Products liability by Tiffany Funk: Understanding Products Liability

Under a strict liability theory, the focus is not on the manufacturer or distributor's conduct, but on the product itself. Why? Because strict liability is liability without fault, regardless of negligence. Below are the elements which need to be fulfilled for strict liability:

A manufacturer and distributor of a product will be held strictly liable for injuries caused by that product if:

1) The product was unreasonably dangerous

2) The product left the manufacturer in this dangerous condition

3) The distributor did not alter the product

4) The product was dangerously defective in 1 or more of the 3 ways:

• Defectively Manufactured 
•   The product was properly designed but some how was made defectively in the manufacturing process
• Defectively Designed 
• The product was defectively designed making it unreasonably dangerous and there was other economically reasonable way of making the product to serve its intended use at a commercially reasonable price
• Defective Warnings 
• The product was properly designed and manufactured but the product lacked warning labels and/or instructions that would put an average consumer on notice of dangerous aspects of the product. Such warnings must be conspicuous, legible, clear, and understandable

5) The consumer made foreseeable use of the product. Note, however, such use does not have to be the intended use, just a foreseeable use

6) The product caused injury

7) The consumer suffered harm. Note, mere economic loss to the product is not enough to prevail in claim, there must be damage to the consumer or the consumer's property; if there is only damage to the product itself, the proper cause of action is in breach of contract.

**This is a summary of  information contained in the book found below** 

DAVID G. OWEN, ET AL., PRODUCTS LIABILITY AND SAFETY CASES AND MATERIALS (Robert C. Clark ed., Foundation Press 6th ed. 2010) (1980).

Under a negligence cause of action, the focus is on the manufacturer or distributor's conduct. The elements under negligence are:

1) Duty- to act as a reasonably prudent person ["reasonably prudent manufacturer or distributor"] would act under similar circumstances

2) Breach- when a defendant does something that a reasonable person would not do or fails to do something that a reasonable would [manufactured a dangerous product and a reasonable manufacturer would not = breach]

3) Causation

1. Actual- "But for"
2. Proximate- Foreseeable plaintiff and his injuries are the kind of risk the law seeks to protect such foreseeable plaintiff from

4) Damages

**This is a summary of  information contained in the book found below** 

DAVID G. OWEN, ET AL., PRODUCTS LIABILITY AND SAFETY CASES AND MATERIALS (Robert C. Clark ed., Foundation Press 6th ed. 2010) (1980).

Fraud

Fraud and deceit require a showing of scienter, that the defendant knew the matter to be false and intended to mislead the plaintiff, or some similar state of mind. This must be more than mere puffing, which is an opinion of expression of exaggeration.

Elements of Fraud:

1. A representation of an existing fact;
2. Its materiality;
3. Its falsity;
4. The speaker's knowledge of its falsity or ignorance of its truth;
5. His intent that it should be acted on by the person to whom it is made;
6. Ignorance of its falsity on the party of the person to whom it was made;
7. The latter's reliance on the truth of representation;
8. His right to rely upon it;
9. His consequent damage

Negligent Misrepresentation

Although a person injured as the result of a misrepresentation is unable to make out a fraud case, as from lack of evidence on the defendant's scienter, he/she may nevertheless be able to prove a claim of negligent misrepresentation

Elements of Negligent Misrepresentation:

1. Defendant with duty of care to plaintiff negligently asserts a false statement;
2. With the intention of inducing a customer to buy the product;
3. The misrepresentation does induce the customer to buy the product
4. And the cutomer's reliance was justified 
5. And the customer is injured therefrom 

Strict Liability for Misrepresentation

Baxter v. Ford Motor Co. held representations set forth by a manufacturer whose falsehood cannot be readily detected by a buyer, may be relied on by the buyer regardless of an absence of privity of contract. Meaning, regardless if there was a contractual relationship between plaintiff and defendant. Baxter lead to the development of RESTATEMENT (SECOND) OF TORTS § 402B (2012). 

