1. Product Liability Law Slip and Fall Video 4,700 Mazda CX7s and 3s on board Mazda’s Problem 4,703 New Mazda’s Weeks bobbing at 60º angle Cars safely strapped down – no movement of cars other than the angle You are the CEO of Mazda what would you do? Why? Sell them? How? What limitations? Schools wanted them for shop Hollywood for stunts Mazda CX7 Mazda 3

2. Presentation Case: Higgins(P) v. Intex Recreation Corp (D) (Wash. Ct. App. 2004), p. 386. Groups 30 & 21 Sno-Tube Sno- Boggan

3. Product Liability/ Negligence Elements – Defendant owed duty of care to plaintiff – Duty broken – Proximate cause – Damages suffered as a result of failure to meet duty of care

4. Negligence Continued Due care – Designing the product – Selecting the materials – Using appropriate production processes – Assembling, testing, and inspecting – Placing adequate warnings – Packaging, handling and shipping – Inspecting and testing 2007 Case – 3M Sued by couple whose daughter died after deliberately inhaling 3M Dust Remover. Claimed lacked proper warning labels 3M should know about “dusting” or “huffing” 3M does have a warning “Intentional misuse by deliberately concentrating and inhaling the contents may be harmful and fatal.”

5. Strict Liability Why shift standards? Product Focus. Focus on product itself rather than duties Chain of Liability. Claim against anyone in the chain of distribution; including the – immediate seller, – the wholesaler, – the manufacturer, and – the manufacturer of component parts Elements – One who sells any product in a defective condition unreasonably dangerous to the user or the consumer… Must be engaged in the business of selling the product No substantial change in the product – The rule applies even though Seller exercised all possible care in the preparation and sale of the product, and The user or consumer has not bought the product from or entered into any contract with the seller. Liability of Co. for Adding Safety Devise to Machine End-of-Chapter Q: 15 Gebo’s hand crushed by embossing machine Gebo sued Filtration Sciences who originally purchased machine and modified its design Filtration systems added a guard system Filtration systems sold its mill and all machinery to Gebo Dell Burning Laptop

6. James v. Meow Medica, Inc Student shot his fellow students Is a video game a product subject to strict liability? Should game makers be liable?

7. Yamaha Rhino WSJ Nov 2008 Not a car/not an ATV Not regulated – 30 deaths Test rider started tipping – put leg out to stop from tipping over and 1,100 pound machine snapped leg. Warnings to wear seat belts, helmet and to drive straight up or down hills to avoid tipping. Drivers suing atv backflip

8. Interesting Successful Lawsuits Some negligence some product liability Broken Ankle Tripping over Toddler Loose in Store - $780,000. Ms Robertson tripped when a toddler ran in front of her in store. Toddler was her son. Restaurant Patron Tripped Over Cola Can on Floor - $113,500. Amber Carson slipped on a cola can and broker her tailbone. She had thrown the can seconds earlier at her boyfriend in a fight. Hand Ran Over - $74,000. Mr. Truman’s hand was ran over while trying to steal the hubcaps off the car and the owner failed to see him. Locked in Garage - $500,000. Mr. Dickson spent a week locked in a garage because the garage door malfunctioned and the door to the house locked when he closed it. He subsisted on a case of Pepsi and a large bag of dried dog food. He was robbing the house at the time. Dog Bite - $14,500. Jerry Williams was bitten on buttocks by neighbor's beagle. The beagle was on a chain in the owner’s fenced yard and Williams, who climbed the fence, was repeatedly shooting it with a pellet gun. Fell in Bathroom Window -$2,000. Kara Walton fell into a bathroom window and broke her two front teeth. This occurred while she was sneaking into a bar to avoid paying a cover charge. Winnebago with Cruise Control - $1,750,000. Set the Winnebago to cruise control at 70 mph and calmly left the driver’s seat to make himself a cup of coffee. Vehicle left highway and was demolished. First Place Winner Per Article Source: Financial Services Advisor, May/June 2004

9. Strict Liability – Product Defect and Other Issues Product Defect. Material defect in design or failure to warn. – No Duty of Care Breached. Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marking of the product – Economically Feasible Safer Design. 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 by a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe – Defective Due to Inadequate Warnings. 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… Black Talon Bullet. End-of-Chapter Q: 10 Olin corp sells the Black Talon Bullet designed as a hollow point. On impact it bends into six razor-sharp petals or “talons” that increase the wounding power. Colin Ferguson opened fire on a commuter train using the bullets and killed six. Plaintiffs sued Olin based on design defect.. http://www.theonion.com/content/video/manufacturer_recalls_hollo w_pointhttp://www.theonion.com/content/video/manufacturer_recalls_hollo w_point Black Talon Bullet

10. Warnings Required 1994 Isuzu Pickup Riding in Pickup Bed – End-of-Chapter Q: 1 Donald Josue Jr was rendered paraplegic as a result of riding in the bed of an Isuzu pick- up truck. Sued Isuzu for negligent failure to warn Strict liability for failure to warn Crossman BB GUN End-of-Chapter Q: 6 Warning on box: “May cause death or injury” Also on Box – “WARNING: NOT A TOY. ADULT SUPERVISION REQUIRED. MISUEOR CARELESS USE MAY CAUSE SERIOUS INJURY OR DEATH…THIS AIR GUN INTENDED FOR USE BY THOSE 16 YEARS OF AGE OR OLDER…” Larry Moss purchased gun for his 7-year old son. His son, Josh, used the gun with his cousin Tim. Josh hid behind a tree and stuck his head out just as Tim fired. The BB pierced Josh’s eye, entered his brain and killed him. Family brought claim of failure to warn – thought “kill” referred to small animals. Crossman 760 Pumpmaster Learned Intermediary Defense Supplier may claim to have warned a “learned intermediary,” like a doctor, as a defense End-of-Chapter Q: 3 Ladder met UL requirements Daniel Gawenda was injured on ladder Gawenda sued alleging Werner failed to make a more rigid rear rail constituted a negligent design.

