MC product liability

A woman worked as a secretary in an office in a building occupied partly by her employer and partly by a retail store. The two areas were separated by walls and were in no way connected, except that the air conditioning unit served both areas and there was a common return-air duct. The retail store began remodeling, and its employees did the work, which included affixing a plastic surfacing material to counters. To fasten the plastic to the counters, the employees purchased glue from a manufacturer that was packaged in a sealed container by the manufacturer and retailed by a paint company. In the course of the remodeling job, one of the retail store's employees turned on the air conditioning and caused fumes from the glue to travel from the retail store through the air conditioning unit and into the woman's office. The employees did not know that there was common duct work for the air conditioners. The woman was permanently blinded by the fumes from the glue. The label on the container of glue read, "DANGER. Do not smoke near this product. Extremely flammable. Contains Butanone, Tuluol and Hexane. Use with adequate ventilation. Keep out of the reach of children." The three chemicals listed on the label are very toxic and harmful to human eyes. The retail store had received no reports of eye injuries during the ten years that the product had been manufactured and sold. If the woman asserts a claim against the paint company, the most likely result is that she will A. recover because she can recover against the glue manufacturer. B. recover, because the woman was an invitee of a tenant in the building. C. not recover because the paint company was not negligent. D. not recover, because the glue came in a sealed package.

A is correct because strict liability can be imposed upon the paint company (and up the chain to the manufacturer) for the sale of any product that is in a defective or unreasonably dangerous condition. The paint company as a supplier of the glue is strictly liable for any resulting physical harm to the woman, provided that (1) the paint company is engaged in the business of selling the glue(alone or in addition to other products)and (2) the condition of the glue was not substantially changed as from when it was purchased. Thus, C and D are incorrect. B is incorrect because it gives an inappropriate standard. This is a products liability issue, and the woman's status as an invitee is irrelevant to the analysis. No privity of contract is required to maintain a strict liability claim for products liability for failure to warn; all that is necessary is actual harm to the plaintiff as the result of the injury.

A college student purchased a large bottle of No-Flake dandruff shampoo, manufactured by a shampoo company. The box containing the bottle stated in part: "CAUTION--Use only 1 capful at most once a day. Greater use may cause severe damage to the scalp." The college student read the writing on the box, removed the bottle, and threw the box away. The college student's roommate asked to use the No-Flake, and college student said, "Be careful not to use too much." The roommate thereafter used No-Flake twice a day, applying two or three capfuls each time, notwithstanding the label statement that read: "Use no more than one capful per day. See box instructions." The more he used No-Flake, the more inflamed his scalp became, the more it itched, and the more he used. After three weeks of such use, the roommate finally consulted a doctor who diagnosed his problem as a serious and irreversible case of dermatitis caused by excessive exposure to the active ingredients by No-Flake. These ingredients are uniquely effective at controlling dandruff, but there is no way to remove a remote risk to a small percentage of persons who may contract dermatitis as the result of applying, for prolonged periods of time, amounts of No-Flake substantially in excess of the directions. This jurisdiction adheres to the traditional common-law rules pertaining to contributory negligence and assumption of risk. The roommate asserts a claim for his injuries against the shampoo company based on strict liability in tort. Three important facts were established at trial: The roommate misused the No-Flake shampoo, the roommate was contributorily negligent in continuing to use No-Flake shampoo when his scalp began to hurt and itch, and the roommate was a remote user and not in privity with the shampoo company. Which of the following would constitute a defense for the shampoo company? A. The roommate misused the No-Flake shampoo. B. The roommate misused the shampoo and was contributorily negligent in continuing to use No-Flake shampoo when his scalp began to hurt and itch. C. The roommate was not in privity with the shampoo company. D. The product was substantially changed from the condition in which it was sold

D is correct. Any user who is injured by a defective product can bring a products liability claim based on strict liability in tort as long as they can satisfy the requirements for the prima facie case. The four elements of the case are: (1) a strict duty owed by a commercial supplier, (2) breach of that duty, (3) actual and proximate causation, and (4) damages In a products liability claim, the main difference between a negligence and strict liability claim is that the negligence standard of care is replaced with an absolute duty to make safe. In a strict liability case, the plaintiff need only prove that the product was unreasonably dangerous to show a breach of duty. Thus, in contrast to a negligence action, a retailer in a strict liability action may be liable simply because it was a commercial supplier of a defective product. Additionally, in a strict liability claim, the product must be expected to, and must in fact, reach the user or consumer without substantial change in the condition in which it is supplied. In this case, since the college student removed and disposed of the box containing the adequate warning before the shampoo reached the roommate, the product was substantially changed from the condition in which it was sold, and there is not adequate causation to sustain the roommate's claim. Answer A is incorrect. The roommate's misuse of the product would not provide a defense to a strict liability action in a jurisdiction that maintains traditional contributory negligence rules. Even if the misuse rose to the level that the roommate was contributorily negligent, this is not a defense where the plaintiff simply failed to recognize the danger or guard against its existence. Therefore, B is also incorrect. Answer C is incorrect because privity is not required in a products liability claim based on strict liability, the injured party must only be a foreseeable user. Thus, A, B, and C are incorrect while D is the correct answer choice.

