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Products Liability
University of South Carolina School of Law
Owen, David G.

Products Liability Exam Outline – Owen, Fall 2011

Outline for an exam question for PL: figure out what it is that the manufacturer did improperly, usually the untaken precaution. What type of wrong was it? Design or manufacture defect, failure to warn. Then look to a theory of recovery. Negligence is typically the largest judgments since the jury feels that the ∆ was wrong and should have prevented the harm – could have a negligent design or warning case.

Duty – Manufacturer’s must act with regard to reasonably foreseeable risks and must produce products that are reasonably safe for their reasonably foreseeable uses and misuses.

The π must show that she was using the product properly or at least foreseeably, while ∆ can raises improper use as a defense.

Product Defects

Third RST of Torts: Products Liability decided to abandon the single definition approach used in 402A and to replace it with separate functional rules for manufacturing defects, design defects, and defects due to failure to warn was its most fundamental change.

§1 Liability of Commercial Seller of Distributor for Harm Caused by Defective Products

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

§2 Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

(a) Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparations and marketing of the product;

(b) Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

(c) Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Part I: Theories of Manufacturer Liability

A. Negligence

To prove any PL claim sounding in negligence a plaintiff must establish that the seller owed a duty to plaintiff, that the seller breached that duty, that the breach of duty was a cause in fact of the plaintiff’s injury, that the cause in fact was a proximate cause of the injury, and that damages for the harm suffered are recoverable in negligence.

DUTY: Manufacturers have a duty to exercise reasonable care to refrain from selling products that contain unreasonable risks of harm. This duty is limited to requiring protection only persons foreseeably placed at risk and to avoiding only risks that are foreseeable, not all risks.

BREACH: A breach of duty is established by proving that a manufacturer or other product seller failed to conform to the standard of reasonable care that defines the duty. [Because the duty required by negligence is defined in terms of reasonable care, the mere fact that a product is defective will not ordinarily establish breach. Instead, to establish breach, a plaintiff must establish both that the product was defective and that the manufacturer was negligent in some manner in making or selling the product in that defective condition..]

In determining breach of his duty of ordinary care, most courts use the formulation of Judge Learned Hand, or a comparable risk-benefit model. Manufacturers are charged with duty of design, manufacture, and marketing commensurate with an expert’s awareness of the particular product’s foreseeable environments of use and special dangers within that environment. This duty is limited by reasonable foreseeability. If manufacturer violates a safety statute in a manner that harms a plaintiff, the doctrine of negligence per se may permit a plaintiff to establish the breach of the defendant’s duty by proving the statutory violation. The appropriate standard of behavior is set by a statute or regulation if the plaintiff was injured by the type of risk the statute was intended to prevent and the plaintiff was in a class of persons the statute intended to protect.

(A) Negligence- Difficult to prove because have to prove defect AND fault, unlike SL which is only defect.. There can be negligence in manufacturing, design, or warnings. Juries respond more favorably to negligence than SL. Did the manufacturer consciously expose the plaintiff to an unreasonable risk? Did the manufacturer pay the requisite attention to the consumer’s interests?

Four elements must be present for a product liability case to be considered under the negligent tort principles:

The particular defendant owes a duty to the particular plaintiff to act as a reasonably prudent person under the same or similar circumstances.

There is a breach of such a duty by the defendant—that is, a failure to act reasonably.

There is an injury, including personal injury or property damage.

There is a causal link between defendant’s breach of duty and injuries sustained by the plaintiff.

The breach is commonly determined by balancing the burden of safety precautions against the safety benefit the precautions seek to provide. The Hand Formula assesses the reasonableness of an act or omission by evaluating a calculus of 3 factors: the burden of taking precautions balanced by the likelihood that the actor’s conduct will produce the harm multiplied by the seriousness of the harm. If B is less that P*L then N.

MacPherson v. Buick Motor Co. (1916) Allowed negligence to be used in PL cases against manufacturers. “Has become in short, a general rule imposing a duty on manufacturers to make products carefully. ∆ cannot rely on its suppliers; it is responsible for the finished product and is not at liberty to put the finished product on the market without ordinary inspection

The general rule: imposing negligent liability upon all sellers of chattels, whether damages is to person or property, whether the manufacturer produced the whole product or a significant component part, whether the injured person was the immediate purchaser or subsequent.


“Whether the manufacturer will be liable in negligence to such persons will depend upon a determination of whether the manufacturer’s production and quality control procedures were conducted with “reasonable” care.”

Zahn D missed sharp ashtray during quality control, in SL open and shut case, here have to show negligence in quality control proceeding – use interrogatories to find out how defective product was manufactured, how it could have been prevented, who manufacturing supervisors were, and who operates the machine. Be precise. “How often is inspection?”

When dealing with quality control procedures – Nicklaus case-must prove that manufacturer was negligent in both manufacturing and inspection; contrast w/ RS 2nd § 437, which says negligence in manufacturing is enough. reas. care afterward is irrelevat.

Glazer: elements: (1) a product defect, and (2) negligence in making or selling the product with the defect. Theory that a manufacturer cannot ordinarily be negligent for making and selling a non-defective product, a product that is good. Negligence stat of limitations may be longer than stat of limitations for strict liability

NEGLIGENCE IN DESIGN – in the design context negligence is based on a decision to design the product failing to take cost effective precautions to avoid foreseeable preventable accidents

Metzgar v Playskool – π argues there was an untaken precaution/ alternative design (B)<(PxL) implies neglige

ds or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.

(2) Implied Warranties (Merchantability and Fitness for a Particular Purpose)

An assurance, imposed by law upon a seller that a product is reasonably suitable to the general uses for which it is bought and sold.

§ 2-314. Implied Warranty: Merchantability [limited to merchants]; Usage of Trade.

(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as

a. pass without objection in the trade under the contract description [exploding flashcube]; and

b. in the case of fungible goods, are of fair average quality within the description; and

c. are fit for the ordinary purposes for which such goods are used [FIT means reasonably suited for the general purposes for which such an article is sold and used]; and

d. run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

e. are adequately contained, packaged, and labeled as the agreement may require; and

f. conform to the promise or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade.

§ 2-315. Implied Warranty: Fitness for Particular Purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

Arises in one-on-one dealing between a buyer and a seller that is calculated to create quite explicit expectations in the buyer that the product the seller selects will safely and effectively accomplish the buyer’s particular task. Unlike 2-314, 2-315 requires reliance (and seller’s knowledge of that reliance). Envisions specific use by the buyer which is peculiar to the nature of his business. Owen states that purposes cannot be both ordinary and peculiar.

Parties and Privity: What defendants are bound by warranties and what plaintiffs obtain their benefits? Vertical privity defense, in chain of distribution, was expressly abolished by statute in several states. Originally, the only ones liable were the ones who sold the article directly to the consumer, thus manufacturer’s could escape liability through the privity requirement. After Henningsen in 1960, most jurisdictions abolished the manufacturer’s vertical privity defense in implied warranty actions involving durable goods. Most court now hold that express warranties in advertisements run directly to purchasers, despite absence of privity of K. Some states still maintain a vertical privity requirement for warranty claims, however. Horizontal privity is addressed by 2-318.