Chapter 2 Negligence

Negligence elements

Duty

Breach

Causation

Damages

Types of Negligent Defects

Manufacturing Defects

Design Defects

Marketing Defects

Manufacturing defects

Unreasonable errors in fabrication or quality control

The product is in a condition not intended by the seller

Design defects

The entire product line is dangerous

Marketing defects

Negligence in failing to warn or provide adequate instructions

Learned Hand Formula

B < P x L

B

burden of taking the precaution

P

probability of injury

L

gravity of the loss

MacPherson v. Buick Motor Co. (1916)

Abolished vertical privity in negligence claims

If a product is reasonably certain to place life and limb in peril when negligently made, it is a thing of danger, and the manufacturer owes a duty of care to the ultimate consumer, regardless of contracts

Does a manufacturer owe a duty of care to a remote purchaser?

Yes, the nature of the product makes it a "thing of danger" if negligently made. MacPherson v. Buick Motor Co.

May a manufacturer be held liable for a person’s injury on the ground of negligence if the manufacturer’s production and quality-control procedures were not conducted with reasonable care?

Yes, the failure to follow assembly specifications and quality control is a classic negligence breach. Jenkins v. General Motors Corp.

Does the duty of care include the duty to inspect?

Yes, manufacturers have the duty to exercise reasonable care to inspect for defects that pose foreseeable risks. Ford Motor Co. v. Zahn

Can a product design be found "unreasonably dangerous" under a negligence theory of risk-utility analysis even when the product complies with applicable federal safety regulations.

A jury could reasonably find that the design was negligent using the risk-utility analysis. Compliance with federal standards is evidence of due care but is not conclusive. Metzgar v. Playskool Inc.

Is a manufacturer’s failure to take a precaution against an accident negligent only if the cost of the precaution is less than the probability of the accident multiplied by the loss caused by the accident?

Yes. A manufacturer’s failure to take a precaution against an accident is negligent only if the cost of the precaution is less than the probability of the accident multiplied by the loss caused by the accident. Mesman v. Crane Pro Servs.

Can a plaintiff plead sufficient factual matter to state a plausible claim for negligent failure-to-warn by alleging that a distributor had actual or constructive knowledge of a product's danger based on prior incident reports and general industry alerts.

Under Georgia law, a product seller may be liable for negligent failure-to-warn if, at the time of the sale, it had actual or constructive knowledge that the product created a danger for the consumer. Duty to Warn. Love v. Weeco

Is failure to warn an independent basis for a negligence claim?

Yes, a manufacturer may be found negligent even if a product is not defectively designed or manufactured Laaperi v. Sears, Roebuck & Co.

Must a manufacturer that produces a product with a high risk of human harm and sells it to the general public provide specifications, instructions, and warnings to make the product safe for ordinary persons to use for the purposes for which it is produced and all other necessarily incidental and attendant uses?

Yes they must provide the specifications for products with a high risk of human harm. Boyl v. California Chem. Co.

What is the standard of care a manufacturer is held to when evaluating their duty to warn?

A manufacturer has to possess the knowledge of an expert in the field. Olson v. Prosoco, Inc.

What is the defendant’s conduct tested against in a negligence action for failure to warn?

It is tested against the standard of care of an expert who is expected to know the characteristics of their products and the uses to which they may be applied. Olson v. Prosoco, Inc.

Does adherence to federal safety standard prove non-negligence?

No it is not, it is just evidence

Negligent failure to warn claim

1. Product is capable of harm and harm is reasonably foreseeable

2. Product does not itself carry a message of danger

   1. Referring to the nature of the product itself

3. Consumer cannot reasonably be expected to know the danger without warning

   1. Macpherson case

4. Reasonable manufacturer knows or has reason to know of foreseeable risk

Warning standards to avoid negligence

A warning should catch attention, be comprehensible, and indicate the specific risks, with the intensity justified by the risk magnitude

Is there a duty to reasonably warn of a foreseeable risk if the product is not negligently designed or manufactured?

Yes, there is. Laaperi v. Sears, Roebuck, & Co.

What is the test for manufacturing defects?

Consumer expectation test

Consumer expectation test

Determines whether a product is unreasonably dangerous

A product is unreasonably dangerous if it is more dangerous than a consumer of ordinary prudence could foresee, if used (or misused) in a reasonably foreseeable manner.

What is the test for design defects?

Consumer expectation test

Risk utility test (3rd restatement)

Risk utility test

A product is defective if the risk posed by the design outweighs its social utility and the feasibility of safer alternatives

Plaintiff has the burden to prove that a reasonable alternative design existed at the time of manufacture that is technically and economically feasible

The alternative design can’t substantially impair the products intended purpose