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Products Liability
University of Kansas School of Law
Westerbeke, William E.

I. INTRODUCTION
A. BASIC THEORIES OF LIABILITY
1. DEFECTIVENESS
a) Generally: a product lacking the minimum product condition or quality imposed by operation of law; liability is not dependent on whether the seller has made any representations about the condition, quality or performance of the product.
b) Types of Product Defectiveness
(1) Manufacturing defects
(2) Design defects
(3) Defects in warnings and instructions
c) Theories Based on Defectiveness
(1) Negligence. R(2d) §§ 388-402.
(2) Implied Warranty of Merchantability. UCC § 2-314.
(3) Strict Liability in Tort. R(2d) § 402A.

2. MISREPRESENTATION
a) Generally: a product lacking the condition, quality or performance characteristics that the seller represented it to have; liability is not dependent on whether the product is actually defective.
b) Theories Based on Misrepresentations
(1) Fraud or Intentional Misrepresentation.
(2) Negligent Misrepresentation.
(3) Express Warranty. UCC § 2-313.
(4) Implied Warranty of Fitness for a Particular Purpose. UCC § 2-315.
(5) Strict Liability for Public Misrepresentation. R(2d) § 402B.

B. THEORIES BASED ON PRODUCT DEFECTIVENESS

1. NEGLIGENCE: R(2d) §§ 388-400

Negligence presents a viable and dominant cause of action even though courts seem to shy away.
Elements:
(1) Duty: A product seller has a duty of reasonable care to avoid the sale of a product in an unreasonably dangerous defective condition regarding assembly, design and warning.
(2) Breach: The seller breached that duty; it knew or should have known about the defective condition and failed to take reasonable precautions to eliminate it.
(3) Causation: The breach of duty was a cause-in-act and proximate cause of plaintiff’s damage.
(4) Damage: Death, personal injury or physical damage to property.

a) CHAIN OF SUPPLY AND DISTRUBUTION PROBLEMS
(1) Historically, privity of contract posed problems for recovery.
(a) Winterbottom v. Wright (1842) [7] (i) Claim was rejected premised on the possibility of opening the door up to an floods of actions.
(ii) Gave rise to the thinking that you had to be in privity of contract to sue under a negligence products action.
(iii) Existed into the early twentieth century recognizing three exceptions as set forth in Huset v. J.I. Case (1903) [41cb]. The exceptions were:
(a) Imminently dangerous to life;
(b) Property owner’s negligence;
(c) Failure to warn.
(2) This line of reasoning continued until the landmark case of MacPherson v. Buick Motor Co. (1916) [7] (a) MacPherson purchased an automobile from a retail dealer who had acquired the car from Buick, was injured when a defective wheel gave way causing the car to collapse.
(b) The court held that a manufacturer of a product which, if negligently constructed is reasonably certain to be dangerous to life, is liable to indirect retail purchasers for injuries caused by such negligent construction.
(i) “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.”
(ii) The manufacturer does not have to catch EVERY defective component. They are only required to establish an acceptable testing method to catch the defective products
(c) This court made the inferential step from the Huset exceptions and extended around the privity bar to any product defectively made.
(i) Privity became virtually obselete. It’s motive of protecting manufacturers is applied through the mechanisms of products liability itself.
(ii) Normal negligence principles ruled the class of people who could bring suit.
(d) This landmark case gives expression to law as it remains even today.
(3) The Component-Part Manufacturer’s Duty
(a) Imperial Wheel in MacPherson
(b) Duty of reasonable care in the design of the part, the selection of proper materials, the manufacture or fabrication of the part, the testing and inspection of the part, and the providing of adequate warnings and instructions.
(4) Finished Product Manufacturer’s Duty
(a) Buick in MacPherson
(b) Same duty as component part manufacturer’s duty; Duty to test and inspect exists even though the manufacturer has selected a reliable component part supplier and even though the component part supplier has already tested and inspected the component part.
(i) Independent duty to inspect
(ii) Agency/vicarious liability
(iii) Res Ipsa Loquitor
(a) Escola v. Coca-Cola (1944) [24] (i) Res Ipsa can apply even if there are multiple defects that could have caused the injury.
(ii) Although multiple defects could have caused the bottle to explode, the fact that the manufacturer would have been responsible for two of them is enough to apply.
(5) Non-manufacturer Product Seller’s Duty
(a) A retailer, wholesaler or distributor has a duty of reasonable care in the performance of those functions performed by the seller, including warnings and instructions about use, assembly or installation functions, and warnings or other precautions about known dangers; but has no duty to test or inspect for latent dangers.
(i) Agency/vicarious liability
(ii) R(2d) § 400 – One who puts out as his own product a chattel manufactured by another is subject to the same liability as thought he were its manufacturer.
(a) Imputed Fault Doctrine: If you hold yourself out as the manufacturer of a product, you have the same liability as you were its manufacturer.
(b) Two situations
(i) MacPherson type case;
(ii) Generic labels in grocery stores.
(6) Non-commercial Product Supplier’s Duty
(a) A product supplier not in the business of selling such a product has a duty of reasonable care to warn about known dangerous conditions that he has no reason to believe the plaintiff is likely to discover.

PRODUCT DEFECTS BASED IN NEGLIGENCE

b) Manufacturing Defe

er of a chattel made under a plan or design which makes it dangerous for the use for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.
(3) Standard of Care
(a) Negligence only requires defendants to do that which is feasible.
(b) Safety standards
(i) Failure to comply with safety standards will almost always result in a finding of negligence
(ii) Compliance with safety standards is some evidence of reasonable care, but is not dispositive. Metzgar v. Playschool (1994) [9].
(a) This can go either way (i.e. compliance may not be enough, while non-compliance may also be insufficient to show negligence like the flammable textile act).
(c) Design should be tested at the factory level, not on consumers (“It never happened before!”).
(i) Compliance with industry custom or standard may be evidence of reasonable care, but it is not conclusive as the entire industry may fail to exercise reasonable care.
(4) Courts should not decide as a matter of law that a product’s utility outweighs its risk if the product presents a realistic risk of danger in its use.
(a) Metzgar v. Playskool (1994) [9] (i) A court concluded, as a matter of law, that the utility of Playskool’s product outweighed its risk of danger.
(5) Risk-Utility Test
(a) Negligence in design is determined by whether manufacturer exercised due care in the circumstances, which involves “a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of precaution which would be effective to avoid the harm.”
(6) In negligent design claims, it is well established that a manufacturer or seller is not liable in the absence of proof that a product is defective.
(a) Thus, P must prove two elements
(i) The D failed to use reasonable care in designating the product; and
(ii) That failure resulted in a defective product
(7) A federal statute of regulation may “preempt” state products liability law, however, in which case compliance is a complete defense.
(8) T.J. Hopper rule [66cb]: while industry practice or custom is important evidence of the reasonableness of the defendant’s conduct, it generally is not conclusive, since the industry as a whole may have been derelict in failing to adopt precautionary procedures dictated by ordinary prudence.