Product Liab., Proof of Prod. Liab., & Damages
- Phys. & Prop. Harm
- Liab. of mfgr
- Liab. of seller
- Liab. of other supplier of chattel
- Theories 4 Liab.
- Old C/L said no privity of K, no duty / liab. in K / torts
- Didn't want seller of chattel 2 B liab. 2 anybody except imm.
- Exception in old C/L 4 liab. w/o privity of K when imminently
/ inherently dang. obj's (Thomas v. Winchester)
- MacPherson v. Buick Motor Co. Stand.
- Even w/o privity if prod. is rsbly cert. 2 place life / limb
- Mfgr know will B used by people other than buying
- Then liab.
- Modern Gen. Rule: Neg. W/O Privity
- Not worry about thing of dang. / whether mfgr knew but only
ord. neg. princ. of if mfgr acted rsbly
- Privity & limitation of MacPherson gone
- Prob. of Proof
- Although no privity, still need 2 prove D neg.
- Not ez 2 prove mfgr. was unrsbl & wholesale / retail were
clearly not neg. in some cases
- Breach of Express Warranty (Baxter v. Ford Motor
- No need 4 privity btwn consumer & mfgr b/c shouldn't create
demand by misrep. then deny liab. b/c of no privity
- Liab. when ord. consumer can't discov. fault by usual inspection
/ defect not readily discernible so relies on D's warranty
- Need reliance on use of prod. / purchase of prod.
- Reliance & causation
- If not req. reliance, then causation prob.
- D's S/M
- Not matter if D thought warranty was true b/c no fraud / misrep.
- Only matter if rep. & relied b/c not matter if rep. knowingly
- Liab. w/o privity / neg. if seller makes express warranty
2 item's charact. & breaches
- Can B liab. here w/o being liab. in SL b/c can B liab. 4 good
prod. if misrep. here
- Implied Warranty of Merchantability (Henningsen
v. Bloomfield Motors Inc.)
- No need of privity
- Rely on implied warranty / fitness of gen. purpose where imposed
by operation of law & not on express agmt of parties
- Rsbl use
- Mfgr's know purchase goes from dealer 2 consumer so ct. says
implied warranty not dep. on law of sales but 2 ultimate purchaser
- Extends 2 purchasers, purchasers' family members, / those
- Uniform Sales Act & 3 versions
- 1st req's family / house of guest
- 2nd req's nat. person expected 2 use
- 3rd only 1 that talks about prop.
- Law of Sales Prob.
- By policy, no express disclaimer allowed on implied warranties
b/c look @ int's of buyers & sellers, unequal barg. pwr when
stand'ed mass K, & inimical 2 pub. good
- For PI & cert. prop. damage, seller can't limit / excl.
- UCC req. notice by buyer 2 seller in rsbl X but prob. if not
notice / not see need 2 notify promptly so ct. deals by
- Long X still rsbl
- No notice reqt 4 PI (Greenman v. Yuba Pwr Prod.)
- Inapplicable where parties not deal w/each other
- Prob's of K Law in Torts So See Need 4 New Stand's
- Mfgr. SL in tort when article he places in mkt proves 2 have
defect causing injury 2 human
- SL is cost of injury born by mfgr as part of doing busi. instead
of injured consumer
- Unlike abnormal activity, jury dec's if prod. defective
- Not a real SL b/c not spread risk but look 4 defect 1st
- Busi. of selling
- Failure 2 warn
- Causation in Fact
- Prox. Cause
- Implied Warranty v. SL
- SL not req. / struggle w/notice,disclaimer, & privity
as implied warranty did
- Result not dif. but simpler & honest route by SL
- SL is by law so mfgr can't def. scope of defects / disclaim
liab. so deal w/torts but warranty theory is a fxn
- Other C/A's
- Other C/A's still exist, esp'ly neg. which is hot
- But implied warranty in large sense superseded by SL
- Rest §402)a: Basic Approach 2 SL
- Sells any prod. in defective cond. unrsbly dang. 2 users so
- If busi. of selling
- Expected 2 reach user/consumer w/o subst'l change in condition
- Sounds like neg. w/unrsbly dang.
