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

Products Liability

Professor Owen

Fall 2012

Products Liability Study Template 2012



Strict Liability (in tort)

Rest.2d § 402A

Rest.3d § 2


· Fraud (Deceit)

· Negligent Misrepresentation

· S/L for Misrepresentation


· Express (2-313)

· Implied Warranty of Merchantability (2-314)

· Implied Warranty for Fitness For a Particular Purpose (2-315)


User Misconduct

· Contributory Negligence

· (Comparative Negligence)

· Assumption of Risk

· Misuse

Special Defenses

· Federal Preemption

· Statutes of Limitation

· Statutes of Repose

Limitations on Defectiveness

· Obvious Dangers

· Inherent Product Hazards

· State of the Art

· Deterioration

· Post-Sale Duties

Miscellaneous Defenses

· Warranty Defenses

o Privity

o Disclaimer (2-316)

o Timely Notice

· Misrepresentation Defenses

o Reliance

Type of Defect

· Types of Defects

o Manufacturing

o Design

o Warning (and Instruction)

· Defect (type) must be shown for the following claims:

o Negligence

o Strict Liability in Tort

o Implied Warranty of Merchantability

1. Manufacturing Defect

a. Generally

i. Claims usually brought for manufacturing defects

1. Strict Liability in Tort (Rest.2d § 402A; Rest.3d § 2(a))

2. Negligence (Negligent testing or quality control)

a. Less commonly used today b/c hard to prove (use SL)

3. Breach of Implied Warranty of Merchantability (UCC § 2-314)

b. Theories of Liability

i. Negligence: Use RU/CB Analysis

ii. Strict Liability

1. 402A: Consumer Expectations Test

2. 2(a): Truly Strict Liability. Product is defective if

a. the product departs from its intended design

b. is the cause in fact of the plaintiff’s harm

c. is the proximate cause of the plaintiff’s harm

d. plaintiff is harmed (personal injury or property)

c. “Manufacturing Defect”:

i. A product “contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.” Rest.3d 2(a) .

d. Malfunction Doctrine

i. When direct evidence of defectiveness is unavailable, a product defect may be inferred by circumstantial evidence that:

1. The product malfunctioned

2. The malfunction occurred during proper use; and

3. The product had not been altered or misused in a manner that probably caused the malfunction

ii. Limitation: Π must still prove the probability of defectiveness and causation, not just the possibility.

iii. The malfunction doctrine was endorsed by the Rest.3d § 3.

e. Food and Drink

i. Theories of recovery

1. * Strict Liability in Tort

a. Plaintiff must establish that

i. The food contained some dangerous element, and

ii. The dangerous element rendered it “defective.”[1]

1. Modern courts use the reasonable consumer expectations standard

2. Negligence

a. Use a state pure food act to establish Negligence Per Se

b. Usually hard to do without using NPS

3. Warranty

2. Design Defect

a. Generally

i. Claims brought under

1. Strict Liability in Tort (402A; 2(b))

2. Negligence

3. Implied Warranty of Merchantability

ii. Biggest obstacle is determining when a product is rendered “Defective” because of its design

b. Theories/Tests of Liability

i. Consumer Expectations Test (402A)

ii. Risk-Utility Test (402A; 2(b))



3. Warning Defect

a. A warning must

i. Procedural Adequacy: Be designed so it can reasonably be expected to catch the attention of the consumer;

ii. Substantive Adequacy: Be comprehensible and give a fair indication of the specific risks involved with the product ; and

iii. Intensity: Be of an intensity justified by the magnitude of the risk.


· Order of approaching claims

o The order that I recommend you should approach claims on the exam is the following

§ Design Defects (SL and Negligence)

§ Warning Defects//Manufacturing Defects (SL and Negligence, for both)

§ Warranty

§ Misrepresentation

o Feel free to change the order the order address the claims if it is apparent that Owen wants you to.

o Not every claim will be applicable to every question/product

· Types of Negligence Claims

o Manufacturing Defect

§ A Mfr.[2] must exercise care in every step of production to reduce the risk of a dangerous defect in its products.

§ Even if a Mfr. exercises the utmost care in each step of the Mfr’ing process, because dangerous defects are inevitable, the Mfr. must exercise reasonable care to catch these defects (quality assurance)

o Design Defect

§ Was the product designed “adequately,” or, on the other hand, “unreasonably” hazardously?

