Strict Products Liability Flashcards
Duty
- Specify Defect
2. Duty: to all foreseeable Πs, not just purchaser & user.
Warning Duty
- warn of latent risks
- warn of risks that users may not fully appreciate
- provide instructions on how to safely use
3d Restatement: Seller/Distributor
- Seller/distributor who sells/distributes a defective product subject to liability for harm to persons/property.
- If when sold/distributed a product:
A) has a manufacturing defect if it departs from its intended design even though all possible care was exercised in preparation & marketing;
B) has a design defect if the foreseeable risks of harm posed by the product could have been reduced or avoided by a reasonable alternative design by seller/distributor, or a predecessor in the commercial chain of distribution, & the omission of alternative design renders product not reasonably safe;
C) has a warning defect if foreseeable risks of harm posed by the product could have been reduced or avoided by provision of reasonable instructions/warnings by seller/distributor, or a predecessor in the commercial chain of distribution, & the omission of instructions/warnings renders it not reasonably safe.
Evidence
(Greenman)
- Manufacturer placed product on market;
- knowing it’s used w/o inspection for defects;
- that proved to have a defect &
- that caused an injury.
* Sufficient that Π was injured using product how intended to be used due to design & manufacture defect.
Warning Breach Tests
- Adequacy (Nowak)
- Failure (Macrie)
- 2d Restatement § 402A
Adequacy of Warning
(Nowak)
- Explicitness
- Comprehensibility
- Clarity
- Conspicuousness
- Means used to convey
Failure of Warning
(Macrie)
Evidence through
1. engineering/scientific staff memos & reports
2. customer complaints
3. dealer observations
4. regulatory agencies’ input
5. company review of product failures/service records
6. reports in the trade press & scientific journals
7. reports in the general media
8. review literature & warnings of competitors
9. review of industry standards
10. review of regulatory warning requirements
2d Restatement § 402A
- One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
A. the seller is engaged in the business of selling such a product, and
B. it is expected to & does reach the user or consumer without substantial change in the condition in which it is sold. - Rule in Subsection (1) applies although
A. the seller has exercised all possible care in the preparation & sale of his product, and
B. the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Manufacturing Breach Test
- proof of a deviation from design specifications (McKenzie)
- circumstantial evidence allowing an inference of such a defect. (Ducko)
Design Breach Tests
Hazards in the design could’ve reasonably been eliminated.
- Consumer Expectations Test:
- Risk-Utility Test:
Consumer Expectations Test
A) A product must be dangerous to an extent beyond what would be contemplated by the ordinary consumer, with common knowledge of its characteristics.
B) Π must evidence that “enhancement” of the injuries was proximately caused by defective product unreasonably dangerous to Π:
1. that the Δ manufactured or sold the product,
2. that the product was unchanged from the date of sale or that any changes were reasonably foreseeable,
3. that the product was used in a reasonably foreseeable manner,
4. that the product did not perform as safely as an ordinary consumer would have expected,
5. that Π was harmed, and
6. that the product’s design was a substantial factor in causing the harm.
C) If the product is one w/in the common experience of ordinary consumers, it’s generally sufficient if the Π provides evidence concerning
his or her use of the product;
1. the circumstances surrounding the injury; &
2. the objective features of the product as relevant to evaluation of its safety.
Risk-Utility Test
Whether there is a safer, feasible, cost-effective alternative design that does not impair the usefulness of the product. Key to applying the test is the weighing/balancing competing interests. Factors should be weighed to determine if a product is `reasonably safe’:
- The usefulness & desirability of the product to public.
- The safety aspects of the product as to likelihood it will cause injury & probable seriousness.
- The availability of a safer, workable substitute.
- The manufacturer’s ability to eliminate safety w/o impairing usefulness or making it too expensive.
- The user’s ability to avoid danger by exercise of care.
- The user’s anticipated awareness of the dangers inherent in the product & their avoidability (general public knowledge, suitable warnings or instructions).
- The feasibility of spreading the loss through price or liability insurance.
Uniform Commercial Code
- Sellers, as a matter of law, provide a warranty their goods are “merchantable,” i.e. “fit for the ordinary purposes for which such goods are used.”
- If buyer can establish product was not “fit for ordinary purposes” & caused injury, buyer can recover w/o having to prove fault on the part of the seller
3d Restatement: Defects
It may be inferred that the harm sustained by Π 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 Π:
- was of a kind that ordinarily occurs as a result of product defect; &
- was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution
Strict Products Liability Causation
- Defect linked to injury
2. Defective when marketed
