1 Chapter 4 Products Liability Defective Products 缺陷产品

2 The Concept of Defect Something wrong, inadequate, or improper in manufacture, warning, or safety measures of a product.

3 Defect in Manufacture A defect that occurs when the manufacturer fails to (1) properly assemble a product (2) properly test a product, or (3) adequately check the quality of the product.

4 Shoshone Coca-cola Bottling Co. v. Dolinski Supreme Court of Nevada

5 1.Leo purchased a bottle of “Squirt,” a soft drink, from a vending machine … his place of employment.Leo opened the bottle and consumed part of its contents, immediately became ill. Upon examination, it was found that the bottle contained the decomposed 腐烂 body of a mouse, mouse hair, and mouse feces. CASE BRIFING

6 2. Leo suffered physical and mental stress from consuming the decomposed 已腐烂的 mouse and possessed an aversion to soft drinks. Shoshone manufactured and distributed the Squrit bottle. Leo sued Shoshone, basing his lawsuit on the doctrine of strict liability. The state of Nevada had not previously recognized the doctrine of strict liability. However, the jury returned a verdict in favor of the plaintiff. Soshone appealed. CASE BRIFING

7 Should the state of Nevada judicially adopt the doctrine of strict liability? If so, was there a defect in the manufacture of the Squirt bottle that caused the plaintiff’s injuries? Key Questions

8 In adopting the doctrine of strict liability, the court stated, “Public policy demands that one who places upon the market a bottled beverage in a condition dangerous for use must be held strictly liable to the ultimate user for injuries resulting from such use, although the seller has exercised all reasonable care.”

9 The Supreme Court of Nevada adopted the doctrine of strict liability and held that the evidence supported the trial court’s finding that there was a defect in manufacture. Affirmed.

10 Should the courts adopt the theory of strict liability?

11 Should all in the chain of distribution of a defective product---even those parties who are not responsible for the defect--- be held liable under the doctrine of strict liability? Or should liability be based only on fault? Contemporary Business

12 Defect in Design A defect that occurs when a product is improperly designed.

13 Defect in Packaging A defect that occurs when a product has been placed in packaging that is insufficiently tamperproof.

14 Failure to Warn A defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown.

15 Nowak V. Faberge USA, Inc United States Court of Appeals, Third Circuit

16 1.Faberge manufactures Aqua Net, a hair spray that is sold in an aerosol can. In addition to the hair-holding spray, Aqua Net contains a mixture of butane 丁烷 or propane 丙烷 as the aerosol 气溶胶 propellant 推进剂 and alcohol as a solvent 溶 剂. Alcohol, butane, and propane all are extremely flammable. Aerosol cans of Aqua Net carry a warning on the back stating, “Do not puncture” and “Do not use near fire or flame.” Alison Nowak, a 14-year old girl, tried to spray her hair with a newly purchased can of Aqua Net….

17 2.She intended to pour the contents into an empty aerosol bottle and use it. She was standing in the kitchen near a gas stove when she punctured the can. A cloud of hair spray gushed from the can and the stove’s pilot light ignited the spray into a ball of flame. She suffered severe, permanently disfiguring burns over 20 percent of her body. She sued Faberge for damages under strict liability, alleging that Faberge failed to warn her of the dangers of the flammability of Aqua Net. The jury held against Faberge and awarded Nowak $1.5 million. Faberge appealed.

18 Did Faberge adequately warn the plaintiff of the flammability of Aqua Net?

19 A manufacturer owes a duty to adequately warn users of the dangerous propensities of their products. A product is defective if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product. The trial court properly determined to send the case to the jury for this determination. The jury’s verdict that Faberge’s warning was inadequate is upheld.

20 The court of appeals affirmed the district court’s judgment that Faberge had failed to warn the plaintiff of the dangers of flammability of its product and is therefore strictly liable. DECISION

21 Should the law recognize a failure to warn as a basis for imposing strict liability on manufacturers and sellers?

22 Do you think this case was decided properly? What else could Faberge have done to avoid liability? Contemporary Business

23 Other Product Defects  Failure to provide adequate instructions  Inadequate testing of products  Inadequate selection of component parts or materials,  Improper certification of the safety of a product