CH. 11- Products Liability

Crashworthy Doctrine

(Most courts have dropped this) a. In applying this doctrine, most courts put the burden on the ∆, once a defect is proven, to differentiate between the underlying damages from the accident itself and the enhancement of the injuries from the car not being safe in the event of a crash. i. If the ∆ cannot prove a basis for the jury separating out the initial harm from the secondary injury, the ∆ is liable for all of the harm incurred in the accident.

Consumer Expectation Test

(This is from the consumers standpoint, ordinary consumers expectations of the product- objective test) *A product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary customer would expect when used in an intended or reasonably foreseeable manner.

Section 82.002 Manufacturers Duty to Indemnify

(a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable. o This won't apply very often in Texas because they are usually not able to be sued in the first place because of sec. 82.003.

Section 82.003 Liability of Non-manufacturing Sellers

(a) A seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves: (there are exceptions to this)

What are the two primary areas for dispute?

1. When is a warning required? 2. What exactly must the warning say?

What are the three types of Defects?

1.) Manufacturing 2.) Design 3.) Marketing

What factors do the Texas Courts consider when analyzing a product through the risk utility test

1.) The utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; 2.) The availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; 3.) The manufacturers ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; 4.) The users anticipated awareness of the dangers inherent in the product and their Avoid-ability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warning or instructions; and 5.) the expectations of the ordinary consumer. • A plaintiff must prove as an element of the cause of action, that there is a reasonably safer alternative for design. * A jury need not find that each factor favors the existence of a defect. Instead, a balancing of the totality of these considerations is supposed to drive the jury's verdict.

Manufacturing Defect

A manufacturing defect is described in the restatement of Products liability as a "physical departure from a product's intended design (construction and/or quality). In such cases one is merely comparing the plans with the actual output of the unit that hurt the plaintiff. - These are the situations of "oops"

The Duty to Warn

A product has a marketing defect because of inadequate instruction or 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.

Consider whether the risk utility and the consumer expectations tests would yield similar results in the following scenarios: 2.) A well-known chef on the food network sells a set of knives that are very sharp, for use in chopping vegetables. The plaintiff cuts off her finger using the knife

Consumer Expectation: There would be no liability for the chef because it was an obvious risk that it could cut a finger; Risk Utility Test: Again, chef would have no liability, there is no alternative design that would be better. There would be no liability under either.

Consider whether the risk utility and the consumer expectations tests would yield similar results in the following scenarios 1.) A bulletproof vest is designed in a way that makes it susceptible to permitting a bullet to strike the person wearing the vest, because there are obvious circular areas cut along the sides. A police officer wearing one of these vests is struck in the ribs by a bullet that hits in the area of one of these cutouts

Consumer expectation: Manufactures would likely win because of the obviousness of the defect; Risk Utility Test: Manufacturer would lose because there is no utility for creating the holes.

Restatement (second) of torts § 402A Special Liability of Seller of Product for Physical Harm to User or Consumer.

Deals with products liability, it is arguably the most influential provision in the entire restatement of torts. 1. (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to he ultimate user or consumer, or to his property, if ----note: This creates strict liability to anyone who has sold the product! Anyone in the stream of commerce! Π must prove that the defect existed when it was sold. Also, a person is considered a consumer or user if the product hurts them! Also, only physical harm to a person or property other than the defective product itself. (a) The seller engaged in the business of selling such a product, and (b) It is expected to and does reach the consumer or user without substantial change in the condition in which it is sold. ---Note: These include only sellers who regularly sell these kinds of products! So you cant sue the guy who sold you the defective product at the garage sale. (2) The rule stated in subsection (1) applies although: (a) The seller has exercised all possible care in preparation and sale of his product, and (b) The user or consumer has not bought the product from or entered into any contractual relation with the seller. (i.e. no privity of contract)

Which of the views (new or old) are more plaintiff friendly?

Depends on the circumstances. For General Negligence, it would be the old view, for QSAOR would be the new view.

How are design defect claims different than negligence claims?

Difference in that the risk utility test compares the product to the state of the art, whereas in negligence claims it is compared to what is reasonable. - Further, in the risk utility test, hindsight is allowed, in neg, hindsight is not allowed.

