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


Products Liability

Fall 2010

Exam Outline

I. Chapter One: Introduction

A. Theories of Manufacturer Liability

1. warranty law: really the fountainhead of legal doctrine centering on products

liability; Roman Law-express warranty; warranting a product will do

something the product does not live up to

B. Limiting Defectiveness

1. user choice and passage of time

2. what limits should be placed on the law of products liability

C. Retailers

1. products liability reform stats: protect retailers if manufacturing or design

defect; if manufacturers are w/in jx and solvent

2. skip the indemnity step

D. National Commission on Product Safety

1. federal agency: Consumer Product Safety Commission; Consumer Product

Safety Act

2. late sixties

3. difference b/w Products Liability (reactive) and Products Safety Law (ex ante)

4. statistical evidence of products liability law; insurance industry study

E. Effect of Tort Reform

1. phenomenon of number of suits declining but jury awards soaring; Ps will only

take sure things w/ large payouts

2. Daubert effect: no longer such thing as a frivolous lawsuit anymore

F. Circular Saw Problem

1. expert engineer shows that the design was defective b/c the spring was not

strong for protective blade to work

2. Cavanaugh: issue of whether consumer misused product; expert testifying that

product should have included brake device that was well known and

customarily used at time of manufacture; ski case

3. D failed to raise assumption of risk argument

G. 2 major types of regulation

1. detail standard: specific reqt for product; engineering decisions made for


2. performance standard: how product should react in certain situations; engineers

must figure out how to meet standard; allow industry to efficiently figure out

how to meet standard

Part I: Theories of Manufacturer Liability

II. Chapter Two: First Theory of Recovery

A. Negligence

1. P’s att’y tries products cases under negligence doctrine

2. P trying to convince jury that D did something wrong; D could have avoided

problem but failed to

3. manufacturer: consciously exposed P to unreasonable risk

4. products allow people to maximize their autonomy (unless they become slaves

to the product)

5. manufacturer has failed to respect the interests of the consumer; failed to

accord requisite respect to those consumers’ interests

6. negligence: manufacturer didn’t pay requisite attention to consumer’s interests

7. juries want to know who is at fault; Ps more likely to win and higher verdicts

(intangibles increase)

B. Negligence elements

1. “defect”

2. fault

C. Strict Liability elements

1. “defect”

D. Disadvantage of bringing negligence claim

1. have to prove fault and defect, not just defect; also, P’s actions come into play

as a defense

2. § 402A: simple contributory negligence is not a defense; unreasonable AR

remains a defense under 402A

3. need to decide what is wrong with the product no matter which theory the case

is brought under (tiny exceptions of negligent entrustment and


E. Privity Obstacle (negligence action could not be brought against manufacturer)

1. MacPherson

a. slow spread; eventually took hold everywhere (1980’s in Maine)

b. allowed negligence to be used in products liability cases against


F. Manufacturing Process: Manufacturing Defect—Fabrication and Quality Control

1. “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.” P. 53

2. Jenkins

a. lost bolt that led to car accident; suspension fell apart and brakes failed

b. manufacturer did not meet reasonable care

c. new car that had not been used unreasonably

d. question of fact for the jury; battle of the experts; D’s experts argue that

impact damaged the bolt, not manufactured that way

e. most accidents: can’t find out for sure what happened

3. Zahn

a. ashtray that knocked eye out

b. D missed sharp ashtray during quality control; bur was not supposed to

be there; in strict liability (manufacturing defect-blueprint test), open

and shut case

c. issue: did D meet standard of care

d. foreseeability: jury found that type of injury was foreseeable; not

unreasonable for jury to find that

e. D tried to argue that under CB analysis, only trivial injuries should have

occurred; doing more than was done would have been too burdensome

given probability of type of accident

f. negligence: failed to adequately perform quality control

g. there was an inspection but wasn’t good enough

h. type of interrogatories to narrow down deposition questions

i. names of dept and titles of parties responsible for making possibly

damaged machinery that manufactured defective product

j. interrogatories to find out how the defective product was manufactured

and how it might have been prevented

k. once determine how product was damaged then move on to figuring out

how the defect could have been prevented

l. find out who maintenance supervisors were for supervision of particular

machines producing the defective product; person responsible in

department for record keeping with respect to maintenance issues with

the manufacturing machines involved in production of defective product

m. plaintiff needs to be precise b/c the defense will take advantage of any

plaintiff ambiguities

n. probably want to find out who actually operates the machine

o. type of questions about maintenance: how often are the machines

inspected, etc.

p. note 4, p. 56: Nicklaus case-must prove that manufacturer was negligent

in both manufacturing and inspection; contrast w/ RS 2nd § 437

Compare Nicklaus (negligence case): “To permit recovery for negligent

manufacture, ordinarily plaintiff must show, in addition to lack of

reasonable skill in the process of manufacture, that the manufacturer

failed to make reasonable inspection or test to discover defects”; with

RS (2d) § 437 (products liability): “If the actor’s negligent conduct is a

substantial factor in bringing about harm to another, the fact that after

the risk has been created by his negli

e with defects; not a legal presumption

17. RS 3d § 4: definition of negligence; follows Hand formula

H. Warnings

1. Boyl

a. weed killer; P then dumped remnants of weed killer onto rough grass

area; 5 days later, P laid down on grass and had severe reaction to


b. negligent failure to provide adequate warning to consumer;

manufacturer failed to fulfill its duty of due care to the consumer; type

of injury was foreseeable and providing an adequate warning would

have been relatively cheap

c. D wants to build as many errors of law into the record trying to build

record for appeal; want to defend on argument that manufacturer was

not negligent in not providing warning

d. there were plenty of warnings; not specific to type of injury suffered;

warning about thoroughly cleaning and destroying container after use

shows that manufacturer should have foreseen type of injury suffered

e. P argument that weed killer is used in summer when people are more

likely to wear less clothes and sun bathe

f. warning (about danger in using or misusing product) v. instructions

(how to use product correctly; how to avoid danger)

g. note 6B, p.75: constructive knowledge; has opportunity to know if

exercising reasonable care; another way to term foreseeability

-should consider likelihood of accident and seriousness of the consequences.


2. design, manufacturing (both of these deal with the way a product is made),

warning/instruction, misrepresentation (both of these are information problems;

absence or presence of information, respectively): these comprise most of

products liability cases

III. Chapter 3: Tortious Misrepresentation

A. Introduction

1. something said about product that is false: “[M]ay arise in a products liability

context if a manufacturer or other seller communicates a false or material

statement of fact about a product to a person who is harmed by reasonably

relying on the truth of that communication.” § 3.1 from Nutshell.

“Misrepresentation claims thus require no ‘defect’ in the product but are based

on the communication of false words that cause harm.” § 3.1 from Nutshell.

2. note 5: puffing: an assertion that is not a fact; opinion is not a basis for

misrepresentation claim-no action for deceit for “sales talk” that extols the

quality of a product in general terms

3. “ Lawyer must first and foremost isolate the exact words challenged, framing

the particular context in which they were communicated, to assess whether they