STRICT PRODUCTS LIABILITY
I. DUTY
A. WHAT IS THE DUTY OR STANDARD OF CARE?
1. Strict duty to provide a non-defective product in its intended or reasonably foreseeable use
2. No requirement D was negligent
B. DOES D OWE THE DUTY?
1. Is D a commercial supplier?
(Commercial supplier = all participants in the marketing of the product who cause the product to enter into or pass the product along the “stream of commerce”)
a. If D is a commercial supplier, D is subject to strict liability for defective product, i.e.,
1) Manufacturers & assemblers
2) Retailers, distributors & wholesalers
3) Lessors
4) Sellers of used products – split
a) Some courts – strictly liability for safety defects which conflict with purchaser’s reasonable expectations
b) Some courts – no strict liability unless seller makes representations re quality
b. If D is not a commercial supplier, D is not strictly liable (e.g., endorsers, publishers of ads, incidental sellers)
2. Is D the furnisher of a product or a service?
a. GR: Strict liability does not apply to the rendition of services, especially professional services
1) Medical providers not strictly liable for “defective service”, including diagnosis and treatment
2) Pharmacists not strictly liable for selling prescription drugs
3) Courts look for dominant aspect when D is providing hybrid services & product
4) Strict liability does not apply if product is not defective & injury is caused by manner product is serviced or installed
b. GR: Strict liability does apply to defects in products in their natural state
C. DOES D OWE A DUTY TO THIS P? WAS P INJURED BY A DEFECTIVE PRODUCT?
1. If yes, virtually all states – any person injured by a defective product can invoke strict liability
2. Potential P’s may include product purchasers, product p
should have performed cannot be answered by
the common experience of its users
3) If P can’t rely on consumer expectation test, P must prove that D’s design choice was a cause of P’s harm, then burden shifts to D to show that there is not “excessive preventable danger”
Doesn’t apply if experts are required!
b. “Excessive Preventable Danger” or Risk/Utility Test – D must prove the product’s design does not embody “excessive preventable danger”, that is, that the benefits & utility of the product outweigh the risks of danger inherent in the design based on the following factors (from Barker)
1) Gravity of danger posed by challenged design (analyze each danger)
2) Likelihood danger would occur
3) Mechanical feasibility of safer
