Torts Product Liability

No, most states have chosen different approaches:
(1) Permitting PLs to choose between consumer expectations and risk-utility;
(2) Permitting PLs to show defects using Consumer Expectations, then allowing DFs to rebut using Risk-Utility;
(3) Permitting Consumer Expectations only in appropriate cases, otherwise requiring Risk-Utility;
OR
(4) Rejecting Consumer Expectations completely and only allowing Risk-Utility to prove defects.

Only the direct customer of a manufacturer could recover from that manufacturer for product-related injuries.

If the item was purchased by another in the chain of distribution, such as a retailer, the manufacturer would be free from responsibility.

(1) “manufacturing,”
(2) “design,”
(3) Invalid warnings

§402A: Establishes Strict Liability for a seller of a product whose defective condition makes the product unreasonably dangerous.

At the time of sale or distribution it contains:
(1) Manufacturing defect
(2) Defective in design
(3) Inadequate instructions or warnings.

(1) Foreseeability of departure of its intended design.;
(2) Overall safety provided by an alternative design;
(3) Consumer knowledge or lack thereof;
(4) Added cost of the safer alternative design;
(5) Relative inconvenience to adding an alternative design.

(1) When an individual unit varies from its intended design,
(2) or if it varies from the manufacturer’s intended design for the product,
(3) Even though all possible care was used in the product's preparation and marketing;

A defect that could've been reduced the foreseeable risks by adopting a reasonable alternative design within the commercial chain of distribution;

When the foreseeable risks could've been reduced by including reasonable instructions or warnings.

Within the entire commercial chain of distribution, even after manufacture.

In a prima facie case of defect, the PL must prove availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff's injury.

(1) Magnitude and probability of foreseeable harms;
(2) Instructions and Warnings with the product;
(3) Consumer choices for products that may be reasonable alternatives.
(4) Consumer Expectations for the products and
(5) Alternative design's pros & cons with costs, longevity, aesthetics, repair, and maintenance. (CLARM)

Yes, an alternative design can't introduce other dangers of equal or greater magnitude.

R2Torts§402A has been adopted in whole or in part of the vast majority of states with some adopting the three defect categories from R3§2.
• §402A establishes Strict Liability for a seller of a product whose defect makes the product unreasonably dangerous.
• Subsequent decisions and, in some states, legislation, have changed or amplified its provisions.

All within the commercial chain of distribution, including nonmanufacturing sellers and distributors such as wholesalers and retailers, are subject to liability for selling products that are defective.

A defective product is one that differs from the manufacturer's intended result or from other identical units of the same product line.

• Only that a product fell short of the manufacturer’s own specifications.
• Ignores relevant questions in a negligence context, such as conduct in creating, inspecting, and distributing the flawed product.

“A product is defective if it is dangerous to an extent beyond that anticipated by the ordinary user.”

The PL has to prove that the DF acted with indifference to the high probability of injury to the PL.

• That a seller is in the best position to insure a product.
• Design defect liability places the risk of loss on a manufacturer.

• Rule: Evidence of a manufacturer's good faith effort to comply with all government regulations is evidence of conduct inconsistent with the mental state requisite for punitive damages.
• Rule: In some states, compliance with regulations may be a full defense or a weighted consideration.
• Rule: In a product liability action, a manufacturer's state of mind represents a key element in determining whether it acted with actual fraud or actual malice.

No, most states have chosen different approaches:
(1) Permitting PLs to choose between consumer expectations and risk-utility;
(2) Permitting PLs to show defects using Consumer Expectations, then allowing DFs to rebut using Risk-Utility;
(3) Permitting Consumer Expectations only in appropriate cases, otherwise requiring Risk-Utility;
OR
(4) Rejecting Consumer Expectations completely and only allowing Risk-Utility to prove defects.

Under Strict Product Liability

Where the issue is strict liability, most courts will not allow government regulations to be used against manufacturers.

The issue is not the conduct of the "reasonable person," but the condition of the product, rather than the manufacturer's conduct or knowledge.

Yes, they're within the Commercial Chain of Distribution can be liable for a design or manufacure defect that causes injury while being used in a reasonably foreseeable way.

Provides that a product may be found defective in design if the PL proves that the product failed to perform as safely as an ordinary consumer would expect.

• A product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies excessive preventable danger
• In other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.

• No, it doesn't matter what the scientific community knew or when they knew it.
• Rule: It is the knowledge and reasonable expectations of the consumer, not the scientific community, that is relevant under the consumer expectations test.

Rule: When a product fails to satisfy ordinary consumer expectations as to safety in its intended or reasonably foreseeable use, a manufacturer is strictly liable for any resulting injuries.

Rule: Expert testimony may be admissible to prove what ordinary consumers of a product actually expect when those expectations are beyond the layman's commone experience.

• There were neither complicated design considerations
• or Obscure components
• or Mysterious circumstances surrounding the accident,
• and the product failure was beyond an ordinary consumers commonly accepted minimum safety standards.

(1) Seller was engaged in the business of selling the product that caused the harm;
(2) Product was sold in a defective condition unreasonably dangerous to the consumer or user;
(3) Product was one which the seller expected to and did reach the PL without any substantial change in which it was sold; and
(4) Defect was a direct and proximate cause of the PLs injuries.

