Joint tortfeasors, landowner, and strict product liability outline

Joint liability
Harm is indivisible: if more than one person is a proximate cause of the plaintiff’s harm. (old rule)
Eg. p is hit by both d1 and d2. P is entitled to recover from both d1, and d2 $1000. P can recover full
judgment from d1, the full judgment from d2 or part from d1, or d2, but can not recover amount
exceed $1000.
If harm is indivisible, the defendants are jointly and severally liable( each defendant is liable for the
entire harm).
Such rule has effect that if d1 is insolvent, risk put on the remaining defendants; so p can recover
full from d2.
Modern trend: apportionment because of comparative negligence doctrine
each defendant is liable for the entire harm.
Contribution: defendant who paid more than his fair share will recover partial reimbursement from
other defendant
In a pure comparative negligence jurisdiction, the plaintiff is allowed to recover even if his fault is
greater than that of the defendant.
In joint and several liability, a defendant who is required to pay more than her fair share can recover
the balance from the other.
Contribution is a device whereby responsibility is apportioned among those who are at fault.
1. method of apportionment: a. comparative contribution: most states have comparative
contribution system whereby contribution is imposed in proportion to the relative fault of the
various tortfeasors. b. equal share: a minority of states require all tortfeasors to pay equal shares
regardless of their respective degree of fault.
2. Contribution is not allowed in favor of those who committed intentional torts.
Indemnity: tort sometimes shift the entire financial responsibility from one defendant to another
even if they are joint tortfeasors.
Under the traditional rules, indemnification was difficult to get, but when it was available, the
results were quite good for paying defendants: all of the payments shift from the paying defendant
to the non-paying defendant.
Partial equitable indemnification
Under the pro tanto approach, the remaining defendants are responsible for all defendants’ share
of responsibility, less any credit for money paid in settlement.
Most commonly indemnity is granted to a tortfeasor who is only vicariously liable for the other

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defendant’s conduct.
Example of indemnification would describe a voluntary agreement by one person or entity to pay
the damages attributable to tortious conduct of another.
A passenger is not vicariously liable for the actions of her driver unless the driver was the
passenger’s agent. vicarious liability might be imposed of driver and passenger had been involved in
a business outing.
If there is a great difference in the degree of culpability of the defendants, the court will shift the
financial responsibility for a tort from the less-culpable to the more culpable one, by the use of the
doctrine of indemnity. Where d1 is an intentional tortfeasor, and d2 is merely a negligent one, d2
has right to indemnity.

Liability and joinder of defendant

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 Bierczynski case: all who engage in a race on the highway do so at their peril, and are liable for
injury or damage sustained by a third person as a result thereof, regardless of which of the racing
cars directly inflicted the injury or damage.
The authorities reflect generally accepted rules of causation that all parties engaged in a motor
vehicle race on the highway are wrongdoers acting in concert, and that each participant is liable for
harm to a third person arising from the tortious conduct of the other, because he has induced and
encouraged the tort. (created the danger as a prudent reasonable person)
Coney case ： The doctrine of comparative negligence does not eliminate joint and several
liability. The feasibility of apportioning fault on a comparative basis does not render an indivisible
injury divisible for purposes of the joint and several liability rule. When P is not guilty of negligence,
P would be forced to bear a portion of loss should one of the tortfeasors prove financially unable
to satisfy his share of the damages.  Without J&S liability, burden of the insolvent or immune D
would fall on the P.
Bartlett case: In a comparative negligence case, a concurrent tortfeasor is not liable for the
entire damage caused by concurrent tortfeasors. J&S liability does not operate in a comparative
negligence case. The P should have to bear the risk of a D being financially insolvent. Joint and
several liability must be retained to favor plaintiffs.
Satisfaction and release case:
Bundit case: Was the defense of discharge applicable, to prevent multiple judgments on the
same matter from being satisfied, considering that one judgment had already been satisfied?
Discharge and satisfaction prevent double recovery from a single injury.
Cox case: A covenant not to sue executed between P and one D does not necessarily
release the other Ds from liability and suit if the damages are not satisfied by the settlement. 
Notes: Some states distinguish between a release and a covenant not to sue, and hold that the
release necessarily releases other tortfeasors, but the covenant does not unless full compensation
has been paid. Some states hold that a release with express reservation of rights against other
tortfeasors is to be treated as a covenant not to sue, regardless of the words of release. Some states
hold that even a release without such reservation of rights does not release other tortfeasors unless
it shows an intention to do so or full compensation has been paid. Statutes in some states have
provided that a release with an express reservation of rights against other tortfeasors does not
release them.

