Ch.7 Strict Liability and Product liability

product misuse

The courts have severely limited this defense, and it is now recognized as a defense only when the particular use was not foreseeable

Commonly Known Dangers

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

1st factor of product liability

The manufacturer can better bear the cost of injury because it can spread the cost throughout society by increasing the prices of its goods.

2nd factor of product liability

The manufacturer is making a profit from its activities and therefore should bear the cost of injury as an operating expense.

The statute of limitations for product liability

Usually, the injured party must bring a product liability claim within two to four years.

Johnson v. Medtronic, INC.

Valid Product liability, design defect A defective product has been put into the stream of commerce Too easy for the doctor to switch between the two modes on the defibrillator

Quality Control

-manufacturing defects occur when a manufacturer fails to assemble, test, or check the quality of a product adequately -encourage greater investment in product safety and stringent quality control standards.

Based on Misrepresentation fraud notes

-must have been made knowingly or with reckless disregard for the facts -must be of a material fact, and the seller must have intended to induce the buyer's reliance on the misrepresentation -buyer must have relied on the misrepresentation

Test for Design Defects

1. A reasonable alternative design was available 2. Because of the D's failure to adopt the alternative, the product was not reasonably safe

strict liability

people may be liable for the results of their acts regardless of their intentions or their exercise of reasonable care

prima facie

person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes

wild animals

persons who keep __ __ are strictly liable for any harm inflicted by the animals

statutes of repose

place outer time limits on product liability actions

Product liability

plaintiff can sue entire chain of production (manufacturer, distributor, etc)

Restatement

recognizes that many products cannot be made entirely safe for all uses

Statutes of limitations

restrict the time within which an action may be brought

Statutes of Repose Defenses to product liability

statutes that cut off the right to sue for defects in design and manufacturing of products after a certain time, typically 10 to 12 years, after manufacture or sale

preemption

that government regulations preempt claims for product liability. An injured party may not be able to sue the manufacturer of defective products that are subject to comprehensive federal regulatory schemes.

Stults v. Intern'l Flavors and Fragrances, Inc.

the "popcorn lung" case Chemical used in microwave popcorn and made popcorn-shaped lesions in lungs Was it foreseeable that someone would eat a lot of bags of popcorn a day? Yeah, we encouraged them to eat a lot of popcorn.

Negligence

the failure to exercise the degree of care that a reasonable, prudent person would have exercised under the circumstances

Warning Defects Product defects

the foreseeable risk of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings.

Design Defect Product defects

the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.

Rylands v Fletcher (1868)

Defined Tort - 1) Bring onto the land or accumulate. 2) A thing likely to cause mischief if it escapes. 3) Non-natural use of the land. 4) Escapes and causes foreseeable damage.

due care

If a manufacturer fails to exercise "__ __" to make a product safe, a person who is injured by the product may sue the manufacturer for negligence.

Keeping wild animals Other applications of strict liability

lion and tigers and bears, possible escape

statutes of repose

Basically, a statute of limitations that is not dependent on the happening of a cause of action. Statutes of repose generally begin to run at an earlier date and run for a longer period of time than statutes of limitations.

Expert Testimony

Cases involving allegations of a manufacturing defect are often decided based on the opinions and testimony of experts.

Obvious Risks

No duty to warn about obvious or commonly known risks

Foreseeable Misuses Warning Defects

Seller must warn!

Abnormally dangerous activites

Strict liability was applied first American Law to __ __ __

Schmude v. Tricam Industries Inc.

Stud finder holes did not line up correctly and the ladder fell

Boles v. Sun Ergoline, Inc.

Sun tanning Product liability, a user must not give up every right to use a product. -Colorado Supreme Court held that assumption of risk was not applicable because strict product liability is driven by public-policy considerations.

privity of contract Product Liability Based on Negligence

"__ __ __" is NOT required (You do not have to be in a contract with this person

cause in fact

"__ __ __" requires showing that "but for" the defendant's action, the injury would not have occurred.

quid pro quo sexual harassment

"this for that" -raises and promotion for sexual behavior -employer is automatically liable

Inadequate Warnings

"when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor . . . and the omission of the instructions or warnings renders the product not reasonably safe."

To successfully assert a design defect, a plaintiff has to show that:

-A reasonable alternative design was available. -As a result of the defendant's failure to adopt the alternative design, the product was not reasonably safe.

To establish assumption of risk, the defendant must show the following:

-The plaintiff knew and appreciated the risk created by the product defect. -The plaintiff voluntarily assumed the risk—by express agreement or by words or conduct—even though it was unreasonable to do so.

