Torts2

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The 3 types of product defect

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Defect in manufacture, defect in design, defect due to inadequate warning

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Products liability claim alleging defective proof requirements

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(1)The product was defectively designed so as to render it unreasonably dangerous, (2)a safer alternative design existed, (3)the defect was a producing cause of the injury for which plaintiff seeks recovery

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The two types of test to determine if unreasonably dangerous

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consumer expectation and design defect

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The consumer expectation test is

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less desirable for business

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The consumer expectation test does not require

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proposed alternative design, expert testimony, or to prove the specific cause of the defect

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Learned intermediary doctrine

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drug company needs to only warn the physician, he is then responsible for warning his patients

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Wade product knowledge type 1

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product risk was unforeseeable at the time of distribution though association with a product use that was foreseeable at the time of distribution

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Wade product knowledge type 2

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product design alternative was not reasonably technologically available at the time of distribution

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Wade product knowledge type 3

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product use was unforeseeable at the time of distribution

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Retailers, wholesalers, and distributors are liable under

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hindsight liability

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Beshada v. Johns-Mannville Prods

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asbestos case where “undiscoverable” defect did not protect company from liability, state-of-the-art defense was struck down

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Wade prudent manufacturer test

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foreseeable use of a product that produced an unforeseeable harm

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3 advantages to strict liability over negligence

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contributory negligence was not a bar to strict liability unlike negligence, intermediate handlers were liable, and there was hindsight liability

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Wade rick benefit utility factors (1-7)

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usefulness and desirability of the product, the availability of other and safer products to meet the same need, the likelihood of injury and its probable seriousness, the obviousness of the danger, common knowledge and normal public expectation of the danger (particularly for established products), the avoidability of injury by care in the use of the product (including the effect of instructions or warnings), the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive

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Consumer expectation only cares about what the consumer expects not

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the reasonableness, unreasonableness, or foreseeability of the risk

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If there is no separate charge for the use of the product, the bailment relationship

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does not exist

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A shopping cart from Kroger is not rented, so

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it is unlikely that they would be strictly liable for injury caused by a shopping cart

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Just issuing a warning is enough for manufacturers

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to get out of strict liability

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Four theories of liability where plaintiffs have a cause of action despite

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not being able to prove the manufacturer

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Alternate liability and concerted action theories of liability

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are well established theories of liability in American tort law

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Alternate liability, concerted action, enterprise liability, market share liability

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Four theories proposed that in some case give plaintiffs a cause of action when manufacturer cannot be proved

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Restatement second 402 A comment G

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consumer expectation test

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Two affirmative defenses

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contributory negligence and assumption of risk

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Comparative fault can be

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pure or modified

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Vast majority of jurisdictions don’t recognize (Wade product type 3)

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Product use was unforeseeable at the time of distribution

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Assumption of risk was originally

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a complete bar to liability as an affirmative defense

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Rst. 2nd 402A comment n

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you cannot disclaim rights to recover under strict liability theories

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Another benefit of strict liability (not the first 3) is that it invalidates

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disclaimers or express assumption of the risk for plaintiff

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Rst 2nd § 519 and 520

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abnormally dangerous activity

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Rst 1st § 519 Miscarriage of Ultrahazardous activities

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One who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm

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Rst 1st § 520 definition of ultrahazardous activity

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it (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

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Rst 2nd § 520 changed the name from

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ultrahazardous to abnormally dangerous activities

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Rst 2nd § 519 general principle (1)

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one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm

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Rst 2nd § 519 general principle (2)

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the strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous

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Rst 2nd § 520 as this many factors

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6 (a-f)

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Rst 2nd § 520 (a)

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existence of a high degree of risk of some harm to the person, land or chattels of others

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Rst 2nd § 520 (b)

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likelihood that the harm that results from it will be great

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Rst 2nd § 520 (c)

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inability to eliminate the risk by the exercise of reasonable care

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Rst 2nd § 520 (d)

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extent to which the activity is not a matter of common usage

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Rst 2nd § 520 (e)

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inappropriateness of the activity to the place where it is carried on

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Rst 2nd § 520 (f)

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extent to which its value to the community is outweighed by its dangerous attributes

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Cities Service Co. v. State

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phosphate slime case where the approximately one billion gallons of phosphate slimes escaped killing countless fish and inflicting damage

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Rst 3rd § 20

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An activity is abnormally dangerous if:

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Rst 3rd § 20 (1)

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the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors

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Rst 3rd § 20 (2)

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the activity is not one of common usage

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Participating in abnormally dangerous activities

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bars you from recovery as you are not a proper party - Berry v. Greater Park City Co. (Ski competition case)

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Rst 3rd § 21

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intrusion by livestock or other animal

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Rst 3rd § 22

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wild animals

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Rst 3rd § 23

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abnormally dangerous animals

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Common carrier exception

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not subject to strict liability for the transportation of goods which it is required by law to undertake

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Washington St. Univ. v. Industrial Rock

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when a defendant’s explosives did not explode causing harm to persons or property in the vicinity, as the blasting was not done at the quarry site, it is outside the scope of liability because it is not the kind of harm that made defendant’s blasting and storage of explosives abnormally dangerous

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Third restatement on harm

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clearly rejects strict liability for pure mental distress or pure economic loss

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Escola v. Coca Cola bottling Co.

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case that used res ipsa to argue that a bottle that exploded was defective because it had not been tested and such defect could have been discovered if reasonable or practicable tests had occurred

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Rst. 2nd § 402A

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Special liability of seller of product for physical harm to user or consumer

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Rst. 2nd § 402A (1)

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one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property…

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Rst. 2nd § 402A comment g

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Strict liability applied, "only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." (Consumer Expectation Test)

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Rst. 2nd § 402A comment i

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The product is unreasonably dangerous when, "the article sold is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Consumer Expectation Test)

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Rst 2nd § 402A comment j

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presumption that a warning will be read and heeded, some courts have found that the plaintiff carries toe burden of producing evidence that plaintiff would have heeded an adequate warning

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Rst. 2nd § 402A (1)(a)+(b)

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(a)the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

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Rst. 2nd § 402A (2)(a)+(b)

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(a)applies even though the seller has exercised all possible care in the preparation and sale of his product, (b)applies even though the user or consumer has not bought the product from or entered into any contractual relation with the seller

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Wade Prudent manufacturer test

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foreseeable use of a product that produced an unforeseeable harm

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Town of East Troy v. Soo Line R.R.

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common carrier exception case where court held that common carriers cannot be held strictly liable for ADA

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National Steel Service Center, Inc. v. Gibbons

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case that held that common carrier was in a better position to distribute risk and take extra precaution so strict liability was valid

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In re Paulsboro Derailment Cases

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case where vinyl chloride was spilled and court reaffirmed the common carrier exception, meaning strict liability was not valid for common carriers