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 Knell case: When a tort is committed by the concurrent negligence of two or more persons who
are not intentional wrongdoers, contribution should be enforced; a joint judgment against such
tort-feasors is not a prerequisite to contribution between them, and it is immaterial whether they
were, or any of them was, personally negligent.
Yellow cab case: A non-immune tortfeasor may not seek contribution or indemnity from
those who are immune. Neither husband nor wife is liable for the tortious acts by one against the
other. Contribution, then, depends upon joint liability. There was no liability by Dreslin to his wife,
so there is nothing to which a right of contribution could attach. 
Slocum case: contribution is allowed between joint tort-feasors who cause another, by reason
of their wrongdoing, to incur injury or damage. In addition, the statute permits a plaintiff to settle
with one joint tort-feasor and still have recourse against remaining tort-feasors subject to the
limitations stated in the statute. The right to contribution, unlike the right to indemnity, is based on
the shared fault of the joint tort-feasors. Indemnity, on the other hand, allows someone who is
without fault, compelled by operation of law to defend himself against the wrongful act of another,
to recover from the wrongdoer the entire amount of his loss, including reasonable attorney's fees.
Indemnity is permitted only when the would-be indemnitee does not join in the negligent act.
This right to indemnity is limited to those cases in which the would-be indemnitee is held
derivatively or vicariously liable for the wrongful act of another.

Landowner
Traditional rule:

Duty to those outside the premise

A landowner has duty to prevent an unreasonable risk of harm to persons off the land from artificial
conditions on the land.

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Trespasser: no duty to make land safe, to warn of dangers on it, or to protect the trespasser in any
other way; exception: owners owe duty of reasonable care to trespassing children if certain
condition is met.
Owner may have a duty of reasonable care to a trespassing child, if the owner has maintained an “
attractive nuisance”. here the signs stated “ thin ice- no skating” hence owner has no duty to such
trespassing child.
Special rule under which a landowner will be liable for an artificial condition that is highly dangerous
to trespassing children. Elements: 1. The place where the condition exists must be one on which
children are likely to trespass; 2. There is, as the owner knows, an unreasonable risk of death or
serious bodily harm to such children from the condition. 3. Children because of their age can’t
recognize such risk. 4.owner failed to exercise the reasonable care.5 the utility of maintaining the
condition is slight compared with the risks to the children involved.
Discovered trespasser
Normally, a shopper in a store would be considered an invitee – a member of the public who comes
onto land held open to him and who does so for the purpose for which the land is held open. A
visitor who is an invitee as to one part of the premises may become a trespasser if he goes beyond
the part of the land held open to him. For discovered trespasser, the owner has an obligation to
warn him of dangers known to it and likely unknown to the danger.
Licensees:
Social guests.
When the plaintiff is a licensee, the defendant does not have a duty to inspect for dangers. But if
the defendant knows of a dangerous condition, the defendant has a duty to take reasonable
precautions to make the premises safe.
Definition?
Landowners owe duty to warn the licensee of any danger that the owner knows of. However, no
duty to inspect for unknown dangers, or to fix any known danger.
Invitee: open to public?
Definition
The landowner owes an invitee a duty of reasonable inspection to find hidden dangers. The owner
must take reasonable efforts to fix a dangerous condition.

Sometimes courts accepted single “reasonable person” standard of landowner liability

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Invitee:
Members of the public who come onto land held open to them and who do so for purpose for
which the land is held open. Such people reasonably expect that the premises have been made safe
for them, and the owner must exercise reasonable care for the safety of such people.
Reasonable care by the owner will typically require that she attempt to exercise control over third
persons on the premises.

Lessor and lessee:

Lessee: as if she were the owner
Lessor: not liable but has exceptions:
1. danger unknown to lessee which should be known to lessor. Note: lessor has no duty to inspect.
It generally means merely that if she either knows of a hidden danger, or knows of other facts
which should reasonably lead her to learn of the danger, she must warn the tenant.
2. Rented property to be held open to public
3. Common areas kept under control of lessor
4. Lessor contract to repair
5. Repairs negligently undertaken
6. Duty of protection.

