Chapter 7: Strict Liability and Product Liability

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 2. Design Defects --GM v Sanchez

"Didn't put the car fully in park" called a "mis-shift". Issue: 1) Product defect?-Knew of the problem but not of a better way to solve it 2) Adequate warning?-Yes...said "vehicle can roll" vs. Ford who didn't send anything 3) Strict liability? Some evidence, but there was a warning given 4) GM Negligent? Failed in due care...Sanchez has SOMOE responsibility in not taking care with the warning, so: comparative negligence, damages are reduced. 5) Punitive damages? Gross neg? No...didn't have SAD. Trying to fix it. Not the same level of disregard.

IV. Defenses to Product Liability B. Product Misuse. Case in Point: Stults v Intern'l Flavors and Fragrances, Inc.

"Popcorn lung case". Stults got popcorn lungs from consuming multiple bags of popcorn every day. Courts determined, "manufacturer has a duty to warn of dangers associated with reasonably foreseeable misuses." If it's foreseeable that a person might consumer multiple bags/day, then the manufacturer has a duty to warn against the potential risks of it.

I. Strict Liability B. Other Applications of Strict Liability 3. Quid Pro Quo Sexual Harassment

"This for that" EX: sex for a raise. Viewed as a form of sexual discrimination. This is 1 type of sexual harassment...the other one doesn't count as strict liability.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 1. Manufacturing Defects

(To prove it was in a defective condition) 1 Manufacturing Defects-A product departs from its intended design EVEN THOUGH all possible care was exercised in the preparation and marketing of the product...Particular "1" that was messed up on the assembly line.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 2. Design Defects

(To prove it was in a defective condition) 2. Design Defects-The foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design. ALL products of 1 kind of design...more common than a manufacturing defect....from book: "design itself is what caused the harm"

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 3. Warning Defects-

(To prove it was in a defective condition) 2. Warning Defects-The foreseeable risk of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) A. Public Policy Justifications: (don't have to memorize these)

1. Consumers should be protected against unsafe products; 2. Manufacturers should not escape liability for defective products just because not in privity (just because we didn't buy it) with injured person...EXAMPLE: Greenman v Yuba Power Tools. Hit in head by wood. Yuba made it, so they should be liable. Liability borne by manufacturers. No intent or fraud...very careful yet still injured. ; 3. Manufacturers and sellers are in a better position to bear the costs associated with injuries by their products...Also: They have a better ability to have insurance and deal with the problems. Ethically right. It also makes companies MORE CAREFUL.

II. Product Liability B. Product Liability Based on Negligence- 1. Due Care

1. If a manufacturer (or whoever the D is) fails to exercise "due care" to make a product safe, a person who is injured by the product may sue the manufacturer for negligence.--Need to prove: Duty (just "due care"), Cause, Breach, and Damages--. Due care required in: (6 areas including the design of product, production processes, assembling, testing, warning labels...etc-inspecting and testing components, selecting materials). Can argue any or more than one of these due cares...EX: Toaster-sparks then kitchen burns down. Product Liability on negligence...GE owed a duty. Look at due care.

I. Strict Liability A. Abnormally Dangerous Activities-the activity:

1. Involves a potential degree of serious harm 2. Involves a high degree of risk that cannot be completely guarded against with use of reasonable care. 3. Is not commonly performed in community or area....Strict liability was first applied in American Law with this. EX: Carrying toxic chemicals (like in a semi) or disposing of them, or dealing with flammables, or a barn of dynamite.

IV. Defenses to Product Liability B. Product Misuse

1. Product is used in a way NOT INTENDED by the manufacturer (AKA unforeseeable misuse). NOTES: Court have limited this defense to when the particular use is NOT foreseeable. 1. If the use is reasonably foreseeable, the manufacturer MUST warn.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) D. Unreasonably Dangerous Products

1. The product was dangerous BEYOND THE EXPECTATION of the ordinary consumer (Usefulness outweighed by the riskiness...more risky than useful); OR (TX uses "And" in their cases) 2. A less dangerous alternative was economically feasible, but the manufacturer failed to produce it (technology exists/is available AND affordable).

II. Product Liability B. Product Liability Based on Negligence- 2. "Privity of Contract"

2. Privity of Contract (private arrangement) is NOT required...Don't have to be the buyer to claim negligence. In the past, one used to have to be the buyer. BUT now you can be an innocent bystander.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 3. Warning Defects- Example 7.8

Based on Crosswhite v Jumpking case illustrates adequacy of warnings and consequences of ignoring the 9 warning labels affixed to a trampoline. White gets paralyzed, but the warnings = "sufficient" to insulate manufacturer from warning defect.

II. Product Liability B. Product Liability Based on Negligence- Case in Point MacPherson v Buick Motor Co (1916)

Buick=liable to MacPherson's injuries. Wheels of the car were made of wood, and a "REASONABLE INSPECTION"(one of the due cares) would have revealed this. Just have to prove it WAS DEFECTIVE. They had a duty to inspect the wheels....(failed to exercise due care).

