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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 Defects: R(2d) § 395
(1) General Definition: Exists when some error in the overall manufacturing process causes one unit of production to deviate below the standards of product condition established by the manufacturer for his normal production (i.e. mouse in the Coke bottle; exploding Coke bottle).
(a) Could include manufacturing process itself, or the testing/inspection processes.
(i) Might have to show negligence in both, but probably not.
(ii) A manufacture’s testing/inspection system will not catch EVERY defect. Therefore the determination is whether the manufacturer’s quality control system meets reasonable care.
(a) Cannot simply rely on the reputation of the component seller.
(iii) Can use Risk-Utility method to determine negligence.
(a) If the cost to prevent the defect is cheaper than the cost of the defect (i.e. tort claims, etc.) the manufacturer has a duty to cure the defect, or he breaches his duty.
(2) R(2d) § 395: a manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its

) 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.

d) Warning Defects: R(2d) § 388
(1) General Definition: a product that is arguably in a non-defective physical condition, but is rendered defective by inadequate warnings and/or instructions (i.e. failure to warn about the danger of serious illness if fumes from a chemical product or dust from an insulation material are inhaled).
(2) R(2d) § 388: one who supplies a chattel is subject to liability to those whom the supplier should expect to use the chattel or to be endangered by its probable use, for physical harm caused by use in the manner for which and by a person for whose use it is supplied, if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be dang. for the use for which it is supplied; and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition (may have a duty to remind though too), and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
(3) Belly Flop on the Triox
(a) A manufacturer of dangerous products must provide warning for all incidental and attendant uses.
(i) Boyl v. California Chemical Co. (1963) [10] (a) Boyl, who suffered injuries after lying on grass that had previously been sprayed with weed killer, contended that California had failed to provide proper warning labels on its Triox weed killer product.
(b) Ct: D was negligent by failing to any reasonable notice or warning of a risk or danger to her personal safety from contact with earth lately contaminated with the triox.
(4) Standard of Care
(a) Danger Must Be Foreseeable. If the danger is something that science does not know of, supplier has no duty to warn because there is no reasonable foreseeability. There is not duty in negligence for unforeseeable dangers;
(b) Manufacturer an Expert. Manufacturer will be deemed negligent if they knew or should have known of the danger: manufacturers are deemed experts in their field. Olson v. Prosoco (1994) [73cb];
(c) Warning Must be Accurate. Warning must clearly state the danger to be adequate. It must not rely on the user to infer what the danger is. Boyl v. California Chemical Co. (1963) [10].
(5) Substantive and Procedural Warnings
(a) Substantive: substantive information must be adequate.
(b) Procedural: warning must be easily seen and read (can sometimes have too much warning and work against conspicuousness).
e) Plaintiffs: any ultimate user, consumer or bystander may maintain an action (no privity of contract requirement).
Summary: no matter how well the product is constructed or manufactured, there is still liability if the manufacturer fails to give reasonable