11/19/22, 12:49 PM CH 6 STRICT LIABILITY

CHAPTER 6
STRICT LIABILITY AND PRODUCT
LIABILITY
 
 
So,
here we go with a more detailed look at liability.� Yeah, the first part looks suspiciously like
the end of the last
chapter.�
 
We
will concentrate on strict liability, where liability is imposed for reasons
other than fault, and product liability, where
liability is associated with
manufacturers and sellers of defective products to consumers, users and
even bystanders.� But
first, let us
recall the notion of:
 
 
 
NEGLIGENCE PER SE
 
Negligence Per Se: (in and of itself) An act or
omission in violation of a statutory duty or obligation.
Negligence per se
often arises where
the tortfeasor both violates a criminal statute or ordinance and causes injury
to another party.
 
�������� Plaintiff must prove
that:
 
(1)���� the statute or ordinance clearly sets
out what standard of conduct is expected, when it is
expected, and of whom it
is expected,
 
(2)���� plaintiff is in the class of persons
intended to be protected by the statute or ordinance, and
 
(3)���� the statute or ordinance was intended
to prevent the type of injury which plaintiff suffered as a
result of
defendant�s wrongful act.
�
Recall the good Samaritan laws.
 
 
 
STRICT LIABILITY
 
�������� Strict
Liability: Liability
regardless of fault. Strict liability is imposed on defendants whose activities
are abnormally dangerous and/or involve dangerous animals and on defendants
whose products are defective.�
Compare:� Pet�s are given one free
bite.�
 
��������� The
concept began with the famous 1868 English case of Rylands v. Fletcher, the coal mining case
where a reservoir broke through
an abandoned mine and flooded an active mine. The active mine owners sued the
abandoned mine owners, and won.� The
court used a great phrase:� �if a person for his own purpose brings on
his land 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 natural consequence of its escape�� What is
so
interesting about this ruling is it basically used the same analogy (remember
this from the earlier chapters) of
what happens to people who hold dangerous
animals.
 
�������� Abnormally Dangerous Activities: Some
activities are so inherently dangerous that they give
rise to liability without
regard to fault because the activity:
 
(1)���� involves serious potential harm to persons or property;
 
(2)���� involves a high degree of risk that
cannot be completely guarded against by the exercise of
reasonable care; or
 
(3)���� is not commonly performed in the
community or under the circumstances.

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11/19/22, 12:49 PM CH 6 STRICT LIABILITY

 
Consider:� Dynamite.�
Nuclear plants.�
Wild animals (contrasted against tame animals who
generally get
away with �one free bite.�)
 
 
 
PRODUCT LIABILITY:
NEGLIGENCE
���������������������������������������
�������� Product Liability: A manufacturer�s, seller�s, or lessor�s
liability to consumers, users, and by-
standers (privity of contract is NOT
required, which means the parties did not
have to have a business deal or
relationship directly between themselves) for physical
harm or property damage that is caused by the goods.
 
��������� Negligence:
A manufacturer is liable for its
failure to exercise due care to ANY person who
sustained an injury proximately caused by the manufacturer�s negligence
with regard to any of the following:
 
��������� design
of the product,
 
��������� selection of materials
(including any component products purchased from another seller that
are
incorporated into a finished product),
 
�������� use
of appropriate production processes,
 
��������� assembly
and testing of the product, and
 
��������� placement of adequate
warnings on the product which inform the user of dangers of which
an
ordinary person might not be aware.
 
 
 
 
STRICT PRODUCT LIABILITY: RULES
 
�������� Strict Liability: A
manufacturer, seller, or lessor of goods will be
strictly liable, regardless of
intent
or the exercise of reasonable care, for any personal injury or
property damage to consumers, users, and by-standers
caused by the goods it
manufactures, sells, or leases as long as:
 
(1)����� the product is defective when the defendant sells it (either
to an end-user or to another seller for
ultimate resale);
 
(2)����� the defendant is
normally engaged in the business of selling or otherwise distributing the
product in
question;
 
(3)����� the product is
unreasonably dangerous to the user or consumer because of its defective
condition;
 
(4)����� the plaintiff suffers
physical harm to self or property as a result of using or consuming the
product,
 
(5)���� which is proximately caused by the defective condition of
the product; and
 
(6)����� the product must not
have been substantially changed between the time it was sold or otherwise
distributed by the defendant and the time the injury occurred.
 
��������� Be sure
to read the Pepsi- Cola case, Case 6.2.
 
 
 
 

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11/19/22, 12:49 PM CH 6 STRICT LIABILITY

PRODUCT
LIABILITY: MISREPRESENTATION
 
�������� Misrepresentation:
A manufacturer may also be liable for
any misrepresentations made to a
consumer or user of its product if the
misrepresentation causes the consumer or user to suffer some injury.
 
�������� To be actionable, a misrepresentation
must be made knowingly or with reckless disregard for
the facts.
 
