Design Defects: Negligence or Strict Liability

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Design Defects Negligence or Strict Liability?
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Ways of imposing a strict liability-like standard

• 1. State of the art at the time of trial
  (Beshada)
• 2. Consumer expectations (in its Barker, not
  Soule form)

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Ways of Imposing a Negligence-Like or Greater
Standard

• To get around the unreasonably dangerous
  language of Rest. Second 402A, many states used
  various rules to make it harder to recover from
  manufacturers

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• 1. No defect if the problem is open and obvious
  (Campos)
• 2. No defect if product caused injury when not
  used for an intended use
• 3. No defect if product was altered by
  consumer.

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Restatement Third Approach to Design Defect

• Putting aside a claim under section 3
  (circumstantial evidence of product defect), the
  Third Restatement uses a straightforward
  negligence test that requires proof of a
  reasonable alternative design.
• Older concepts like open and obvious get
  incorporated into the test.

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Rest. 3d PL 2. Categories of Product Defect

• A product is defective when, at the time of sale
  or distribution, it contains a manufacturing
  defect, is defective in design, or is defective
  because of inadequate instructions or warnings. A
  product

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• (b) is defective in design when the foreseeable
  risks of harm posed by the product could have
  been reduced or avoided by the adoption of a
  reasonable alternative design 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

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Illustration 9- No Design Defect

• John was driving a compact automobile
  manufactured by the ABC Auto company when he lost
  control and collided with a tree. John suffered
  serious injuries. John brings a products
  liability claim against ABC arguing that the
  design of his car is defective in that it does
  not offer the same level of crashworthiness as
  does a full-size automobile. Johns experts
  admit that reducing the size of an automobile
  unavoidably increases the risk of injuries to
  occupants in collisions. John can identify no
  specific feature of the ABC automobile that could
  have been designed differently so as to be safer
  without increasing its size and substantially
  reducing its desirable characteristics of lower
  cost and lower fuel economy.

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Reasons Restatement Offers for Strict Liability
for Manufacturing Defects

• From section 2, comment a
• 1. Increases manufacturers incentive to promote
  safe products.
• 2. Discourages consumption of dangerous products
  by raising their purchase price (because of the
  costs of paying liability verdicts)
• 3. Reduces litigation costs
• 4. Plaintiffs sometimes have difficulty proving
  manufacturer negligence thus, strict liability
  functions like res ipsa loquitur in negligence.
  (The difference though is that the res ipsa
  presumption in negligence may be rebutted by the
  defendant.)
• 5. Manufacturers are cheaper insurers

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• Do these factors support strict liability for
  design or warnings defects?

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Reasons Restatement Gives for Negligence Standard
in Design Defect Cases

• Society does not benefit from products that are
  excessively safe, for example, automobiles
  designed with maximum speeds of 20 mph.

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• 2. From a fairness perspective, requiring
  individual users and consumers to bear
  appropriate responsibility for proper product use
  prevents careless users and consumers from being
  subsidized by more careful users and consumers,
  when the former are paid damages out of funds to
  which the latter are forced to contribute through
  higher product prices.

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• 3. Consumer expectations as to proper product
  design or warning are typically more difficult to
  discern than in the case of a manufacturing
  defect.

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• 4. Element of deliberation in setting
  appropriate levels of design safety is not
  directly analogous to the setting of levels of
  quality control by the manufacturer.

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• 5. Manufacturers may persuasively ask to be
  judged by a normative behavior stand to which it
  is reasonably possible for manufacturers to
  conform.

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Reasonable Alternative Design

• Is the Linegar vest defective?
• Note how open and obvious is relevant but not a
  separate factor.

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Illustration 6

• Andrea, age four, suffered serious burns when she
  got out of bed one night to go to the bathroom
  and tripped on the electric cord connected to a
  hot water vaporizer. When Andrea tripped on the
  cord the vaporizer separated into its three
  component parts - a large wide-mouthed glass jar,
  a metal pan, and a plastic top-heating unit. The
  plastic heating unit was not secured to the jar.
  When it came off, the hot water in the jar poured
  out, causing Andrea burns.

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Illustration 7

• Add fact to Illustration 6 that safety feature
  would add 5.00 to cost of vaporizer.

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California alternatives

• Consumer expectations test
• Risk utility with burden shifting Plaintiff
  proves product caused injury. Burden shift to
  defendant to show product does not fail
  risk-utility test.
• Res ipsa

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What is left of consumer expectations test in
California after Soule (1994)?

• Plaintiffs can use the consumer expectation test
  only in cases in which the everyday experience
  of the products users permits a conclusion that
  the products design violated minimum safety
  assumptions, and is thus defective regardless of
  expert opinion about the merits of the design.

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• Ordinary consumers of modern automobiles may and
  do expect that such vehicles will be designed so
  as not to explode while idling at stoplights,
  experience sudden steering or brake failure as
  they leave the dealership, or roll over and catch
  fire in two-mile-per-hour collisions.

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Guns, Alcohol, and Tobacco

• When under the Restatement may these items be
  found to be defective in design?

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Warning Defects under Third Restatement

• 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 warnings renders the product not
  reasonably safe.

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Restatement Illustration 11

• ABC Adhesives Inc. manufactures a chemical
  adhesive for home use. Sandra purchased a gallon
  for use in laying tile in her kitchen. The label
  on the container warned in large letters that
  fumes from the adhesive were flammable and toxic,
  that the product should be used with adequate
  ventilation, and that all sources of fire should
  be extinguished. Sandra opened the windows in
  her kitchen, but did not extinguish the pilot
  light in her gas stove. When she had partly
  completed laying the tile, the pilot light
  suddenly ignited the fumes from the adhesive,
  causing Sandra serious burns. In an action
  against ABC, Sandra contends that the warnings
  were inadequate in failing to specifically state
  that gas stove pilot lights should be
  extinguished.

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• How do we know when a warning is adequate?
• Hindsight problem
• Cognitive biases

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• Under the Restatement and in other jurisdictions,
  need to prove actual cause
• Would adequate instructions or warnings have made
  a difference?

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Learned intermediary doctrine

• Should a warning to a learned intermediary be
  enough?

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Restatement position standard is one of
reasonableness under the circumstances.

• Among factors to be considered
• 1. the gravity of the risks posed by the
  product
• 2. the likelihood that the intermediary will
  convey the information to the ultimate user
• 3. the feasibility and effectiveness of giving
  a warning directly to the user

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Special Restatement rule for allergies, Sec. 2,
comment k

• A warning is required when the harm-causing
  ingredient is one to which a substantial number
  of persons are allergic. The degree of
  substantiality is not precisely quantifiable. . .
  The more severe the harm, the more justified is a
  conclusion that the number of persons at risk
  need not be large to be considered substantial
  so as to require a warning.

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Can a good warning fix a bad design?
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Further design/warning question

• Should federal safety regulations be
  inadmissible/admissible/dispositive in resolving
  products design or warning claims?