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Torts (James) > Strict Products Liability > Flashcards

Flashcards in Strict Products Liability Deck (24):


1. Specify Defect
2. Duty: to all foreseeable Πs, not just purchaser & user.


Warning Duty

1. warn of latent risks
2. warn of risks that users may not fully appreciate
3. provide instructions on how to safely use


3d Restatement: Seller/Distributor

1. Seller/distributor who sells/distributes a defective product subject to liability for harm to persons/property.
2. 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.



1. Manufacturer placed product on market;
2. knowing it’s used w/o inspection for defects;
3. that proved to have a defect &
4. that caused an injury.
* Sufficient that Π was injured using product how intended to be used due to design & manufacture defect.


Warning Breach Tests

1. Adequacy (Nowak)
2. Failure (Macrie)
3. 2d Restatement § 402A


Adequacy of Warning

1. Explicitness
2. Comprehensibility
3. Clarity
4. Conspicuousness
5. Means used to convey


Failure of Warning

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

1. 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.
2. 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

1. proof of a deviation from design specifications (McKenzie)
2. circumstantial evidence allowing an inference of such a defect. (Ducko)


Design Breach Tests

Hazards in the design could’ve reasonably been eliminated.
1. Consumer Expectations Test:
2. 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':
1. The usefulness & desirability of the product to public.
2. The safety aspects of the product as to likelihood it will cause injury & probable seriousness.
3. The availability of a safer, workable substitute.
4. The manufacturer's ability to eliminate safety w/o impairing usefulness or making it too expensive.
5. The user's ability to avoid danger by exercise of care.
6. The user's anticipated awareness of the dangers inherent in the product & their avoidability (general public knowledge, suitable warnings or instructions).
7. The feasibility of spreading the loss through price or liability insurance.


Uniform Commercial Code

1. 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."
2. 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:
1. was of a kind that ordinarily occurs as a result of product defect; &
2. 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

1. Defect linked to injury
2. Defective when marketed


Warning Causation

1. Must show sufficient evidence that a warning might have made a difference.
2. Failure to read a warning does not necessarily bar recovery where Π is challenging the adequacy of efforts by the manufacturer to communicate the dangers of the product to the buyer or user.
3. Ineffective warning is tantamount to no warning at all & a manufacturer cannot rely upon a warning which was insufficient to prevent the injury.


Market Share Liability Considerations

A) Extension of alternative liability as applied to product liability
B) Some Δs no longer extant
C) No probability of having Δs in court
D) Fairness decreases as there are too many wrong doers
E) Long time from ingestion of pill
F) No parallel plus


Market Share Liability

Even if all Δs are assumed negligent, it’s uncertain which actually caused Π’s injury due to passage of time & that Δ’s drugs were indistinguishable. Burden shifting doesn’t apply because too many Δs or because not all Δs are before the court. Several views emerged, varying both in scope of the doctrine & whether it involves joint or several liability.
1. Products must be exactly the same
2. Must be perfectly "fungible product,” like DES


Market Share Liability by Jurisdiction (HARD)

1. NY: All Δs are liable based on their culpability, measured by the risk each Δ imposed on the public at large (i.e. their national market share). Δs cannot exculpate themselves from liability, even by showing they couldn’t have caused Πs injury, unless they demonstrate that they didn’t produce the product that injured Π.
– Π won't get 100% recovery. Hymowitz v. Eli Lily Co.
2. CA: If Δs represent substantial share of the market for the product, they‘re liable for a percentage of the Πs injuries equal to the market share. Δs can exculpate themselves if they can show they couldn’t have caused Πs injuries. Liability is several.
– Loosened requirement that all Δs had to be before the court. Sindell v. Abbotts Labs.
– Π gets 100% of compensation
– Keeps drug companies accountable; fairness
– Δs could end up paying more than what they actually owe
3. WI: Each Δ liable in proportion to the amount of risk it created that Π would be injured by its product. The risk each Δ is liable for is a question of fact in each case with market shares being relevant to this determination. Δs are allowed to exculpate themselves by showing that their product could not have caused injury to the particular P. Collins v. Lilly.
4. WA: After Π makes out a prima facie case against at least 1 Δ, others may than exculpate themselves by showing that they couldn't have caused the injuries. Remaining Δs may then rebut the presumption of equal market shares by showing true share. Πs may recover less than full damages if every Δ can prove its true market share & some absent possible causes exist. Liability is several (each Δ is liable only for the injuries attributable to that Δ). Martin v. Abbotts Lab.


Comparative Fault under Strict Products Liability

A) MAJORITY applies comparative fault to enhanced injury. Whitehead v. Toyota Motor Corp.
B) Minority creates an exception to comparative fault if manufacturer has duty to create safety measures to protect against negligence, & party's negligence leads to injury.


Defenses for Strict Products Liability

A. Misuse
B. Open and Obvious
C. Preemption



Misuse must be extraordinary & whether the act is reasonably foreseeable is to be determined by following retrospectively the sequence of events & looking back from the harm to the negligent act, NOT by considering if Δ should prospectively have envisioned he events which unfolded & caused the accident.


Open & Obvious

(Floyd v. Bic Corp.)
– If a product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril.
– Almost all jurisdictions which have considered the issue of child-proofing have relied upon the "open & obvious rule" & have found that manufacturers are not liable for failure to make adult products child proof.
– In the very few courts that have found a duty to child-proof adult products, the courts have rejected the "open & obvious rule" in favor of a "risk-utility balancing test."



(Macrie v. SDS Biotech Corp.)
1. Express: Congress spells out preemptive effect of its legislation
2. Implied:
a) Congress has so substantially occupied the field of product regulation that it demonstrates congressional intent to occupy the field to the exclusion of all state law.
b) If there's a conflict between federal & state law & it's impossible to comply with both.