3 types of product defect: manufacture, design, warning

A. Manufacture defects:
a)Implied warranty by 402(A)(strict liability-privity not req)- Seller in the business of selling product + accident would not have occurred in absence of
negligence CASE:Pulley- slimey cigarette- proof of care is irrelevant because SL
b)Negligence: Reasonable person standard 1) Privity- later abolished- MacPherson- wooden wheel 2)RIL- accident results from negligence, D had exclusive
control of injury causing instrumentality- Escola(Coca Cola bottle)- product in manufacturer control, is held to standard of expert in field and should keep up
with developments
c) What activities are selling or distributing- manufacturers, retailers, wholesalers- retailers and wholesalers only liable if no reas care under MUPLA
B. Who is liable: independent tortfeasors with indivisible harm(joint), substantive rule(each tortfeasor responsible for total judgment(substantive rule), D’s
do not need to be joint procedurally- Comparative fault(SL sellers,distributors,parts manufacturers)
a) Judgment: Retailers and wholesalers escape judgment unless: seller warranted product, manufacturer is insolvent or immune from suit, manufacturer is
not ascertainable.
b) Joint and severable- P can go after anybody
c) In order to recover P needs to prove: that Ds acted negligently in causing defects to occur or remain undetected- Prutch- P doesn’t need to show where in
the chain the defect occurred
C. Causation(prove for all types of product defect)
1. Did product cause harm: a) BUT-FOR causation (2 components): i) (CAN)General causation: whether product sold by D is inherently capable of causing
the sort of harm suffered by P. if not, D wins as matter of fact. Ii) (DID)Specific causation: did the particular product in question cause the harm--- Experts
issue standard for admissibility: Evidentiary question: Abuse of discretion(some leeway)-de novo(low deference)- clearly erroneous(reverse). CASE:
Daubert- scientifically valid reasoning required for expert. ANALYSIS: HARM=injury, PRODUCT=medicine.
2. Supply- Did D supply the product
3. Defect harm- Did the defect in D’s product contribute to harming P?- BUT-FOR Question- but for the presence of the defect would the plaintiff have
suffered the same or similar harm anyway? CASE: Volkswagen- probable cause requires that there is only ONE possible explanation for harm
4. Proximate cause(negligence?): Did the defective product proximately cause the plaintiff’s harm? ELEMENTS: 1) Foreseeability(Cause in fact)- D’s act or
omission was a substantial factor in bringing about the injury which otherwise would not have occurred,2)Attenuation(Lear Siegler) if foreseeability is
difficult to determine from facts
D.Design Defects:Duty/breach—Proximate causation—Contributory fault. Rest2: design defect =foreseeable risks could have been reduced/avoided by
RAD and omission makes product not reasonably safe(Under Barker P can choose either consumer expectations or Risk utility)
Consumer expectations test: Potter- Design is defective if it fails to perform as an ordinary consumer expects when used in a foreseeable manner within
contemplation of ordinary consumer- no risk utility
Risk utility analysis (outside of consumer expectations): balancing utility against the likelihood of gravity of injury from use and considers if risk is reduced
by RAD or needs categorical analysis (Requires experts to prove) 4 FACTORS:Is theory tested?,Is theory subject to peer review?Known or expected rate of
error, Is theory generally accepted in the scientific community?
1. RAD factors to determine if unreasonably not safe: magnitude/probability of foreseeability, instructions and warnings, nature/strength of consumer
expectations. CASE: Smith: ladder case (defective hook)- RAD is not proven to prevent injury, Bourne-(goalpost) design defect only when unreasonably
dangerous to customer who uses in expected ways (Strict liability- does not need foreseeability)- RAD claims need to be submitted under either SL or negl.
WARNING is no substitute for RAD (Goodrich-tire rim case)
2.Products category: REST 2(2)- some products are so manifestly unreasonable that they have low social utility and high degree or danger(still needs risk
utility test)- CASE- O’Brien exception- shallow vinyl pool- overruled in NJ bc product egregiously unsafe, dangers unknown to customer, has little to no
usefulness. Analysis of products category claim: P must argue that even though product meets the manufacturers design specifications, the specifications
themselves create unreasonable risks. P must show: 1) the existence of a RAD, 2) at a reasonable cost, 3) RAD reduces the harm posed by product. CASE:
parish-trampoline- risks are open and obvious, trampoline has utility.
