Bar Prep - STRICT LIABILITY AND PRODUCTS LIABILITY

Misrepresentation Issue

Upon the recommendation of her child's pediatrician, a mother purchased a vaporizer for her child, who had been suffering from respiratory congestion. The vaporizer consisted of a gallon-size glass jar, which held water to be heated until it became steam, and a metal heating unit into which the jar fit. The jar was covered by a plastic cap with an opening to allow the steam to escape. At the time the vaporizer was manufactured and sold, there was no safer alternative design. The booklet that accompanied the vaporizer read: "This product is safe, spillproof, and practically foolproof. It shuts off automatically when the water is gone." The booklet had a picture of a vaporizer sending steam over a baby's crib. The mother used the vaporizer whenever the child was suffering from congestion. She placed the vaporizer on the floor near the child's bed. One night, the child got out of bed to get a drink of water and tripped over the cord of the vaporizer as she crossed the room. The top of the vaporizer separated from the base, and boiling water from the jar spilled on the child when the vaporizer tipped over. The child suffered serious burns as a consequence.The child's representative brought an action for damages against the manufacturer of the vaporizer. The manufacturer moved to dismiss after the representative presented the evidence above.

Should the manufacturer's motion be granted?

A 16-year-old boy purchased an educational chemistry set manufactured by Chemo. The teenager invited his friend and classmate, the plaintiff, to assist him in a chemistry project. Referring to a library chemistry book on explosives and finding chemistry set contained all of the necessary chemicals, the teenager and the plaintiff agreed to make a bomb. During the course of the project, the teenager carelessly knocked a lighted Bunsen burner into a bowl of chemicals from the chemistry set. The chemicals burst into flames, injuring the plaintiff. Although the chemistry set was as safe as possible, and its educational benefits exceeded its risks, the set did not contain warning that it could be used to make dangerous explosives.


In a suit by the plaintiff against Chemco, based on strict liability, the plaintiff will

Misrepresentation Issue

At a country auction, a plaintiff acquired an antique cabinet that he recognized as an extremely rare and valuable collector's item. Unfortunately, the plaintiff's cabinet had several coats of varnish and paint over the original oil finish. Its potential value could only be realized if these layers could be removed without damaging the original finish. Much of the value of the cabinet depends on the condition of a unique oil finish, the secret of which died with the original inventor.

A professional restorer of antique furniture recommended that the plaintiff use a specific paint stripper to remove the paint and varnish from the cabinet. The plaintiff obtained and read a sales brochure published by the company who manufactures the paint stripper, which contained the following statement: "This product will renew all antique furniture. Will not damage original oil finishes."

The plaintiff purchased the paint stripper and used it on his cabinet, being very careful to follow the accompanying instructions exactly. Despite the plaintiff's care, the original finish of the cabinet was irreparably damaged. When finally refinished, the cabinet was worth less than 20% of what it would have been worth if the original finish had been preserved. No other removal technique could have preserved the original finish.

If the plaintiff sues the manufacturer to recover the loss he has suffered as a result of the destruction of the cabinet's original finish, will the plaintiff prevail?

Foreseeable Use Issue

(P was also using the product in its intended use)

A homeowner hired an arsonist to set fire to the homeowner’s house so that the homeowner could collect the insurance proceeds from the fire. After pouring gasoline around the house, the arsonist lit the fire with his cigarette lighter and then put the lighter in his pocket. As the arsonist was standing back admiring his work, the lighter exploded in his pocket. The arsonist suffered severe burns to his leg.

After finding out that the explosion was caused by a manufacturing defect in the lighter, the arsonist brought an action against the manufacturer of the lighter based on strict product liability. Under applicable law, the rules of pure comparative fault apply in such actions.

Will the arsonist prevail?

Recovery Issue - Economic Loss Rule

A married couple bought a new recreational vehicle (RV) to travel in. After the couple brought the RV home, but before they had moved any personal property into it, the RV spontaneously caught fire and was completely destroyed.

Does the couple have a viable strict products liability claim against the manufacturer of the RV?

Privity Issue

No privity required in strict liability and negligence theories of products liability

In preparation for a mountain-climbing expedition, a climber purchased the necessary climbing equipment from a retail dealer in sporting goods. A week later, the climber fell from a rock face when a safety device he had purchased from the retail dealer malfunctioned because of a defect in its manufacture. Thereafter, a rescuer was severely injured when he tried to reach and give assistance to the climber on the ledge to which the climber had fallen. The rescuer's injury was not caused by any fault on his own part.

If the rescuer brings an action against the retailer to recover damages for his injuries, will the rescuer prevail?

Yes, because injury to a person in the rescuer's position was foreseeable if the safety device failed.

Abnormally Dangerous Activity - Harm caused issue

TYPE OF DANGER WHICH MADE IT INHERENTLY DANGEROUS MUST CAUSE THE HARM

The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the condition or thing involved.

