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
ponent-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.