Section 402A Requirements

-The product must be in a DEFECTIVE CONDITION when the defendant sells it. -The defendant must normally be engaged in the BUSINESS OF SELLING (or otherwise distributing) that product. -The product must be UNREASONABLY DANGEROUS to the user or consumer because of its defective condition (in most states). -The plaintiff must incur PHYSICAL HARM to self or property by use or consumption of the product. -The defective condition must be the PROXIMATE CAUSE of the injury or damage. -The GOODS MUST NOT HAVE BEENS SUBSTANTIALLY CHANGED from the time the product was sold to the time the injury was sustained.

a product is unreasonably dangerous in the following situations

-The product was dangerous beyond the expectation of the ordinary consumer. -A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.

Design Defects

-made in conformity with the manufacturer's design specifications -product results in injury to the user because the design itself was faulty

Defenses to product liability

1. Assumption of the risk 2. Product misuse 3. Comparative negligence 4. Commonly known dangers 5. Knowledgeable user 6. Statutes of limitations 7. Statutes of Repose

A. Public Policy justifications: (Why hold a maker strictly liable for a defective product?)

1. Consumers should be protected against unsafe products; 2. Manufacturers should not escape liability for defective products just because not in privity with the injured person; and 3. Manufacturers and sellers are in a better position to bear the costs associated with injuries caused by their products.

Assumption of the Risk Defenses to product liability

1. Plaintiff knows the risk created by the product; and 2. Voluntarily assumed the risk by using the product anyway

Product Misuse Defenses to product liability

1. Product is used in a way not intended by the manufacturer. 2. If the use is reasonably foreseeable, the manufacturer must warn.

Requirements for Strict Product Liability -all must be proven

1. The product must be in a defective condition when the defendant sells it. 2. The defendant must normally be engaged in the business of selling (or distributing) the product. 3. The product must be unreasonably dangerous to the user or consumer because of a defective condition. 4. 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.

Abnormally dangerous activities

1. involves a potential degree of serious harm 2. involves a high degree of risk that cannot be completely guarded against with the use of reasonable care 3. is not commonly performed in the community or area

econmically feasible Unreasonably Dangerous Products. Strict Product Liability

1. the product was dangerous beyond the expectation of the ordinary consumer; or 2. a less dangerous alternative was ___ __, but the manufacturer failed to produce it.

Strict Product Liability and Public Policy

1.Consumers should be protected against unsafe products. 2.Manufacturers and distributors should not escape liability for faulty products simply because they are not in privity of contract with the ultimate user of those products. 3.Manufacturers and distributors can better bear the costs associated with injuries caused by their products, because they can ultimately pass the costs on to all consumers in the form of higher prices.

Comparative Negligence (Fault)

A defendant may be able to limit some of its liability if it can show that the plaintiff's misuse of the product contributed to his or her injuries.

product misuse

A defense against product liability that may be raised when the plaintiff used a product in a manner not intended by the manufacturer. If the misuse is reasonably foreseeable, the seller will not escape liability unless measures were taken to guard against the harm that could result from the misuse.

Schmude v. Tricam Industries Inc.

A jury concluded that this manufacturing defect made the ladder unreasonably dangerous and awarded Schmude more than $677,000 in damages.

Greenman v. Yuba Power Products, Inc.

A landmark case in which the court adopted the doctrine of strict liability in tort as a basis for product liability actions

design reasonable alternate design

A product "is defective in ___ when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a __ __ _ by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

privity of contract

A product liability action based on negligence does not require __ __ __ between the injured plaintiff and the defendant-manufacturer

market-share liability

A theory under which liability is shared among all firms that manufactured and distributed a particular product during a certain period of time. This theory of liability is used only when the specific source of the harmful product is unidentifiable.

McPherson vs. Buick Motor Company

Although Buick itself had not manufactured the wheel, New York's highest state court held that Buick had a duty to inspect the wheels and that Buick "was responsible for the finished product." Therefore, Buick was liable to MacPherson for the injuries he sustained.

State Laws and Constitutionality

An action alleging that a product is defective due to an inadequate label can be based on state law, but that law must not violate the U.S. Constitution.

Comparative Negligence

Apportions liability if the defendant was also negligent

Other Applications of Strict Product Liability

Both supplier and purchaser of component parts may be held strictly liable. Toyota Air Bags- brake pads put into a corolla by toyota but made by a subcontractor (both are strictly liable)

Rylands v Fletcher (1868)

Brought about Strict Liability in Tort: -Defendant built Reservoir which broke into shaft of abandoned coal mine then flooding the plaintiff's active mine, defendant did not know of mine but was still liable

MacPherson v. Buick Motor Co.

Court said if you are responsible for the end product, you are responsible for all the components. The end consumer doesn't need a contract with every single party.

Content of Warnings

Courts apply a "reasonableness" test to determine if the warnings adequately alert consumers to the product's risks.

