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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Chapter VIII Liability for Defective
ProductsA. Introduction
The questions 1) What does it mean to say a
manufacturer is strictly liable? How does it
differ from fault based liability? 2) How do you
decide, doctrinally, that strict liability will
be imposed? When is a product defective? 3)
Why, as a matter of policy, are we imposing
strict liability on manufacturers?
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Ch. 8 Liability for Defective Products The
Third Restatement Products Liability
Section 1 One engaged in the business of selling
. . . products who sells . . . a defective
product is subject to liability for harm to
persons or property caused by the defect.
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Ch. 8 Liability for Defective Products The
Third Restatement
Section 2 there are three types of
defects Manufacturing defect A product
contains a manufacturing defect when the product
departs from its intended design even though all
possible care was exercised in the preparation
and marketing of the product. Design defect the
foreseeable risk of harm could have been reduced
by adopting a reasonable alternative
design. Warning defect the foreseeable risk of
harm posed by the product could have been reduced
or avoided by reasonable instructions or warnings.
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Ch. 8 Liability for Defective Products The
Barker v. Lull test
A product may be found defective in design a) if
the plaintiff demonstrates that the product
failed to perform as safely as an ordinary
consumer would expect when used in an intended or
reasonably foreseeable manner OR b) if through
hindsight, the jury determines that the products
design embodies excessive preventable danger,
or in other words, if the jury finds that the
risk of danger inherent in the challenged design
outweighs the benefits of such design.
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Ch. 8 Liability for Defective Products
Under the Barker test, the risk utility test in
strict liability differs from the negligence
test because 1) consumer expectation is a
floor. 2) the risk - utility calculus is applied
in hindsight. 3) the burden of showing that the
benefits of the design used outweigh its dangers
is on the defendant. 4) the focus is on the
product, not on the manufacturers conduct.
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Ch. 8 Liability for Defective Products The
Barker Test
A two step approach 1) Under Soule, the product
must be one as to which ordinary consumers have
an expectation of safety 2) If it is such a
product, then the question is whether the
article is dangerous to an extent beyond which
would be contemplated by the ordinary consumer
who purchases it with the ordinary knowledge
common to the community as to its characteristics
(574, Restatement 402A comment i) 3) If it is not
such a product, the plaintiff must show that the
design embodies excessive preventable danger
the risks of the design are not outweighed by its
benefits.
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Ch. 8 Liability for Defective Products The
Camacho test
In determining whether the design is defective,
look to 1) usefulness of product 2) safety
aspects of the product 3) availability of a
substitute product 4) ability to eliminate the
unsafe character without harming its utility 5)
users ability to avoid danger by exercise of due
care 6) users anticipated awareness of the
dangers inherent in the product 7) feasibility of
spreading the loss by setting the price or
carrying insurance
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Ch. 8 Liability for Defective Products
Restatement of Product Liability, 2 A
product 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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Ch. 8 Liability for Defective Products
Restatement of Product Liability, 2 comment f
(p. 567-568, note 8) Factors to be considered in
evaluating a RAD 1) magnitude and probability of
risk 2) instructions and warnings accompanying
the product 3) nature and strength of consumer
expectations, including expectations based on
marketing 4) relative advantages and
disadvantages of the product and its
alternatives, including product longevity,
repair, range or consumer choice among products,
etc.
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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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Ch. 8 Liability for Defective
Products Failure to warn
What if the hazards of the product were not
known? -- the Restatement position -- the
Beshada position (note 2, p. 600) -- the
California position (note 3 p. 601)
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Ch. 8 Liability for Defective
Products Failure to warn
Carlin v. Superior Court (p. 602, n.3) The rules
of strict liability require a plaintiff to prove
only that the defendant did not adequately warn
of a particular risk that was known or knowable
in light of the generally recognized and
prevailing best scientific and medical knowledge
available at the time of manufacture and
distribution.
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Thus, in strict liability, as opposed to
negligence, the reasonableness of the defendant's
failure to warn is immaterial. Stated another
way, a reasonably prudent manufacturer might
reasonably decide that the risk of harm was such
as not to require a warning as, for example, if
the manufacturer's own testing showed a result
contrary to that of others in the scientific
community. Such a manufacturer might escape
liability under negligence principles. In
contrast, under strict liability principles the
manufacturer has no such leeway the manufacturer
is liable if it failed to give warning of dangers
that were known to the scientific community at
the time it manufactured or distributed the
product. Similarly, a manufacturer could not
escape liability under strict liability
principles merely because its failure to warn of
a known or reasonably scientifically knowable
risk conformed to an industry-wide practice of
failing to provide warnings that constituted the
standard of reasonable care.
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Ch. 8 Liability for Defective
Products Failure to Warn
Evaluating the adequacy of a warning 1)
Appearance 2) Content
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Chapter EightLiability for Defective Products
Defenses

• How victim behavior is relevant in a product
  liability case
• consumer expectation -- not defective
• open and obvious danger (or there is a warning)
  -- not defective
• unforeseeable misuse -- not defective
• product modification -- not defective /
  superseding cause
• comparative fault

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Chapter Eight Liability for Defective
Products
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? If there is no alternative design?
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Chapter Eight Liability for Defective
Products
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. 579
note 7, p. 589 Uniroyal the exploding tire case
(p. 591, n. 9) The cigarette lighter cases (note
8, p. 580) OBrien above ground swimming pool
(p. 570, n.12)
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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 it 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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Ch. 8 Liability for Defective
Products Failure to warn Problem
I. Manufacturing, Design, Warning? II.
Manufacturing A. Prove a flaw that existed when
left control 1. Manufacturers intent B.
Creates danger 1. Consumer expectation
test 2. Inherent / intrinsic characteristics of
product C. Causation D. Defenses
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Ch. 8 Liability for Defective
Products Failure to warn Problem
III. Design defect A. Consumer expectation
test 1. Remember failure to warn B. Risk
utility test 1. Reasonable Alternative
Design 2. State of the art 3. Open and
Obvious 4. Ultrahazardous products?? C.
Causation D. Defenses
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Ch. 8 Liability for Defective
Products Failure to warn Problem
IV. Failure to Warn A. Does the lack of a
warning make the product defective. 1. Need for
a warning? 2. Who do you warn? 3. Was the
warning adequate a. content b. appearance.
B. Causation C. Defenses
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Assignment

Tuesday 865-879, Silas v. Bowen (to be
distributed in class)