Torts II - CH 15 - Products Liability

Jeremy purchased a bottle of liquor from Liquor Barn.  The liquor was bottled by Bottlers Inc., in bottles manufactured by A#1 Glass Co.  While Jeremy was opening the bottle, it suddenly exploded, causing disfiguring cuts to his face.  The fact finder determines that, originating with A#1 Glass Co., the bottle contained a weakness in the glass structure that caused Jeremy’s harm and was a departure from the product’s intended design.  The weakness in the bottle’s structure caused the bottle to explode.  In a lawsuit brought by Jeremy against Liquor Barn, A#1 Glass Co., and Bottlers Inc., what type of defect did the bottle have?

AThe bottle that caused Jeremy’s harm contained a manufacturing defect.

BThe bottle that caused Jeremy’s harm contained a design defect.

CThe bottle that caused Jeremy’s harm contained a warnings defect.

DThe bottle that caused Jeremy’s harm contained an inadequate instructions defect.

AThe bottle that caused Jeremy’s harm contained a manufacturing defect.

Correct. A manufacturing defect is a departure from a product’s intended design.  Restatement (Third) Torts:  Products Liability § 2.

Jeremy purchased a bottle of liquor from Liquor Barn.  The liquor was bottled by Bottlers Inc., in bottles manufactured by A#1 Glass Co.  While Jeremy was opening the bottle, it suddenly exploded, causing disfiguring cuts to his face.  The fact finder determines that, originating with A#1 Glass Co., the bottle contained a weakness in the glass structure that caused Jeremy’s harm and was a departure from the product’s intended design.  The weakness in the bottle’s structure caused the bottle to explode.  In a lawsuit brought by Jeremy against Liquor Barn, A#1 Glass Co., and Bottlers Inc., which of the defendants may be subject to liability for the defective product?

ALiquor Barn, Bottlers Inc., and A#1 Glass Co. may all be subject to liability only if they failed to exercise reasonable care in the preparation and distribution of the defective bottle of liquor.

BOnly A#1 Glass Co. may be subject to liability because the defective bottle originated with A#1 Glass Co.

CLiquor Barn, Bottlers Inc., and A#1 Glass Co. may all be subject to liability even though they exercised reasonable care in the preparation and distribution of the defective bottle of liquor.

DA#1 Glass Co. may be subject to liability only if it can be established that A#1 Glass Co. failed to exercise reasonable care in the preparation of the defective bottle. 

CLiquor Barn, Bottlers Inc., and A#1 Glass Co. may all be subject to liability even though they exercised reasonable care in the preparation and distribution of the defective bottle of liquor.

Correct. The general rule is that all those engaged in the business of selling or distributing a defective product may be subject to liabilities for injuries to persons or property as a result.  Restatement (Third) Torts:  Products Liability § 1.

Funny Business manufactures novelty items, including an exploding cigar made to blow up with a loud bang and the emission of smoke.  Employee purchased the exploding cigar and presented it to Boss at an office birthday party.  Boss lit the cigar.  When it exploded, the heat from the explosion lit Boss’s beard on fire, causing serious burns to his face.  In a lawsuit brought by Boss against Funny Business, Boss alleges that he was injured by a defectively designed product.  In a products liability action, may Funny Business be held liable?

AIf the factfinder determines that there is no reasonable alternative design available that would provide similar prank characteristics, Funny Business cannot be found liable for manufacturing a cigar with a defective design.

BEven if the factfinder determines that there is no reasonable alternative design available that would provide similar prank characteristics, Funny Business can still be held liable in tort for the cigar having a defective design if the factfinder determines that the utility of the exploding cigar is so low and the risk of injury was so high that the cigar should not have been marketed at all.

CBoss will be barred from recovery from Funny Business if his lighting of the cigar was a misuse of the product.

DBoss will not be able to hold Funny Business liable for its exploding cigar because the product did exactly what it was designed to do – it exploded.

Even if the factfinder determines that there is no reasonable alternative design available that would provide similar prank characteristics, Funny Business can still be held liable in tort for the cigar having a defective design if the factfinder determines that the utility of the exploding cigar is so low and the risk of injury was so high that the cigar should not have been marketed at all.

Correct. See Restatement (Third) Torts:  Products Liability § 2(b).