Due Care is required in:

Design Production processes assembling warning testing

Fraudulent Misrepresentation (Fraud). Product Liability Based on Misrepresentation

Ex: Seller says the car has an airbag, but it really doesn't

Fraudulent Misrepresentation (Fraud). Product Liability Based on Misrepresentation

Examples: intentional mislabeling of products or concealment of product defects.

Johnson v. Medtronic, Inc.

I: Valid Product liability, design defect R: A defective product has been put into the stream of commerce A: Too easy for the doctor to switch between the two modes on the defibrillator C: In favor of Johnson

negligence Product Liability Based on Negligence

If a manufacturer fails to exercise "due care" to make a product safe, a person who is injured by the product may sue the manufacturer for ___

Knowledgeable User defense

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

Stults v. Intern'l Flavors & Fragrances, Inc.

If it is foreseeable that a person might consume several bags of microwave popcorn a day, then the manufacturer might have to warn users about the potential health risks associated with doing so.

Product Misuse

If the consumer misused the product in an unforeseeable way

Knowledgeable User

If the particular danger is commonly known by particular users of the product

Market share liability

If the plaintiff cannot prove which manufacturer produced the particular product that caused harm, then all manufacturers are liable in proportion to its share of the market

Preemption

If the product is subject to comprehensive federal safety regulations

Commonly Known Dangers

If the product was commonly known to be dangerous

Statutory Time Periods

If the statute of limitations or statute of repose period has expired

unreasonably dangerous product

In product liability, a product that is defective to the point of threatening a consumer's health and safety. A product will be considered unreasonably dangerous if it is dangerous beyond the expectation of the ordinary consumer OR if a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.

Greenman v. Yuba Power Tools

Injured when a combo tool flew off wood that struck him in the head. An individual can't responsible for full product lines.

Johnson v. Medtronic, Inc.

Johnson sued Medtronic because the defibrillator shocked him asynchronous when the doctor wanted synchronous

-Designing the product. -Selecting the materials. -Using the appropriate production process. -Assembling and testing the product. -Placing adequate warnings on the label to inform the user of dangers of which an ordinary person might not be aware. -Inspecting and testing any purchased components used in the product.

Manufacturers must use due care in all of the following areas: 1. 2. 3. 4. 5. 6.

Fraudulent Misrepresentation (Fraud). Product Liability Based on Misrepresentation

Misrepresentation of a material fact concerning quality, nature, or approximate use of the product is made knowingly or with reckless disregard for the truth.

label or advertisement

Misrepresentation on a ___ or ___ is enough to show an intent to induce the reliance of anyone who may use the product

Product Misuse

NOTE: Court has limited this defense to when the particular use is NOT foreseeable.

Obvious Risks Warning Defects

No duty to warn about risks that are obvious or commonly known.

MacPherson v. Buick Motor Co.

Old car, wooden wheels, a wheel falls apart and MacPherson sues Buick Said they don't have a contract as he bought it preowned, tires are bought from a tire maker

Defenses to Product Liability

One defense, of course, is to show that there is no basis for the plaintiff 's claim. Thus, for instance, in an action based on negligence, if a defendant can show that the plaintiff has not met the requirements for such an action (such as causation), then generally the defendant will not be liable.

Pelman v. McDonald's

Parent of overweight children saying McDonald's is causing their kids to be fat. McDonald's won the case.

Proving a Defective Condition

Plaintiff does not need to show why or in what manner the product became defective. But plaintiff must show product was defective and "unreasonably dangerous" at purchase

duty, breach, causation, damages

Plaintiff must prove: 1. 2. 3. 4.

Proving Defective Condition Strict Product Liability

Plaintiffs need to show that it was defective and unreasonably dangerous when it left the hands of the defendant

Safer alternative design

SAD acronym meaning

Schwark v. Arctic Cat

Schwark-owned snowmobile - both sisters fall off and die, husband sues Thought that she put it in forward after reverse and fell off a mountain Argued that the sound didn't go off and that's why they fell off

Privity of contract

The relationship that exists between the promisor and the promisee of a contract.

Boles v. Sun Ergoline, Inc.

The tanning bed had a fan in it and my finger got caught in the fan and lost 2 fingers Signed a waiver and the court said the assumption of the risk is not endless

tolled

The temporary suspension of the running of a prescribed period (such as a statute of limitations). For instance, a statute of limitations may be tolled until the party suffering an injury has discovered it or should have discovered it.

proximate cause

This determination focuses on the foreseeability of the consequences of the act -must first establish cause in fact

product liability

Those who make, sell, or lease goods can be held liable for physical harm or property damage caused by those goods to a consumer, user, or bystander

Assumption of Risk

When the user or consumer knew the risk and voluntarily assumed it

Jamieson v. Woodward & Lothrop

Woman use an elastic rope to exercise with and slipped out and hit her in the eye causing her retina to detach. Sued said the manufacturer should have warned her. She lost the case

Plaintiff Product Liability Based on Negligence

__ must show Defendant's conduct was the cause in fact and proximate cause of the injuries suffered.

market-share liability

a court can hold each manufacturer responsible for a percentage of the plaintiff's damages that is equal to the percentage of its market share.

