonably safe."
432. Scrubby Dubdub, Inc. manufactures equipment for automatic car washes. Spit 'N' Polish reconditions old car wash equipment, rebuilds it, and resells it. The Hot Wax Car Wash buys from Spit 'N' Polish certain equipment that was originally manufactured by Scrubby Dubdub and then extensively reconditioned by Spit. The equipment fails as Lydia Puttputt is getting her car washed - the brushes go crazy and smash her car while Lydia is in it, seriously injuring her. Lydia sues Scrubby Dubdub in strict liability. At trial, Lydia's accident reconstruction experts testifies that there is a 50% chance that the defect in the brushes was introduced by Spit 'N' Polish, and a 50% chance that it was introduced in the original manufacture by Scrubby Dubdub. There is no other evidence on when the defect was introduced. Is Scrubby Dubdub liable?
No. When the product has undergone reconditioning or other alteration after the time the defendant sold it, the defendant will be liable in strict liability only if the plaintiff proves, by a preponderance of the evidence, that the defect was present at the time of the original sale. So if Lydia's expert had testified (and been believed) that it was more likely than not that the defect was introduced by Scrubby Dubdub during the original manufacturing process, Lydia would have satisfied this element of her prima facie case. But here, since the only evidence of when the defect was introduced is that it was equally likely to have been introduced post-sale by reconditioning, Lydia has failed to prove this causation element and should suffer a directed verdict against her. See Rest. 3d § 3, Illustr. 7 (P loses where evidence shows a 50/50 chance that the defect was introduced after D sold the product). D §355, pp. 979-81.
389. Where products liability cases are predicated on negligence, will the manufacturer's negligence be imputed to wholesalers and retailers?
No. Wholesalers and retailers are, in general, only liable for their own affirmative negligence in handling products. The manufacturer's negligence will not be imputed to the wholesaler or retailer. However, wholesalers and retailers do have a duty to inspect for defects if they have any reason to believe the product is likely to be defective (e.g., a broken seal), or if, for any reason, not inspecting would be considered a failure of due care under the circumstances. But even if the wholesaler or retailer does inspect ( or had a duty to inspect that it failed to ful611), the party will be liable only if the defect would have been discovered under the exercise of reasonable care. NOTE: The same rule applies to manufacturers vis-a-vis component part makers: the component-seller's negligence is not imputed to the manufacturer/ assembler of the overall item. D §375, pp. 1039-40.
430. Ooh-Ooh Jungle Supplies produces Insect Bite Ick, an ointment designed for treating mosquito bites. Unfortunately, the Ick includes an extract of peanut oil, so that those people with peanut allergies (about 2% of the population) are also allergic to Ick. The product's label contains a conspicuous warning to persons with peanut allergies. Ick is better for some types of bites than any product made without peanut derivatives. Euphrates Bugless has a peanut allergy, though he doesn't know it. He buys some Ick and applies it to a bite on his elbow. Subsequently, his arm blows up like a rubber raft due to an allergic reaction. Will Ooh-Ooh be liable in strict liability for Euphrates' injury?
Probably not. The question is really whether a product that can be dangerous to some people (e.g., those with allergies) can be saved from being defective if explicit warnings are provided. Al least where the product has some significant social utility, the consensus seems to be that a product is not "unreasonably dangerous" and thus not defective merely because it can cause a serious allergy in some portion of the popula· lion. On the other hand, wherever an allergy to an ingredient in the product is known to affect a substantial number of people (and 2% would likely suffice), it's a violation of the duty to warn for the maker not to provide a warning against that allergy. NOTE: In the usual case of a product with significant social utility, adequate warnings give rise to a kind of assumption of the risk-that is, a consumer not heeding an adequate warning is deemed to be voluntarily proceeding in the face of a known danger and is thus barred from asserting a strict liability claim. That's probably true even where, as here, the user doesn't know of his allergy. D §364, pp. 1008-10.