BPV Co. manufactures bulletproof vests for use by police and security personnel.  BPV Co. offers several different models, some providing front and back protection only, and others providing wrap-around protection.  State highway patrol officials chose to purchase the model that provides front and back protection only.  They did so because that model is less expensive, allows greater flexibility of movement, and is more comfortable. State Trooper was shot and killed while making a routine traffic stop.  The bullet entered the side of his body, where the vest did not provide protection.  In a lawsuit brought on behalf of State Trooper’s estate against BPV for injuries caused by an allegedly defective product, the estate’s lawyer argues that the design of the vest is defective because it does not provide wrap around coverage.  In the products liability lawsuit against BPV for State Trooper’s death, what is the legal relevance of the alternative of the wrap around vest design?

AWithout regard to the wrap around vest design, estate cannot recover from BPV because State Trooper willingly wore the vest with the front and back design.

BThe availability of the wrap-around vest renders the vest that State Trooper was wearing, providing only front and back protection, unreasonably safe and therefore defective in design.

CThe differences in advantages and disadvantages of the wrap-around vest and the front-and-back only vest are sufficiently understood by consumers does not render the front-and-back design in a condition unreasonably safe.

DIn determining whether the front and back vest is defectively designed, it is legally irrelevant that the wrap-around vest is somewhat safer, is more costly to buy, and more costly to use.

CThe differences in advantages and disadvantages of the wrap-around vest and the front-and-back only vest are sufficiently understood by consumers does not render the front-and-back design in a condition unreasonably safe.

Correct. Whether a product has a defect in design turns on many factors, including for example the existence of an alternative design, the increase in cost to incorporate the alternative design, and the usefulness of the product if it incorporates the alternative design.  The differences in advantages and disadvantages of these two products would be understood by consumers and also become part of the defective design calculus.

Drug Manufacturer along with many other drug companies manufactured, produced, and marketed a medication, DRG, designed to prevent miscarriages in pregnancy.  The drug was administered to pregnant women.  Unfortunately, women who ingested DRG, thereby exposing their unborn daughters to DRG, gave birth to daughters who developed cancerous vaginal and cervical growths.  The unique type of cancer these daughters developed was a fast-spreading and deadly disease requiring radical surgery to prevent its spread.  Daughter’s mother ingested DRG, exposing Daughter to the drug prior to her birth.  The evidence also shows that this unique type of cancer is most probably caused by exposure to DRG.  Daughter has developed the cancerous vaginal and cervical growths, which are only developed by women like her whose moms ingested DRG.  Daughter has sued Drug Manufacturer, seeking to hold it responsible in negligence for its manufacture of DRG and Daughter’s resultant injuries.  The evidence at trial establishes that Drug Manufacturer produced DRG at the time that Daughter’s mother was prescribed and took the drug.  However, Daughter is unable to prove with certainty that the DRG that her mother ingested was manufactured by Drug Manufacturer and not one of the other several manufacturers of the drug at the time the drug was prescribed to her mom.  At best, the evidence suggests that Drug Manufacturer possibly manufactured the DRG Daughter’s mom ingested.  Drug Manufacturer has moved for summary judgment, arguing that Daughter’s cause of action against it should be dismissed for failing to establish factual causation.  Should the court grant Drug Manufacturer’s motion for summary judgment?

AYes, evidence that Drug Manufacturer manufactured the drug to which Plaintiff was exposed is insufficient to establish factual case.

BNo, Drug Manufacturer produced the drug at the time that Plaintiff was exposed to DRG in utero and therefore is responsible for her injuries.

CNo, Drug Manufacturer is part of an industry that produced and manufactured DRG and is responsible for injuries caused by DRG.

DYes, Drug Manufacturer cannot be subject to liability for injuries caused by a drug to which Plaintiff was exposed prior to her birth.

AYes, evidence that Drug Manufacturer manufactured the drug to which Plaintiff was exposed is insufficient to establish factual case.

Correct. The evidence that Drug Manufacturer possibly manufactured the DRG pill is insufficient proof of factual causation, which requires proof that the defendant’s negligence more likely than not (or probably) brought about the harm to Plaintiff.

Ticky Tack Co. manufactures a chemical glue used in do-it-yourself home improvement projects.  Susie purchased the glue from Home Store to lay faux wood in her kitchen, which she has been remodeling.  In large, capital letters on the front of the container of glue was a warning stating that the fumes of the glue were highly flammable and toxic and that the glue should only be used in a place with adequate ventilation.  The box warnings also provided that all sources of fire should be extinguished.  Susie opened the windows in her kitchen, but failed to extinguish the pilot light in her gas stove.  Midway through laying the tile, the pilot light suddenly ignited the fumes from the glue, and Susie was seriously burned as a result.  In a products liability action against Ticky Tack, Susie contends that the warnings were inadequate in failing to state specifically that gas stove pilot lights should be extinguished.  Which statement regarding the adequacy of the warnings in a products liability action is correct?