IV. Defenses to Product Liability C. Comparative Negligence

Can reduce damages suffered by defendant. For example: if you can prove the plaintiff's misuse of the product. SHOULD have had hard hat on, so I can reduce damages.

I. Strict Liability B. Other Applications of Strict Liability 1. Keeping Wild Animals

Can't really tame wild animals. Baylor bears, LSU tiger...Keeping pitbull "should know it's dangerous" elevates them to wild animal standard.

II. Product Liability A. Intro:

Cases concerning defective products. Most common strict liability comes from defective products. More than one cause of action-Negligence, Fraud, and Strict Liability, and you can argue more than one of these. Who are the D's? Manufacturer/wholesaler/distributer/retailer (potentially the WHOLE line can be sued). What are the causes of action? There are 3 or 4 different claims/causes of action a P can use to sue for damages allegedly caused by a defective product.

IV. Defenses to Product Liability A. Assumption of the Risk

Defenses are for Product Liability...most often used with doctrine of PL through negligence and PL through SL...Pure Strict Liability doesn't have defenses (fireworks and abnormally dangerous activities). 1. If the plaintiff knew of the risk AND 2) Voluntarily took on the risk....EX: Not heeding a recall (these are widely publicized).

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 2. Design Defects --Case in Point: Riley v Ford Motor Co.

During the collision, Riley's truck door opened. Riley=ejected and killed. Reasonable alternative WAS available for door-latch system. Ford=aware of the safety problems with the current system. After conducting risk-analysis, the alternative system was feasible and superior.

IV. Defenses to Product Liability D. Commonly Known dangers...Case in Point: Jamieson v Woodward and Lothrop.

Elastic band led to Jamieson's detached retina...To hold the court necessary "would go beyond the reasonable dictates". "Almost every physical object can be inherently dangerous"...law does NOT require a warning for this.

I. Strict Liability- Case in Point: Rylands v Fletcher (1868)

Example of traditional/pure use of strict liability which has NO defense (there are other uses of doctrine that do have defenses though). Rylands is responsible/deemed liable for Fletcher's coal mine being flooded after his reservoir (which he constructed regularly-not carelessly or recklessly) broke and caused the mine to be flooded. "If you keep something on the land which is likely to cause mischief (risky), if it escapes, you're liable if mischief ensues." With strict liability cases, you arguably have 2 innocent parties...(Rylands AND Fletcher both just chilling minding their own business)

II. Product Liability B. Product Liability Based on Negligence- 3. Schwark v Arctic Cat Example

Foreseeable that the operator of Arctic Cat may rely on sound of reverse alarm to indicate when it's no longer in reverse and experience unexpected travel backward because the alarm didn't sound....foreseeable that the unexpected backward travel would cause risk of harm to operator.

IV. Defenses to Product Liability G. Statute of Repose

From the time of manufacturing for that particular product to the "End point" aka "Last most remote time a maker can be sued". Typically 10-12 years (10 FOR TEXAS!) from this point to when you can't sue anymore. More of a procedural question.

IV. Defenses to Product Liability F. Statutes of Limitations AND G. Statutes of Repose Example

Had a toaster for 10 years (TX Statute of Repose)...you do NOT have 2 more years for filing a lawsuit because the statute or repose blocked it.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 2. Design Defects --In Texas: Hernandez v Tokai Corp (1999)

Hernandez put lighter (adult one from the bar) on top shelf of closet, and her daughter got it who then got severely burned by it. Plaintiff must prove by preponderance of the evidence: 1-SAD (Safer Alternative Design) existed at the time of manufacturing AND 2-The defect was producing the cause of injury (part didn't break or anything in this case...just the "design defect") AND 3-With reference to the products intended uses, using the RISK-UTILITY ANALYSIS (more risky than useful), the DESIGN DEFECT makes the product UNREASONABLY DANGEROUS...The intended use was for adults in this case, so it isn't a strong argument for Hernandez.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Market Share Liability-

If plaintiff cannot prove which manufacturer produced the particular product that caused harm, then all manufacturers are liable in proportion to their share of the market....Helps apportion damages with multiple responsible defendants (lots of makers). Pay damages in proportion to market share.

II. Product Liability A. Product Liability Based on Misrepresentation 1. Fraudulent Misrepresentation (Fraud) Examples

Intentional mislabeling of products or concealment of product defects. "This car has in airbag" verbal or in writing when you know it doesn't=fraud.

IV. Defenses to Product Liability A. Assumption of the Risk. Boles v Sun Ergoline (2010)

Issue: 1) Does the exculpatory agreement release the defendant from strict product liability? No, the agreement came from the manufacturer not the retailer (Executive tans) who gave her the release. The release was void and unenforceable.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 3. Warning Defects- Case in Point: Johnson v Medtronic, Inc.

Johnson didn't read the instructions, so he couldn't be sued for inadequacy of warnings. He just wasn't aware it defaulted to the asynchronous mode after every shock. COULD sue for design defect though.