394. Under the Restatement Third (Products Liability), different tests for "defect" are used depending on which of the three categories of product defect the item falls into. What are the three categories, and what is the test of "defect" for each?
Resl. 3d on Producls Llabilily §2 applies these three lesls depending on the category of defect: (I) A manufact11rl11g defect occurs where the product "depans from ils intended design"; (2) A design defect occurs where ''the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable altemative design by the seller or other distributor and the omission of the alternative design renders the product not reasonably safe"; (3) A defect in war11i1,gs or instructions occurs when "the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or 111ar11i11gs ... and the omis.<ion of the Instructions or warning.< renders tlie product not reasonably safe." Resl. 3d generally does not attach esplicit weight to the fact that a reasonable consumer would or wouldn't e.rpect the product to be as dangerous as ii turns out to be. So the Restatement does nol really apply the "consumer espectalions" lesl, escepl with respect 10 manufacturing defecL< In food. As to food, see Resl. 3d (Prod. Llab.) §7: "[A] harm-causing Ingredient of [a] food product constitutes a defect if a reasonable consumer would 110/ expect the food product to conlain that ingredient"
399. Which is an easier products liability claim for a plaintiff to pursue-strict liability or breach of implied warranty?
They're pretty comparable, but strict liability may be slightly easier to establish, ironically enough. Why? 1. SCOPE OF PIAINTIFFS: Under strict liability, anyone foreseeably endangered by the product may sue. Under implied warranty, courts sometimes require privily. (For instance, under UCC §2-318, Alternative A, on the books in most states, a user/bystander who is not a buyer or a relative or houseguest of the buyer can't sue for warranty. However, this limit is usually ignored by courts in personal injury cases. A few courts also say that only the retailer, not the manufacturer or wholesaler, will be liable to the buyer or user in warranty.) (Please refer to the front of the next card for explanation.)
408. Acme Bug Murderer Co. produces Bug-Killer Fog, a canister of compressed bug spray intended to rid houses of flying pests. The sole warning on the canister is that the fog should not be sprayed near unwrapped food because of the fog's toxic nature. Petunia Farkus reads the label carefully, buys a canister, and puts it in her kitchen. She uses the can to spray an area immediately above her stove. The stove has a pilot light that burns at all times. When some of the spray hits the pilot light, the pilot light explodes, knocking Petunia off her feet and smashing all the windows in the kitchen. Assume that Bug-Killer Fog was carefully designed and manufactured. If Petunia sues Acme on a negligence theory, is she likely to recover?
Yes, due to Acme's negligent failure to warn. A manufacturer's duty of care includes the duty to warn of non-obvious dangers that stem from a reasonably foreseeable use (or misuse) of the product. A court would likely hold that it is not obvious to a reasonable consumer that bug spray would be highly flammable and thus dangerous if used near an open flame. And the court is also likely to hold that spraying near an open flame, if it is misuse at all, is not the type of misuse that would be wholly unforeseeable to a reasonable manufacturer. Therefore, Acme had a duty to warn of this type of risk. Since the failure to warn proximately caused the accident, Acme will be liable in negligence. D §363, pp. 1004-8.
429. The M. Pewtee Lawn Mower Co. sells power mowers. The mowers come with adequate warnings prominently displayed on the handle of the mower, cautioning the user to avoid the blade while the mower is on. Phil Rocksferbrains buys one of the mowers and reads the warnings on the label. When Phil is out mowing the lawn, he sticks his hand near the moving blade to retrieve a tennis shoe, thinking that he's far enough from the blade to avoid damage. He misestimates the distance, and his hand is badly cut by the blade, which has no safety guard. (A safety guard could have been added without significantly increasing the product's manufacturing costs and without impeding functionality.) Phil sues M. Pewtee in strict liability for defective design. M. Pewtree asserts all applicable defenses. The jurisdiction has abolished contributory negligence and generally replaced it with comparative fault. Will Phil recover, and why?