A widow recently purchased a new uncrated electric range for her kitchen from a local retailer. The range has a wide oven with a large oven door. The crate in which the manufacturer shipped the range carried a warning label that the stove would tip over with a weight of 25 pounds or more on the oven door. The widow has one child, aged 3. Recently, the child was playing on the floor of the kitchen while the widow was heating water in a pan on the stove. The widow left the kitchen for a moment, and the child opened the oven door and climbed on it to see what was in the pan. The child's weight (25 pounds) on the door caused the stove to tip over forward. The child fell to the floor and the hot water spilled over her, burning her severely. The child screamed. The widow ran to the kitchen and immediately gave her first aid treatment for burns. The child thereafter received medical treatment. The child's burns were painful. They have now healed and do not bother her, but she has ugly scars on her legs and back. The child's claim is asserted on her behalf by the proper party. If the child asserts a claim based on strict liability against the local retailer, she must establish that A. the local retailer did not inform the widow of the warning on the crate. B. the stove was substantially in the same condition at the time it tipped over as when it was purchased from the local retailer. C. the local retailer made some change in the stove design or had improperly assembled it so that it tipped over more easily. D. the local retailer knew or should have known that the stove was dangerous because of the ease with which it tipped over.

B provides the correct test. Strict liability can be imposed upon the local retailer (and up the chain to manufacturer) for the sale of any product which is in a defective condition or unreasonably dangerous to the user and results in physical harm. The retailer is liable for any resulting physical harm to the child, provided that (1) the retailer is engaged in the business of selling stoves (and/or in addition to other products), and (2) the condition of the stove was not substantially changed as from when it was sold. The retailer is clearly a seller of stoves, so the second element must be proven by the child to prevail on a strict liability claim. The additional elements stated in A, C or D might have been necessary to prove negligence, but are not required in a strict liability claim based on sale of defective product, so A, C and D are incorrect.

Because of a farmer's default on his loan, the bank foreclosed on the farm and equipment that secured the loan. Among the items sold at the resulting auction was a new tractor recently delivered to the farmer by the retailer. Shortly after purchasing the tractor at the auction, the buyer was negligently operating the tractor on a hill when it rolled over due to a defect in the tractor's design. He was injured as a result. The buyer sued the auctioneer, alleging strict liability in tort. The jurisdiction has not adopted a comparative fault rule in strict liability cases. In this suit, the result should be for the A. plaintiff, because the defendant sold a defective product that injured the plaintiff. B. plaintiff, because the defendant failed to inspect the tractor for defects prior to sale. C. defendant, because he should not be considered a "seller" for purposes of strict liability in tort. D. defendant, because the accident was caused in part by the buyer's negligence.

C is the correct answer. An auctioneer disposes of property on behalf of the true owner, generally retaining only a fee or commission for his services. B is incorrect because the auctioneer is not a seller of tractors in the normal course of his business and therefore does not have the duties that a seller of tractors would have. A is incorrect because strict liability can only be imposed on a seller (and on up the chain to the manufacturer) for the sale of any product which is in a defective condition or unreasonably dangerous to the user and results in injury if: (1) the seller is engaged in the business of selling the product in its normal course of business, and (2) the product was not substantially changed by anyone else before the plaintiff used it. Here, the sale of the tractor was a one-time occurrence; the auctioneer was not in the business of selling tractors. Choice C appropriately addresses the issue that will determine whether the auctioneer will be liable. Therefore, choices A and B are incorrect. D is incorrect. The auctioneer is not a seller of tractors in his normal course of business and so cannot be held in strict liability for the sale of the defective product. Therefore the issue of contributory negligence will not be reached.

A homeowner hired an arsonist to set fire to the homeowner's house so that the homeowner could collect the insurance proceeds from the fire. After pouring gasoline around the house, the arsonist lit the fire with his cigarette lighter and then put the lighter in his pocket. As the arsonist was standing back admiring his work, the lighter exploded in his pocket. The arsonist suffered severe burns to his leg. After finding out that the explosion was caused by a manufacturing defect in the lighter, the arsonist brought an action against the manufacturer of the lighter based on strict product liability. Under applicable law, the rules of pure comparative fault apply in such actions. Will the arsonist prevail? A. Yes, because the lighter exploded because of a defect caused by a manufacturing error. B. Yes, because the lighter was the proximate cause of the arsonist's injury. C. No, because the lighter was not being used for an intended or reasonably foreseeable purpose. D. No, because the arsonist was injured in the course of committing a felony by the device used to perpetrate the felony.

