Dr. John Dehrer-Wendt

Injuries, Warranties, Negligence, Product Liability,  and Other Friends

Overview

As you can see from the link to Cornell University's Legal Information Institute: "Products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product."

In the olden days the Doctrine of "Caveat Emptor" or "Let the buyer beware" applied.  This maxim summarizes the rule that a purchaser must examine, judge, and test for himself. This maxim is more applicable to judicial sales, auctions, and the like, than to sales of consumer goods where strict liability, warranty, and other consumer protection laws protect the consumer-buyer.

If a consumer is injured he or she must sue upon a legal theory (listed below).  They can sue on more than one theory, but remember there are pluses and minuses, and the defendant always can use the defenses available.

1. Breach of Warranty (Contracts)

Breach of Warranty involves Contracts and Contractual Obligations.

Negligence involves Torts.  A tort is a private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages. It is a violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction.  There must always be a violation of some duty owing to plaintiff, and generally such duty must arise by operation of law and not by mere agreement of the parties.  A legal wrong committed upon the person or property independent of contract.

A tort is the omission to do something which a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent person would not do.   Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

    Plaintiff must prove:

1. That Defendant owed him a duty of care

Duty of care is measured by a standard or reasonableness -- how would a reasonable person act in same or similar circumstances?

2. That the Defendant breached that duty by falling below a standard of care

Defendant failed to use reasonable care

3. That the Plaintiff sustained damage

Without an injury, there is nothing to recover

4. That the breach was the proximate cause of the damage

When the connection between the act and the injury is strong enough to justify imposing liability.  Was the victim's injury a reasonable result of what the defendant did? 

    Defenses to Negligence

Assumption of Risk -- The plaintiff knew of the risk and voluntarily assumed it

Contributory Negligence -- If the plaintiff failed to exercise reasonable care, the defendant is not liable.

Hence if the plaintiff contributed 1% to their own injury they recover nothing.  Most states have abandoned this approach for Comparative Negligence.

Comparative Negligence -- The amount of the defendant's liability is reduced by the amount the plaintiff contributed to their own injury. 

The plaintiff can recover even if they were partially responsible. (N.B. In Minnesota if the plaintiff is more than 50% responsible, they recover nothing)

3. Negligence Per Se

A form of ordinary negligence that results from violation of a statute.   Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a specific statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.

4. Res Ipsa Loquitur ("The thing speaks for itself")

Negligence can be inferred (giving the plaintiff a break) and the defendant must prove that they are not negligent.  This doctrine applies when the event causing the damage or injury is one that ordinarily occur in the absence of negligence. It must be caused by something within the exclusive control of the defendant, and it must not have been due to any act on the part of the injured party. 

Plaintiff must prove two elements:

    1.  The D had exclusive control over the thing that caused the injury; and

    2.  The accident is of a type that ordinarily would not occur in the absence of negligence.

Res Ipsa Loquitur refers to situations when it's assumed that a person's injury was caused by the negligent action of another party because the accident was the sort that wouldn't occur unless someone was negligent.  An example would be if, while under anesthetia, Isabel Patient's nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage. Under Res Ipsa Loquitur all those connected with the operation are liable for negligence

5. Strict Liability in Tort

Strict Liability is imposed as a matter of public policy. A manufacturer, seller, or lessor of goods will be strictly liable, regardless of intent or the exercise of reasonable care, for any personal injury or property damage to consumers, users, and by-standers caused by the goods it manufacturers, sells, or leases.

The imposition of strict liability does not depend on privity of contract, the injured party does not have to be a buyer or a third party beneficiary (as required under contract warranty theory), and a plaintiff does not have to prove that there was a failure to exercise due care (as in a negligence action).  Strict liability is imposed as a matter of public policy.

A concept applied by the courts in product liability cases in which seller is liable for any and all defective or hazardous products which unduly threaten a consumer's personal safety. This doctrine poses strict liability on one who sells product in defective condition unreasonably dangerous to user or consumer for harm caused to ultimate user or consumer if seller is engaged in business of selling such product, and product is expected to and does reach user or consumer without substantial change in condition in which it is sold. 

Concept of strict liability in tort is founded on the premise that when manufacturer presents his goods to the public for sale, he represents they are suitable for their intended use, and to invoke such doctrine it is essential to prove that the product was defective when placed in the stream of commerce.

In strict liability, the injured person doesn't have to prove that the defendant's conduct was unreasonable.  But rather they must show that the defendant manufactured or sold a product that was defective and that the defect caused harm.    It need not be shown why or how a product became defective, but it must be shown that at the time of the injury, the product’s condition was essentially the same as it was in the hands of the manufacturer or seller.

There are two major treatises dealing with Strict Liability:  Restatement (Second) of Torts, 402A and its successor Restatement ( Third) of Torts: Products Liability.  

In the 1960s courts applied the doctrine of strict liability in several notable cases (Greenman v. Yuba Power) involving manufactured goods.  Restatement (Second) Torts, 402A was issued in 1964 and became the widely accepted statement of liabilities of sellers, manufacturers, distributors and retailers. 

A plaintiff must prove:

1. A product must be in a defective condition when the manufacturer sells it.
    
2. The manufacturer must be normally engaged in the business of selling it.
    
3. The product must be unreasonably dangerous to a user or consumer because of its defective condition (not required in all states).
    
4. A  plaintiff must incur physical harm to self or property by use or consumption of the product.
    
5. The defective condition must proximately cause the injury or damage.
    
6. The product must not have been substantially changed from the time it was sold to the time of the injury. 

But there was a problem with 402A.  It did not clearly define terms such as "defective" and "unreasonably dangerous".  So, In 1997 the American Law Institute issued Restatement (Third) of Torts in an attempt to clarify the issue.

Product Defects - Restatement (Third) of Torts

The Restatement (Third) of Torts: Products Liability replaces some of the hard-to-understand distinctions that developed when courts applied different theories of liability to the same defects.  According to the Restatement (Third), the law categorizes product defects into three types—manufacturing defects, design defects, and warning defects—and sets out a single test for each type to be applied regardless of the legal theory behind the claim.

1.     Manufacturing Defects

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.”  This is strict liability, or liability without fault.

2.     Design Defects

A product “is defective in 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. 

To determine whether a product has a design defect, the focus is on its actual design and the reasonableness of that design.  To succeed on this theory, a plaintiff has to show that there is a reasonable alternative design.  A defendant is liable only when the harm was reasonably preventable. 

3.     Warning Defects

A product  “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 a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.”

There is no duty to warn about risks that are obvious or commonly known. There is a duty to warn of harm that can result from foreseeable misuse.

Defenses to Product Liability

1.    Product Misuse

If a party used a product for something for which it was not designed, the party may not be able to recover in strict liability (some courts hold, however, that if a misuse is reasonably foreseeable, a seller must take measures to guard against it).

2.   Assumption of Risk

In some states, the following elements must be shown: (1) the plaintiff voluntarily engaged in the risk while realizing the potential danger, (2) the plaintiff knew and appreciated the specific risk created by the defect, and (3) the plaintiff’s decision to undertake the known risk was unreasonable.

3.    Comparative Negligence

Most courts consider a plaintiff’s negligence in apportioning liability.

4.    Commonly Known Dangers

If a plaintiff’s injury resulted from a commonly known danger, the defendant will not be liable.

Product Liability Outlines

MBLW600

BLAW 301