Advanced Torts Final Outline
Professor Brogan – Spring 2016
INTRODUCTION TO PRODUCTS LIABILITY
Winterbottom v. Wright (1952)
Facts: The Defendant contracted with the Postmaster General to keep coaches in working order. The Defendant failed to uphold his duty and the Plaintiff was injured as a result.
Rule of Law: A Plaintiff cannot bring tort claims against a defendant for nonfeasance that resulted from a contract, which Plaintiff was not privy to.
No liability absent some direct contractual relationship
MacPherson v. Buick Motor Co. (1916)
Facts: The Plaintiff bought a car from a retail dealer and was injured when a defective wheel collapsed. Plaintiff sued Defendant, the original manufacturer of the car, on an action for negligence. Defendant had purchased the faulty wheel from another manufacturer and Defendant failed to inspect it.
Rule of Law: If a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists.
This case eliminated the privity rule of Winterbottom
Finds duty of manufacturers directly to customers even without a direct contract based on a theory of negligence
Escola v. Coca Cola Bottling Co. (1944)
Facts: A bottle of Coke manufactured by Defendant exploded in Escola’s hand.
Rule of Law: A manufacturer incurs absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to humans.
Res Ipsa Loquitur: plaintiff must show (1) defendant had exclusive control of the instrumentality; (2) the accident was more likely than not caused by negligence
This only creates a presumption of breach and the defendant can always rebut this presumption
Justice Traynor’s Rationales for Strict Liability:
Loss Minimization: the manufacturer is in the best and most knowledgeable position to minimize losses that arise out of the general use of its product
Loss Spreading: the manufacturer is better able to spread the damages among many consumers
Elimination of Proof Complications: simplifies the law by eliminating the need to resort to res ipsa, which raises issues of prooving exclusive control
Corrective Justice: once plaintiff establishes the causal connection to defendant’s act, the loss should be placed on the party who created that condition, not the part who suffered because of it
Greenman v. Yuba Power Products (1963)
Facts: The Plaintiff was injured when his Shopsmith combination power tool threw a piece of wood, striking him in the head. Plaintiff sued and the Defendant, the manufacturer, defended claiming that Plaintiff’s breach of warranty claim was barred due to his failure to give timely notice.
Rule of Law: Individuals injured by products with design or manufacturing defects may bring suit under strict liability regardless of a failure to give timely notice to the manufacturer for a breach of warranty.
This majority opinion announces strict liability standard for defective products
MODERN PRODUCTS LIABILITY
Prima Facie Case Elements
Plaintiff has suffered an injury
Defendant sold a product
Defendant is the commercial seller of such products
At the time it was sold by Defendant, the product was in a defective condition
The defect functioned as an actual and proximate cause of Plaintiff’s injury
Justifications of Strict Liability in Products Liability
Attributes of food transaction – implied warranty
Consumer reliance on food safety because seller put food on the market for consumption and consumer has reliance interest on that distribution
Product malfunctions and frustrates consumer expectations, causing injury
All of this is foreseeable from the seller’s perspective
More difficult for plaintiff to prove negligence
Other Terms
Injury – Economic Loss Doctrine: plaintiff who suffers no physical injury cannot recover – other recourse available
Product: strict liability only applies to products liability, not services – contract law works for services
Sellers: manufacturers and retailers, distributors, dealers, etc.
Retailers & Distributors: under the Third Restatement, strict liability is imposed on wholesale or retail seller who neither knew nor should have known the relevant risks, nor was in the position to have taken action to avoid them, as long as the predecessor in the chain of distribution could have acted reasonably to avoid the risks
Vandermark v. Ford Motor Company: A manufacturer is strictly liable in tort because it placed the car on the market knowing that it was to be used without inspection for defects, that it did indeed have a defect, and that defect caused an injury.
Casual Sellers: under the Third Restatement, casual sellers are not subject to strict liability
Tillman v. Vance Equipment Co.: public policy favors protecting used dealers and allowing consumers to purchase goods at lower rates – if buyer wants assurance of quality, can either bargain for it or seek out dealer who routinely offers it
THE RESTATEMENTS
Restatement (Second) of Torts §402A
Business of Selling: the rule applies to any person engaged in the business of selling products for consumption
The rule does not apply to the occasional seller of food or other products [casual sellers]
Defective Condition: the rule applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him
Manufacturer not liable is there is subsequent mishandling by the user
The burden of proof of a defective condition is on the injured user
A produce is not in defective condition when it is safe for normal handling and consumption
Unreasonably Dangerous: the rule applies only where the defective condition of the product makes it unreasonable dangerous to the user or consumer
Some products cannot be made entirely safe for consumption – food + drug – product sold must be dangerous to an extent beyond that which would be contemplated by an ordinary user
Directions or Warning: the seller may be required to give directions or warning to the customer as to the use – when provided, the seller may reasonably assume that it will be read and heeded
Unavoidable Unsafe Products: there are some products in the present state of human knowledge that are quite incapable of being made safe for their intended and ordinary use
Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous
Contributory Negligence: not a defense, failure to discover defect is not a defense
Restatement (Third) of Torts: Products Liability
Liability of Commercial Seller or Distributor for Harm Caused by Defective Products [§1]: 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
Categories of Product Defects [§2]: 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:
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
Is defective is 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 and the omission of the alternative design renders the product not reasonably safe
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 the predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Casa Clara Condo v. Charley Toppino & Sons, Inc. (1993)
Facts: Plaintiff installed defective concrete, which was manufactured by Defendant. Plaintiff suffered only economic loss, but sought to recover in tort.