AWhether the warnings were inadequate is a question of fact.

BWhether the warnings were inadequate is a question of law.

CWhether the warnings were inadequate is legally immaterial to Susie’s products liability action.

DWithout regard to whether the warnings were inadequate or not, Susie cannot hold Ticky Tack liable for her injuries because she purchased the bonding from Home Store, which means that only Home Store can be subject to liability.

AWhether the warnings were inadequate is a question of fact.

Correct. Whether a product is defective based on inadequate warnings is a question of fact.

Ladder Co. manufactures kitchen stepladders for residential use.  Dad used a Ladder Co. ladder to post a sign above the door of his home office, unaware that his five-year-old son was playing in the office.  While Dad was standing on the ladder, his son suddenly opened the door, striking the ladder.  Dad fell off the ladder, fracturing his hip.  The ladder came with no warnings about not using it in front of an unlocked door.  In a lawsuit brought by Dad against Ladder Co. for products liability, is Ladder Co. likely to be found liable?

ALadder Co. is likely to be found liable because the ladder it manufactured was a factual cause of Dad’s injury.

BLadder Co. is likely to be found not liable as a matter of law because a product seller is not subject to liability for failing to warn or instruct regarding risk that should be obvious to or generally known by foreseeable product users.

CLadder Co. is likely to be found liable because it failed to warn of the risk that resulted in the injury of Dad.

DLadder Co. is only liable to Dad if a reasonable person would have stood on the ladder as he did.

BLadder Co. is likely to be found not liable as a matter of law because a product seller is not subject to liability for failing to warn or instruct regarding risk that should be obvious to or generally known by foreseeable product users.

Correct. A manufacturer of a product is not subject to liability for failing to warn about an obvious risk.    This question asks whether a manufacturer of a product can be subject to liability for its failure to warn about a risk in using its product that is generally known.

Chair Palace manufactures various types of chairs, including an oak chair having five horizontal wooden bars that ergonomically cradle the human back.  College Student has one of these oak chairs in his dorm room.  Needing a book on a shelf out of his reach, College Student stands on the top bar of the chair in order to reach the book.  The chair tips, and College Student falls, suffering serious harm.  In a products liability lawsuit brought by College Student against Chair Palace, College Student alleges that the chair is defectively designed because it should have had the stability to support him while standing on its top bar or it should have had a differently designed back so that he could not have stood on the bar.  Is Chair Place likely to be held liable?

AChair Palace will likely not be held liable based upon a defective design of the chair because College Student’s misuse of the product is so unreasonable that the risks it entails need not be designed against.

BChair Palace will likely be subject to liability based on the chair’s defective design because College Student was injured by the chair.

CChair Palace will likely not be liable in tort because College Student was not a foreseeable user of its product.

DChair Palace will likely be subject to liability based on a defective design because it is foreseeable that a college student will misuse a chair in this fashion.

AChair Palace will likely not be held liable based upon a defective design of the chair because College Student’s misuse of the product is so unreasonable that the risks it entails need not be designed against.

Correct. An unreasonable misuse of a product will not subject the manufacturer to liability.  See Restatement (Third) Torts:  Products Liability § 2 and illustration 20 upon which this fact pattern is based.

Pool Co. manufactures aboveground swimming pools for residential use.  Because the pools are only four feet deep, Pool Co. has posted warnings in large letters on the outside of their pools that warn “DO NOT DIVE INTO POOL.  SEVERE HEAD INJURY RISK.”  While in a friend’s backyard party, Mildred, age 25, reads the warning and chooses to dive head first into a Pool Co. pool.  In doing so, she strikes her head on the bottom of the pool, suffering a severe head and spine injury.  At trial in the tort action brought by Mildred against Pool Co. to recover for her injuries, experts testify that when Mildred’s hands hit the pool’s slippery vinyl bottom, her hands slid apart causing her head to strike the bottom of the pool very hard.  Experts testify that the pool was designed to do so in order that people who may dive in would be guided away from the pool’s bottom.  The testimony is that this is the safest way to make an aboveground swimming pool.  Experts also testify that the pool in which she was injured did not deviate from its intended design.  Expert witnesses for both sides also agree that the vinyl pool liner used in the pool in which Mildred was injured was the best and safest liner available at the time and that no alternative, less slippery liner was feasible.  At trial, the factfinder determines that the warnings were adequate.  Should Pool Co. be held liable to Mildred?

APool Co. may be held liable to Mildred for her injuries because Mildred has established that its pool had a manufacturing defect that caused her injury.

