products liability

products liability

negligence (selling defective or dangerous product is misfeasance with duty to foreseeable P), strict products liability

Strict products liability

commercial sellers (not occasional sellers) of defective and unreasonably dangerous products are liable to those who are foreseeably injured by the defect. applies to products not services. When combined, asked which is dominant. books or expressions of ideas are not products. Liability applies to anyone in the supply chain who sells the product in a defective state

three types of strict products liability

manufacturing defect, design defect, warning defect

manufacturing defect

Product fails to conform to the manufacturer’s own standards. Strict liability even for defects that could not be discovered through a reasonable inspection

design defect

A product’s design presents an undue risk of harm under normal usage

undue risk of harm (design defect)

majority: risk/utility test (Particular design for particular benefits with high social utility evidenced by the popularity of the product, no reasonable alternatives, D may raise obviousness if trade off is obvious)

Minority: consumer expectation test (majority for food contamination)

unavoidably unsafe products (design defect)

Some products, by their nature, cannot be made safe and still fulfill their intended purpose

Majority: not defective

Minority: defective if social cost outweighs social benefit that no rational person would choose to use it

warning defect

A product’s packaging and/or instructions fail to provide reasonable warnings of unexpected dangers, which could have reduced or avoided foreseeable risks. The cost of additional instructions/warnings can be a reduction in impact of instructions/warnings. Can be defective for packaging (child-proof containers). danger must be nonobvious. P can argue warning did not have sufficient information. D would argue having too much information would deter people from reading the warnings

heeding presumption

Many jurisdiction presume P would have read the warning if it were there, which can be rebutted (P admits P didn’t read or P smokes even though warning on cigarette packaging)

relationship to misuse

Foreseeable misuse might be unreasonable, but if it’s foreseeable/invited/expected, then D can be liable for failure to warn (or design defect)

Unknowable dangers and recalls triggered by new knowledge

Majority: If the danger was unknowable prior to P’s injury, no liability for failure to warn. Once the danger becomes knowable, the manufacturer should remove the product from the market until it is made safe and owes a duty to take reasonable steps to warn earlier purchasers

Relationship between warnings/instructions and design defects:

Majority: Warning does not absolve D of liability for design defect

Minority: Warning can “cure” a design defect

defenses to strict products liability

misuse, obviousness

misuse

If the product is only dangerous when misused in an unforeseeable unreasonable way, it is not defective. If it is foreseeable to manufacturers for consumers to misuse, it cannot be used as defense. At some point, misuse can become foreseeable. Invited misuse is not misuse

Obviousness

If the defect should have been obvious to a reasonable consumer, or if P actually knew of the defect and voluntarily encountered the risk, no liability