Torts Strict and Manufacturing Liability

Question 1

Second restatment rule for consumer behavior and product defects

Answer 1

Failure to discover a product defect, or to guard against the possibility of its existence is not a defense.

Question 2

Restatement 2: Failure to discover a product defect, or to guard against the possibility of its existence is not a defense, however…

Answer 2

But voluntarily and unreasonably proceeding to encounter a known danger(assumption of the risk) is a defense.

Question 3

Restatement 2: But voluntarily and unreasonably proceeding to encounter a known danger(assumption of the risk) is a defense. What kind of defense was it at the time, what kind of defense is it now?

Answer 3

contributory negligence at the time; now a part of comparative negligence

Question 4

Third restatement rule for consumer behavior and product defects

Answer 4

In general a user has no reason to expect a new product to contain a defect or to be on guard to discover one.

Question 5

Restatement 3: a user has no duty to discover or guard against a product defect, however…

Answer 5

a user does have a duty to take other reasonable precautions, so the failure to take other reasonable precautions is negligence and is subject to comparative fault.

Question 6

Tell me about duties when products injure themselves

Answer 6

A manufacturer does NOT have a tort duty(in negligence or strict liability) to prevent a product from injuring itself.

Question 7

East River Steamship Corp. Facts

Answer 7

1. Delaval made turbines and sold them to shipbuilders.
2. Shipbuilder installed turbines and sold supertankers to owners
3. Owners leased supertankers to charterer East River[and others].
4. Turbines malfunctioned and disintegrated, requiring replacement.

Question 8

East River Steamship Corp. Holding

Answer 8

a manufacturer’s duty of care extends only to personal injury and damage to property other than the product itself. Economic loss resulting only from damage to the product itself is the province of the law of warranty(breach of contract)

Question 9

How many factors does the third restatement have for strict liability

Answer 9

Two factor test

Question 10

Give me the Two factors in the third restatement for strict liability

Answer 10

1.The activity is not a matter of common usage
2.Where there is a highly significant risk despite reasonable care

Question 11

How many factors for strict liability in the second restatement?

Answer 11

Six Factor test

Question 12

What are the Six factors for strict liability in the second restatment(USE FOR EXAM)

Answer 12

1.Existence of a high degree of risk of harm to others
2.Likelihood that the resulting harm will be great
3.Inability to eliminate the risk by the exercise of reasonable care
4.Extent to which the activity is not a matter of common usage
5. Inappropriateness of the activity to the place it is carried on; and
6. Extent to which its value is outweighed by the danger

Question 13

Greenman

Answer 13

Holds
1. that a manufacturer is strictly liable if a product it sells has a defect that causes harm to the ultimate user or consumer
2. Duty owed by retailers in business of selling the product

Question 14

Second restatment rule for manufacturing defects

Answer 14

1. One who sells any product in a defective condition [unreasonably dangerous to the user or consumer] is liable for physical harm caused to the ultimate user or consumer
2. If the seller is engaged in the business of selling such a product, and 3. it is expected to and 4. does reach the user or consumer without substantial change in the condition in which it is sold

Question 15

Who else does the second restatements’ manufactung defect rule apply to? Who doesn’t it apply to?

Answer 15

1. Case law applies the rule to commercial lessors, and those who give products away or distribute free samples.
2. Rule typically does NOT apply to those who re-sell used goods

Question 16

Before Workers Comp, were lawsuits against employers often successful? Why or why not?

Answer 16

No. Employee had to prove fault, and there were substantial defense: 1. fellow-servant rule,
2. contributory negligence,
3. assumption of risk.

Question 17

Workers Comp

Answer 17

A system where an employee injured while acting withing the scope of their employement is compensated for an injury without fault

Question 18

Scope of their employment

Answer 18

When an employee is…
1. Conducted in action of the general kind the employee is hired to perform or “Must be about the employers business and the duties assigned by the employer, as opposed to a wholly personal endeavor
2. Conduct their actions substantially within the hours and ordinary. spatial boundaries of their employment; and
3. Taking action motivated, at least in part, by the purpose of serving their employers interests.

Question 19

Can an injured employee sue the employer in tort? What do they do instead?

Answer 19

must file a claim through the workers compensation system.

Question 20

Why would employers agree to a workers compensation system?

Answer 20

compensation is a fixed amount covered by mandatory insurance, so it is cheaper and more certain than litigation costs and tort damages, including pain and suffering and punitive damages.

Question 21

Injured employees can still sue who if not employers?

Answer 21

Injured employees can still sue a third party manufacturer

Question 22

In a product liability case, the plaintiff must show that the product was defective __________.

Answer 22

At the time it was sold

Question 23

Sulivan Facts

Answer 23

• Guy is trying to blow up a tree on his land, uses dynamite, and the shrapnel severely injures multiple parties

Question 24

Name and holding from dynamite tree case. How would we explain it under the second restatement?

Answer 24

In Sulivan a court holds that a defendant is liable for any ultrahazardous activity.

Second restatement, which is the majority opinion, says you have liability for “abnormally dangerous” activity and we use the six factor test.

Use this as default for exam purposes!

Question 25

Six factors for “abnormally dangerous activity” under the second restatement

Answer 25

• Existence of a high degree of harm to others
• Likelihood that the resulting harm will be great
• Inability to eliminate the risk by the exercise of reasonable care
• Extent to which the activity is not a matter of common usage
• Inappropriateness of the activity to the place it is carried on
  -Extent to which its value is outweighed by the danger

Question 26

When will strict liability apply under the second and third restatement?

