Chapter 6 Strict Liability and Product Liability

§1: Strict Liability Defendant’s liability for strict liability is without regard to: Fault. Foreseeability. Standard of Care. Causation. Liability is based on creation of extraordinary risk.

Abnormally Dangerous Activities Defendant is strictly liable for an “abnormally dangerous activity” if: Activity involves serious potential harm; Activity involves high degree of risk that cannot be made safe; and Activity is not commonly performed in the community or area.

Wild Animals Persons who keep wild animals are strictly liable for injuries caused by the beast. Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous.

§2: Product Liability Product Liability is not a new tort. Liability can be based on: Negligence; Misrepresentation; or Strict Liability; Warranty Theory.

Product Liability (Negligence) Negligence-based product liability is based on a manufacturer’s breach of the reasonable standard of care and failing to make a product safe.

Product Liability (Negligence) [2] Manufacturer must exercise “due care” in: Designing products; Manufacturing and Assembling Products; Inspecting and Testing Products; and Placing adequate warning labels.

Product Liability (Negligence) [3] Manufacturers who violates state or federal law in the manufacture or labeling of a product, may be negligent per se. No privity of contract required between Plaintiff and Manufacturer. Liability extends to any person’s injuries caused by a negligently made (defective) product.

Product Liability (Misrepresentation) Occurs when fraud committed against consumer or user of product. Fraud must have been made knowingly or with reckless disregard for safety. Plaintiff does not have to show product was defective.

§3: Strict Product Liability Manufacturers liable without regard to fault based on public policy: Consumers must be protected from unsafe products; Manufacturers should be liable to any user of the product; Manufacturers, sellers and distributors can bear the costs of injuries.

Strict Product Liability [2] Requirements for strict liability: Product is unreasonably dangerous when sold Defendant sells the product; Plaintiff injured by use or consumption of product and defective condition is the proximate cause of injury. Greenman v.Yuba Power Products (1962).

Strict Product Liability [3] Plaintiff must show product was so “defective” it was “unreasonably dangerous”: Product was dangerous beyond ordinary consumer expectations; OR A less dangerous alternative was economically feasible but rejected.

Market Share Liability Theory of liability when multiple Defendants contributed to manufacture of defective product. Liability of each Defendant is proportionate to the share of the market held by each respective Defendant.

Liability of Suppliers Suppliers of Component Parts may be liable if: Component is defective at the time of sale/distribution; Supplier “substantially participates” in the design and integration of defective product.

Liability of Suppliers [2] Manufacturers, distributors, suppliers, sellers liable to an injured bystander who did not purchase, use or consumer the product. Injuries to bystanders from defective products are reasonably foreseeable.

§4: Strict Liability—Restatement (3rd) of Torts The terms “unreasonably dangerous” and “defective” are used interchangeably and subject to differing definitions by different courts. Restatement defines three different types of defects: manufacturing, design and warning defects.

Strict Liability: Manufacturing Defects Occurs when a product “departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”

Strict Liability: Design Defects Occurs when the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative . . . and the omission of the alternative design renders the product not reasonably safe.”

Strict Liability: Warning Defects A product may be defective because of inadequate warnings or instructions. Liability based on foreseeability that proper instructions/labels would have made the product safe to use.

Warning Defects [2] There is no duty to warn about obvious or commonly known risks. Seller must also warn about injury due to product misuse. Key is whether misuse was foreseeable.

§5: Defenses to Product Liability Assumption of Risk. Product Misuse (Plaintiff does not know the product is dangerous for a particular use). Contributory/Comparative Negligence. Commonly known dangers. Statutes of Limitation.

Case 6.1: Greenman v. Yuba Power Products (Strict Product Liability) FACTS: A piece of wood flew out of the lathe attachment of a Shopsmith (a consumer power tool) while Greenman was using it, causing serious injuries. Greenman sued the retailer and the manufacturer for breach of warranties and negligence. The jury ruled in favor of Greenman, and the Defendants appealed.

Case 6.1: Greenman v. Yuba Power Products (Strict Product Liability) HELD: AFFIRMED. FOR GREENMAN. Greenman proved that the design and construction of the Shopsmith were defective and that his injuries were caused by the defects. “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” Purpose of liability is for manufacturers to bear the costs.

Case 6.2: Embs v. Pepsi-Cola (Strict Product Liability) FACTS: Embs was buying groceries at Stamper’s Cash Market. A carton of 7-Up was sitting on the floor at the edge of the produce counter about one foot from where she was standing. Several of the 7-Up bottles exploded severely injuring Embs. Embs sued Pepsi but the court ruled against her and dismissed her case. Embs appealed.

Case 6.2: Embs v. Pepsi-Cola (Strict Product Liability) HELD: REVERSED. FOR EMBS. The appellate court extended the protection of the Restatement (Second) of Torts, Section 402A “to bystanders whose injury from the defect is reasonably foreseeable.” The court based this extension on the policy that “the loss for injuries resulting from defective products should be placed on those members of the marketing chain best able to pay the loss, who can then distribute such risk among themselves by means of insurance and indemnity agreements.”

Case 6.3: Liriano v. Hobart Co. (Warning Defects) FACTS: Super Associated store bought a Hobart Corp. meat grinder that had no warning that it should be operated only with the safety guard. Liriano, a SA employee, removed the guard and was severely injured when his hand was caught in the grinder. (Liriano was seventeen years old, a recent immigrant, and on the job only a week. He had not been told how to operate the grinder.) He sued Hobart claiming that the lack of a warning about the safety guard was negligence. The jury returned a verdict for Liriano. Hobart appealed, arguing that the danger was so obvious no warning was needed.

Case 6.3: Liriano v. Hobart Co. (Warning Defects) HELD: AFFIRMED. FOR LIRIANO. A manufacturer can be liable for failing to warn about alterations, such as the removal of a safety guard, that would make its product unsafe. It doesn’t matter how obvious the danger is. “Even if most ordinary users may *  *  * know of the risk of using a guardless meat grinder, it does not follow that a sufficient number of them will *  *  *.”

Case 6.4: Smith v. Ingersoll-Rand (Comparative Negligence) FACTS: Smith was injured while attempting to start the diesel engine for a compressor manufactured by Ingersoll-Rand Company. Smith, a mechanic, was not wearing a hard hat when he was dispatched to start the engine. The door had to be propped open. Smith started the engine and the door fell from its open position and hit his head causing severe injury. Smith sued Ingersoll-Rand. Ingersoll-Rand defended that Smith’s failure to wear a hard hat and his propping the door open in an unsafe manner constituted contributory negligence.

Case 6.4: Smith v. Ingersoll-Rand (Comparative Negligence) HELD: FOR INGERSOLL. The court recognized that under a “system of comparative fault *  *  * , a plaintiff would still be able to recover if he was comparatively at fault for his injuries, but his recovery would be reduced in proportion to his percentage of fault.”