11. Warnings for dangers Winners of Michigan Lawsuit Abuse Watch Award for Wackiest Consumer Warning Label “Do not put any person in this washer” for a washing machine. “Harmful if swallowed” – three pronged fishing lure “Do not use for personal hygiene” Disposable Toilet Bowl Cleaner “Never use hair dryer while sleeping” “Not intended for highway use”

12. Subsequent Product Re-Design. K2 Snowboards End-of-Chapter Q: 5 K2 sold snow board without pre-drilled holes to allow for placement of any brand binding Hyjek purchased this model and was injured when binding came loose and struck him on the inside of his ankle K2 developed a new system involving “through-core inserts” to improve installation of binding to the board Hyjek sought to introduce this design change in support of his claim for design defect of the original model. Our society does not want to discourage product improvement.

13. Market Share Liability and Latent Defects Market Share Liability – DES drug linked to rare cerverical cancer in daughters (among other things) – Lawsuits not until 20 or more years after taking the drug – Prescribed to reduce miscarriages – Unable to prove which of the 300 manufacturers made the precise pills – Identical formulas used – Lead Paint example – lead paint used in houses – how can you know who produced the lead paint? – Alternate liability: two hunters shoot in same direction. One bullet hits plaintiff in eye and lip. Summers v. Tice. Latent Defects – Farsian v. Pfizer for heart valve – Valve failed in 4.2% of cases killing 2/3 of those where the valve failed – Plaintiff where valve did not fail claimed lower value of valve and emotional distress – Court dismissed case because no-injury suffered. Ad Promoting DES to Physicians

14. Defenses to Product Liability Contributory Negligence – discuss on this slide Comparative Negligence – Pure – Mixed Voluntary Assumption of Risk Misuse of Product State-of-the-Art Defense Commonly Known Dangers – i.e. knife Compliance with Government Standards Statute of Limitations Government liability limited by law to $1 million for all claims Claims against contractors limited to 6 year statute of limitations carrying a canister in an Acura End-of-Chapter Q: 2 Put a 180 pound canister of nitrous oxide used to inflate balloons in back Suffered injury when he hit a guardrail and canister slid into back of his seat Sued for design defect – front seats could not withstand the impact + no restraints to secure cargo Sued for failure to warn

15. Assumption of Risk Sheppard v. Midway R-1 School District – Long Jumper Case Facts. 14 year old Terra Sheppard severely injured when she landed in the long jump pit during school track meet will have to wear a brace the rest of her life for sporting activities Defense. School states Sheppard assumed the risk of long jumping Negligence. Sheppard says the pit was not properly prepared – it was “wet and muddy, did not have an adequate amount of sand and was not properly racked between jumps.” Questions. If pit in perfect shape, did she assume the risk? If not, didn’t she still assume the risk? Was she contributory negligent? Did he assume the risk?

16. Product Misuse End-of-Chapter Question 2, p. 375 Nissan Altima into Tree Roy Mercuiro drove his Nissan Altima into a tree at 30-40 mph. He had a blood alcohol content of at least.18% Spouse sued because car not crash worthy Product Misuse. Risk of a 30-40 mph collision is foreseeable – regardless of circumstances why (drinking in this case). Voluntarily Assumed Risk. Assumed risk of an accident, but not risk that car un-crash worthy – therefore, evidence of alcohol use not admissible. Similar to Assumption of Risk Defense Product misuse pogo backflip

17. State-of-the-Art Defense Owens-Corning Asbestos Failure to warn State-of-the-Art Defense. The risk of neither known nor knowable by the application of scientific knowledge available at the time of manufacture and distribution. Asbestos Paper Wrap Is product defective? Assume state of human knowledge when product sold What’s required?  Some states require manufacturer to conform to industry standards to use defense.  Does this mean that all manufacturers have to use cutting-edge technology?  Restatement of Torts Position: Act reasonably with keeping up with technological advancements within its industry and in including safe components and safety devices. After known Product Defective  No general duty to recall  No general duty to warn – too difficult to keep lists of all buyers

18. Compliance with Government Standards Government standards set minimum requirement Example: “black box” warning on anti-depressants for children. Most serious type of warning. FDA says warning should preempt tort based claims for failure to warn. End-of-Chapter Q. 3, p. 375 Geirer v. Honda Facts. Alexis Geier was injured when she crashed her 1987 Honda Accord. Honda did not install an air bag and a federal law only required a passive restraint in a certain percentage of vehicles. Issue. Does the government compliance preempt a cause of action for negligence or strict liability. Holding. Yes, compliance with the government standard impliedly preempts a claim that Honda was negligent in the design or failure to warn. 1987 Accord Wyeth v. Levine - $6.9 million anti-nausea drug – gangrene 3/4/2009 Diane Levine Guitar Player