Torts: Products Liability

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Products Liability

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A person is subject to liability for products liability if he is a commercial seller of a product that was in a defective condition at the time of sale to another person who was injured by the defective product which actually and proximately caused the other person’s injury.

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Restatement 3d §1: Alternate Rule Formulation

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A party, engaged in the business of selling products, who sells a defective product is subject to liability for harm caused to a consumer by the defective condition.

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Prima Facie Elements

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1. Defendant is engaged in the business of selling products;
2. Defendant sold a product;
3. At the time of the sale, there was a defective condition;
4. Plantiff suffered an injury;
5. Defective condition was the actual and proximate cause of the plaintiff’s injury.

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Proper Plaintiff

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Consumer/User
Bystander
Household Member
Gift Recipient

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Type of Injury

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Actual physical injury or damage to personal property.

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Economic Loss Rule

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No recovery for damage/destruction of the product itself.

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Element: Product Sold

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Tangible Product: Commercially distributed and sold tangible products.

Reconditioned/Refurbished: Used products that are reconditioned and sold as like-new products qualify for a
products liability claim.
Services Not Products: Services provided commercially or otherwise are not products unless the tangible product aspect is predominant (service incidental to product).
Used Products: Used products do not qualify for products liability claim unless distributed commercially as part of an enterprise (incidental to a business)

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Transactions Subject to Products Liability

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Product distribution that is a functional equivalent of a sales transaction

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Element: Commercial Seller

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Seller
If an actor took steps to place the product on the market or was a part of the distributional chain, then the actor has sold a product for the purposes of products liability. Leasing a product will not relieve a party of liability.
In the Business Of: The seller must be in the business of selling the products and not just a one time or periodical seller.
Occasional Seller: Casual sellers are not liable in products liability.

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Manufacturing Defect

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A product is defective if manufacturing defect renders the product more dangerous than expected by an ordinary consumer when used in the intended manner.

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Manufacturing Defect: Consumer Expectation Test

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The consumer expectation test provides that a defective condition is one not contemplated by the user as making the product unreasonably dangerous to use.

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Manufacturing Defect: R.3d § 2. Departs Intended Design

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A manufacturing defect exists when a product is made so that it departs from its intended design.

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Proof of Manufacturing Defect

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Plaintiff must show that 1) product was defective in manufacture, 2) defect existed at the time of sale, and 3) the defect caused injury.

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Direct Comparison

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The defect can be proven by comparison between a product made according to the manufacturer’s specifications and the item in question.

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R.3d § 3. Circumstantial Evidence

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If there is no proof of a specific defect, then an inference that the product was defective can be supported if 1) injury ordinarily occurs as a result of a product defect and 2) the injury was not solely the result of causes other than the defect in the product.

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Manufacturing Defect: Actual Causation

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But-For Test: Whether the injury would not have occurred but for the defective condition of the product.
Intended Use: P was injured while using the product in the intended manner.

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Manufacturing Defect: Proximate Cause

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Reasonable Foreseeability: Whether the injury was reasonably foreseeable consequence of the product’s intended use.
Alternate Form of Rule: Plaintiff’s injury was a reasonable and probable consequence of the defective condition or there is a reasonable connection between the defect/omission and the harm suffered.

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Design Defect

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A product is defective if its design makes the product unreasonably dangerous to the user.

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Design Defect: Consumer Expectations Test

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A product is defective in design if the design renders the product more dangerous than expected than an ordinary consumer would expect. The product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

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Design Defect: Risk-Utility Test

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A design is defective when the foreseeable risks of harm posed by the design outweighs the design’s utility. (A product’s design embodies excessive preventable danger).

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Design Defect: Threshold Issue

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Scientifically Knowable Risk: The risk of harm must be scientifically knowable because a design cannot account for a risk that could not be anticipated. Relates to feasibility.

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Risk-Utility: Risk Component

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Probability: Likelihood of the foreseeable harm occurring.
Magnitude: Potential degree of severity/magnitude of resulting harm.

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Risk-Utility: Utility Component

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Production Costs: Increased production costs of safer design or added safety measures.
Decreased Utility: Decrease in utility/efficiency resulting from safer design. Shown by reduced productivity of the safer design.
Diminished Value: Loss in product’s commercial value because prospective consumers are less likely to purchase the safer designed product.

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Design Defect: California’s Approach

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Risk-Utility test is applied unless ordinary knowledge and everyday experience permits an inference that a product’s design violated minimum assumptions about safety.

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California Approach: Minimum Threshold

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Everyday experience of the product’s users must permit a conclusion that the design violated minimum safety assumptions. The deciding factor is whether the facts are such that an ordinary consumer may not be able to form an expectation about what can be assumed about minimum safety standards.

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California Approach: Consumer Expectation Test

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A product is defective in design if it fails to perform as safely as an ordinary consumer would expect.

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California Approach: Modified Risk-Utility Test

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If a plaintiff shows that a design feature presents a substantial risk which actually caused injury, then the defendant must prove that the benefits of a chosed design outweigh the risks embodied by that design
1. Establish Proximate Cause: Design Poses Foreseeable Risk
2. Burden Shift: Defendant Proves Design is Reasonable

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California Approach: Ex Post Facto

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A design may be found defective, even though the consumer expectation test is satisfied, if the jury concludes after the fact that the product’s design embodies an excessive preventable danger

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Design Defect: R.3d Approach

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Reasonable Alternative Design:
A design is defective if a reasonably foreseeable risk of harm could have been avoided or reduced by the adoption of a reasonable alternative design and the failure to do so left the product not reasonably safe.

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R.3d Approach: Threshold Issue

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Foreseeable Risk of Harm: A product is not design-defective unless the chosen design makes the harm reasonably foreseeable. R.3d requires that the plaintiff show knowledge of defect (defendant was aware of the defect).
Prior Injuries: If the manufacturer had knowledge of similar injuries, then the particular risk of harm was foreseeable.
Demonstrable Risk of Harm: The risk of harm is readily apparent when used as designed.

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R.3d Approach: No Foreseeable Risk Created

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If the product’s design does not create a foreseeable risk of harm, then the product cannot be found to be defective under the risk-utility test even though a safer design exists.

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R.3d Approach: Alternative Design

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RAD must reduce the foreseeable risk of harm.

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- Specific alterations that could have been made.
- Safety features easily added without impairing overall function.

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R.3d Approach: Feasible/Available

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The plaintiff must show a reasonable alternative design was available or feasible.

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Availablity: The plaintiff must show a reasonable alternative design was available or feasible.
Similar Products: Evidence that similar products have safer designs will almost always show that an alternative design was feasible.
State-of-the-Art: No safer/alternative design is possible because the product is the state of the art.