Outside of premise

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 Taylor case: Except for extreme situations, the question of the landowner's or possessor's
attention to the condition of his roadside trees under a general standard of reasonable care to
prevent an unreasonable risk of harm is to be decided as a question of fact upon the circumstances
of the individual case. The extent of his responsibility either to inspect his trees or only to act on
actual knowledge of potential danger cannot be defined simply by categorizing his land as
"urban" or "rural." 
Salevan case: Does defendant, as landowner, have the duty to exercise reasonable care in the
use of his land so as to prevent injury to travelers using the adjacent sidewalk? Yes. Because of the
inherent nature of baseball (artificial), a landowner must take reasonable precautions to protect
the traveling public, with reasonableness depending on the facts and circumstances of each
particular case. Defendant’s precautions were insufficient and that the Defendant knew or should
have known that the precautions were insufficient.
On premise
Sheehan case: The railroad company is obligated to exercise some degree of care for
trespassers upon its property and will be liable if the trespasser is wantonly injured in the
operation of the railroad. The obligation of the railroad company to a trespasser arises at the
moment of the trespasser’s discovery and is a duty to make all reasonable efforts to avert injury.
Barmore case: A social guest, as a licensee, generally must take the premises of his host as he
finds them. However, the owner of the premises has a duty to warn the licensee of any hidden
dangers which are unknown to his guest, of which he, the owner, has knowledge, and to refrain
from injuring his guest willfully or wantonly.
#### licensee v. invitee court said: although defendant permitted plaintiff to come to his home to
pay their dues, the primary benefit of this service ran to the defendant himself, but rather to the
fraternal organization of which parties were members. Hence plaintiff is a licensee.
Campbell case: whether the shopper not purchase is invitee? yes
An invitee is one who is either expressly or impliedly invited onto the premises of another in
connection with the business carried on by that other.
If one goes into a store with the view of then, or at some other time, doing some business with
the store, he is an invitee. The implied invitation of the storekeeper is broad enough to include one
who enters a general store with a vague purpose of buying if she sees anything that strikes her
fancy.

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 Whelan case: If an invitee goes outside of the area of his invitation, he becomes a trespasser or
a licensee, depending upon whether he goes there without the consent of the possessor, or with
such consent. Thus one who goes into a shop which occupies part of a building, the rest of which is
used as the possessor's residence, is a trespasser if he goes into the residential part of the premises
without the shopkeeper's consent;
but he is a licensee if the shopkeeper permits him to go to the bathroom, or invites him to pay a
social call. 
Scope of invitation: the possessor of land is subject to liability to another as an invitee only for
harm sustained while he is on the land within the scope of his invitation. Thus an invitee ceases to
be an invitee after the expiration of a reasonable time within which to accomplish the purpose for
which he is invited to enter or to remain.

Rowland case: no distinction for trespasser, invitee and licensee( only reasonable duty of care)
Whether or not a guest has a right to expect that his host will remedy dangerous conditions on
his account, the host does have a duty to warn of a dangerous condition so the guest can take
special precautions, like the host would, when they come in contact with it.  where the occupier of
land is aware of a concealed condition involving in the absence of precautions an unreasonable risk
of harm to those coming in contact with it and is aware that a person on the premises is about to
come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair
the condition constitutes negligence.
Lessor and lessee.
Borders case: Can defendant be held liable for plaintiff's slip-and-fall injury at his tenant's rental
unit? No. as a general rule, no liability upon the landlord, either to the tenant or to others
entering the land, for defective conditions existing at the time of the lease. Exception: 1.
Undisclosed dangerous conditions known to lessor and unknown to the lessee. 2. Conditions
dangerous to persons outside of the premises. 3. Premises leased for admission of the public. 4.
Parts of land retained in lessor’s control which lessee is entitled to use. 5. Where lessor contracts to
repair. 6. Negligence by lessor in making repairs. Number 6 comes into play only when the lessee
lacks knowledge that the purported repairs have not been made or have been negligently made.