Rule: Some form of Risk-Utility Balancing is used by most jurisdictions in Design Defect cases.

• Must show the risks, costs and benefits of the product in question and alternative designs
• That the magnitude of the danger from the product outweighed the costs of avoiding the danger.

Rule: The adequacy of a warning is relevant and may even tip the balance in the decision, but it is only one of the design attributes, and thus not the sole consideration.

(1) The product's utility and desirability to the user and the public.
(2) Safety aspect such as the probability of the injury, and its seriousness.
(3) Availability of a substitute product which would be safer and meet the same need.
(4) How useful or expensive would eliminating the unsafe aspect be?
(5) The user’s ability to avoid danger by the exercise of care in using the product.
(6) User’s anticipated awareness of the dangers inherent in the product and their avoidability
(7) The feasibility of spreading the loss by setting the price of the product or carrying liability insurance.

The PL knew of the specific defect in the product and was aware of the danger arising from it, but nevertheless voluntarily and unreasonably proceeded to use the product.

No, Consumer Expectation and Risk-Utility don't need to be mutually exclusive.

(1) Permitting PLs to choose between the two;
(2) Permitting PLs to show defects using Consumer Expectations, then allowing DFs to rebut using Risk-Utility;
(3) Permitting Consumer Expectations only in appropriate cases, otherwise requiring Risk-Utility;
OR
(4) Only allowing Risk-Utility to prove defects.

When the risk could have been avoided by providing adequate instructions or warnings.

The Kansas court said, “In warning cases, the test is reasonableness.”

(1) Flaw was present at the time it was sold;
(2) Manufacturer of the product failed to adequately warn of the risk in how it was designed; or
(3) Although perfectly manufactured, it contained an unsafe defect.

Under Strict Liability, a manufacturer’s failure to adequately warn of its product’s reasonably foreseeable dangers renders it defective.

Yes, the duty to warn is a continuous one, requiring manufacturers keep up with the current state of knowledge with its products.
• Acquired through research, adverse reaction reports, scientific literature, and other available methods.

(1) Product misuse,
(2) Modification,
(3) and alteration
• Whether such conduct affects one or more issues depends on the nature of the conduct and whether the manufacturer should have adopted a reasonable alternative design or provided a reasonable warning.

PL would still be able to recover if they were Comparatively at fault for injuries, but recovery would be reduced in proportion to percentage of fault.

Completely barred a PL’s recovery if he was to some degree at fault for his injuries.

Comparative Negligence

Most courts do not limit Comparative Negligence to instances of product misuse or unreasonable and voluntary assumption of risk.
• They allow a PL’s ordinary negligence to constitute comparative fault.

Some legislatures have incorporated a universal definition of “contributory fault” for all tort cases, including strict products liability cases.

The comparative fault system to be the fairest way to allocate costs of accidents in products liability cases.

(Prosser and Keeton on the Law of Torts §102)

• Evidence that the product was unreasonably dangerous to the user
and
• The risk of harm was foreseeable by the manufacturer;

Requires evidence that the item purchased was for a specific purpose.

Where a product is used in a manner which could not be anticipated by the manufacturer.

• Requires that the product be fit for the ordinary purposes for which it is sold.
• Does't require the buyer prove reliance on the skill and judgment of the manufacturer.

No, under Stricts Product Liabiilty there is no duty to warn of known dangers, only a duty to consider only those risks of injury which are foreseeable.

(1) A product has a manufacturing defect if it varies from other units in an unintended way,
(2) or if it varies from the manufacturer’s intended design for the product.

(1) The deep pocket theory.
(2) The risk spreading theory.

This theory holds that it makes sense to place liability on the wealthier party, who has less need for the money at stake or who gives less value to each dollar and so suffers a lesser subjective loss than the poorer plaintiff.

That manufacturers are not always wealthy.

This theory holds that it makes sense to distribute the loss as widely as possible, so that many individuals suffer a small loss rather than one victim suffering a large loss.

In any product liability action, it shall be rebuttably presumed that the product which caused the injury, death, or property damage was not defective and that the manufacturer or seller thereof was not negligent if the product:

• (a) Prior to sale by the manufacturer, conformed to the state of the art, as distinguished from industry standards, applicable to such product in existence at the time of sale. . . .

The Kansas court said, “In warning cases, the test is reasonableness.”

A seller is entitled to assume that if it has provided adequate warnings, those warnings would be read and heeded by product users.

• Relevant to deciding whether a product is a design defect.
• Consumers’ expectations are informed by what they're presumed to have read.
• PL must prove that they would've followed a warning if there was one.

A number of states allow a jury to assume that the PL would have obeyed a warning if it had been given.

A product with an adequate warning is neither defective nor unreasonably dangerous.
• Many states do not follow this rule the "adequate warning rule"

Consumer Expectation states that have rejected the rule argue that the warning is a factor in determining if the product was defective and dangerous beyond a reasonable consumer’s expectation.

Contributory Negligence is no bar to recovery in a Strict Liabiity case.
Assumption of the risk would still operate as a complete bar to recovery.
There could be no recovery if an injury was caused by “abnormal” use of a product.

Yes, under R2§402A assumption of the risk would still operate as a complete bar to recovery.