Torts Products Liability

402(a) provides Ps can recover when

1. merchant is in sale of type of good
2. product left facility w/ defect and it wasn't a defect P caused
3. product was in defective condition unreasonable dangerous

manufacturing defect

when an error occurs during the manufacturing process, causing product to depart from intended design

design defect

defect where all products in a line share the quality; presents an undue risk of harm in normal use

test for design defect

risk-utility analysis or consumer expectation test; most jurisdictions also require P prove existence of a reasonable alternative design; includes considerations like crashworthiness

design defect categories (2)

inadvertent design error, conscious design choice

inadvertent design error

designer didn't full think through how product will work

conscious design choice

designer makes conscious design choice that knowingly makes product less safe OR designer is aware of defect but continues to market

Products Liability

liability of a manufacturer, seller, or other supplier of chattels to one who suffers phys harm caused by chattel

Products Liability majority

Rest. 2nd 402(a)

Rest. 3rd Types of Defects

Manufacturing
design
warnings

warnings defect

in warning the right question is should the manufacturer be allowed to put a warning on a product

lack of warning

manufacturer is aware of hazard and fails to warn. Typically recovers under neg (duty to warn)

is warning and not fixing acceptable?

perform risk-utility analysis. If strong utility, appropriate to warn rather than correct. If cheap safety device, must be used

unavoidably unsafe products

not defective because they are unsafe by nature; only liability for failure to warn when danger not apparent

is warning sufficient?

did it reach audience? is is obvious?

warnings not required

if manufactures not aware of hazard or when hazard is open and obvious; foreseeability is key

warnings may be reduced when

users are knowledgable/sophisticated

learned intermediary rule

warning are told to a learned intermediary (typically doctor) who chooses which warning to pass on

Products Theories of Recovery

Strict, Neg, Warranty

Strict Products Liability maj or min?

maj

Strict products liability best for when

P has difficulty making proof

Strict products liability public policy

manufactures more able to bear cost than P

SL in 402A

liable when
1. phys harm to user when product
2. has defective condition
3. unreasonable dangerous
4. and they are actually harmed from that defective condition

unreasonably dangerous determined by

risk utility analysis

risk-utility analysis

where a product is defective it its risks outweigh its utility

risk utility analysis factors

product's general utility, liklihood of gravity of injury, availability of safer alt design, whether product can be made safter w/o hurting utility and w/o too much added expense, whether user is aware and knows how to avoid dangers, ...

when must manufacturer must not make product?

if no safer alt and risk is high/utility is low

consumer expectation/reasonable consumer test

is this more dangerous than a reasonable consumer would expect?
Product reaches consumer w/o change
P suffered actual damages
Caused by defect

Exception to SL for Products

action in SL does not lie when product itself did not perform as expected;

Neg in Products Liability

Rest 3rd; minority

Neg in Products Liability Categories

Manufacturing: SL
Design: neg
Warnings: neg

Design Defect

foreseeable risk of harm that could have been avoided via:
alt design, omission of what makes unreasonably dangerous

warnings

forseeable risk of harm that could have been avoided via adequate warning, ommission of which makes unreasonably dangerous

Macpherson Rule/dutyL

if a reasonable person could foresee a risk of harm if product is not carefully made or supplied, manufacturer or supplies owes duty of care to all foreseeable users; requires show reasonable al design

neg in Products Liability breach

failure to inspect or make carefully

breach in neg PL proof options

direct ev
violation of safety statute/reg
res ipsa

cause in neg PL

but for test
direct cause, superseding forces

injury in neg PL

actual damages, harm other than personal injury like economic loss

warranty

minority approach; used in va not SL; best for pure econic loss

Henningsen

disclaimers that are so harmful/offensive to public good are unenforceable based on instinctive sense of justice

Express Warranty

requires (1) seller/manufacturer made a material misrepresentation of fact
(2) the P deterimentally relied on a and
(3) was not puffing or sales talk

Implied Warranty

(1) all products carry an implied warranty of merchantability:=fit for uses for which it was manufactured
(2) some special sitch create an implied warranty of fitness for a particular purpose; created when representative of seller/man sells you product for particular purpose they know you want it for

Proving Products Liability

by preonderance of ev:
(1) P was injured by product
(2) injury occurred bc product was defective
(3) defect existed at time it left hand of D (tracing) and can be traced back to manufacturer

Tracing

must trace back to D's hand as it left factory; product cannot reach w/ susbstantial chanage in condition

Lapse of Time/Long Considered Use

manufactuere does NOT have to make pridct that does not wear out; consider if properly maintained