- This stand. only 4 mismfgr. not misdesign / failure 2 warn
- Draft of Rest
- Req. only defective prod. @ X of sale so took out unrsbly
dang. & no subst'l change
- Three categories of defection
- Failure 2 Warn
- Simpler conceptually b/c liab. if dif. from other identical
prod's & not what mfgr intended
- Policy that cost of prod'ing bad absorbed in prod'ing &
sellers can protect by indemnity & ins.
- Need unrsbly dang. by Rest §402)a & defect of prod.
- Imputed Knowledge Test (Phillips Ct)
- If rsbl person wouldn't put into stream of commerce if knew
then unrsbly dang'ly defective
- Dif. from neg. b/c of imputed knowledge
- Neg. need cost benefit analysis of whether unrsbl 2 put into
stream of commerce so need 2 know cost of prod'ing, finding out,
/ quality control so high cost of being aware may make it rsbl
- SL impute knowledge of flaw so cost of discov'ing defect not
in cost benefit analysis
- Consumer Expectation Test (Rest)
- More dang. than ord. consumer expects
- Gen'ly ans. is yes so P wins
- CA Jury Instruction 9.00.3
- Mfgr. defect when differes from mfgr's intended result / prod.
differs from identical prod. from same mfgr. so if dif, P wins
- Gen'ly same result using any stand's
- Prob. of proof
- X of accident must B defective
- X of sale must B defective
- Liab. if defect in basic oncept & came out the way mfgr
intended but bad
- Conceptual prob's b/c harder 2 det. defect w/o comparison
- Can't say misdesign if cause injury b/c cert. things (knives)
can't B used as benefit w/o getting injured
- Rest §402)a inapplicable b/c that only deals w/mismfgr
- SL & neg. really close in misdesign cases
- Neg. on if mfgr behav. rsbly & SL on existence of defect
- Cost Benefit w/Imputed Knowledge Test (Phillips)
- Cost benefit analysis w/imputed knowledge of harm the prod.
is capable of causing
- Rsbl mfgr can put into commerce things that can harm consumers
b/c utility may B great & change of design may impair utility,
prod. / price
- Imputed knowledge may make dif. if missing info rsbly but
gen'ly probably aware
- Consumer Expectation Test
- More dang. than ord. consumer expects when use prod. in rsbly
- Prob. when consumer not know, then can't expect something
(car w/no air bag)
- CA: Created Dif. Btwn Neg. & SL By Either
of 2 Tests
- If benefit outweighed by risk inherent in that design (neg.
- Prod. fails as consumer expects when used in manner rsbly
foreseeable by D (warranty heritage)
- Shift burden of proof 2 D when cost benefit w/imputed knowledge
- Prentis: Neg. Test W/O Any SL
- Jxn's All Differ
- Cost Benefit Analysis = Benef. of Prod. v. Likelihood &
Extent of Harm
- Relevance of State of the Art
- Level of tech. expertise @ X of design
- Relev. 4 cost benefit analysis 4 feasibility of substitute
/ design alt.
- Unless better alt., can't win in misdesign gen'ly in most
- Even if best design, may lose anyway b/c no prod. may B better
if risk outweighs utility
- Rest 3rd Draft
- Misdesign when foreseeable risk of harm could've been lwred
by adoption of rsbl alt. design by seller / predecessor
- Dif. b/c no cost benefit analysis w/imputed knowledge b/c
- No lang. of SL / neg. but focus on prod.
- Mfgr v. Sellers
- Little distinction of SL & neg. 4 mfgr
- Gen'ly 4 sellers, wholesalers, & retailers, SL but not
- Custom not = 2 state of the art but may lag behind
- Even if custom not use alt, may have 2 use the best alt. possible
- Prescription Drug Mfgr Exception (Brown v. Superior
- Rest §402)a, comment k
- Exception of SL 4 misdesign of unavoidably unsafe prod.
