Ch' 8: Liability for Defective Products A' Introduction

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Ch. 8 Liability for Defective Products A.
Introduction

• A person is injured by a product and sues the
  manufacturer, or the person who sold the product.
• What legal theories are available to support
  recover?
• negligence theories
• contract theories breach of warranty
• other tort theories fraud, or misrepresentation
• strict product liability

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Strict Product Liability An Overview

• Applies to anyone manufacturer or retailer
  engaged in the business of selling or otherwise
  distributing products (except used products)
• Liability extends to the ultimate user, consumer,
  or bystander injured by the products defective
  condition.
• The defect must have existed at the time the
  product left the defendants control.
• Liability is limited to injuries that occur
  during the products intended, normal or
  foreseeable use.
• The defect must have been the cause-in-fact and
  the proximate cause of the harm

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The critical issue When is a product
defective?

• Restatement (Third) Product Liability
• There are three types of defects
• Manufacturing Defects
• 2. Design Defects
• 3. Failure to warn

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Manufacturing Defects

• To establish that a product was defective, the
  plaintiff must show that the product
• That the specific product that caused the injury
  was flawed (the manufacturers intent test from
  the Restatement (Third) of Product Liability is
  helpful)
• That the flaw made the product dangerous (here,
  the consumer expectation test seems to be the
  most useful).

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Manufacturing Defects
In addition to showing that the product was
defective, the plaintiff must show -- that the
defendant was engaged in the business of
selling the product -- the injury occurred --
the defect existed when the product left the
defendants control -- the defect proximately
caused the injury. DEFENSES are yet to come!
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Manufacturing Defects

• 1) What does it mean to say a manufacturer /
  retailer is strictly liable? How does it
  differ from fault based liability?
• No matter what precautions the defendant took to
  prevent the injury, the manufacturer is still
  liable
• 2) How do you decide, doctrinally, that strict
  liability will be imposed? When is a product
  defective?
• See above slide
• 3) Why, as a matter of policy, are we imposing
  strict liability on manufacturers?
• Traynors concurrence. Arguments about accident
  reduction, fair distribution, and expectations

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Design Defects

• To establish that a product is defective because
  of its design
• Show that there is an alternative design that
  would have prevented the injury
• Persuade the trier of fact that the alternative
  design is reasonable by applying one of the
  various risk-utility tests (which include as a
  factor the consumers expectation of safety)
• In California, at least, the plaintiff can win
  without showing a RAD if
• It is the kind of product as to which the
  ordinary consumer has an expectation of safety
  and
• the product fails to perform as safely as the
  ordinary consumer would expect

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Design Defects
1) What does it mean to say a manufacturer /
retailer is strictly liable? How does it
differ from fault based liability? It means that
the design of the product poses an unreasonable
risk of harm to the user. Its hard to say how
it differs. 2) How do you decide, doctrinally,
that strict liability will be imposed? When is a
product defective? See above slide 3) Why, as
a matter of policy, are we imposing strict
liability on manufacturers? Apparently, we
arent.
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Design defects and consumer expectations
Can a product be defective if, although it
performs as safely as an ordinary consumer would
expect, an alternative design would make it even
safer?
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Design defects and consumer expectations
Can a product be defective if there is no
alternative design at all?
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Ch. 8 Liability for Defective
Products Failure to Warn
Restatement of Product Liability, 2 comment e
a court could conclude that liability should
attach without proof of a reasonable alternative
design. . . if the extremely high degree of
danger posed by its use or consumption so
substantially outweighs its negligible social
utility that no rational, reasonable person,
fully aware of the relevant facts, would choose
to use, or to allow children to use, the product.
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Unsafe products and consumer choice
Knives that cut people? Hamburgers that cause
obesity? Tobacco that causes cancer? Camacho
motorcycle without leg guards Luque lawn mower
designed with a hole in the top (note 2, p.
591) Uniroyal the exploding tire case (p. 605,
n.10) The cigarette lighter cases (note 6, p.
592) OBrien above ground swimming pool (p.
582, n.13)
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Ch. 8 Liability for Defective
Products Failure to Warn
Restatement of Product Liability, 2 A
product c) is defective because of inadequate
instructions 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, or a predecessor in the
commercial chain of distribution, and the
omission of the instructions or warning renders
the product not reasonably safe.
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Ch. 8 Liability for Defective
Products Failure to Warn
Evaluating failure to warn defects 1) Need
for a warning? 2) Whom do you warn? 3) Was the
warning adequate? -- content? -- appearance?
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Ch. 8 Liability for Defective
Products Failure to Warn

• Ways in which a warning can reduce the
  foreseeable risks of harm
• Reducing risk by instructing the user in the
  products proper use
• 2) Reducing risk by alerting the user to dangers
  presented by possible misuse of the product
• 3) Alerting consumers to inherent dangers of the
  product that cannot be reduced or avoided (side
  effects).

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Ch. 8 Liability for Defective
Products Failure to Warn

• What do you have to warn of?
• foreseeable risks of harm posed by the product
  that could have been reduced or avoided where
  omission of the instructions or warning renders
  the product not reasonably safe
• risks that are common knowledge?
• risks that were unknown at the time your product
  was designed?

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Assignment

Wednesday 595-607, 612-620 Tuesday
884-885, 889 n. 6- 890 n. 9, 891-898,
908-912, Silas v. Bowen (web page).