MBE Torts: Products Liability

Products Liability -- Generally

"Products liability" is the generic phrase used to describe the liability of a supplier of a product to one injured by the product. 1. Theories of Liability Plaintiffs in products liability cases may have one of five possible theories of liability available to them: (i) Intent; (ii) Negligence; (iii) Strict liability; (iv) Implied warranties of merchantability and fitness for a particular purpose; and (v) Representation theories (express warranty and misrepresentation). 2. Existence of a Defect: To find liability under any products liability theory, plaintiff must show that the product was "defective" when the product left defendant's control. a. Types of Defects 1) Manufacturing Defects When a product emerges from a manufacturing process not only different from the other products, but also more dangerous than if it had been made the way it should have been, the product may be so "unreasonably dangerous" as to be defective because of the manufacturing process. 2) Design Defects When all the products of a line are made identically according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packaging, the entire line may be found to be defective because of poor design. a) Inadequate Warnings Inadequate warnings can be analyzed as a type of design defect. A product must have clear and complete warnings of any dangers that may not be apparent to users. For prescription drugs and medical devices, warnings need not be supplied to the patient; a warning to the prescribing physician usually will suffice (the "learned intermediary" rule). b. What Is a "Defective Product"? In most jurisdictions, a product can be the basis for a products liability action if it is in a "defective condition unreasonably dangerous" to users. 1) Manufacturing Defects For a manufacturing defect, the plaintiff will prevail if the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design. a) Defective Food Products: Defects in food products are treated the same as manufacturing defects—the "consumer expectation" approach is used. 2) Design Defects For design defects, the plaintiff usually must show a reasonable alternative design, i.e., that a less dangerous modification or alternative was economically feasible. The factors that the courts consider under the "feasible alternative" approach are the following: (i) Usefulness and desirability of the product; (ii) Availability of safer alternative products; (iii) The dangers of the product that have been identified by the time of trial; (iv) Likelihood and probable seriousness of injury; (v) Obviousness of the danger; (vi) Normal public expectation of danger (especially for established products); (vii) Avoidability of injury by care in use of product (including role of instructions and warnings); and (viii) Feasibility of eliminating the danger without seriously impairing the product's function or making it unduly expensive. Examples: 1) Although people often cut themselves on sharp knives, knives are of great utility. Since there is no way to avoid the harm without destroying the utility of the product, and the danger is apparent to users, the product is not unreasonably dangerous and the supplier would not be liable for injuries. 2) A power lawnmower that is marketed with no guard over the opening from which cut grass is blown may be unreasonably dangerous even though the product carries several warnings that hands and feet should be kept away from the opening and that rocks may be ejected from the opening. While the product's danger is within the expectations of the user, a court will compare the harm caused by the product with what it would cost to put a guard on the opening and consider whether the guard would impair the machine's operation in order to determine whether the product is "defective." a) Effect of Government Safety Standards A product is deemed to be defective in design or warnings if it fails to comply with applicable government safety standards. On the other hand, a product's compliance with applicable government safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. Note also that federal labeling requirements do not preempt state products liability law on defective warnings. product may comply with FDA labeling requirements but still be defective due to inadequate warnings]

Liability Based on Negligence

1. Prima Facie Case To establish a prima facie case for negligence in a products liability case, the following elements must be proved: a. The existence of a legal duty owed by the defendant to that particular plaintiff; b. Breach of that duty; c. Actual and proximate cause; and d. Damages.

Representation Theories -- Express Warranties and Misrepresentation of Fact

F. REPRESENTATION THEORIES (EXPRESS WARRANTY AND MISREPRESENTATION OF FACT) The two theories discussed in this section differ from those previously discussed because they involve some affirmative representation by the defendant beyond the act of distributing a product. When the product does not live up to the representation, both contract and tort problems are created. 1. Express Warranty An express warranty arises where a seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes part of the "basis of the bargain." [U.C.C. §2-313] a. Scope of Coverage As with implied warranties, Article 2A of the U.C.C. extends express warranties to leases. b. Privity Not Required Although U.C.C. section 2-318 declares that its privity alternatives apply to express as well as implied warranties, most courts have held privity to be irrelevant in express warranty cases. c. "Basis of the Bargain" If the buyer is suing, the warranty must have been "part of the basis of the bargain." This is probably less difficult to show than a buyer's subjective "reliance" on the representation. If someone not in privity is permitted to sue, this remote person need not have known about the affirmation as long as it became part of the basis of the bargain for someone else in the chain of distribution. d. Basis of Liability—Breach of Warranty As with implied warranties, the plaintiff need not show that the breach occurred through the fault of the defendant, but only that a breach of the warranty did in fact occur. Example: The defendant advertises its hand lotion as "completely safe" and "harmless." Even if there is nothing wrong with the product itself, a buyer who suffers an allergic reaction may bring a successful warranty action. e. Effect of Disclaimers U.C.C. section 2-316 provides that a disclaimer will be effective only to the extent that it can be read consistently with any express warranties made. This has the effect of making it practically impossible to disclaim an express warranty. f. Causation, Damages, and Defenses These elements are analyzed the same as under implied warranties

Implied Warranties of Merchantability and Fitness

IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS 1. Proof of Fault Unnecessary If a product fails to live up to the standards imposed by an implied warranty, the warranty is breached and the defendant will be liable. Plaintiff need not prove any fault on defendant's part. 2. Scope of Coverage The Uniform Commercial Code ("U.C.C.") provisions apply to the sale of goods under Article 2 and the lease of goods under Article 2A. 3. Implied Warranty of Merchantability When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable. "Merchantable" means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used. 4. Implied Warranty of Fitness for Particular Purpose An implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know (i) The particular purpose for which the goods are required; and (ii) That the buyer is relying on the seller's skill or judgment to select or furnish suitable goods. Usually the seller will be a merchant of the type of goods in question, but this is not essential. 5. Privity a. Vertical Privity No Longer Required Although in the early period of warranty law, courts held strictly to the requirement of complete privity between the plaintiff and defendant, a trend developed with courts finding the needed privity between remote parties on various fictions and theories—e.g., the warranty ran with the goods, or the retailer was the manufacturer's agent. As a result, most courts no longer require vertical privity between the buyer and the manufacturer in implied warranty actions. b. U.C.C. Alternatives on Horizontal Privity Most states extends implied warranty protection to a buyer's family, household, and guests who suffer personal injury. 8. Damages: In addition to personal injury and property damages, purely economic losses are recoverable in implied warranty actions.