Morton v.

OCF Facts: P developed cancer from working on a ship that used asbestos containing products and subsequently developing cancer. The trial was bifurcated. The damages phase was tried first, to a judge, who determined findings based on the each type of damages P suffered. The liability phase was tried second before a jury that found D liable to P and responsible for 12% of their damages. D appealed claiming method used to prove product defective was inapplicable to this case and if it does apply, the excluding of its state of the art evidenced makes it impossible to refute P’s theory ISSUE: Whether D should have or should have known that the products has a defective design unreasonably dangerous to the user

RULE: There are two criteria to determine whether a product has a design defect: Consumer Expectation Test – defective if P shows that product failed to perform as safely as an ordinary consumer would expect when used in intended or reasonably foreseeable manner. Risk-Benefit test – product defective in design even if it satisfies ordinary consumer expectations, if through hindsight the jury determined the product design embodies “excessive preventable danger.” In other words, the inherent danger of the design outweighs the benefits APPLICATION: Here, the consumer expectation test is more applicable. The test simply states the product fell below consumer expectation or fails in its presumption of what it reasonably expected from the use of the product. P assumed the placement of the product on the market and its usage of the product in the way it was intended to be use presumably create minimum safety as to its usage. Its presence present no evidence to suggest the product will likely make them ill. D contends that its knowledge of the product defects is as that of P, that the scientific knowledge present at that time did not known the inherent dangers associated with using asbestos related product and have been allowed to use its state of the art evidence, it could have educated the jury as to the nature of the product defectiveness. The court rejected that contention saying, the knowledge and reasonable expectation of the consumer was what was relevant in the consumer expectation test not the community scientific knowledge. It also stated that, the state of art evidence made be admissible under certain circumstances when ordinary consumer expectation from a product may be beyond lay person experience common to all jurors.

CONCLUSION: Therefore, the state of the art evidence as to the knowledge of the scientific community as pertain to that which an ordinary consumer expectation is not different is irrelevant b/c all that matters in this case is that of the consumer expectation. Warner Fruehauf Trailer v. Boston

Facts: P was injured by a single cylinder lift-gate manufactured by D, when it suddenly malfunction and the fell free, striking P and injuring him. The trial court returned a directed verdict for P claiming the lift-gate was defectively designed and unreasonable dangerous and no juror can find P assumed the risk. The case was submitted to the jury on damages only and the jury awarded P $550,000. D appealed. ISSUE: Whether the lift-gate design presented a risk substantially greater the benefit, when there are feasible alternative methods that could have prevented the free fall of the lift-gate RULE: The court applied the Risk-utility test – P must show risks, costs, benefits of product and alternative designs, and that danger outweighed costs of avoiding danger. Factors to relevant to determining the risk factor analysis are: 1) Usefulness and desirability - Luxury items have low utility; 2) Safety aspects of product; 3) Availability of substitute product; 4)Ability to eliminate unsafe character of product – feasible alternative of design in terms of cost and functionality 5) User ability to avoid danger by exercising care (not complete defense); 6) User anticipated awareness of the dangers –warnings; 7) Availability of liability insurance APPLICATION: Here, First, the risk of the defective design lift-gate substantially outweigh the benefit b/c evidence was presented by P that reveal: 1) over half of the manufacturer’s lift-gate had reportedly experience identical malfunction; 2) when tested, the single cylinder lift-gate compare to the dual cylinder shows the single is likely to free fall in the event of a mechanical failure than the dual; 3) test also showed the single involved in P’s accident fell several times while being operated normally; 4) the warning decals and instruction manual failed to indicate the serious risk involved in using the single cylinder lift-gate. Second, the way the warning decals was printed and plaster on the lift-gate was inadequate b/c it would have require the jury to figure out whether the location it was posted can be seen by P and whether the wording of the warning is properly worded to explain specifically the inherent risk associated with using the single cylinder lift-gate. In this case, the 189 words written on the warning decal only the last few words contained a vague warning of the possible danger and the other warning decal “stand clear while lowering and raising the gate” did not provide any warnings of the specific defect alleged or of danger created. Lastly, there are alternative designs such as the dual cylinder, multicylinder and an inclusion of a limit switch on the latching mechanism of the lift-gate that are economically feasible at nominal cost to D that could have possibly prevented free fall associated with the single. All this evidence were uncontested by the defendant, which suggest possibly they agree with the testimonies presented by the plaintiff. CONCLUSION: Therefore, given the danger presented by the design of the lift-gate, the ineffectiveness of the warning of the danger, and the uncontradicted expert testimony that alternative designs providing the same utility were both economically and technologically feasible concluded that as a matter of law, the lift-gate was defectively designed and unreasonably dangerous. Denny v. Ford Motor Company *** Facts: P’s Ford Bronco II flipped; sued for negligence, strict products liability, and breach of implied warranty of merchantability. Jury found Bronco II was not “defective” so D was not

liable under strict liability; also found D had breached its implied warranty of merchantability and that breach was proximate cause of injuries; P was awarded $1.2 million ISSUE: Whether the

APPLICATION: Here, Ps argued dangerous design P’s defense focused on sale of Bronco for suburban driving, likely to roll over on paved roads because of features - showed that street driving was “ordinary purpose” and it was not “fit” (safe) for that purpose (ford creates expectation) and D argued design features were necessary for off-road, purpose it was designed for Ford used the risk-utility test, saying that the value of the off-road vehicle outweighed the risk of rollover accidents when vehicle used on-road. (this is up to the fact-finder) Reasoning: Design defect can use strict products liability if product is not reasonably safe. Negligence-like risk/benefit component – assessment of manufacturer’s conduct is virtually inevitable (negligence) which requires weighing dangers against over-all advantages. UCC-based breach of implied warranty - asks whether the product was fit for ordinary purposes for which such goods are used. Expectations for the performance of the product when used are customary, usual and reasonably foreseeable manners.

CONCLUSION: Therefore, Simultaneous conclusion is appropriate; breach of implied warranty and strict products liability are reconcilable.

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