§ A design defect will be manifest in the entire product line

§ Could be a problem with the raw materials; component parts; manner in which they are combined; lack of safety devices; the product’s overall concept; etc.

§ Must be assessed against the availability of a reasonable alternative design (RAD): The RAD would be the B of the BPL formula. It must be weighed using RAD

o Warning Defect

§ Mfr. failed to provide adequate warning dangers and hazards posed by the product

§ Mfr. failed to provide adequate instructions on how to use the product safely

1. Negligence

o Generally

§ Elements to Prove

· Duty: Seller owed a duty to the plaintiff

· Breach: The seller breached that duty

· Cause in Fact: The breach was a cause in fact of the plaintiff’s injury

· Proximate Cause: The cause in fact was a proximate cause of the injury

· Damages: Damages for the harm suffered are recoverable in negligence

§ May want to mention that there are tactical advantages to bringing negligence by itself (more money damages because you can discuss how horrible ∆ is) or bringing claim in S/L by itself (you don’t want to prove how negligence the ∆ was)

a. Duty

i. Standard of Care

1. “Manufacturers have a duty to exercise reasonable care to refrain from selling products that contain unreasonable risks of harm.”

2. Manufacturers are held to a standard of a “reasonable manufacturer that is an expert in manufacturing that particular type of product.”

ii. Limits on Duty. A manufacturer must

1. exercise “reasonable care,” not perfect care

2. protect people foreseeably placed at risk, not all people

a. Constructive Knowledge Test: whether a reasonable manufacturer in the same position would have foreseen the victim

3. avoid against foreseeable risks, not all risks

a. Constructive Knowledge Test: whether a reasonable manufacturer in the same position would have foreseen the

ysterious and unknown

c. Π relying on RIL still must establish all the elements of negligence: duty, breach, cause in fact, proximate cause, and damage.

d. Does not work with multiple defendants: bc no one ∆ has exclusive control over the product

c. Cause in Fact: See Section Below (like on the last page)

d. Proximate Cause: See Section Below (like on the last page)

e. Damages: TBC

2. Strict Liability in Tort (SL)

a. History

i. Macpherson v. Buick Motor Co. (rejected privity-of-contract requirement in tort cases)

1. Tort Law: contributed idea that mfrs. owe a duty to “remote” consumers.

2. Contract Law: contributed idea that liability should be strict

ii. Escola v. Coca Cola Bottling Co.:

1. Facts: Court rejected res ipsa for waitress injured when Coke bottle expoded in her hand

2. Justice Traynor concurrent opinion provided policy considerations for strict liability in tort:

a. Mfr. knows consumer often will not inpsect product for defect

i. Because the product is too complex

ii. Because the consumer lacks expertise

iii. Because the consumer lacks opportunity

iv. Etc.

v. Mfr. can reduce hazards caused by defective products more effectively than consumers

vi. Mfrs. can bear the cost of liability better than consumers by incorporating the cost of liability into the price of the product; distributing the cost among the public

iii. Henningsen v. Bloomfield Motors, Inc.

1. Facts: manufacturer of a defective automobile was strictly liable to a consumer for injuries caused by defects in the car

2. Effect:

a. Stripped warranty of 2 most powerful contract law defenses

i. Lack of privity

ii. Disclaimer/remedy limitation

b. Imposed strict liability on manufacturer (under a warranty theory, not tort)

[1] Apart from deviating from a reasonable consumer’s expectations, food or drink might be defective if it is

· Unwholesome

· Unfit for human consumption

· Adulterated, or

· contains a foreign or otherwise dangerous substance of a type that consumers generally do not expect

[2] The designation “manufacturers” (mfrs.) typically covers sellers, distributors, producers, and manufacturers of products, unless referring to the actual entity that manufactures the product.

[3] From Learned Hand in United States v. Carroll Towing

[4] Owen Really likes you to be creative when you are thinking of RADs on his exam.

[5] Violation of the statute or regulation might be thought of as one of the factors necessary to establish Negligence Per Se, but don’t you dare state it that way on the exam!

[6] This element no longer exists in many states bc of the adoption of the comparative fault defense.

[SM1]Sometimes for some inexplicable reason called “Feasible Alternative Design”