Products Liability

1
Products Liability

• The courts have generally recognized that, under
  the Restatement of Torts 2d 402A, a seller can
  be held liable in a products liability action for
  injuries which result from the "defective
  condition" of his product.

2
Products Liability

• However, a product is not in a defective
  condition when it is safe for normal handling and
  consumption, but injury nevertheless results from
  abnormal handling, abnormal preparation for use,
  or abnormal consumption of the product.

3
Products Liability

• A factor in the manufacturer's favor which may
  serve to bar or diminish the claimant's or
  injured party's recovery is evidence of misuse or
  abnormal use of the product by someone other than
  the individual or entity which manufactured or
  supplied the product.

4
4 Equipment Considerations for the Athletic
Administrator

• Purchase of appropriate equipment for the
  athletic activities offered.
• Provision of equipment for the athletic
  activities in which equipment is needed.
• Provision for properly fitting equipment
• Periodic inspection of equipment and
  reconditioning when needed.

5
Products Liability

• In products liability actions based on a
  negligence theory, the generally accepted rule
  for determining whether a product is defectively
  designed is whether it was designed without
  reasonable care.

6
Products Liability

• Although a determination of whether a specific
  product is defectively designed typically depends
  on the particular facts, various general factors
  in making such a determination have been noted in
  some of these cases.

7
Products Liability

• Such factors include the
• Knowledge available at the time the product in
  question was designed, including evidence of
  alternative designs,

8
Products Liability

• Unreasonable danger posed by a product's design
  (the test of defective design under strict tort
  liability in some jurisdictions),
• The safety, generally, of a product for its
  intended or reasonably foreseeable use (similarly
  the test of design defectiveness under strict
  tort liability in some jurisdictions),

9
Product Liability

• A manufacturer has the duty to meet legal
  standards of safety and care for the following
• Design
• Manufacture
• Use

10
Design

• The standard of care involved in the design to
  ensure that it will be reasonably safe when used
  in the manner for which it was intended

11
Design

• The standard in a design defect case is whether,
  if
• the design defect were known at the time of
  manufacture,
• a reasonable person would conclude that the
  utility of the product did not outweigh the risk
  inherent in marketing it,

12
Design

• The burden is on the plaintiff to present
  evidence that the product, as designed, was not
  reasonably safe because there was a substantial
  likelihood of harm, and
• It was feasible to design the product in a safer
  manner.

13
Smith v Hub Mfg., Inc.

• The question of whether a manufacturer could have
  feasibly employed a safer design
• Wrongful death action against the manufacturer of
  a swimming pool and the manufacturer of a pool
  ladder for the drowning death of the plaintiffs'
  minor son,
• Testimony by the plaintiffs' expert witness that
  other swimming pools had ladders that were more
  effective in preventing pool accidents was
  sufficient to submit the issue to the jury.

14
Manufacture

• The manufacturer has the duty to warn users of
  the product about any potential hazards.
• The manufacturer is not required to make the
  safest or best possible product, although the
  product will be compared to similar products.
• It is this comparison which will determine what
  is a reasonably safe product

15
Supplier

• The supplier has a duty to use reasonable care in
  the making of a product.
• The supplier need to know or has reason to know
  that the product may be dangerous and relate that
  to the consumer

16
Strict Liability as a Cause of Action

• Requires that one who sells a product that is
  unreasonably dangerous because of defect
  whether design or manufacture- be held liable for
  any physical harm proximately caused by the use
  of the product

17
Liability of the Supplier/Seller

• The supplier of the product and the seller may be
  held liable for negligence if they have not
  exercised reasonable care.

18
Liability of the Seller

• The seller will be liable to the consumer
  provided that the condition or initial state of
  the product has not been altered

19
Patent and Latent Defects

• Both are injury causing but an owner/ occupier
  cannot be held liable for the undiscovered and
  undiscoverable defects

20
Patent and Latent Defects

• Patent defect
• Defect that is plainly visible or easily detected
  upon inspection such as cracks
• Latent defect
• Defect that could not be detected during a
  reasonable inspection.
• It is a defect of which the owner has no
  knowledge in the exercise of reasonable care the
  should have no knowledge

21
Breach of Warranty as a Cause of Action

• To establish a breach of warranty claim against
  the manufacturer the plaintiff needs to prove
• That there was an express or implied warranty
• Establish that the warranty was breached
• In claim based on warranty principles the
  plaintiff does not have to prove that the product
  was defective in design

22
Express and Implied Warranty

• Express warranty affirms that the nature and
  fitness of the particular product upon which the
  buyer might reasonably rely.
• Implied warranty does not arise from words,
  either verbal or oral, but is a rule of law in
  every state.

23
Equipment Defects

• Failure to Warn
• Established upon the finding of a manufacturers
  duty to warn of known latent and potential injury
  causing defects in the design of the equipment.
• The plaintiff must prove that the product was
  defective in design.

24
Failure to Warn

• 2 prongs used by the courts to test the theory
• Looking at the product to see if it has failed to
  perform as safely as intended or was misused or
  tampered with
• Involves proving that the products defective
  design proximately caused the injury and that the
  benefits of the challenged design do not outweigh
  the inherent risk of danger caused by the design

25
Failure to Warn

• Although adequate warning shields manufacturer
  from liability for alleged design defects where
  product is safe to use if warning is followed,
  warning is not adequate replacement when safety
  device will eliminate need for warning.

26
Failure to Warn

• Adequate warning will not shield manufacturer
  from liability for design defect if defect could
  have been avoided by commercially feasible change
  in design that was available at time manufacturer
  placed product in stream of commerce. Robinson v
  G.G.C., Inc. (1991, Nev) 808 P2d 522, CCH Prod