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Problem of people being injured by “defective products.”

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Presentation on theme: "Problem of people being injured by “defective products.”"— Presentation transcript:

1 Problem of people being injured by “defective products.”
Products Liability Problem of people being injured by “defective products.” Parties are often in a direct contractual relationship with each other. Products sold in a “chain of distribution:” manufacturer Intermediary—wholesaler, distributor, or dealer Retailer purchaser

2 Era of Contract Privity
No liability for injury from defective product unless person injured was a party to a contract that was breached; And then, only if contract contained provisions allowing for recovery in the event of injury Era of Contract Privity (prior to 20th Century) Liability was quite limited: No liability to by-standers or others who were not parties to a contract.

3 Rule of “Caveat Emptor”
“let the buyer beware” Eventual exceptions for products considered “imminently dangerous.” Caveat Emptor (let the buyer beware) governed. Eventually exceptions to the privity of contract rule were created for imminently dangerous products. e.g.—mislabeling a poison.

4 The Era of Negligence Requirement of privity of contract was first overruled in 1916 in MacPherson v. Buick Motor Co. Plaintiff was injured while driving when the wooden wheel collapsed; Plaintiff sued the manufacturer, Buick Motor Manufacturer argued no duty owed to plaintiff because no contractual relationship

5 MacPherson v. Buick, cont’d
Holding: Court overruled the privity of contract rule. Court held: the manufacturer of anything that could foreseeably harm a 3rd party if negligently made was subject to liability. Since 1916, Courts started to move from a requirement that the injured party have a contractual relationship with the manufacturer of the defective product to a basic negligence standard (fault-based liability)

6 Negligence Standard in Products Liability
Duty of Reasonable Care Breach of Duty Causing Injury Resulting in Damages Basic Rule: One who negligently manufacturers a product is liable for any personal injuries proximately caused by his negligence.

7 Plaintiff’s Burden of Proof in Product Negligence Actions
Plaintiff has to show: Product was defective when it left the manufacturer’s possession. BOP was a high one for the plaintiff, however. Had to show not only that the product was defective, had to also show that the product was defective when it left the manufacturer’s possession. So even when manufacturers were negligent, plaintiffs could not always prove it.

8 Rise of Warranty Rules Express Warranty: express representation by a seller or manufacturer that good have certain qualities. About the same time that the courts were developing a negligence cause of action in the case of defective products, courts started recognizing new causes of action based on manufacturer’s warranties. Express Warranty: is basically an express representation by a seller or manufacturer that goods have certain qualities. For Example: a car manufacturer that promises that a particular car has “shatter-proof” glass. If a stone hits the glass, and it shatters injuring the plaintiff, the plaintiff may have a cause of action for breach of express warranty.

9 Warranties, continued Implied Warranty: “Warranty of Merchantability” implied in every contract for sale of goods. “Warranty of Merchantability” said: goods had to be “fit for the ordinary purposes for which such goods are used.” If not and someone was injured, then seller was liable—regardless of whether negligence could be proven. Implied Warranty: In the early 20th century, states began to enact a Uniform Sales Act (currently the UCC) that include a provision called the “Warranty of Merchantability.” The Warranty of Merchantability was implied in every contract for the sale of goods and basically said that goods has to be “fit for the ordinary purposes for which such goods are used.” If they were not and as a result someone was injured, then the seller was liable—regardless of whether or not negligence could be proven. Example: plaintiff buys a hammer made by defendant. When he tries to use it, the hammer head unexpectedly flies off and smashes a window. Because a hammer reasonably should be able to function without the head flying off, defendant has breached the implied warranty or merchantability and will be liable. Implied warranty only applied to purchaser of product—not to bystanders or other users. AND Liability was only for the seller—not the manufacturer. {Note: Seller has cause of action agst. Wholesaler, who has cause of action against manufacturer—but several layers of protection for manufacturer} AND, this warranty can be specifically disclaimed by the seller. Disclaimer must be “conspicuous” …. In capital letters or bold print. This reversed the old common law rule of “caveat emptor” and brought the courts a step closer to strict liability (Liability even when there is no proof of negligence.)

10 Impure Food With contaminated food, courts went a step further and
Held manufacturer (not just seller) directly responsible to injured buyer No showing of contract required No showing of negligence required Very close to pure strict liability (liability even when there is not proof of negligence)

11 Modern Era of Strict Liability for Defective Products
Current Rule: any seller of a product in a defective condition is strictly liable in tort for personal injury or property damage if product is sold in a defective condition. So where are we today? Although the contract theories of recovery are gone, plaintiffs can still bring negligence cases or cases based on express or implied warranties.

12 Categories of Products Liability
Manufacturing Defects Design Defects Warning Defects

13 Manufacturing Defects
Product deviates from the manufacturing design causing the product to be more dangerous than the product as designed. Strict liability: no proof of negligence or contract. Plaintiff has to prove: Product was not manufactured as designed Defect existed at time product left factory Defect resulted in plaintiff’s injury Example: Defendant makes a bicycle—one of the bolts that holds on the front wheel is missing, causing the wheel to fall off while the plaintiff is riding the bike. This is a manufacturing defect—the bike is different from the other bikes of the same model, in an unintended way.

14 Design Defects All of similar products manufactured are the same and they all have a feature whose design is defective and unreasonably dangerous. Example: Ford Pinto with location of gas tank that made it vulnerable to collisions.

