torts 2 deck 6 Flashcards
Upon rehearing by the 3rd Circuit, argued en banc, Feb. 19, 2020, ordered June 2, 2020
This is an issue of first impression and substantial public importance, yet we cannot discern if and how § 402A applies to Amazon.
We are, as a result, unable to predict how the Pennsylvania Supreme Court would rule in this dispute.
NOW THEREFORE, the following question of law is certified to the Supreme Court of Pennsylvania for disposition according to the rules of that Court:
Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?
We shall retain jurisdiction over the appeal pending resolution of this certification.
The Pennsylvania Supreme Court accepted cert. on July 21, 2020 . . . . and then the case settled.
seller or not?
Hospital when gown ignites Yes Movie theater whose candy causes harm Yes Hospital when defective product in gift shop causes harm Yes Restaurant when wine glass breaks Yes Franchisor when carton causes harm Yes
used and reconditioned products
Tillman v. Vance Equipment Co. (Or. 1979), note 4, p. 712
Used product sold “as is”
Strict liability not applied
Why not?
“it would work a significant change in the very nature of used good markets”
Product defects/Manufacturing Defect, p. 713
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.”
Restatement (Third), § 2, p. 698
proving defect
Restatement (Third) of Torts: Products Liability, § 3: Circumstantial Evidence Supporting Inference of Product Defect, p. 713-14
It may be inferred
that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution,
without proof of a specific defect,
when the incident that harmed the plaintiff . . .
. . . when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.
When Res Ipsa Loquitur Can Help
Jagmin v. Simonds Abrasive Co. (Wis. 1973), note 1, p. 716
Plaintiff proved
Defendant manufactured the grinding wheel,
Plaintiff used the wheel in the proper manner,
No other person used the wheel,
The wheel broke and was destroyed (and injured the plaintiff).
evidence of defect
Trial court ruled that there was insufficient evidence of defect.
Supreme Court reversed.
“A modified version of res ipsa loquitor”
The plaintiff’s evidence tended to exclude the possibility of any responsible cause of the injury apart from an original product defect, even though that defect could not be identified.
the holding
If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed,
if the machine is without any latent defect, and
if its functioning creates no danger or peril that is not known to the user, then . . .
the laws demands
. . . the manufacturer has satisfied the law’s demands.
“We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof.”
what’s the duty
An “automobile manufacturer is liable for a defect in design which the manufacturer
could have reasonably foreseen would cause or enhance injuries on impact,
which is not patent or obvious to the user, and
which in fact leads to or enhances the injuries in an automobile collision.”
Open and Obvious, but . . .
A machine could be defective in design
even when the dangerous condition was open and obvious.
Restatement (Third) § 2, comment d, note 4, p. 728
The “fact that a danger is open and obvious is relevant to the issue of defectiveness, but
does not necessarily preclude a plaintiff from establishing that a reasonable alternative design should have been adopted
that would have reduced or prevented injury to the plaintiff.”
design defect test
When is a product defective in design? The “Either/Or” test The consumer expectations test OR The risk/benefit test
Proving a Design Defect:The Consumer Expectation Test
A product is defective in design if
the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