Rule of Law: For recovery in tort, there must be a showing of harm above and beyond disappointed expectations.
Contract principles are more suited for recovery here than tort – allows those who enter into contracts to assume risks and bargain accordingly
MANUFACTURING DEFECTS
Manufacturing Defect: a defect in the produce that was not intended; occurs when a product departs from its intended design and is more dangerous than consumers expect the product to be
Manufacturing defects occur when there is a failure in quality control
The injured party must prove:
The injuries resulted from the product,
The product was different than the other products of the line, and
The difference is what caused the injury
The injured party does not have to prove what the manufacturer did to cause the defect
Usually, because of the impossibility of the plaintiff in proving where in the manufacturing process the negligence took place, strict liability is used as the underlying theory of liability
Restatement Test:
The product was defective at the time of sale,
The product didn’t change substantially before reaching the plaintiff, and
The defective condition proximately caused the injury
Restatement (Third) of Torts: Product Liability
Circumstantial Evidence Sup
element of the cause of action – if proven, the Plaintiff wins
Introduces the risk-utility test – if utility of current design is less than risk imposed by it, it is defective
The consumer expectations is only a floor for liability
Alternative Designs
Third Restatement: plaintiff must show a reasonable alternative design even if plaintiff alleges category of product sold by defendant is so dangerous that it should not be on the market
The court may consider a broad range of factors in considering whether design is reasonable and whether its omission renders product not reasonably safe
Magnitude and probability of foreseeable risks of harm
Instructions and warnings accompanying product
Relative advantages and disadvantages of product as designed and as alternatively designed could have been designed
Effect of alternative design on production costs, longevity, maintainence, repair, etc.
Manufacturer is held to the level of knowledge at the time of sale
Denies strict liability where the danger is something the manufacturer could not have guarded against by the application of reasonably developed human skill or foresight
Discovery of danger – when the scientifically unknowable risk becomes discoverable, the manufacturer or supplier may be liable for negligence
If the danger feasibility may be eliminated, the manufacturer must use due care to do so before continuing to market the product
If the risk cannot be eliminated, the product is unavoidably unsafe – manufacturer must provide a suitable warning
A manufacturer is under a duty to take reasonable steps to warn earlier purchasers of already marketed products about defects that only recently became discoverable
Defective Drug Design
Third Restatement: prescription drug or medical device is not reasonably safe if foreseeable risks of harm posed by drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health care providers, knowing of such foreseeable risks and benefits, would not prescribe the drug for an class of patient [risk/utility – really negligence]
Prescription drugs are not subject to strict liability provided they are properly prepared and accompanied by proper directions and warnings
Subsequent Improvements
Evidence Rule 407: subsequent design changes cannot be introduced to show defectiveness of defendant’s basic design
Idea is that manufacturers would be less likely to take subsequent remedial measures if evidence of their repairs or improvements may be used against them in lawsuits arising out of prior accidents
DUTY TO WARN
Failure to Warn: the produce is rendered unreasonably dangerous due to an omission of instructions/warnings, which, if included, could have avoided the risk of harm
Third Restatement: defendant must warn against any risk that is not patently obvious or common knowledge
Plaintiff must show causation
Heeding Presumption: where the warning is given, the court assumes the warning would have been heeded and would have prevented the injury [majority]
A very small minority of courts apply the risk-utility test to determine the adequacy of the warning
The adoption of a reasonable safer design is still required even if a warning is given – manufacturers must still comply with design defect liability
Prescription Drugs: the manufacturer must provide reasonable instructions or warnings regarding foreseeable risks of harm to –
Prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with instructions or warnings; OR
The patient where the manufacturer knows or has reason to know that healthcare providers will not be in a position to reduce the risks of harm in accordance with instructions or warnings
Pharmacists are generally not held to have a duty to warn – should be left to the physician