1) Contributory Negligence

• Contributory negligence is the failure to observe ordinary care for one's own safety. It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances. Standard is the plaintiff "should have known"
• Under contributory negligence, if a plaintiff is found to be at all negligence, this will bar the plaintiff's recovery
• Most states have now replaced contributory negligence with some form of comparative fault/negligence

2) Comparative Fault

• Conduct on plaintiff which falls below the standard of conduct he should conform to for his own protection and which is a legally contributing cause in bringing about the plaintiff's harm
• Under comparative fault, if a plaintiff is found to have contributed to bringing his/her own injuries, this is only a partial bar to recovery
• Two Types of Comparative Fault
•    Modified Comparative Fault
• In a majority of jurisdictions, a plaintiff can recover as long as they are not more than 50% at fault. If plaintiff's percentage of comparative fault is greater than the defendant's, plaintiff cannot recover. Some states find if percentages are 50/50, plaintiff does not recover. While, other states say plaintiff must have greater negligence than defendant not to recover
• Pure Comparative Fault
• A plaintiff can be 99% responsible for causing his/her injuries and can still recover the 1% from defendant
• Note, some pure comparative fault states, states such as FL, abolish the assumption of the risk defense because it is included within the comparative fault analysis

3) Tampering or altering the product 

• Plaintiff tampers or alters a product which is an unforeseeable use, and as a result Plaintiff's injuries stem from the tampering and/or altering of product, and thus  not a defective product

4) Assumption of the Risk

• 1) Plaintiff must know of a particular or specific risk [actual knowledge], 2) Understood and appreciated the risk, and 3) Voluntarily exposed himself to the risk
• Knowledge is key and it is a subjective test- did the plaintiff know of the risk, expose himself to the risk in anyway, and was it reasonable
• The difference between assumption of the risk and contributory negligence is knowledge
• Assumption of the Risk: Plaintiff has "actual knowledge" about the danger and willingly encountered the danger/defect
• Contributory negligence: Plaintiff  has constructive knowledge, thus "should have known"

5) Misuse 

• Misuse falls into the assumption of the risk category and is NOT an affirmative defense, it is a defense only in the sense that proof of misuse negates one or more essential elements of a plaintiff's case, thereby defeating recovery
• "Reasonable foreseeability" is the appropriate test under misuse. A seller is required to provide a product that is not unreasonably dangerous when used for a purpose and in a manner that is reasonably foreseeable

6) Obvious Dangers

• Conduct on a plaintiff's part may bar recovery from a manufacturer but the patent-danger doctrine should not, in and of itself, prevent a plaintiff from establishing his/her case. The obviousness of the danger remains as a factor in the liability calculus, whether both parties exercised reasonable care was was required under the circumstances. 
• In Barktewich v. Billinger, the court stated "we hardly believe it is more necessary to tell an experienced factory worked that he should not put his hand into a machine that is at the moment breaking glass than it would be necessary to tell a zookeeper to keep his head out of a hippopotamus' mouth. 
• A manufacturer may be held strictly liable for failing to provide adequate warnings, but the plaintiff must prove that the failure to warn was a proximate cause of the injury. Accordingly, there is not liability for failing to warn of obvious dangers, those that would be appreciated by the user to the same extent the warning would have provided. In such cases, a warning would have merely informed the plaintiff of risks of which he was already aware. 

7) Inherent Dangers

• The majority of courts today hold that the obviousness of a product's danger is but a single consideration in evaluating the safety of a product's design 

8) Deterioration

• A manufacturer cannot be expected to design products with component parts which will never wear out, regardless of the nature of use or maintenance. A manufacturer is entitled to anticipate that a consumer purchasing its product will use reasonable care in maintaining it. A product is defective when the risks are greater than a reasonable buyer would expect. A reasonable buyer of a piece of agricultural equipment such as a cotton wagon or farming machine should expect the product to contain consumable parts which require inspection and maintenance 
• The plaintiff has the burden of establishing that the defect complained of existed at the time the product was sold by the defendant. There is no duty on a manufacturer to furnish a machine that will not wear out

9) State of Art Defense or State of the Art Evidence 

• The basic idea of this defense is that a product risk was generally unknown, or the means of avoiding it were unknown or unavailable, at the time the product was manufactured and sold

 Note: this is not an exhaustive list of defenses and jurisdictions differ on defenses and requirements, under products liability

 **This is a summary of  information contained in the book found below** 

DAVID G. OWEN, ET AL., PRODUCTS LIABILITY AND SAFETY CASES AND MATERIALS (Robert C. Clark ed., Foundation Press 6th ed. 2010) (1980).