1. Chapter 6 Product and Strict Liability

2. Introduction to Product and Strict Liability
Product Liability: Liability of manufacturers, sellers, lessors, and others for injuries caused by defective products
Strict Liability: A plaintiff may recover punitive damages if the defendant’s conduct has been reckless or intentional
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3. Product Liability: Negligence
Requires the defendant to be at fault for causing the plaintiff’s injuries
The plaintiff must prove that:
The defendant breached a duty of due care to the plaintiff
This breach caused the plaintiff’s injuries
Only a party who was actually negligent is liable to the plaintiff
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4. Product Liability: Negligence
Failure to exercise duty of care includes:
Failing to assemble a product carefully
Negligent product design
Negligent inspection or testing of a product
Negligent packaging
Failure to warn of the dangerous propensities of a product
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5. Product Liability: Misrepresentation
Occurs when a seller or lesser either:
Fraudulently misrepresents the quality of a product
Conceals a defect in it
Recovery is limited to persons who relied on the misrepresentation
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6. Product Liability: Strict Liability
Doctrine of strict liability in tort
Strict liability is liability without fault
Makes manufacturers, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, irrespective of fault
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7. Product Liability: Strict Liability
Liability without fault
Does not require the injured person to prove that the defendant breached a duty of care
Casual sales and transactions by nonmerchants are not covered
Applies only to products, not services
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8. Product Liability: Strict Liability
Chain of distribution
Comprises of:
Manufacturers
Distributors
Wholesalers and retailers
Lessors
Subcomponent manufacturers
All parties in the chain of distribution of a defective product are strictly liable for the injuries it causes
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9. Product Liability: Strict Liability
Parties who can recover for strict liability
Any injured party
Privity of contract not required
Recovery possible even if the injured party had no contractual relations with the defendant
Bystanders and non-users are entitled to the same protection as users
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10. Product Liability: Strict Liability
Damages recoverable for strict liability
Damages recoverable vary by jurisdiction
Property damage recoverable in most jurisdictions
Economic loss in few jurisdictions
Some jurisdictions limit the dollar amount of the award
Punitive damages generally allowed if defendant recklessly or intentionally injured the plaintiff
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Product Defects
To recover for strict liability, the injured party must first show that the product that caused the injury was somehow defective
The injured party does not have to prove who caused the product to become defective
Plaintiff can allege multiple product defects in one lawsuit
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12. Product Defects Defect in manufacturing Defect in design
Defective packaging
Failure to warn
Inadequate instructions
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13. Case 6.1: Defect in Manufacture
Shoshone Coca-Cola Bottling Company v. Dolinski
82 Nev. 439, 420 P.2d 855, Web 1966 Nev. Lexis 260
Supreme Court of Nevada
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14. Case 6.1: Defect in Manufacture
Issue
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?
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Defect in Design
Defect that occurs when a product is improperly designed
Evaluation of adequacy of a product’s design:
Risk-utility analysis
Consumer expectation test
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Case 6.2: Design Defect
Case
Domingue v. Cameco Industries, Inc.
936 So.2d 282, Web 2006 La. App. Lexis (2006)
Court of Appeal of Louisiana
Issue
Is the forward blind spot on Cameco’s 405-B dump truck a design defect?
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Defect in Design
Crashworthiness doctrine:
Automobile manufacturers have duty to design automobiles taking into account the possibility of a second collision
They should take into account the possibility of harm from a person’s body striking something inside the automobile in the case of a car accident
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Failure to Warn
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
Proper and conspicuous warning insulates all in chain of distribution
Failure to warn is a defect that will support a strict liability action
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Defect in Packaging
Manufacturers owe a duty to design and provide safe packages for their products
Containers should be:
Tamperproof
Clearly indicate tampering
Defective packaging subjects the chain of distribution to strict liability
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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
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21. Defenses to Product Liability
Generally known dangers
Certain products are inherently dangerous
These products are known to the general population to be inherently dangerous
Sellers are not strictly liable for failing to warn of generally known dangers
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22. Defenses to Product Liability
Government contractor defense
Contractors that manufacture products to government specifications are not usually liable if such a product causes injury
Abnormal misuse of the product
Relieves the seller of product liability if the user abnormally misused the product
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23. Defenses to Product Liability
Supervening event
The manufacturer or seller is not liable if:
A product is materially altered or modified after it leaves the seller’s possession
The alteration or modification causes an injury
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24. Defenses to Product Liability
Assumption of risk
Defendant must prove that the plaintiff:
Knew and appreciated the risk
Voluntarily assumed the risk
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25. Defenses to Product Liability
Statute of limitations
Plaintiff must bring action within a certain number of years from the time that he or she was injured by the defective product
Limitation period set by each state
Defendant is relieved of liability if action is not brought within limitation period
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26. Defenses to Product Liability
Statute of repose
Limits the seller’s liability to a certain number of years from the date when the product was first sold
Varies from state to state
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27. Defenses to Product Liability
Plaintiff partially at fault
Types
Contributory negligence
Comparative negligence
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28. Defenses to Product Liability
Contributory negligence
Plaintiff who contributed to own injuries cannot recover from the defendant in negligence
Contributing plaintiff cannot recover damages even if the product was defective
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29. Defenses to Product Liability
Comparative negligence
Applies when a plaintiff is partially responsible for causing his own injuries
Liability is assessed proportionately to the degree of fault of each party
Damages are apportioned proportionally between the plaintiff and the defendant
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