Yes, probably. It's true that some courts apply the doctrine of assumption of risk to strict product liability cases, and such a court might find the doctrine applicable here on the theory that Phil consciously disregarded the risk of getting his hand cut. But the majority approach, at least in comparative negligence jurisdictions, is to merge negligent assumption of risk into comparative negligence. See, e.g., Rest. 3d (Prod. liab.) §17, Comment d: "The majority position is that all forms of plaintiff's failure to conform to applicable standards of care are to be considered for the purpose of apportioning responsibility between the plaintiff and the product seller or distributor." So in most states, Phil's disregard of the warnings will be treated as comparative negligence that reduces his recovery, not as assumption of risk that eliminates it.
435. As a sales promotion, the Hammerhead Hardware Store gives away paddle balls to its customerswooden paddles with balls affixed by a length of elastic. The elastic is defective, in that it has an abnormal tendency to snap. Admiral Nelson comes in to buy some canvas for his boat and gets a free paddle ball. When he uses it, the elastic snaps, and the ball flies off, putting out his eye. Nelson sues Hammerhead based on strict liability. Can he win?
Yes. It's true that product liability suits generally require that the defendant have "sold" the product in question. But most courts recognize an exception for product giveaways that are part of a business' promotional activities. See Rest. 3d (Prod. Llab.) §20, saying that "products given away free of separate charge in the context of a commercial sales promotion" are covered by strict product liability.
423. Bacchus, notorious gourmand, goes to Chic Q-Zeen, his favorite restaurant, for dinner. He orders fettuccine alfredo. As he is enjoying his meal, he thinks he sees one of the noodles moving under its own steam, and, sure enough, on closer examination, it turns out to be an earthworm, and all the other "noodles" are earthworms, too. Bacchus gets sick, and he sues the restaurant in strict liability. Will he win?
Yes. Strict liability applies to commercial suppliers of products, though not to sellers of services. Operators of restaurants are generally considered sellers of products. See, e.g., Rest. 3d (Prod. Llab.) §20, Comment b ("Food served in a restaurant is sold to the customer [.] "). RELATED ISSUE: Say the fettuccine was served to Bacchus at a social dinner party at Apollo's house, not in a restaurant. Apollo would not be strictly liable because strict liability applies only to those in the business of selling goods of the type in question. Thus, Apollo would have to be at least negligent to be liable in the dinner-party context. NOTE: For purposes of breach of the warranty of merchantability, the UCC specifically includes food and drink. So the restaurant would be liable for breach of the implied warranty of merchantability. D §376, pp. 1041-45.
421. Slip 'N' Slide Floor Polish, which is poisonous, is sold in bottles. The bottles and their contents closely resemble those of Flopsy Cola, a popular soft drink. The Slip 'N' Slide bottles have an easy-to-open screw top, like Flopsy. The bottle has a warning, reading: "This product is poisonous. Keep out of reach of children." Little Bobo, three years old, finds a bottle of polish under the kitchen sink and thinks it's Flopsy Cola. He screws the lid off and drinks the contents of the bottle, making himself seriously ill in the process. Will Slip 'N' Slide be strictly liable for Bobo's injuries?
Yes. Strict liability applies to products in a defective condition unreasonably dangerous to consumers. Here, it is foreseeable that a child too young to read will find the bottle and believe it contains soda. Furthermore, it would have been easy for Slip 'N' Slide to design its bottle not to look like soda and to put a childproof screw-top lid on it. So the risk/utility balancing test used for determining whether a design is defective makes the present design defective and unreasonably dangerous. Therefore, Slip 'N' Slide will be strictly liable. The warning won't exculpate Slip 'N' Slide-a reasonable warning is an atlditional requirement on top of the requirement that a product not be sold in a defective/unreasonably dangerous condition. D §362, pp. 1002-3. RELATED ISSUE: Slip 'N' Slide would probably also be liable in negligence because it is unreasonable to put a poisonous product in a container looking like a soda bottle.