- Unavoidably unsafe if will hurt somebody & impossible
2 make it safer so gen'ly apply 2 drugs & blood
- Purpose & Policy of Comment k
- Prescription drugs alleviate pain & sustain life &
harm 2 some users inevitable
- Encourage mfgr 2 research & distrib. w/o fear of liab.
- Broad pub. int. 2 make drugs available, quickly
- Still Neg.
- Bright line rule that not SL b/c not want fear in drug ind.
but neg. o.k.
- Quest'able if SL v. neg. distinction imp. b/c drugs still
expensive w/neg. & neg. & SL close
- Drugs v. Abnormally Hazardous Activity SL Distinctions
- In drugs, no SL b/c can't B made safe but abnormally hazardous,
apply SL b/c can't B made safe
- Person injured by drugs also benefitted but not in abnormally
- Drugs have spec. sense of value & benefit
- P vol'ly took drugs, not invol'ly injured
- Mfgr not SL so long as properly prepared & warnings of
dang. propensities of known / rsbly scientifically knowable @
the X of distrib.
- Inherent Charact. Rule Exception
2 SL (Comment I)
- If prod. inherently unsafe
- Known 2 B unsafe by ord. consumer
- Common prod. 4 human consumption like sugar & tobacco
- Historically tolerated & concerns about A/R when risk
- Failure 2 Warn (Anderson v. Owens-Corning Fiberglas
- Det'ing When D Liab. 4 Failure 2 Warn Dang's
- Not warn all dang's b/c impossible
- No imputed knowledge b/c can't make mfgr abs. insurer &
can't warn unknowns
- Only liab. 4 not warn dang. that was known / knowable risk
- Most sugg. neg. & others keep SL b/c have it 4 other kinds
of prod. liab.
- Failure 2 Warn v. Misdesign
- Failure 2 warn has no imputed knowledge but misdesign does
- Failure 2 warn may B good prod. w/risk but misdesign may B
- Failure 2 warn has inherent risk so no limit but misdesign
has limit b/c shouldn't B on mkt / better alt.
- Draft of 3rd Rest.
- Foreseeable risk of known / knowable risk: jxn's not uniform
on what warning
- Kind of warning & suff.: no maj. but some say best possible
warning 2 sep. from neg.
Proof of Prod. Liab.
- SL: Mismfgr (Friedman v. Gen. Motors Corp)
- Defect when accident
- Evid. must show more likely than not defective @ the X of
- Could have all circ'al evid.
- Expert testimony
- Wouldn't occur normally
- Negate the existence of probable causes not attributable 2
- Could infer from phys. cond.
- Defect When Left D's Hands
- X per. not dispositive but 1 of factors
- Gen'al proof prob's b/c accidents ord'ly destroy defects
Damages of Prod. Liab.
- Kinds of Damages (2 Rivers Co. v. Curtiss Breeding
- Pers. Injury 2 User / Consumer or 2 Prop. Other Than
- Recov'able in SL
- Safety accident ins. policy
- Econ. Loss
- Loss of benefit of the barg. so can't recov. by SL but can
go 2 UCC b/c warranty & sales law designed 2 deal w/sit's
where econ. rel. btwn buyer & seller on barg.
- Reputation is econ. harm
- Harm 2 Defective Prod. Itself
- Most difficult category
- Can't recov. in SL & must go 2 UCC & sales
- Line Drawing @ Defective Prod. Damage
- Hybrid: Prod. Itself & Some Other Prop.
- Can recov. 4 both (2 Rivers Case)
- Balance policies of safety accident ins. v. econ. loss of
benefit of barg.
- Mormon Mfgr. Nat. Co. Case Stand.
- If calamatous accidental loss of phys. damage, then can recov.
b/c more like safe ins. accident stuff
- Deterioration is econ. loss so can't recov.
- Jxn's All Differ 4 Prod. Harm
- Defective Material Used in Process
- If defective material used in process, prod. ruined, &
damage 2 prop. then recov. allowed
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