Design Defects

Ex: Sparks v. Ownes-Illinois regarding an asbestos product. Plaintiff believed that the product was safe, it wasn't, it caused him cancer, and he died.

Exception to the Learned Intermediary Doctrine

If the drug company has directly marketed the product to consumers, then the duty is not satisfied! This would be like the Cialis commercials that pop up all the time. They have to give you warning!

Alternative Feasible Design Requirement

If there is no safer alternative, then there is no design defect!

Limitations on Duty: MacPherson v. Buick Motor Company

In this case, Justice Cardozo said: If the nature of the thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. But you need: 1. There must be knowledge or foreseeable danger, not merely possible, but probable; and 2. It must also be foreseeable that in the usual course of events the danger will be shared by others than the buyer.

How does the court submit the question of apportionment to the jury when there is no fault in strict liability cases?

It would ask the jury to determine the percent of how far below the product was from the standard of care. If you were suing three sellers, there would still be one line for the product, and then the plaintiff could recovery from any one of them. (The fault is in the product)

When do manufacturers have a duty to warn?

Manufacturers don't have a duty to warn of inconceivable dangers, nor for every conceivable danger. They do however, have a duty to warn of dangers of harmful effects arising from the foreseeable use and misuse of a product that are known or are readily foreseeable in the state of art.

When is there a duty to warn?

No foreseeable knowledge-> No duty to warn; Some knowledge-> Duty to Warn; Common Knowledge -> No duty to warn.

Would there be a good claim for a manufacturing defect for the following: b.) A manufacturer of latex gloves makes different models of the gloves for use in hospitals. One model contains extra amounts of latex to provide greater protection from germs. Another model is made that contains less latex in recognition that certain users might be prone to allergic reactions to high concentrations of latex. Plaintiff is a nurse at a hospital who uses the higher concentration gloves and suffers a bad reaction to the gloves.

No. They intend to produce different models in different ways.

What is a fundamental difference between the consumer expectation test and the risk utility test?

One fundamental difference is that under the consumer expectation test, the focus is exclusively upon the awareness risks by the consumers of the product; knowledge on the part of the manufacturer is irrelevant.

What is the majority test, risk utility test or consumer expectation test?

Risk utility test is the majority test

Defenses Arising out of Plaintiffs Misconduct

Some courts have steadfastly refused to change their view of defenses in strict liability cases while others have embraced the application of comparative fault (and the elimination of secondary implied assumption of the risk as a separate defense) to strict liability suits.

Marketing Defects

Strict products liability law recognizes that a marketing defect can exist when needed warnings are no properly given to consumers. * A marketing defect claim is a failure to warn

State Law Issue: Weight to be Given Compliance

Texas, has enacted a statute creating a rebuttal presumption that there is no defective design or warning when the manufacture has "complied with mandatory safety standards or regulations adopted and promulgated by the federal government."

Results of the MacPherson v. Buick Case

The MacPherson case got over the "duty" hurdle on the way to having the products liability. Now courts just say there is a duty of care.

What do courts think about applying Res Ipsa Loquitor to strict product liability claims?

The court does not believe Res Ipsa applies to strict products liability claims, because it places fault on the defendant, but we don't need fault in strict liability cases

Read and Heed Presumption

The doctrine provides that if the required warning had been given, the π would have read it and abided by the warning to protect herself from injury.

Where is the focus on marketing defect claims?

The focus is on the manufacturer, not the product.

Indeterminate Product Defect Test

The indeterminate product defect test permits the jury to draw two inferences: 1.) That the harmful incident was caused by a product defect, and 2.) the defect was present when the product left the manufacturers control. • This indeterminate product test is very similar to res ipsa, but is only applicable in strict liability manufacturing defect cases. Its only available when direct analysis isn't available, usually because the product was destroyed.

With regard to premise liability analysis, what is common knowledge exception closest to?

The open and obvious danger doctrine. In both, there is no duty, because the danger is so obvious.

Limitations on the consumer expectation test

There cannot be complicated design considerations or obscure components, or esoteric circumstances (so, basically, the product that the plaintiff is complaining of cannot be overly complicated in design or include things that the average person has no idea about. An example would be the flooring of a car in an accident. That is too complicated for the ordinary person to have an expectation of. - However, under this test, the plaintiff doesn't need to prove that the manufacturer could have created the product any better.