Answer 26

For “abnormally dangerous activity”

Question 27

Facts and holding for Escola

Answer 27

• A waitress was putting away coca-cola, and one of the bottles exploded spontaneously
• Her hand was cut quite badly.
• She sued for Liability and won on a res ipsa loquitor theory

Question 28

Name of the bottle explosion case, What judge, and their influential ______ opinion

Answer 28

Escola, Justice Traynor’s concurring opinion said the holding in this case was essentially strict liability. Traynor thinks it makes the most sense because the manufacturer is in the best place to avoid defects and spread the costs of litigation among their customers.

Question 29

Third Restatement on manufacturing defects

Answer 29

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is liable for harm caused by the defect.

Question 30

What are the three kinds of actionable defects under restatement #3?

Answer 30

• Manufacturing defect
• Design defect
• Defective instructions or warnings

Question 31

What is a “manufacturing defect” under the third restatement?

Answer 31

1. A product has 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.
2. A product defect can be inferred if the incident was of a kind which ordinarily occurs as a result of a product defect, and was not solely the result of other causes.

Question 32

Who can one take action against for manufacturing liability?

Answer 32

Anyone in the “Chain of distribution.”

Question 33

Planters facts

Answer 33

-Jar manufacturer makes glass jars and sells them to planters
- Planters fills jar and sells to retailer
- K mart sells the jar, and the jar shattered

Question 34

Holding and name of peanut jar case

Answer 34

In Planters testimony from someone other than the victim that they brought the jar home and did not mishandle the jar until they got it home allowed an inference that a defect existed at the time of sale.

Question 35

Malfunction theory of defect

Answer 35

If something goes “spectacularly wrong” and; we have evidence which suggests there was no other reason for the harm-causing-event, then we can infer a manufacturing defect caused it.

Question 36

Second restatement definition of design defect

Answer 36

First a product could be defective if it fails to perform as safely as an ordinary consumer would expect when used for an intended or reasonably forseeable manner
or;
A product is defective if [through hindsight] the jury determines the risk of danger inherent in the challenged design outweighs the benefits of such a design

Question 37

Third restatement definition of design defect

Answer 37

A product has a design defect when the forseeable risks of harm could have been reduced or avoided by adopting a reasonable alternative design, and the omission renders the product not reasonably safe.

Question 38

Third restatement definition of defective warnings

Answer 38

Warning is defective when the foreseeable risks of harm could have been reduced or avoided by providing reasonable instructions and warnings, and the omission renders the product not reasonably safe.

Reasonable warning adequately indicates the scope of the danger, reasonably communicate the extent or seriousness of the harm that could result, will alert a reasonably prudent person to the danger, and use an adequate means to convey the warning.

Question 39

For the Third restaetement, if an ordinary consumer would know about the risk in question…

Answer 39

Then a manufacturer does not have a duty to warn.

Question 40

STAR Under the third restatement, what happens if a jury finds that a warning is inadequate

Answer 40

If the jury finds a warning is inadequate, it will be instructed to presume that an adequate warning would have been heeded. This presumption proves factual cause

Question 41

What will a defendant do if the heeding rule is ruled as existing

Answer 41

The defendant may rebut the presumption by showing that the user or consumer would not have heeded an adequate warning

Question 42

Third restatement on drug manufacturer’s duty

Answer 42

In most states, a drug manufacturer’s duty to warn consumers about the dangers of its presciption drugs extends only to the prescribing physician or health care provider. the “learned intermediary” between manufacturer and end consumer

Either way, the consumer must prove causation.

Question 43

What exceptions to the learned intermediary doctrine in some states?

Answer 43

Vaccines, contraceptives, drugs withdrawn from the market, and drugs advertised directly to consumers.

Question 44

Minority rule, under the second restatement, for drug manufacturers and hindsight

Answer 44

Under the second restatement, some courts imposed liability if, “through hindsight,” the jury determines that the product was defective, regardless of the state of the art at the time of sale.

Question 45

Majority rule, under second restatement, for drug manufacturers and hindsight

Answer 45

Most states reject the hindsight rule in favor of one that requires the manufacturer knew or should have known of the risk at the time of sale(could have been revealed by reasonable tests.)

Question 46

Does the third restatement adopt the majority or minority rule in regard to the hindsight rule?

Answer 46

Adopts the majority rule, forseeable risks of harm must have been avoided by reasonable alternative design or warnings
and;
Once a risk is discovered, a manufacturer might have a post-sale duty to warn previous purchasers if they can be identified and informed.

Question 47

Who does strict liability extend to, under the third restatement, in regards to servicers and product sellers

Answer 47

One who provides a service, and incidentally a product in the course of conduct shall not be strictly liable for product defect.

One who provides a product, and incidentally service, in their course of conduct shall be strictly liable for product defect.

Question 48

Pure vs Modified comparative negligence

Question 49

An express agreement in which a person waives liability for the defendants negligence is not enforced if it violates public policy

Answer 49

LOOK AT THE REVEIW SESSION

Question 50

Conflict Premption

Answer 50

Look at the review session

Question 51

What does one person “in the chain of distribution” tend to seek from others if those are also found liable

Answer 51

Indemnity or contribution