1. Professor Charles H. Smith Negligence, Product Liability and Damages (Chapter 15) Summer 2009

2. Negligence. Product liability. Breach of express or implied warranty. We will cover negligence and product liability only since breach of warranty is largely included in those two theories anyway.

3. Most popular legal theory used in tort cases; e.g., cases involving defective products but also auto and slip-and-fall accidents. Intentional misconduct not required; instead, negligence involves an accident, misjudgment, mistake, etc. Plaintiff must prove all of the following Duty of care – defendant owes a duty of care to plaintiff, who may be specific person or part of group of any size. Breach – defendant breaches the duty of care owed to plaintiff. Causation and damage – defendant’s breach of the duty of care owed to plaintiff causes damage to plaintiff; e.g., Palsgraf v. Long Island Railroad Co. for causation. 1 st line of defense is to show one or more elements missing.

4. Even if plaintiff proves all elements of negligence, defendant still has some defenses, such as Assumption of the risk – plaintiff cannot win negligence case because he/she injured while in dangerous situation; e.g., “fireman’s rule” (inherently dangerous job), recreational or sports activities. Comparative negligence – liability proportionate to percentage of plaintiff’s fault; recognizes that plaintiff may contribute to the accident but should still be entitled to some money. 3 rd party’s fault – liability proportionate to percentage of negligence or other tort of 3 rd party. Superseding/intervening cause – is there a break in the causal connection between defendant’s bad act and plaintiff’s damage?

5. “Product liability” (sometimes called “products liability” or “strict products liability”) recognizes that there will be defects in mass-produced products even if used as intended. Someone other than the injured consumer or bystander should be legally responsible for damage caused by those defects – manufacturer, retailer, etc. can be held liable even if “reasonable care” taken.

6. Three types of product liability Manufacturing defect – problem in manufacturing process causes product to be assembled improperly so as to cause injury even if put to intended use. Design defect – problem in design causes product to be inherently defective so as to result in injury even if put to intended use. Warning defect – inadequate or lack of warning results in injury that could have been avoided with proper warning. Note that more than one defect theory might apply to the same situation.

7. Product liability and negligence can be alleged in the same case – this gives the plaintiff some options since If cannot prove fault for negligence (breach of duty of care), use product liability as a “fall-back” postion. But, if fault for negligence can be proved, then the jury may award more money against a defendant who is “blameworthy” and “did a bad thing.”

8. Special damages – can be measured in exact terms; easiest to prove since usually documentation and/or other clear way to show nature/amount; e.g., medical bills in personal injury case, contract or pay stubs re loss of income. General damages – intangible “quality of life” damages (e.g., emotional distress or pain and suffering), so harder to prove with any precision; every case is different based on the facts, the victim, and the “badness” of the defendant’s conduct. No punitive damages (money awarded to plaintiff in addition to special and general damages to punish defendant) in negligence and product liability cases since only available for intentional torts such as fraud, defamation, or assault and battery. Ordinarily, no injunction unless the wrongdoing is ongoing; judgment of damages is designed to serve as deterrent to manufacturing defective products.

9. Pelman v. McDonald’s – guardians of two obese children filed suit seeking to hold McDonald’s responsible for the children’s weight (page 496). Liebeck v. McDonald’s – the “hot coffee” case (page 496). See next slide for questions for small group discussions.

10. Which legal theory(ies) could have been applicable in these lawsuits? What was the outcome of these lawsuits? Ethics/Policy Question – What is your opinion of the outcome of these lawsuits? Did McDonald’s make any changes which might be attributable to these lawsuits? Ethics/Policy Question – What could be the reason(s) for these changes? Assume that the plaintiffs in these lawsuits would be entitled to damages – what kind and how much?