EXPLANATION: A is the correct answer. Don't be fooled by unsympathetic facts. The arsonist was using a lighter for its intended purpose, which was to create a small flame suitable for lighting cigarettes. It was foreseeable that the lighter would also be stored in a user's clothing because it was designed to be portable as part of its purpose and utility in lighting the cigarettes. The arsonist was merely storing the lighter in his pocket when it exploded, which had no causal connection to the fire he had just started. Therefore, despite the fact that moments before, the lighter had been used to start an arsonist's fire, the product was defective and the arsonist may recover in a claim for strict liability from the manufacturer. Strict liability can be imposed upon the manufacturer for the sale of any product that is in a defective or unreasonably dangerous condition and that results in an injury to the user. C is incorrect because, as discussed above, the arsonist was using the lighter to create a small flame, which is the intended use of the lighter. B is incorrect because proximate cause is not the issue under the facts. The issue, rather, is liability of a manufacturer for a defective product used in the commission of a crime, and which injured its user. D is incorrect. The arsonist would still prevail under strict liability. Whether he will be permitted to keep the award is to be analyzed under criminal law and is irrelevant to the call of the question.

A homeowner hired a contractor to remodel her kitchen. She had learned of him through a classified advertisement he placed in the local newspaper. During the telephone conversation in which she hired him, he stated he was experienced and qualified to do all necessary work. Because of his low charge for his work, they agreed in writing that on acceptance of his job by the homeowner, he would have no further liability to her or to anyone else for any defects in materials or workmanship, and that she would bear all such costs. The homeowner purchased a dishwasher manufactured by a large company from a dealer, who was in the retail electrical appliance business. The washer was sold by the dealer with only the manufacturer's warranty and with no warranty by the dealer; the manufacturing company restricted its warranty to ninety days on parts and labor. The contractor installed the dishwasher. Two months after the homeowner accepted the entire job, she was conversing in her home with an accountant, an acquaintance who had agreed to prepare her income tax return gratuitously. As they talked, they noticed that the dishwasher was operating strangely, repeatedly stopping and starting. At the homeowner's request, the accountant gave it a cursory examination and, while inspecting it, received a violent electrical shock which did him extensive harm. The dishwasher had an internal wiring defect which allowed electrical current to be carried into the framework and caused the machine to malfunction. The machine had not been adequately grounded by the contractor during installation; if it had been, the current would have been led harmlessly away. The machine carried instructions for correct grounding, which the contractor had not followed. If the accountant asserts a claim based on strict liability against the manufacturing company for damages, the probable result is that the accountant will A. recover, because the dishwasher was defectively made. B. recover, because the company that manufactured the dishwasher is vicariously liable for the improper installation. C. not recover, because he assumed the risk by inspecting the machine. D. not recover, because he was not the purchaser.

EXPLANATION: A is the correct answer. The key words here are "internal wiring defect." This is a manufacturing defect case. When flaws occur in the manufacturing process, making the product more dangerous than it was intended to be, the manufacturer is strictly liable and the plaintiff does not need to prove negligence in creating or failing to discover the defect. Under the facts, the contractor's negligent installation was not an unforeseeable misuse or substantial change of the product such that it would cut short liability by the manufacturer. Finally, any user or consumer of a defective product would be protected by the strict liability rule, which would include the accountant, so D is incorrect. B is the right conclusion but the wrong theory. The contractor was not affiliated in any way with the manufacturer. He installed a washer that the homeowner independently purchased and asked him to install. The accountant has no claim under vicarious liability on these facts. C is incorrect. The accountant did not knowingly and unreasonably proceed in full knowledge of the defect.

An electrical engineer designed an electronic game. The engineer entered into a licensing agreement with a toy company under which the toy company agreed to manufacture the game according to the engineer's specifications and to market it and pay a royalty to the engineer. A gamer, whose parents had purchased the game for her, was injured while playing the game. The gamer recovered a judgment against the toy company on the basis of a finding that the game was defective because of the engineer's improper design. In a claim for indemnity against the engineer, will the toy company prevail? A. Yes, because as between the engineer and the toy company, the engineer was responsible for the design of the game. B. Yes, because the toy company and the engineer were joint tortfeasors. C. No, because the toy company, as the manufacturer, was strictly liable to the gamer. D. No, because the toy company could have discovered that defect in the design of the game by reasonable inspection

