PRODUCTS LIABILITY
William Powers
Fall 2001
I. INTRODUCTION TO PRODUCTS LIABILITY:
A. What is PL?
1 In torts, there are “causes of action.” There are certain requirements to meet.
2 PL is NOT a coa. It is a set of theories surrounding a particular problem. Injuries to consumers caused from certain product use. (Firestone Tires, asbestos, pharmaceuticals). Injuries are usually “personal”, and sometimes property damage.
B. Theories of liability:
1 Warranty Theory–sale of a product–K and warranties. UCC 2-715 provides a remedy for breach of warranty for personal injury.
2 Fraud Theory–company sells a product and knowingly misrepresents the product. (Tobacco cases relied on this theory–tobacco companies knowingly mislead the public).
3 Negligence Theory–manufacturer of product was negligent in making the product and he could foresee personal injury.
4 Statutory Theory–Texas Deceptive Trade & Practices Act. (DTPA), OSHA violations, FDA regulations on products.
5 Strict Tort/Products Liability–embodied in Rest.2d Sect. 402a. Allows recovery for personal injury and property damage even where there is no fault on the part of the defendant. (We focus on this theory in class).
C. History of PL in the Twentieth Century:
1 Before 1916: we had a special body of law for injuries caused by products. Different from K or negligence cases; special rules applied to this body. Special rules for PL–plaintiff friendly.
a. First cause of action was K law.
(1) Seller violated the K when product caused injury. A faulty product breached a K. But products became more “mass marketed” and someone who did something wrong did not necessarily sell to the consumer. A retailer was the middleman. K claim had a problem b/c no privity existed.
b. Second cause of action was negligence.
(1) The manufacturer was negligent in making a defective product. But if negligence was the claim, the only person who could recover was the person who bought directly from the manufacturer. Again, no privity of K. Negligence duty only ran to the person who had privity of K–no one could recover b/c everyone purchased from a retailer. (Not ordinary tort law where strangers can recover).
2 1916: MacPherson v. Buick Motor Co. (Doctrinal case–like Pfalsgraf)
a. Buick got wheel from supplier, but Buick should have inspected the wheels before selling it to the retailer. Claimed Buick was negligent. But rule said that since party was not in privity of K with Buick, he couldn’t recover.
b. Exceptions arose: inherently dangerous products (poison, etc). Dangerous products as defective.
c. H: don’t need privity of K as long as product is dangerous if defective. Doesn’t overturn the rule, but says it reaches this area. “Dangerous if defectively made.” But that is a ton of products. He basically did away with the privity rule… There are no longer any special rules for products liability…….
d. Progressive Movement:
(1) Normal negligence and K law were found insufficient to protect people from defective products. Progressive movement was for the most part, political.
(2) Fleming James thought tort liability, generally, ought to be strict liability and not based on fault. If injure someone, you have to pay. (Strict Liability ought to apply to personal injury).
(3) Negligence and K law are insufficient for products liability. Product cases are special…again, like in 1900…
(a) why are they special?
i) K law–they are a mass marketed products, not bargained/negotiated for. In K law, you could set the terms and disclaim warranties, etc. Also privity problems…
ii) Negligence law–normally you can waive K liability. (Express assumption of risk as a waiver of K liability).
a) Take MacPherson, for example….lack of investigation of the wheels as negligence. The negligent conduct took place before P had any connection with the product, and it took place inside D’s factory.
b) So hard to prove specific acts of negligence as a practical matter.
(4) 1944: Escola v. Coca-Cola Bottling Co.: P claimed negligence. SC said res ipsa loquiter was sufficient to find negligence. But Justice Tranor wrote a dissent saying products liability should have its own law and not be held under negligence law.
3 1963/1965: Greenman v. Yuba Power Products (1963)
a.
b. Strict Tort (Products) Liability–doesn’t require privity of K; don’t have to prove fault.
c. Restatement 2d §402A embodies this theory. Approved in 1965. Tx adopted the theory in 1967.
Traynor wrote for the majority saying products liability had its own theory of liability, a part from negligence or K law.
4 1998: with 35 years of experience of the body of law, this area is now very complex, and cannot just be summed up in one Restatement provision. Last year, a new Restatement Section was developed concerning Products Liability. A book, not a section…
D. Other Theories:
1 Strict products liability is NOT the only theory used in products liability. Attorneys often forget to use/defend against these other theories…
2 There are three other theories:
a. Negligence
b. Misrepresentation
c. Warranty/K theory
II. NEGLIGENCE THEORY:
A. Probably the most important. Everything learned in torts can apply to products liability. The recurring theme is how to separate negligence from strict torts (products) liability.
B. Elements: For P to recover, he must prove elements of negligence: duty, breach, cause in fact, proximate cause, and damages.
1 Defenses may include contributory negligence (comparative negligence in all but 4 states).
2 Duty to use reasonable care. But generally, there is no duty to rescue; no duty to prevent pure emotional harm; no duty to prevent pure economic harm; no duty to trespassers; etc.
3 Breach: Not absolute liability, just the care of a “reasonably prudent person” who must guard against “foreseeable” risks. B<PL. In defining a reasonably prudent person, usually take into account physical, but not mental deficiencies. Superior knowledge and skills are taken into account. In PL, ask the jury what is the reasonable care of a person in the business of manufacturing pharmaceuticals…usually an expert in the product and its risks.
a. Breach of statute or trade custom may come into play in a PL case.
