I. Theories of Recovery Generally
· Generally – There are four theories available for products liability actions. These are:
o (1) Negligence
o (2) Strict Tort Liability
o (3) Warranties
o (4) Third Restatement.
Negligence
· Requirement of Privity: Originally courts only recognized duties created by contract. Thus, an injured party must be in privity with the offending party in order to recover.
o Winterbottom v. Wright (1842): Δ provided and maintained a coach for delivering mail under a contract with the Postmaster General. Atkinson contracted to deliver the mail and supply horses and coachmen. Π Winterbottom worked for Atkinson as a deliverer. Π was seriously injured in an accident, which Π alleges was result of Δ negligently maintaining coach. RULE: The right to recover in negligence is limited to those parties of the contract because duty to use due care only arises out of the contract [must be privity].
· Exceptions: Courts began to recognize exceptions to the privity requirement.
o Imminent danger + likely remote consumer
§ Drugs- Thomas v. Winchester (1852): Δ’s agent mislabeled belladonna as dandelion, which was sold to a druggist. Π’s doctor prescribed dandelion, Π bought Δ’s mislabeled product and nearly died. HELD: Because of the imminent danger to remote persons, Δ had a duty to remote third persons to use due care . The duty arises out of the nature of his business rather than a contract – product likely to be used by remote consumer, imminent danger of product. RULE: A duty to third persons to use due care is imposed on the manufacturer or vendor of inherently dangerous goods likely to be used by remote consumer.
§ Siphon Bottle- Torgeson v. Schultz (1908):Π was injured when Δ siphon bottle exploded. Evidence suggested that Δ knew that these bottles could explode when used as Π had and was customary. Π sued under the Thomas v. Winchester theory, that the the Δ owed a duty because of the dangerous nature of the product. HELD: Π offered sufficient evidence to submit N to the jury even though there was no privity. [under dangerous exception].
§ Inherently Dangerous- Heizer v. Kingsland & Douglass Manufacturing Co. (1892):Π’s husband was killed by a threshing machine manufactured by Δ. There was not privity of contract. HELD: A duty to third persons where there is no privity is confined to manufacturers of dangerous goods where there is no knowledge of the danger. Here, the threshing machine is not inherently dangerous and there was no knowledge, so there is no duty. RULE: Duty to nonparties of the original contract is limited to situations where the product is inherently dangerous.
o Fraud- concealing a known danger
§ Known Danger – Huset v. J.I. Case Threshing Machine Co. (1903): Δ manufactured a thresher that contained a walkway that was meant to be walked on that was inadequate and would collapse with any weigh on it. Δ knew of this defect and concealed it. Π worked for a person who purchased a thresher from Δ [no privity]. Π was severely injured, losing part of a leg when walkway collapsed. HELD: Δ owed a duty of care to Π. RULE: Where a party sells a good known [or conceals] to be imminently dangerous is liable to any third party injured.
o Invited on land to use product
§ No Cases in the reading.
· Elimination of Privity Requirement- MacPherson v. Buick Motor Co. (1916) (J. Cardozo): Π was injured when one of the wooden wheels of his automobile crumbled. Δ had manufactured the vehicle, but not the wheel, which had been manufactured by another party and installed by Δ. It was conceded that the defective wheel could have been discovered upon inspection. The Δ denied liability because the Π had purchased the automobile from a dealer, not directly from the Δ, and thus no privity. HELD: Δ had a duty to make the wheel carefully that applied to 3rd party users that were not party to the contract. RULE: Where the nature of a good is such that it is reasonably certain to be dangerous when negligently made and likely to be used by a remote person, the manufacturer owes a duty to make it carefully even in the absence of privity.
§ NOTE: Cardozo enlarged exception to cover any foreseea
Graham v. Bottenfield’s Inc. (1954): KS: Π was injured by “Miss Clairol” hair product applied by barber. Barber purchased from Bottenfields, who purchased from Clairol the manufacturer. Π sues on the implied warranty of soundness. HELD: The reasoning behind the food exception applies here: a manufacturer impliedly warrants a product is safe for human use when if offers it for sale with such intended use. RULE: There is an implied warranty of soundness for products for intimate body use.
§ Animal Food – Missouri Rule- Midwest Game Co. v. MFA Milling Co. (1959): MO: Δ manufactured fish food represented as “complete.” Food was not “complete.” Π fed Δ food to fish on its fish farm, which resulted in dead fish. Π sues under two theories: (1) breach of the implied warranty of fitness for a particular purpose and (2) negligence of Δ in failing to warn that the food was a complete food. HELD: (1) Jury could find Δ impliedly warranted that the food was “complete.” (2) Jury could find when used as a complete food Δ’s food was dangerous, thus Δ was negligent in not so warning. RULE: Animal food is impliedly warranted for soundness, at least where processed and packaged.
Implied Warranty of Merchantability- Henningsen v. Bloomfield Motors, Inc. (1960): Π purchased a new Plymouth from Δ [Chrysler also Δ] . With less than 500 miles on the car some sort of malfunction caused the car to veer 90 degrees and crash into a wall while, resulting in a total loss. The agreement contained a warranty to replace defective parts and disavowal of any other warranties in fine print. HELD: The manufacturer impliedly warranted the car to be suitable; The disclaimer is invalid for public
