Strict Liability & Products Liability

Theories of Products Liability

1. Intent 2. Negligence 3. Strict Liability 4. Implied warranties of merchantability and fitness for a particular purpose 5. Representation theories (express warranty and misrepresentation)

Products Liability based on Intent

A defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. Liability based on an intentional tort is not very common in products liability cases.

Implied Warranties Defense Comparative Negligence

Court in comparative negligence jurisdictions use comparative fault notions in warranty cases to reduct the damage award in the same way as in strict liability cases.

Effect of Disclaimers

Disclaimers of liability for breach of implied warranty must be specific and are narrowly construed. Contractual limitations on personal injury damages resulting from a breach of warranty for consumer goods are prima facie unconscionable.

Proving a Defect- Design Defect

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 are: 1. Usefulness and desirability of the product; 2. Availability of safer alternative products; 3. The dangers of the product hat have been identified by the time of trial; 4. Likelihood and probable seriousness of injury; 5. Obviousness of the danger; 6. Normal public expectation of danger (especially for established products); 7. Avoidability of injury by care in use of product (including role of instructions and warnings); and 8. Feasibility of eliminating the danger without seriously impairing the product's function or making it unduly expensive.

Assumption of Risk

If the plaintiff is entitled to rely on the representation, a defense of assumption of risk does not apply.

Misrepresentation of Fact

Liability for misrepresentation may arise by the seller about a product induces reliance by the buyer. In products cases, liability for misrepresentation is usually based on strict liability, but may also arise for intentional and negligent misrepresentations.

Common Defect Problems- Scientifically Unknowable Risks

Occasionally, totally unpredictable hazards of a product do not become apparent until after the product has been marketed. This situation arises most frequently with new drugs that yield unpredictable side effects. Even though these drugs might be dangerous beyond consumer expectations, courts have generally refused to find the drugs unreasonably dangerous where it was impossible to anticipate the problem and make the product safer or provide warnings.

Defendant must be a Commercial Supplier

Plaintiff must prove that defendant is a commercial supplier of the product in question, as distinguished from a casual seller. Thus, strict liability applies when the defendant is a manufacturer, retailer, assembler, or wholesaler.

Common Defect Problems- Misuse

Some products may be safe if used as intended, but may involve serious dangers if used in other ways. Courts have required suppliers to anticipate reasonably foreseeable uses even if they are "misuses" of the product.

Intent to Induct Reliance of Particular Buyer

The defendant must have intended to induce the reliance of the buyer, or a class of persons to which the buyer belongs, in a particular transaction. Evidence of a representation made to the public by label, advertisement, or otherwise is sufficient to show an intent to induce reliance by anyone into whose hands the product may come.

Implied Warranty of Merchantability

When a merchant who deals in a certain kind of 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.

Manufacturing Defect

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.

Implied Warranties of Merchantability and Fitness

1. 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. 2. Scope of Coverage- The UCC provisions apply to the sale of goods under Article 2 and the lease of goods under 2A.

Abnormally Dangerous Activity Test

1. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and 2. The activity is not a matter of common usage in the community.

Products Liability Based on Strict Liability- Prima Facie Case

1. The defendant is a commercial supplier; 2. The defendant produced or sold a defective product; 3. The defective product was the actual and proximate cause of the plaintiff's injury; and 4. The plaintiff siffered damages to person or property.

Products Liability Based on Negligence Prima Facie Case

1. The existence of a legal duty owed by the defendant to that particular plaintiff; 2. Breach of that duty- plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a "defective product" by the defendant. 3. Actual and proximate cause; and 4. Damages.

Strict Liability- Elements

1. The nature of the defendant's activity imposes an absolute duty to make safe; 2. The dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and 3. The plaintiff suffered damage to person or property.

Abnormally Dangerous Activities

An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to person or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is a question of law the court can decide on a motion for directed verdict.

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."

Implied Warranty of Fitness for a 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.

Implied Warranties Defense Contributory Negligence

Courts in contributory negligence jurisdictions have adopted an approach similar to that used in strict liability in tort- that unreasonable failure to discover the defect does not bar recovery but that unreasonable conduct after discovery does bar recovery.

Proving a defect- manufacturing defect

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. Defects in food products are treated the same as manufacturing defects- the "consumer expectation" approach is to be used.

Strict Liability Defense- Contributory Negligence

In contributory negligence states, plaintiff's contributory negligence is no defense if the plaintiff simply failed to realize the danger or guard against its existence (unknowing contributory negligence). It is a defense, however, if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity.

Strict Liability- Defendant only Liable to Foreseeable Plaintiffs

In most states, the defendant is liable only to "foreseeable plaintiffs"- persons to whom a reasonable person would have been foreseen a risk of harm under the circumstances.

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.

Strict Liability- Harm must result from "normally dangerous propensity"

The harm must result from the kind of danger to be anticipated from the dangerous animal or abnormally dangerous activity; i.e. it must flow from the "normally dangerous propensity" of the condition or thing involved.

Wild Animals

The owner is strictly liable for injuries caused by wild animals (e.g. lion or bear), even those kept as pets.

Trespassing Animals

The owner is strictly liable for the damage done by the trespass of his animals (other than household pets) as long as it was reasonably foreseeable.

Domestic Animals

The owner of a domestic animal (including farm animals) is not strictly liable for injuries it causes. Such liability does, however, attach if the owner has knowledge of that particular animal's dangerous propensities (i.e. propensities more dangerous than normal for that species). This rule applies even if the animal has never actually injured anyone. Some states have "dog bite" statutes, applicable only to dogs, which impose strict liability in personal injury actions even without prior knowledge of dangerous characteristics.

PL- Notice of Breach

UCC section 2-607 requires the buyer to give the seller within a reasonable time after the buyer discovers or should have discovered the breach. Most courts have held that the requirement applies even in personal injury cases and where there is no privity between the parties.

Implied Warranties Defense Notice of Breach

UCC section 2-608 requires the buyer to give the seller notice within a reasonable time after the buyer discovers or should have discovered the breach. Most courts have held that the requirement applies even in personal injury cases and where there is no privity between the parties.

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.