Common Knowledge Exception

There is no duty to warn when the risks associated with a particular product are matters "within the ordinary knowledge common to the community. o Common knowledge exception's sole analysis is on the consumer, it has nothing to do with the objective knowledge of the manufacturer.

How are design defect claims similar to negligence claims?

They are similar in that the analysis is very similar to the analysis for the learned hand formula. For example, a reasonable automobile designer would necessarily take into account the same factors that courts utilize in applying the risk utility test.

Why don't we just make manufacturers put warnings on everything?

Too many warnings destroy all warnings. Further, the law is efficient, don't want to impose a duty when there is no need, there would be a high cost for no reward.

When do you have a manufacturing defect claim?

Under Texas law, a plaintiff has a manufacturing defect claim when a finished product deviates, in terms of its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous.

The Foreign-Natural Doctrine

Under this doctrine (re: food), manufacturing defects only exists when the unintended ingredient is wholly foreign to the items intended for the final prepared food item.

Learned Intermediary Doctrine

Under this doctrine, the duty to warn is satisfied with respect to prescription drugs and devices by providing the warning to the physician instead.

In Texas law, under the risk utility test, must plaintiff prove that there is an alternative feasible product?

Yes, in order to recover, the plaintiff must prove that there is an alternative feasible product.

Would there be a good claim for a manufacturing defect for the following: a.) A carbonated can of cola contains a shard of loose, sharp metal that damages the plaintiff's throat when she attempts to take a drink from the can.

Yes. The recipe/blueprints for coke do not call for shards of metal within the can

Would there be a good claim for a manufacturing defect for the following: c.) Defendant manufactures artificial hip joints for surgical implantation in the patients with bad hips. A competitor decides that bad publicity for the defendant company would help him regain lost market share. The competitor sneaks into defendant's facility and loosens some parts...

Yes. There is deviation from the plans. Even though defendant didn't do it, it still is a deviation which causes the injury.

How do you know how much the product deviated from the blueprint?

You compare the product that hurt the plaintiff, with the plans, blueprints, recipe, etc., and if there was a deviation from the plan, you have a manufacturing defect. - not all defects are eligible to recover from strict product liability, if it didn't hurt anyone.

The test for manufacturing defects

assumes that the manufacturer had a good design, recipe, or plan for the product but something went awry in the details of actually making the particular product that hurt the plaintiff.

What happens if there is no plants, blueprint, recipe, etc?

can compare the product that hurt the plaintiff, you can compare it to the other products.

consider whether a product manufacturer or seller has a duty to attempt to reduce or warn about the following risks in either their design or marketing of these products: A teenager uses a can or aerosol hairspray to get high by breathing the inhalant. He goes into a coma and dies.

duty to warn because this would be a foreseeable risk.

Is Negligence a Defense to Strict Liability? (New View) Majority view and Texas View

o General Negligence: Yes, percentage reduction is allowed proportionately. o Qualified Secondary Assumption of the Risk: No, not a separate standalone defense. Any potential negligence here would just be apportioned as in the above category and reduced award proportionately. o Misuse: Yes, if its unforeseeable, then misuse is an absolute defense and kills the cause of action.

Is Negligence a Defense to Strict Liability? (old view)- Minority

o General Negligence: is not a defense. Their negligence is not relevant in determining their damages. o Qualified Secondary Implied Assumption of the Risk: Yes, an absolute defense. o Misuse: Yes, if its unforeseeable, then misuse is an absolute defense and kills the cause of action. ->Some courts follow these (old) views.

Tainted Food

sometimes manufacturers of some processed food will be sued when a contaminant is found inside their finished product that has injured someone.

The Risk Utility Test

• Comparing the "products greatness" (utility of the beginning design) vs. Risks associated with original design. (this is very close to the learned hand formula o However, it is still different that the negligence analysis of the learned hand because the focus is on the product, not the manufacturer/seller. Also, there is no fault considered in this test.

When, and How, Does Product Misuse Provide a Defense?

• Plaintiffs burden of proof for strict product liability is as follows (per justice Traynor): "to establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the product in a way it was intended to be used as a result of a defect in design and manufacture."