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 Pagelsforf case: A landlord is under a duty to exercise ordinary care in the maintenance of the
premises. Implied warranty of habitability (contractual) creates a duty on the part of the lessor to
deliver the premises in a habitable condition. Efforts by lessors to immunize themselves against
liability through exculpatory clauses in leases have been held to be void as against public policy,
at least in sofar as they seek to immunize lessors against damages caused by negligence in
maintaining common areas.
Kline case: As a general rule, a private person does not have a duty to protect another from a
criminal attack by a third person. The rule has sometimes been applied in landlord-tenant law.
However, the rationale of this very broad general rule falters when it is applied to the conditions of
modern day urban apartment living, The rationale of the general rule exonerating a third party
from any duty to protect another from a criminal attack has no applicability to the landlord-
tenant relationship in multiple dwelling houses. A landlord is no insurer of his tenants' safety, but
he certainly is no bystander. ( innkeeper should take reasonable care if the attack is foreseeable)
Since the liability of one of the parities to provide for his own protection has been limited in
some way by his submission to the control of the other, a duty should be imposed upon the one
possessing control, and thus the power to act to take reasonable precautions to protect the other
one from assaults by third parties at least could reasonably have been anticipated.

Strict liability

The basis for strict liability is that those who engage in certain kinds of activities do so at their own peril, and
must pay fro any damage that foreseeably results, even if the activity has been carried out in the most
careful possible manner.
A key insight of economic analysis is that negligence law affects only how much care an individual choose to
take to prevent injuries to others. Strict liability, in contrast, induces potential injurers not only to take a cost-
justified level of care, but also to consider the total amount of an activity to engage in.

Animals
There is strict liability for roaming farm animals, but not for roaming household animals.
Owners of cattle that intrude upon a plaintiff’s land are liable for property damage caused by the trespass.
If animal is wild, there is strict liability for any damages that results fro a dangerous propensity of that
species. If an animals is domestic, there is only strict liability where the owner knows or has reasons to know
of the particular animal’s s dangerous characteristics

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Wild v. domesticated: domesticated is by custom devoted to the service of mankind.
Whether a wild animal’s dangerous propensity caused the damages, the fact is the average person fears
animals of that species.
If you keep the wild animal, you are strictly liable if animal escape and causing physical harm to others,
unless the harm is not within the risk of keeping a wild animal.

Strict liability for physical harm caused by intrusion of livestock or other animals upon another’s land.
Owners of cattle that intrude upon a plaintiff’s land are liable for property damage caused by the trespass.
Some jurisdictions impose strict liability on the livestock owner. Some allow the owner to raise as an
affirmative defense the plaintiff’s failure to fence out intruding animals.

Strict liability for physical harm caused by wild animals : wild means animals that have not been generally
domesticated and that are likely, unless restrained, to cause personal injury.

Strict liability for physical harm caused by animals whose owners know or reasonably should have known of
its dangerous tendencies.

The owner of livestock, cattle in this case, is liable to other property owners for physical harm caused by
intruding cattle. The rule does not apply to cattle that enter into public areas and cause damages; such
injuries are governed by a negligence rule.

Always issue is whether the defendant is strictly liable for having carried out an abnormally dangerous
activities. Ni if it’s unlikely the use of the glue would be considered ultra hazardous. Elements: 1. The activity
involves a high risk of serious harm, 2. There’s no way to perform the activity completely safely no matter
how much care is taken. 3. The activity is not commonly engaged in the particular community, and 4. The
danger of the activity outweighs its utility to the community.

Modern approach: liability for abnormally dangerous activities

Ryland doctrine:
Why it is strict liability? Judge Blackburn:
The person who for his own purpose brings on his lands and collects and keeps there anything likely to do
mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of his escape.
It suggests that if the probability of harm from an activity if there is an accident is high enough, the

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defendants may be strictly liable even if there is not a high probability of an accident.
Lord Cairns:
Strictly liable because they put their land to a non-natural use, for the purpose of introducing into the
close that which in its natural condition was not in or upon it. It means a reservoir is an artificial structure
created on land.

Liability existed because the defendant put their land to a non-natural use for the purpose of introducing that
which in its natural condition was not in or upon it. But, if the water had entered during a natural use of the
land, and had then flowed off onto the plaintiff’s land, there would have been no liability.
1st restatement:
(a) necessarily involves a risk of serious harm to the person, land or chattels of others which
cannot be eliminated by the exercise of the utmost care, and
(b) is not a matter of common usage.
Common usage and ultrahazardous
Second restatement rule:
1.Ultrahazardous test: factors
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
2. requirement of unavoidable danger
3. value to community

3rd restatement: Test if the activity is abnormally dangerous

(1) the activity creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors and
(2) the activity is not one of common usage.