A chemical company manufactured a liquid chemical product known as XRX. Some XRX leaked from a storage tank on the chemical company's property, seeped into the groundwater, flowed to a farmer's adjacent property, and polluted the farmer's well. Several of the farmer's cows drank the polluted well water and died.

If the farmer brings an action against the chemical company to recover the value of the cows that died, the farmer will

prevail, because the XRX escaped from the chemical company's premises.

Inadequate Warning Issue (strict liability design defect)

As a bartender was removing the restraining wire from a bottle of champagne produced and bottled by Winery, Inc., the plastic stopper suddenly shot out of the bottle. The stopper struck and injured the bartender's eye. The bartender had opened other bottles of champagne, and occasionally the stoppers had shot out with great force, but the bartender had not been injured.
The bartender has brought an action against Winery, Inc., alleging that the bottle that caused his injury was defective and unreasonably dangerous because its label did not warn that the stopper might suddenly shoot out during opening. The state has merged contributory negligence and unreasonable assumption of risk into a pure comparative fault system that is applied in strict products liability actions.

A jury made the following findings of fact: that the bottle was defective and unreasonably dangerous because it lacked a warning, that a legally sufficient warning would not have prevented the bartender's injury, and that a reasonable bartender would have realized that a stopper could eject from the bottle and hit his eye.

Will the bartender recover a judgment in his favor?

Assumption of the Risk Issue

Abnormally Dangerous Activity

A construction company was engaged in blasting operations to clear the way for a new road. The company had erected adequate barriers and posted adequate warning signs in the vicinity of the blasting. Although the plaintiff read and understood the signs, he entered the area to walk his dog. As a result of the blasting, the plaintiff was hit by a piece of rock and sustained head injuries. The jurisdiction follows the traditional common law rules governing the defenses of contributory negligence, assumption of risk, and last clear chance.

In an action by the plaintiff against the construction company to recover damages for his injuries, the plaintiff will?

not prevail, because the plaintiff understood the signs and disregarded the warnings.

Commercial Supplier Issue

(D was a service provider)

A dentist was anesthetizing a patient's jaw before pulling a tooth. Although the dentist used due care, the hypodermic needle broke off in the patient's gum tissue, causing injury. The needle broke because of a manufacturing defect that the dentist could not have detected.

Is the patient likely to recover damages in an action against the dentist based on strict products liability and malpractice?

Whether Activity is Abnormally Dangerous Issue

A fumigation company was hired to eliminate pests in one of two buildings in a condominium complex that shared a common wall. The owners of the complex told the fumigation company that the common wall separating the infested building from the uninfested building was an impenetrable fire wall. The fumigation company did its own thorough inspection and determined that the buildings were indeed completely separated by the wall. Residents of the condominium units in the building that was to be sprayed were told to evacuate, but the residents of the uninfested building were told that they could remain while the other building was treated.
During and shortly after the fumigation, in which a highly toxic chemical was used, many residents of the uninfested building became sick. It was determined that their illnesses were caused by the fumigation chemical.

In fact, there was a hole in the fire wall separating the two buildings, but because it could only be observed from a specific position in the crawl space underneath the floor of the uninfested building, it had not been discovered by either the fumigation company or any previous building inspector.

Are the residents of the uninfested building likely to prevail in a tort action against the fumigation company?

Yes, because the fumigation company can be held strictly liable for its activity.

Commercial Seller Issue

Single Seller
One-time occurrence
Not in the business of selling goods of the kind

NOT A COMMERCIAL SUPPLIER because they are a casual seller

Because of a farmer's default on his loan, the bank foreclosed on the farm and equipment that secured the loan. Among the items sold at the resulting auction was a new tractor recently delivered to the farmer by the retailer. Shortly after purchasing the tractor at the auction, the buyer was negligently operating the tractor on a hill when it rolled over due to a defect in the tractor's design. He was injured as a result. The buyer sued the auctioneer, alleging strict liability in tort. The jurisdiction has not adopted a comparative fault rule in strict liability cases.

In this suit, the result should be for the

defendant, because he should not be considered a "seller" for purposes of strict liability in tort.

Safer Alternative Design Issue

(Defective Design Strict Liability)

The Rapido is a sports car manufactured by the Rapido Motor Co. The Rapido has an excellent reputation for mechanical reliability with one exception; the motor may stall if the engine has not had an extended warm-up. A driver had just begun to drive her Rapido in city traffic without a warm-up when the engine suddenly stalled. A car driven by a motorist rear-ended the driver's car. The driver suffered no external physical injuries as a result of the collision. However, the shock of the crash caused her to suffer a severe heart attack.
The driver brought an action against the Rapido Motor Co. based on strict liability in tort. During the trial, the plaintiff presented evidence of an alternative engine design of equal cost that would eliminate the stalling problem without impairing the functions of the engine in any way. The defendant moves for a directed verdict at the close of the evidence.

This motion should be?

denied, because the jury could find that an unreasonably dangerous defect in the engine was a proximate cause of the collision.

