Chapter 6 Product and Strict Liability

Introduction to Product and Strict Liability Product Liability: Liability of manufacturers, sellers, lessors, and others for injuries caused by defective products Strict Liability: A plaintiff may recover punitive damages if the defendant’s conduct has been reckless or intentional 6-2 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Negligence Requires the defendant to be at fault for causing the plaintiff’s injuries The plaintiff must prove that: The defendant breached a duty of due care to the plaintiff This breach caused the plaintiff’s injuries Only a party who was actually negligent is liable to the plaintiff 6-3 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Negligence Failure to exercise duty of care includes: Failing to assemble a product carefully Negligent product design Negligent inspection or testing of a product Negligent packaging Failure to warn of the dangerous propensities of a product 6-4 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Misrepresentation Occurs when a seller or lesser either: Fraudulently misrepresents the quality of a product Conceals a defect in it Recovery is limited to persons who relied on the misrepresentation 6-5 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Strict Liability Doctrine of strict liability in tort Strict liability is liability without fault Makes manufacturers, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, irrespective of fault 6-6 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Strict Liability Liability without fault Does not require the injured person to prove that the defendant breached a duty of care Casual sales and transactions by nonmerchants are not covered Applies only to products, not services 6-7 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Strict Liability Chain of distribution Comprises of: Manufacturers Distributors Wholesalers and retailers Lessors Subcomponent manufacturers All parties in the chain of distribution of a defective product are strictly liable for the injuries it causes 6-8 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Strict Liability Parties who can recover for strict liability Any injured party Privity of contract not required Recovery possible even if the injured party had no contractual relations with the defendant Bystanders and non-users are entitled to the same protection as users 6-9 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Liability: Strict Liability Damages recoverable for strict liability Damages recoverable vary by jurisdiction Property damage recoverable in most jurisdictions Economic loss in few jurisdictions Some jurisdictions limit the dollar amount of the award Punitive damages generally allowed if defendant recklessly or intentionally injured the plaintiff 6-10 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Product Defects To recover for strict liability, the injured party must first show that the product that caused the injury was somehow defective The injured party does not have to prove who caused the product to become defective Plaintiff can allege multiple product defects in one lawsuit 6-11 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Product Defects Defect in manufacturing Defect in design Defective packaging Failure to warn Inadequate instructions 6-12 3

Case 6.1: Defect in Manufacture Shoshone Coca-Cola Bottling Company v. Dolinski 82 Nev. 439, 420 P.2d 855, Web 1966 Nev. Lexis 260 Supreme Court of Nevada 6-13 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Case 6.1: Defect in Manufacture Issue Should the state of Nevada judicially adopt the doctrine of strict liability? If so, was there a defect in the manufacture of the Squirt bottle that caused the plaintiff’s injuries? 6-14 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Defect in Design Defect that occurs when a product is improperly designed Evaluation of adequacy of a product’s design: Risk-utility analysis Consumer expectation test 6-15 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Case 6.2: Design Defect Case Domingue v. Cameco Industries, Inc. 936 So.2d 282, Web 2006 La. App. Lexis 1593 (2006) Court of Appeal of Louisiana Issue Is the forward blind spot on Cameco’s 405-B dump truck a design defect? 6-16 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Defect in Design Crashworthiness doctrine: Automobile manufacturers have duty to design automobiles taking into account the possibility of a second collision They should take into account the possibility of harm from a person’s body striking something inside the automobile in the case of a car accident 6-17 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Failure to Warn Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown Proper and conspicuous warning insulates all in chain of distribution Failure to warn is a defect that will support a strict liability action 6-18 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Defect in Packaging Manufacturers owe a duty to design and provide safe packages for their products Containers should be: Tamperproof Clearly indicate tampering Defective packaging subjects the chain of distribution to strict liability 6-19 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. Other Product Defects Failure to provide adequate instructions Inadequate testing of products Inadequate selection of component parts or materials Improper certification of the safety of a product 6-20 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Generally known dangers Certain products are inherently dangerous These products are known to the general population to be inherently dangerous Sellers are not strictly liable for failing to warn of generally known dangers 6-21 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Government contractor defense Contractors that manufacture products to government specifications are not usually liable if such a product causes injury Abnormal misuse of the product Relieves the seller of product liability if the user abnormally misused the product 6-22 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Supervening event The manufacturer or seller is not liable if: A product is materially altered or modified after it leaves the seller’s possession The alteration or modification causes an injury 6-23 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Assumption of risk Defendant must prove that the plaintiff: Knew and appreciated the risk Voluntarily assumed the risk 6-24 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Statute of limitations Plaintiff must bring action within a certain number of years from the time that he or she was injured by the defective product Limitation period set by each state Defendant is relieved of liability if action is not brought within limitation period 6-25 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Statute of repose Limits the seller’s liability to a certain number of years from the date when the product was first sold Varies from state to state 6-26 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Plaintiff partially at fault Types Contributory negligence Comparative negligence 6-27 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Contributory negligence Plaintiff who contributed to own injuries cannot recover from the defendant in negligence Contributing plaintiff cannot recover damages even if the product was defective 6-28 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Defenses to Product Liability Comparative negligence Applies when a plaintiff is partially responsible for causing his own injuries Liability is assessed proportionately to the degree of fault of each party Damages are apportioned proportionally between the plaintiff and the defendant 6-29 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 6-30 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.