15 Types of Design Defects
Structural Defects: Because of D’s choice of materials, product had structural weaknesses which caused it to break or otherwise become dangerous, or Lack of safety features: a safety feature could have been installed with so little expense (compared to cost of product and danger without the feature) that it is defective design not to have safety feature.

16 Proving Design Defect Cases
One test--Risk-Benefit Test: Do the risks posed by the design outweigh its benefits? Many courts fall back on a foreseeability test (foreseeability of the risks). More like negligence than strict liability used in manufacturer’s defect cases Design defect cases are more difficult than manufacturing defects. The question arises: How does the jury decide that a design is defective? Primary test: Risk-benefit test: Do the risks posed by the design outweigh its benefits? Many courts fall back on a foreseeability test—(foreseeability of the risks). More like negligence than strict liability used in manufacturer’s defect cases. How to apply this risk/benefit test? Jurors have to make decisions about complex designs that they are not qualified to make, therefore… These cases require expert witness testimony—even then difficult, because there may not be safe industry standards to go by. Then there is the issue of how safe should we require the product to be. If I purchase a small toyota rather than a Mercedes, aren’t I purchasing less safety?

17 Reasonable Alternative Design
3rd Restatement: a product has a defective 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…and the omission of the alternative design renders the product not reasonably safe.” Plaintiff has to show that there was a “reasonable alternative design” that would have reduced or avoided the foreseeable risks of harm: Court will consider the cost and utility of the alternative compared with the cost and utility of D’s design.

18 Test used with Food Products
Consumer Expectations Test: a food product is defective if and only if it contains an ingredient that a reasonable consumer would not expect it to contain.

19 Warning Defects 3rd category of Product Liability Cases
Even if a product is properly designed and properly manufactured, the manufacturer must still give a warning if there is a non-obvious risk of injury from using the product. A product can be defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings…

20 Warning Defects, cont’d
First issue: whether risk is so apparent that no warning is necessary. Generally no duty to warn of obvious dangers or of risks that are generally known. Otherwise, “adequate” warning or instruction, typically of “foreseeable” risks is required. First Issue in warning cases is whether the risk is so apparent that no warning is necessary: warning that a knife might cut you or that drinking lots of beer will cause you to become intoxicated or driving a car without a seatbelt is dangerous. No warning required. Generally no duty to warn of obvious dangers or of risks that are generally known. Otherwise, what is required is an “adequate” warning or instruction, typically of “foreseeable” risks. If adequate warning is given, the purchaser, rather than the seller or manufacturer, bears the risk of injury. An adequate warning or instruction requirement is an additional requirement added to the requirement that a product not be sold in a defective/unreasonably dangerous condition. For Manufacturing defects: for products that are defectively manufactured (particular product deviates from manufacturer’s design), no warning can save defendant from strict liability to injured plaintiff. In Design Defect cases, if a reasonable alternative design can eliminate a product defect, then merely warning of risks does not insulate the manufacturer or seller from liability. Warnings are not substitute for a reasonably safe design. Example: if a lawn mower is designed without a simple guard that would protect from injury by the mower blades, then including a warning on the mower would not protect the manufacturer from liability. There is a reasonable alternative design. Even with the blade guard, however, there probably would be a requirement of an adequate warning of danger from the blades and reasonable instructions for use.

21 Products that are “Unavoidably Unsafe”
Products that require both warnings and instructions for use. For example: pharmaceutical products: Warnings of side effects Foreseeable Risks of Use Instructions for Use

22 “Unavoidably Unsafe” Products, cont’d
Plaintiff must prove: Lack of adequate warning Causation: that plaintiff would not have used the product or would not have used the product in the way it was used if adequate warning had been given. Liability for failure-to-warn usually based on negligence-like risk/utility analysis: product will be deemed defective because of inadequate instructions or warning when the foreseeable risks of harm could have been reduced or avoided by provision of reasonable instructions or warnings and the omission of instructions or warnings renders the product not reasonably safe.”

23 Problem for Discussion
Plaintiff is extremely allergic to peanuts. She eats a peanut butter sandwich and suffers a severe allergic reaction. Is the peanut butter manufacturer liable to her for failing to warn of potential allergic reactions? [Probably not, because the presence of peanuts is obvious.]

24 More on Problem What if plaintiff had eaten a chocolate pastry made with peanut oil? Is the bakery where she bought the pastry liable to her for failure to warn of the presence of peanut oil? [this is a much closer case, because the presence of peanut oil in a chocolate pastry would be unexpected.

25 Rule for plaintiffs who suffer allergic reactions
If the product contains an ingredient to which a substantial number of the population are allergic; The ingredient is one whose danger is not generally known, or if know, is one which the consumer would reasonably not expect to find in the product; And the D knew or should have known of the presence of the ingredient and the danger; Then the case goes to the jury to decide.

26 Defenses Product Misuse Product dangers were obvious
Assumption of Risk product misuse: using the product in a way not intended by manufacturer. Manufacturer not liable for an unforeseeable, abnormal use of the product. May be liable for misuses that are “foreseeable.” E.g.—foreseeable that a car might get into a collision so may be liable if car is not reasonably crashworthy. Product dangers were obvious—e.g. knives. Assumption of risk: e.g. driving a car knowing that the steering wheel would lock when turning left.


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