Substantial Alteration Issue

A homeowner was injured when an automatic cutoff switch failed to function on a snowblower he was using. The cutoff switch had functioned well for a year after he purchased the snowblower but failed after the machine had been improperly repaired by a mechanic. The snowblower's operating manual contained a clear and prominent warning against making the very alteration to the switch mechanism that was made by the mechanic. The mechanic, however, did not have a manual available when he repaired the snowblower.

Does the homeowner have a viable claim against the manufacturer of the snowblower for damages?

No, because the injury resulted from a substantial alteration of the snowblower by a third party.

Not a Strict Liability Question

(professional malpractice issue)

While this looks like a products liability question, it is a professional malpractice issue. The company designed and built the processing plant. The engineer was retained solely for the purpose of designing a filter system for the plant. She had a duty to exercise skill in the design of the filter system, commensurate with her professional training and standards. The engineer's use of the company's blueprint for the proper permit did not impute liability onto the engineer for the entire facility, as a permit is nothing more than a license (permission) to proceed with construction, not a guarantee against defect. While the manufacturer of a defective product is subject to strict liability, strict liability does not apply to the performance of services. The engineer provided a service and will be held to a negligence standard.

A company designed and built a processing plant for the manufacture of an explosive chemical. An engineer was retained by the company to design a filter system for the processing plant. She prepared an application for a permit to build the plant's filter system and submitted it to the state's Department of Environmental Protection (DEP). As required by DEP regulations, the engineer submitted a blueprint to the DEP with the application for permit. The blueprint showed the entire facility and was signed and sealed by her as a licensed professional engineer. After the project was completed, a portion of the processing plant exploded, injuring the plaintiff. During discovery in an action by the plaintiff against the engineer, it was established that the explosion was caused by a design defect that was unrelated to the filter system designed by the engineer. However, the defect was present in the blueprint signed by the engineer.

In that action, will the plaintiff prevail?

In plaintiff's action against the engineer, will the plaintiff prevail?


No, because the engineer owed no duty to the plaintiff to prevent the particular risk of harm.

Two parents purchased a new mobile home from a seller. The mobile home was manufactured by Mobilco and had a ventilating system designed by Mobilco with both a heating unit and an air conditioner. Mobilco installed a furnace manufactured by Heatco and an air conditioning unit manufactured by Coolco. Each was controlled by an independent thermostat installed by Mobilco. Because of the manner in which Mobilco designed the ventilating system, the first time the ventilating system was operated by the parents, cold air was vented into the parents' bedroom to keep the temperature at 68 degrees F (20 degrees C). The cold air then activated the heater thermostat, and hot air was pumped into the bedroom of the six-month-old child of the parents. The temperature in the child's room reached more than 170 degrees F (77 degrees C) before the child's mother became aware of the condition and shut the system off manually. As a result, the child suffered permanent physical injury.
Claims have been asserted by the child, through a duly appointed guardian, against Mobilco, the seller, Heatco, and Coolco.

If the child's claims against Mobilco, Heatco, and Coolco are based on strict liability in tort, the child will probably recover against?

Mobilco only, because the ventilating system was defectively designed by Mobilco.

Services and Sale

Airco operates an aircraft maintenance and repair business serving the needs of owners of private airplanes. A pilot contracted with Airco to replace the engine in his plane with a more powerful engine of foreign manufacture. Airco purchased the replacement engine through a representative of the manufacturer and installed it in the pilot's plane. A short time after it was put into use, the new engine failed, and the plane crashed into a warehouse, destroying the warehouse and its contents. Airco was guilty of no negligence in the procurement, inspection, or installation of the engine. The failure of the engine was caused by a defect that would not be disclosed by inspection and testing procedures available to an installer. There was no negligence on the part of the pilot, who escaped the disabled plane by parachute.
The warehouse owner recovered a judgment for damages from the pilot for the destruction of his warehouse and its contents, and the pilot has asserted a claim against Airco to recover compensation on account of that liability.

In that action, the pilot will recover?

full compensation, because the engine was defective.

Strict Liability Not Available to Trespassers Issue

(Wild Animals)

The driver of a tanker truck was transporting radioactive waste from a nuclear power plant to a permanent storage facility in a remote western region of the United States. After driving all night, the driver fell asleep at the wheel and the truck crossed over the center line, off the road, and onto a homeowner's property, coming to rest after crashing into several glass cases containing the homeowner's collection of poisonous snakes, the keeping of which was permitted by local ordinance. When the driver exited the truck, he was bitten on the leg by one of the poisonous snakes and became seriously ill.
The driver brought an action against the homeowner for his injuries. The parties stipulated to the above facts, and that the driver violated a state statute by driving off of the road. Both parties moved for judgment as a matter of law on the liability issue.

How should the court rule?

Deny the driver's motion and grant the homeowner's motion, because the driver was a trespasser on the homeowner's property.

Domesticated Animals

Dogs, cats, stallions, sheep, mules, steers, horses, heifers, bees, bulls, parrots, birds

Wild Animals (Strict Liability)

lion, bear, snakes, wolves, tigers, monkeys

even those kept as pets