BPool Co. cannot be held liable to Mildred for her injuries because Mildred has failed to establish a defect necessary to impose liability on Pool Co. caused by its defective product.

CPool Co. may be held liable to Mildred for her injuries because she was injured in one of its pools.

DPool Co. may be held liable to Mildred because she was not a foreseeable user of the pool.

BPool Co. cannot be held liable to Mildred for her injuries because Mildred has failed to establish a defect necessary to impose liability on Pool Co. caused by its defective product.

Correct. Mildred has failed to establish a defect necessary to impose liability on Pool Co. caused by its defective product.  This question asks about the need for proving a defect in order to impose products liability upon a manufacturer.  Restatement (Third) Torts:  Products Liability § 2.

Pharm Co. manufactures and distributes prescription medicine.  After many years of careful research and testing and after receiving approval from the FDA, Pharm Co. released NoAcne, a drug developed to help adolescents combat severe acne.  Three years later, Teen who was 13 years old at the time received a doctor’s prescription and began taking NoAcne for his terrible skin problems.  He took NoAcne for approximately one year as prescribed.  Two years after he stopped taking the medication, medical research discovered that NoAcne caused vision loss in teens.  Prior to this discovery, Pharm Co. had not warned of this risk.  In a products liability action based upon a failure to warn defect brought on behalf of Teen against Pharm Co., Pharm Co. moves for directed verdict.  How should the court rule?

AThe court should direct verdict in favor of Pharm Co. because Pharm Co. had FDA approval to market and distribute NoAcne.

BThe court should deny a directed verdict in favor of Pharm Co. because medical research has discovered that NoAcne causes the type of injury for which Teen is seeking recovery.

CThe court should direct verdict in favor of Pharm Co. in the absence of evidence to suggest that Pharm Co.’s testing of NoAcne was substandard or that a reasonable drug company should have discovered the side effects sooner than they were discovered.

DThe court should deny directed verdict in favor of Pharm Co. because Pharm Co. should be absolutely liable for injuries caused by medication it has manufactured and distributed.

CThe court should direct verdict in favor of Pharm Co. in the absence of evidence to suggest that Pharm Co.’s testing of NoAcne was substandard or that a reasonable drug company should have discovered the side effects sooner than they were discovered.

Correct. Pharm Co. will not be subject to liability for failing to warn in the absence of evidence to suggest that its testing of the drug was unreasonable or that it reasonably should have discovered the drug’s effects sooner.  This question asks about the liability of a drug manufacturer who learns of the dangerous quality of a drug after it is on the market and has been used for a few years.  See Restatement (Third) Torts:  Products Liability § 6.

Pharm Co. manufactures and distributes prescription medicine.  After many years of careful research and testing and after receiving approval from the FDA, Pharm Co. released NoAcne, a drug developed to help adolescents combat severe acne.  Three years later, Teen, who was 13 years old at the time, received a doctor’s prescription and began taking NoAcne for his terrible skin problems.  He took NoAcne for approximately one year as prescribed.  Two years before Teen began taking NoAcne, medical researchers published a study in a leading medical publication explaining that drugs with similar toxicological effects to NoAcne cause vision problems in teens.  Pharm Co. was unaware of the report and did not conduct further research or provide warnings to doctors about the potential for loss of vision in teens using NoAcne.  In a failure to warn lawsuit brought on behalf of Teen against Pharm Co., Teen’s expert testifies that the reasonable manufacturer would have conducted further testing into the effects of NoAcne and as a result would have warned prescribing physicians of the potential for vision loss in teens.  Pharm Co. moves for directed verdict.  How should the court rule?

AThe court should direct verdict in favor of Pharm Co. because Pharm Co. did not actually know of the possibility of vision loss in adolescents.

BThe court should direct verdict in favor of Pharm Co. because Pharm Co. had FDA approval to market and distribute NoAcne.

CThe court should deny directed verdict in favor of Pharm Co. because the trier of fact needs to determine whether Pharm Co. should be subject to liability for marketing and distributing NoAcne based on the drug not being reasonably safe due to inadequate instructions.

DThe court should deny directed verdict in favor of Pharm Co. because Pharm Co. should be absolutely liable for injuries caused by medication it has manufactured and distributed.

CThe court should deny directed verdict in favor of Pharm Co. because the trier of fact needs to determine whether Pharm Co. should be subject to liability for marketing and distributing NoAcne based on the drug not being reasonably safe due to inadequate instructions.

Correct. One could argue that Pharm Co. should have known of the study that had been published prior to Teen receiving the drug.  Therefore, a question is raised as to what Pharm Co. knew or should have known and warned about at that time.