I. Strict Liability-

NO fault liability -doctrine- (aka Liability w/o fault)="automatic liability" vs. intentional fault (int. tort) and vs. reckless fault (neg.)...There is liability REGARDLESS. Focus on the NATURE of the situation rather than the actors' actions. (Not about what they did/didn't do). Tortfeasor often does stuff with LOTS of care. Should get liability insurance because that's the best bet to protect vs. this.

IV. Defenses to Product Liability D. Commonly Known dangers

No warning necessary. Hammer crushing thumb, knife cutting someone, scissor in the wall.

I. Strict Liability B. Other Applications of Strict Liability 2. Keeping Domestic Animals (qualified)

Not pure use of doctrine. Liable "If you know OR should have known this domestic animal is likely to cause harm (thus, dangerous). DOG: Training of dog...tiny dog biting in the past would incur strict liability if it bites someone in the future. Guard dog example: Reason to know it's dangerous. Need "Beware of dog" sign to warn trespasser to avoid suit of negligence. BUT: If sued for strict liability, the sign indicates you KNEW of the high risk. Could also, in this case, raise an assumption of risk to the P since they walked on the land with the sign.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) B. Requirements for Strict Product Liability-402A of the Restatement of 2d of Torts (6 Elements)

P needs to prove ALL: 1. The product must be in a DEFECTIVE CONDITION (manuf, des, warning) when the defendant sells it. 2. The defendant must normally be engaged in the BUSINESS OR SELLING (or distributing) the product (along chain of production). 3. The product must be UNREASONABLY DANGEROUS to the user or consumer because of a defective condition. 4. The Plaintiff must incur PHYSICAL HARM to self or property by use of consumption of the product. 5. The defective condition must be the PROXIMATE CAUSE of injury. 6. The goods must NOT have been SUBSTANTIALLY CHANGED from the time sold to the time of injury (P didn't mess w it before)....this isn't just pure strict liability where if you do it, you're responsible. It doesn't involve any duties, so it's not negligence. You could argue negligence in a case though as well. Focus on NATURE OF THE PRODUCT not actions of the maker.

IV. Defenses to Product Liability E. Knowledgeable User

Particular danger known to PARTICULAR user...More specific than "Commonly Known"

IV. Defenses to Product Liability E. Knowledgeable User...Case in Point: Pelman v McDonald's

Pelman got overweight from McDonalds and claimed D "Failed to warn v adverse effects of its food"...BUT: It is well known that McDonalds is unhealthy. "If consumers know (or reasonably should know) it's ill effects/it's unhealthy, then they can't blame McDonalds if they eat an excess amount of it."

II. Product Liability B. Product Liability Based on Negligence- 3. Cause-

Plaintiff must show Defendant's conduct was the same in fact and proximate cause of the injuries suffered. (Cause in fact--a) "but for" b) prep. of ev., Proximate Cause--a) Casual connection between act and injury b) Foreseeability w Paslgraf)

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 1. Manufacturing Defects EX: Schmude v Tricam Industries, Inc.

Preexisting holes didn't line up correctly in the ladder...caused the ladder to fail. These defects made in "unreasonably dangerous".

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) C. Proving Defective Condition

Prove it was defective at the time it LEFT THE HANDS of the maker which proves it was unreasonably dangerous. DON'T have to show "why" or "how" aka the manner/specific details of it being defective.

IV. Defenses to Product Liability F. Statute of Limitations

Time limits for filing lawsuits. Typically TWO years from the accident or discovery or defect.

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 2. Design Defects --Grimshaw v Ford Motor Co.

Wanted to make a lighter, cheaper car. They sacrificed safety with the bumper being closer to the gas...etc. They KNEW of the failed tests but decided to go forward in producing the product. Issues: 1)Defectively designed? -Yes with the altercations made 2) Strict. Liable for design defect--yes, risk could've been reduced or avoided by adoption of a reasonable alt. design (then continue to prove strict product liability). 3) Punitive damages awarded? Purpose of them: punish wrongdoer AND send message (compensatory damages are often seen as the cost of doing business). Gross negligence leads to them and requires MALICE--"conscious disregard of prob. that actor's conduct will result in injury to others" --20-30mph crash tests failed. Knew of the cost ($11-$15/car). "Internal memo" cost-benefit analysis: for 1) Paying damages 2) Fixing it (which cost a lot more)

II. Product Liability A. Product Liability Based on Misrepresentation 1. Fraudulent Misrepresentation (Fraud)

a. Misrepresentation of a material fact concerning quality, nature, or approximate use of the product is MADE KNOWINGLY or with reckless disregard for the truth. b. As a result of the fraud, injury occurs; AND c. The buyer/plaintiff relied on the misrepresentation...Would a reasonable person believe/rely on it?

III. Strict Product Liability (product liability case [aka Defective product case] BASED ON STRICT LIABILITY-absolute, without regard to fault, liability) E. Product Defects 3. Warning Defects a. b.

a. Obvious Risks-No duty to warn about risks that are obvious or commonly known (this is a defense)...example: knife will cut you. b. Foreseeable Misuses-seller must warn!--Hairdryer example with the warning label. Known=sued over it in the past. Drugs--required to warn about side effects.