��������� In addition to affirmative
misrepresentations, a manufacturer may also be liable for
knowingly or
recklessly omitting to tell the consumer or user some relevant fact or
concealing that fact
from the consumer or user.
 
�������� To be actionable, a misrepresentation or omission
must also be made with the intent that the
consumer or user rely on it and the
consumer or user must have, in fact, actually relied on the
misrepresentation
or omission.
 
��������� For example, a seller of chain saws may
say that the chain saw can cut a 10� tree when they
know it is not designed for
such a cut, rather the chain saw is only designed for a 5� tree or brush.� The
purchaser hurts themselves when the chain
saw gets stuck and the tree falls on them trying to remove it; or
perhaps the
chain saw bucks when it exceeds its capacity.
 
��������� Another example:� a pharmaceutical company may say a drug is
not habit forming, it turns
out it is, and people have been harmed.
 
 
 
 
STRICT LIABILITY: PRODUCT DEFECTS
 
�������� Unreasonably Dangerous Product: A product so defective as to threaten a
consumer�s health and
safety either because (i)
the product is dangerous beyond the expectation of the ordinary consumer or
(ii) the
manufacturer failed to produce an economically feasible, less dangerous
alternative. Claims that a product is
unreasonably dangerous generally fall
into one of three categories:
 
(1)����� Manufacturing
Flaw: The manufacturer fails to exercise due care in the
manufacture, assembly,
and/or testing of the product [for example, an auto
manufacturer doesn�t properly install an air bag system
or brake system that
otherwise is operational];�
 
(2)����� Design Defect:
The product, even if manufactured perfectly, is unreasonably dangerous as
designed
-- often because an economically feasible, less dangerous
alternative was available to the manufacturer [for
example, an airplane could
explode due to wires rubbing & sparking over a fuel tank due to a bad
design];
and
 
(3)����� Inadequate
Warning: The product, even if designed
and manufactured perfectly, lacks adequate
warnings and/or instructions for the
consumer or other end user [to protect users from unexpected results
[[Case
6.3- the milling machine case]] or even perhaps expected results- see case 6.4-
the famous meat
grinder case ].
 
 
 
MARKET SHARE LIABILITY
 
�������� Generally,
a plaintiff must prove that the defendant manufactured the defective product.
 
�������� However, in some cases, plaintiffs have been permitted to sue
any or all manufacturers of an allegedly
defective product, even if the
plaintiff does not know which of those manufacturers made the product that
caused the
plaintiff�s injuries.
 

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�������� In these cases, all of the product�s manufacturers (and, in

some cases, distributors) are held liable in
proportion to each firm�s
respective share of the market. For example, if a plaintiff suffered damages of
$1 million,
a named defendant whose market share during the relevant period was
10% would be liable to the plaintiff for
$100,000 -- even if manufacturers responsible for less than 100% of the market were
named by the plaintiff.
 
�������� In some cases, courts have imposed market share liability on
a defendant even though that defendant
could affirmatively prove that it did
not manufacture the product that caused the plaintiff�s injuries.
 
 
 
STRICT LIABILITY: DEFENSES
 
�������� Assumption
of Risk: The defendant
must show that (i) the plaintiff knew and appreciated
the risk
created by the alleged product defect, and (ii) the plaintiff voluntarily
assumed the risk, even though it was
unreasonable to do so.� For example, I use a beta computer software
program which is clearly labeled and required
to be �checked off� as such, and
my data is forever destroyed due to a bug in the beta program. Shame on
me!�
 
�������� Product Misuse: The
defendant must show that (i) the plaintiff was using
the product in some way for
which it was not designed, and (ii) the plaintiff�s
misuse was not reasonably foreseeable to the defendant, such that
the defendant
would be required to safeguard against it.�
For example, I purposefully stand on a trash can to
change a light bulb,
it caves in, and I am hurt.
 
�������� Commonly-Known
Danger: The defendant must show that the plaintiff�s injury
resulted from a
danger so commonly known by the general public that the
defendant had no duty to warn plaintiff.�
For example,
using a knife.
 
�������� Knowledgeable User:
If a particular danger is or should be commonly known by particular users of
the product, the manufacturer need not warn those particular users.� For example, an electrician using commonly
used electric connectors and related materials.
 
 
 
 
STRICT
LIABILITY: DEFENSES � Statutory
 
����������� Federal Preemption: A manufacturer who complies with federal safety regulations
in
manufacturing its product may be able to avoid liability under state
products liability law. However, court decisions
on this theory have not been
consistent.
 
�������� Statute of Limitations: A typical statute of
limitations requires that an action be brought within a
specified period after
the plaintiff�s cause of action accrued or within a specified period
after the plaintiff
discovered or should have
discovered her injuries.
 
�������� Statute of Repose: Regardless of whether a plaintiff has discovered her
injuries, many states also have
statutes of repose which set absolute outer
limits on the time within which an action must be brought.
 
 
 
 
 
 

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