Defenses to Product Liability (strict liability)

a defendant can claim that the plaintiff failed to meet one of the requirements. For instance, if the defendant shows that the goods were altered after they were sold, normally the defendant will not be held liable.

manufacturing defect

a departure from a product unit's design specifications that results in products that are physically flawed, damaged, or incorrectly assembled ex: glass made too thin and explodes in customer's face

Knowledgeable User Defenses to product liability

a particular danger should be commonly known by a particular user. Ex: electricians

Manufacturing Defects Product defects

a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. (product slips through the cracks and a bolt or screw is missing in one product)

Consumer-Expectation Test

a product is unreasonably dangerous when it fails to perform in the manner that would reasonably be expected by an ordinary consumer

foreseeable missuse

a seller must also warn consumers of harm that can result from the __ __ of its product.

Strict Product Liability

aka Defective Product case] based on strict liability - absolute, without regard to fault, liability).

Comparative Negligence Defenses to product liability

assessing Plaintiff's own negligence Two Types: Pure and 50%

Fraudulent Misrepresentation (Fraud). Product Liability Based on Misrepresentation

b. As a result of the fraud, injury occurs; and c. The buyer/plaintiff relied on the misrepresentation.

Product liability

based on the tort theories of negligence, misrepresentation, strict liability, and breach of warranty

Section 402A

became a widely accepted statement of how the doctrine of strict liability should be applied to sellers of goods (including manufacturers, processors, assemblers, packagers, bottlers, wholesalers, distributors, retailers, and lessors)

Crosswhite v. Jumpking

case illustrates the adequacy of warnings and consequences of ignoring the 9 warning labels affixed to a trampoline.

fraud

consumer is injured as a result of a manufacturer's or seller's fraudulent misrepresentation, the basis of liability may be the tort of __

The Restatement (Third) of Torts: Products Liability

defines three types of product defects that have traditionally been recognized in product liability law—---manufacturing defects -design defects -inadequate warnings.

Risk-Utility Analysis

determine whether the risk of harm from the product as designed outweighs its utility to the user and to the public

bailments

exists when goods are transferred temporarily into the care of another

Riley v. Ford Motor Co.

faulty door latch on Ford truck. Car hit a wall in a high speed rollover and he was ejected -adding one part was more expensive than cost of ppl dying

Riley v. Ford Motor Co.

faulty door latch on Ford truck. Car hit a wall in a high speed rollover and he was ejected -filed a product liability suit against Ford Motor Company -Ford had concluded that the alternative system was feasible and perhaps superior

Abnormally dangerous activities

involve a high risk of serious harm to persons or property that cannot be completely guarded against by the exercise of reasonable care.

Risk-Utility Analysis Design Defect

is there a way to make it and reduce the risk, still useful and cost-effective

Product liability

lawsuits involving facts of a company selling/making a product that is the cause of plaintiffs injury

product liability

liability of manufacturers and sellers for harmful or defective products.

Strict liability

liability w/o regard to fault/automatic liability -focus on nature of the situation instead of the actors actions

Strict Liability

liability without fault. If a person engages in certain activities, then they can be held responsible for any harm that results to others.

factors in deciding claims of design defects

magnitude and probability of the foreseeable risks, as well as the relative advantages and disadvantages of the product as it was designed and as it could have been designed.

Product defects

manufacturing defects, design defects, warning defects

domestic animals strict liability

may be strictly liable for harm caused by those animals if the owner knew, or should have known, that the animals were dangerous or had a propensity to harm others.

statutes of repose

may require that claims be brought within twelve years from the date of sale or manufacture of the defective product. If the plaintiff does not bring an action before the prescribed period expires, the seller cannot be held liable.

Intro to product liability

negligence fraud breach of contract strict liability

Commonly Known Dangers Defenses to product liability

no warning necessary. EX: Know the knife is shape

Statutes of Limitations Defenses to product liability

tort- 2 years from discovery of defect

product misuse

which occurs when a product is used for a purpose for which it was not intended

Keeping Domestic Animals (qualified) Other applications of strict liability

you are strictly liable for domestic animal if you have a reason to know its dangerous ex: dogs

Other applications of strict liability

•keeping wild animals • keeping domestic animals -Quid pro Quo