3. Special problems: deference to markets when consumer choice(Linegar-bulletproof vest), 2)statutory violation is negligence perse
E. Failure to warn: Rest 2: Basic duty at time of sale(Hybrid but negl: negl-what D knew or should have) Burden on P. Duty= Judge, Breach=Jury
1) No duty for obvious(Jamieson- elastic exerciser), 2) no duty for unknowable risks( Prosoco- HCL cleaner)
3) Informed choice- Whether to use CASE: Davis- Polio vaccine- Ct found D liable bc failure to warn renders vaccine unfit +unreas dangerous, Liriano= Meat
grinder= obviousness does not substitute warning
4) Who must warn who? Intermediaries rule. CASE: Salomon NA- no duty on manufacturer to warn end customers if he warned seller. SL includes
reasonableness.
5)When is warning sufficient? Rest2 comment: CT focus on content, comprehensibility, intensity of expression and characteristics of users. CASE: Tesmer:
ladder case(75 ½ degrees)- warning insufficient because it didn’t include risks. Broussard- Drlling tool- Warning is enough because it included specific risk.
6) Post sale warnings- Duty if: 1)seller knows or should know of risk,2) those who need warning can be identified,3) a warning can be communicated and
acted on,4) the risk is high to justify burden on warning. CASE: Lovick (cultivator)- D had duty
7) Special problems of proximate cause: a) Would P heed warning? CASE: Ayers (baby oil)- warning could’ve avoided, Waterhouse- Smoking-D rebuts
presumption of warning heeding by introducing evidence that friends, coaches etc. warned. Causation question does not go to jury. b) Did P suffer of harm
that warning would’ve prevented? Proximate cause should be present.
F. Express warranty and misrepresentation: requires contract between A and B. Merchantability analysis overlaps consumer expectations & implied
1) What is warranted? UCC2-313: Promises from seller:-descriptions of goods,-sample or model,- “warrant” word not needed,-sellers opinion or
commendation is not warranty-puffery. CASE: Baxter: “shatter proof” windshield- Ct. found misrepresentation.
2. Basis of the bargain- reliance or belief in promises. CASE: Cipollone- smoking woman and cigarettes ads. D demonstrated she didn’t believe the ads.
3. Misrepresentation-=Strict Liability- CASE: Croker- addicted to Demerol, manufacturer did not include in label. Ct. finds misrepresentation even though D
did not know the risks
Defenses:
1. Works Comp- D avoids litigation when accident(intentional wrong/tort can sue as per Laidlow(12 yrs w/o accident imp)- Millison test:1)employer knows
his actions are substantially certain to result in injury or death,2)resulting injury/death should be: a)more than a fact of life in industrial work-b) beyond what
legislature intended Works Comp to immunize
2. comparative negligence -app to SL (failing to exercise due care from P: if P discovers defect and proceeds. Does not punish for not discovering the
defect) Under design use risk utility balancing for manufacturer vs negligence plaintiff.
3. Risk is open and obvious
4. State of the Art(jury issue): Technological environment(scientific knowledge, economic feas) at the time of products manufacture. CASE: Boatland-
Killswitch- D can bring in industry custom to establish feasibility/cost but not to rebut liability. Subsequent remedial measures- allowed to prove ownership,
feas, cost but not negligence, defect or warning.
5. Misuse, alteration modification- under design defects. 3 issues:1)whether design is defective,2) relevant to legal cause,3)contributory fault. CASE:
Robinson v Lopez- substantial modification or alteration vs easily removed safeguard. P wins on easily removed. D can only use if not foreseeable.
6. Federal pre-emption: 3 circumstances:
a. Congress express pre-emption-based on supremacy clause (e.g Brusewitz- per statute, suit only allowed if vaccine not properly prepared)
b. No room for state law to occupy field-(space, foreign affairs)
c. Impossibility to comply with both federal and state law- Barlett- Pharma could not change chemical composition without changing label. Label cannot be
changed once approved unless medication taken out of market and process started again so approval could be obtained from FDA.
c1. Objects and purposes- CASE:Geier(air bags case)- allowing suits to go forward would undermine object and purpose of federal program of “phasing”