Defense
Generally, negligence is not a defense; but consent is affirmative defense.
Notes: important!!! Strict liability for abnormally dangerous activities must satisfy both the actual cause
and proximate cause requirement as well.

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2nd restatement: a plaintiff’s contributory negligence is not a defense to an abnormally dangerous activity
tort. Under the third restatement, the plaintiff’s negligence must be compared with the defendant’s
conduct to come up with an allocation of responsibility adding to 100 percent.

Use of independent contractor

Blasting is considered an ultrahazardous activity, giving rise to strict liability. Where one person hires an
independent contractor to perform an untrahazardous activity, the hirer is strictly liable, just as the
contractor is, even if the hirer used all due care selecting a careful contractor.
Rylands case: rule: the defendant will be liable when he damages another by a thing or activity
unduly dangerous and inappropriate to the place where it is maintained, in the light of character
of that place and its surroundings.

Miller case:
Restatement general principle: one who carries on an abnormally dangerous activities
( unltahazardous) is subject to liability for harm to the person, land or chattels of another resulting
from the activities, although he has exercised the utmost care to prevent the harm.
To determine the ultrahazardousness, must meet more than one of the lists:
1. existence of a high degree of risk of some harm to the person, land or chattels of others; 2.
Likelihood that the harm that results from it will be great. 3. Inability to eliminate the risk by the
exercise of reasonable care. 4. Extent to which the activity is not a matter of common usage 5.
Inappropriateness of the activity to the place where it is carried on and 6. Extent to which its value
to the community is outweighed by its dangerous attributes.

Indiana case:
The manufacturer of a product is not considered to be engaged in an abnormally dangerous
activity merely because the product becomes dangerous when it is handled or used in some way
after it leaves his premises, even if the danger is foreseeable.  no one suggests that the leak in this
case was caused by the inherent properties of hazardous chemicals. It was caused by carelessness
– whether that of company in failing to maintain or inspect the car properly, or that of Cyanamid in
failing to maintain or inspect or failing to notice the ruptured lid.

Limitations on strict liability (defense)

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 Foster case: Can a blasting company be strictly liable for farmed animals killing their young as a
result of its blasting operations? Is the risk that any unusual vibration or noise may cause wild
animals, which are being raised for commercial purpose, to kill their young , one of the things which
made the activity of blasting ultra hazardous? No. it was the exceedingly nervous disposition of
mink, rather than the normal risks inherent in blasting operations, which was required, as a matter
of sound policy, to bear the responsibility for the loss suffered by plaintiff. because plaintiff's
damage was not the type of consequences that fell within the extraordinary risk of defendant's
blasting and thus was not a risk that made blasting ultra-hazardous.The relatively moderate
vibration and noise which appellant’s blasting produced at a distance of two and a quarter miles
was no more than a usual incident of the ordinary life of the community.
Golden case: general rule: The person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril,
and, if he does not do so, is prima facie answerable for all the damage which is the natural
consequence of its escape. Exception: But this rule does not apply where the injury results from the
act of God which the owner had no reason to anticipate.
Sandy case: By the common law the owners or keepers of domestic animals are not answerable
for an injury done by them in a place where they have a right to be, unless the animals in fact, and
to the owner's knowledge, are vicious. If, however, a person keeps a vicious or dangerous animal
that he knows is accustomed to attack and injure mankind, he assumes the obligation of an
insurer against injury by such animal, and no measure of care in its keeping will excuse him. His
liability is founded upon the keeping of such an animal when he has knowledge of its vicious
propensities and his care or negligence is immaterial.

Product liability
Negligence
Manufacturer:
A defendant will be liable for product liability based on negligence if 1. He failed to exercise such care as a
reasonable person in his position would have exercised. 2. This was a breach of duty to prevent the
foreseeable risk of injury to anyone in plaintiff’s position, and 3. This breach must have caused the
plaintiff’s damages.
Retailer:
As a retailer, seller will only be liable in negligence due to its own affirmative negligence. Retailers only
have a duty to inspect if they have reason to believe the product is likely to be defective, and even if they
do have a duty to inspect, they will only be liable if an inspection undertaken with reasonable care would

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have uncovered the defect.

MacPherson case: If manufacturing negligence is reasonably certain to cause peril, knowledge

that others may use the product, the manufacturer is obligated to make the product carefully. The
more probable the danger, the greater the need of caution. Both by defendant's relation to the
work and by the nature of its business, it is charged with a stricter duty.