EXPLANATION: A is the correct answer. The toy company was found vicariously liable as the manufacturer and distributor of a defectively designed product. The engineer is an independent designer who contracted with the toy company. The toy company exercised no control over the actual design of the game; its only duties were to make the game according to the engineer's specifications and market it. A finding that the toy company was liable based on the engineer's defective design was a finding that the toy company was not an active wrongdoer. B is incorrect as this is not a joint enterprise issue because it can be established which individual caused the injury. Therefore, the toy company is entitled to the entire amount of the judgment in an action for indemnification against the engineer. B is incorrect. C is the wrong conclusion. The toy company is strictly liable to the gamer as the manufacturer of the game. That does not prevent the toy company from subsequently seeking an action for indemnification based on the court's finding that the engineer's design, not the toy company's manufacturing or marketing, was the source of the injury. D is a reading comprehension answer. The key words are "defective because of the engineer's improper design." An action for indemnification is a secondary action based on the findings of the first. The facts do not say that the court found the toy company negligent.

A plaintiff, who was 20 years old, purchased a new, high-powered sports car that was marketed with an intended and recognized appeal to youthful drivers. The car was designed with the capability to attain speeds in excess of 100 miles per hour. It was equipped with tires designed and tested only for a maximum safe speed of 85 miles per hour. The owner's manual that came with the car stated that "continuous driving over 90 miles per hour requires high-speed-capability tires," but the manual did not describe the speed capability of the tires sold with the car. The plaintiff took her new car out for a spin on a straight, smooth country road where the posted speed limit was 55 miles per hour. Intending to test the car's power, she drove for a considerable distance at over 100 miles per hour. While she was doing so, the tread separated from the left rear tire, causing the car to leave the road and hit a tree. The plaintiff sustained severe injuries. The plaintiff has brought a strict product liability action in tort against the manufacturer of the car. You should assume that pure comparative fault principles apply to this case. Will the plaintiff prevail? A. No, because the plaintiff's driving at an excessive speed constituted a misuse of the car. B. No, because the car was not defective. C. Yes, because the statement in the manual concerning the tires did not adequately warn of the danger of high-speed driving on the tires mounted on the car. D. No, because the plaintiff's driving at a speed in excess of the posted speed limit was negligence per se that was not excusable.

EXPLANATION: C is the correct answer. The car manufacturer created a high-powered sports car and then failed to equip it with high-speed capability tires. This would make the car unreasonably dangerous and strict liability may be applied if, as in this case, the manufacturer failed to give a proper warning as to the type of tires needed for the car to be driven at its higher speeds. The duty to warn will create strict liability despite the plaintiff's prolonged use of the car at a high speed because its use at that high speed was a foreseeable use, given its design and marketing. While the car was not defective, the failure to give proper directions and specific warning was. Thus, A and B are incorrect. D is incorrect. Violation of an applicable safety statute would not prevent the plaintiff from prevailing under strict liability because her misuse of the car was foreseeable, given the car's design and marketing.

Two parents purchased a new mobile home from a seller. The mobile home was manufactured by Mobilco and had a ventilating system designed by Mobilco with both a heating unit and an air conditioner. Mobilco installed a furnace manufactured by Heatco and an air conditioning unit manufactured by Coolco. Each was controlled by an independent thermostat installed by Mobilco. Because of the manner in which Mobilco designed the ventilating system, the first time the ventilating system was operated by the parents, cold air was vented into the parents' bedroom to keep the temperature at 68 degrees F (20 degrees C). The cold air then activated the heater thermostat, and hot air was pumped into the bedroom of the six-month-old child of the parents. The temperature in the child's room reached more than 170 degrees F (77 degrees C) before the child's mother became aware of the condition and shut the system off manually. As a result, the child suffered permanent physical injury. Claims have been asserted by the child, through a duly appointed guardian, against Mobilco, the seller, Heatco, and Coolco. If the child's claim against the seller is based on negligence, the minimum proof necessary to establish the seller's liability is that the ventilating system A. was defective. B. was defective and had not been inspected by the seller. C. was defective and had been inspected by the seller, and the defect was not discovered. D. was defective, and the defect would have been discovered if the seller had exercised reasonable care in inspecting the system.

EXPLANATION: D is the correct answer. The seller was not physically responsible for the dangerous ventilation system designed by Mobilco but can still be liable under a negligence theory if a reasonable inspection by the seller would have revealed the system's defects and the seller unreasonably failed to protect possible plaintiffs from those dangers. Additional issues would need to be determined, including the system's safety history, any physical evidence of the danger, and the practical ability of the seller to inspect the system as compared to the potential dangerousness of the system. The question, however, asks for the minimum proof necessary. D states the threshold rule and is the best answer. A and B state an incomplete version of the standard, and C is a defense, not a standard. Thus, A, B and C are incorrect.