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1

American Law Institute, Restatement (Second) of Torts § 402A 666

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2

Restatement Third § 1 and § 2 670

"§1
Selling a defective produce = liable for harm to persons or property caused by the defect.
§2
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:
(a) 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;
(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;
(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."

3

Restatement Third § 3 682

"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:
(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."

4

Barker

"(1) The plaintiff proves that the product failed to perform as safely as an ordinary CONSUMER WOULD EXPECT when used in an intend ed or REASONABLY FORESEEABLE MANNER, or
(2) the plaintiff proves that the product' s design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on BALANCE the BENEFITS of the challenged design OUTWEIGH the RISK OF DANGER inherent in such design . . . ."

5

Risk utility analysis

-D sales product
-P is injured
-D fails prove benefits of design > risk of design.
Factors:
1. Likelihood of harm
2. Magnitude of potential harms
3. Feasibility (possibility) of alternative design
4. Cost of alternative design
5. Other consequences of alternative design

6

Consumer expectations

-D sales prod.
-Prod more dangerous than ordinary consumer expects
-P is injured
-Design defect substantial factor in injury

7

Learned Intermediary

A mfr does not have a duty to directly inform a consumer if it adequately warns a learned intermediary (physician).

8

Manufacture Defect

"(1) Manufacturing defect exists when a product deviates from the intended design even if all possible care was exercised in manufacturing.
(2) Defect must exists at time of sale.
(3) Injury must be of a kind ordinarily the result of a defect (res ipsa)
(4) Injury not solely the result of something other than defect."

9

Barker Factors

"1. the gravity of the danger,
2. the likelihood of the danger,
3. the mechanical feasibility of the alternative safer design,
4. the financial cost of the improved design, and
5. the adverse consequences to the product and to the consumer of the alternative design "

10

Differences b/w Barker and R3d

R3d - no consumer expectations test, and adds foreseeability

11

State of the Art

"may be considered in D's favor.
Design was not REASONABLY FEASBLE at the time of sale.
Majority = AT THE TIME OF SALE.
Reasonably feasible is probative but not dispositive. "

12

Open and obvious - Linegar

Design Defect: Open and obvious can be considered as part of consumer expectations and unreasonably dangerous. Juries and courts may not substitute their own judgment on the tradeoff of safety for other performance features that are not simply cost!!!

13

Open and obvious - Miscallef

Design Defect: Reasonable care will involve balancing the LIKELYHOOD and GRAVITY of harm against the BURDEN of the precaution