4 Cause in Fact: “But for the negligence, would have the injury occurred?”
5 Proximate (Legal) Cause: negligence on part of D and injury on part of P. Sometimes the causal effect was “too remote” for liability. Some injuries are beyond the scope of proximate causation. Some courts use the “direct” test; others say, “was the injury in the bundle of injuries that were foreseeable?”
6 Damages:
C. Problems with the theory:
1 Two big problems with Negligence Theory in 50’s and 60’s:
a. Events that occurred a long time ago, and in the defendant’s factory.
(1) In 1963, almost all courts used contributory negligence as an absolute bar to recovery, and in products cases, the plaintiff will almost always be used by the plaintiff; the injury will usually be caused by a combination of defendant’s negligence and plaintiff’s negligence.
b. Wanted to get away from the doctrine of contributory negligence.
SEPTEMBER 5th:
SEPTEMBER 6th:
D. UCC 2-313 – Express Warranty: (Pg 55)
1 do not often find express warranties dealing with product safety.
2 but if breach is found, then automatic liability–gets around the jury question of whether the product performed correctly. If a promise is made about the performance, and the product does not live up to those expectations, you can recover for breach of express warranty.
3 crucial question is often interpreting the warranty. “What does the warranty mean?”
4 Ex: plaintiff claims the ski binding ad said skis will release in every direction. Plaintiff fell and skis did not release–injuring him. Plaintiff sues def. b/c binding did not release. Def. says he did not promise they will always release in every direction, but just that the bindings will equally release in all directions. So the question is what the warranty really meant…..
5 Requirements:
a. applies to every kind of defendant. Applies to you even if you sell a car to your neighbor. (It is not limited to merchants). Applies to any seller making express warranty, merchant or not.
(1) but if there is a chain of distribution (manufacturer, retailer, wholesaler, etc), then the express warranty only applies to the def. who made the warranty, and not everyone else in the chain. If manufacturer makes the express warranty, the retailer is not liable for breach of that warranty.
b. warranty has to be the basis of the bargain, and the contractual promise has to be more specific than a normal contractual promise. An express warranty is a contractual promise about the quality of the product. But it does not
s not used.
E. Rest. 2d. 402b: innocent misrepresentation:
1 fraud requirements + in a product sale where there is a misrepresentation made to the public, there is no requirement for intent.
2 fraud:
a. misrepresentation of fact
b. statement must be false
c. D has to know it is false
d. D has to intend that the P rely on the information
e. P has to rely justifiably to his detriment.
f. Damages can be purely economic
3 opinions are not fact….”this is a great car.” Sales talk/puffing does not count as fact.
4 predictions about the future are not misrepresentations of fact.
5 representations about your current intentions do constitute representations of fact. “I will be here Friday.” Yet, you know you will not be here on Friday, that is a misrepresentation..
6 only applies if seller is in the business of selling the product (not a garage sale), has to be a public representations (advertisement), and there must be personal injury.
7 There can still be issues re: misrepresentation of fact. It still has to be a misrepresentation of fact
F. Negligent misrepresentation:
1 Viable in many jurisdictions, including Texas.
2 same as fraud but:
a. Should have known it was false
b. Should have known you would rely
3 only applies to commercial transactions
4 class of people who can recover is restricted. The category of persons to who the misrepresentation was actually made.
IV. BREACH OF WARRANTY / K THEORY:
A. UCC provisions:
1 2-313: express warranty
2 2-314: implied warranty of merchantability
3 2-315: implied warranty of fitness for particular purpose
B. Policy for negligence/tort law:
1 should take other’s interests into account in a reasonable manner. Should act in the best interests of others; take into account others. Ideology of utilitarianism, deterrence, etc.
2 gives institutional power to juries. Locates power on the jury to decide how people ought to behave. The jury decides if the person drove reasonably, designed the product reasonably.
3 K law has an entirely different set of policies:
a. K law has the philosophy of libertarianism. People should be able to make your own deals. We don’t care how much you sell the product for, as long as the two fo you discussed the price, etc.
b. locates power in market transactions.
4 When we get to PL, these two worlds collide. The deal and sales part of the transaction trigger the K side of the brain, while the reasonableness/negligence trigger the tort side of the brain.
5 Breach of Warranty is still a useful theory, but by-in-large, the Torts theory won with regard to PL.
C. History of K law:
1 theoretically applied to all products sales, but turned out not to be veery effective for the plaintiff. Often, there was no term in the K talking about product sales, or there was a term in the K disclaiming any liability, or there was no privity between the parties. (So in a practical matter, it was not very effective for PL law).
2 Henningsen v. Bloomfield Motors:
a. sets the tone for the warranty theory.
b. implied warranties were imposed, irrespective to the parties’ negotiations.
c. people can recover even if not in privity with each other.
d. if the seller tries to disclaim a warranty, it is difficult to do.
3 this mentality is picked up by the UCC, which is adopted by the states in the 1960s.
a. 99% of warranty claims refer to the statutory UCC.
b. Express Warranty, Implied Warranty of Merchantability, Implied Warranty of Fitness for a Particular Purpose.