Warranty

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 Baxter case: Was the defendant dealer liable for the damage even though there were no
warranties on the car? No. because there was a provision in the contract that stated defendant
dealer had made no warranties concerning the car. However, The rule in such cases does not rest
upon contractual obligations, but rather on the principle that the original act of delivering an
article is wrong, when, because of the lack of those qualities which the manufacturer represented
it as having, the absence of which could not be readily detected by the consumer, the article is not
safe for the purposes for which the consumer would ordinary use. It would be unjust to recognize a
rule that would permit manufactures of good to create a demand for their products by
representing that they possess qualities which they in fact do not possess.
If a person states as true material facts, susceptible of knowledge, to one who relies and acts
thereon to his injury, if the representations are false, it is immaterial that he did not know they were
false, or that he believed them to be true.
implied warranty
Henningsen case:
Where the commodities sold are such that if defectively manufactured they will be dangerous
to life or limb, then society’s interests can only be protected by eliminating the requirement of
privity between the maker and his dealers and the reasonably expected ultimate consumers. Even if
the parties are free to contract, there is still the obligation to inform the buyer of such. The
obligations arising is so inimical to the public good as to compel an adjudication of its invalidity.

Strict liability in tort

Greenman case:
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. Recognized first in the case of unwholesome food products, such liability has now been
extended to a variety of other products that create as great or greater hazards if defective.

Three defects:
Manufacturing defects;
Rix case: when a manufacturer sends a product into commerce, he will be held liable for any
harm caused to the ultimate user or consumer. This rule does not apply, if the product is altered
after it leaves the care of the manufacturer , and it is fundamentally unfair to hold a manufacturer
liable on those grounds.

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Design defects;
Prentis case: In a products liability action against a manufacturer for an alleged defect in the
design of its product, where the jury was properly instructed on the theory of negligent design, the
trial judge's refusal to instruct on breach of warranty is not reversible error.
Theory of negligent design instructions could have created juror confusion and prejudicial error.
Indeed, such an instruction would have been repetitive and unnecessary and could have misled the
jury into believing that plaintiff could recover on the warranty count even if it found there was no
"defect" in the design of the product. Because elements of breach of implied warranty and
negligent design were indistinguishable and that the standard for both theories of recovery
required a showing that the forklift in question was defectively designed and the injuries were
proximately caused by this negligence.

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 O’Brien v. Muskin Corp. case: issue is Can the jury can be permitted to determine if the risks of
injury outweighed the utility of the product, as to constitute a defect? Yes.
Some jurisdiction used risk utility balancing test; some used consumer expectation test; some used
both to prove that a product was defectively designed.
In design defector failure to warn cases, the product has been manufactured as intended and
cannot be defective by comparison to a standard set by the manufacturer. Rather, the standard to
measure the product reflects a policy judgment that some products are so dangerous that they
create a risk of harm outweighing their usefulness. So risk utility analysis implicates the
reasonableness of the manufacturer’s conduct
Risk-utility analysis includes other factors such as the state-of-the-art at the time of the
manufacture of the product.
The state-of-the-art refers to the existing level of technological expertise and scientific
knowledge relevant to a particular industry at the time a product is designed. Some factors relevant
in risk-utility analysis are: (1) The usefulness and desirability of the product -- its utility to the user
and to the public as a whole. (2) The safety aspects of the product -- the likelihood that it will cause
injury, and the probable seriousness of the injury. (3) The availability of a substitute product which
would meet the same need and not be as unsafe. (4) The manufacturer's ability to eliminate the
unsafe character of the product without impairing its usefulness or making it too expensive to
maintain its utility. (5) The user's ability to avoid danger by the exercise of care in the use of the
product. (6) The user's anticipated awareness of the dangers inherent in the product and their
avoidability, because of general public knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions. (7) The feasibility, on the part of the manufacturer, of
spreading the loss by setting the price of the product or carrying liability insurance.

Warning defects

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Anderson case: Under the strict liability principles the manufacturer is liable if it failed to give
warning of dangers that were known to the scientific community at the time it manufactured or
distributed the product. A manufacturer acted as a reasonably prudent manufacturer in deciding
not to warn, while absolving the manufacturer of liability under the negligence theory, will not
preclude liability under strict liability if the trier of fact concluded that based on the information
scientifically available to the manufacturer, the manufacturer’s failure to warn rendered the
product unsafe to its users.

proof

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