Products Liability: - Defined: products liability is any body of doctrine that deals with liability for injuries from

products. Its the stricter liability imposed by RS 402A. - PF Case for product liability: (analyzed under the RS 3d; stricter liability) 1. One engaged in the business of selling or distributing products 2. Sell or otherwise distributes 3. a product (make sure that it is product as opposed to a service) 4. product has a defect a. manufacturing defect (RIL) b. design defect (was Consumer Expectation testnow Risk Utility) c. warning defect 5. defect existed when the D sells or distributes (or when it left the Ds hands) a. Usually the only time you have a mystery as to when the defect started is in a manufacturing defect problem b. Remember the innocent retailer rule: i. Defined: this is the rule that allows the innocent retailer normally the store that the product was purchased from to get full indemnity from the other party b.c. he was not the person responsible for introducing the defect, he was just the retailer ii. MAJORITY RULE: P can still recover against the innocent retailer down the line, but allows the retailer to indemnify themselves. iii. Retailer can full indemnification from someone else higher up the chain, but it is important to note that that this rule is only helpful to the retailer in the case where they have someone chain of Ds who have money and can prove they were iv. POLICY: reason for this rule is that it could provide more deterrence b/c if the retailer knows that they will be liable defect that was not necessarily their fault they will be more to inspect the product before they put it out on the market, chose the wholesalers and manufactures that they purchase more carefully 6. Product defect causes - cause in the sense of actual and proximate cause, same as negligence 7. Harm to person or property (property not that product)

innocent

up the innocent

for a careful and from

Defects in Detail: ** A product is defective when at the time of sale or distribution it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.*** Manufacturing Defect: 1. Defined: when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; find the blueprint and show that this product deviated from it in some way. Analyze under the R3d elements noted above. 2. Four methods of proof of manufacturing defect (from the Whitted Case): Note that these are methods of proof, not tests a. expert testimony to show specific manufacturing defect b. expert testimony to circumstantially prove that a manufacturing defect exists c. direct evidence from eyewitness of malfunction, supported by expert testimony explaining the possible causes for the defective condition d. inferential evidence by negating other possible forms of proof (has to be used in conjunction with the 1st three forms of proof) 3. RIL and manufacturing defects RIL requirements in a manufacturing defect case would include a showing that 1. The accident is the kind that does not usually happen absent a defect in the product 2. It is reasonably plain that the defect was not introduced after the product was sold, the accident is then evidence that the product was defective when sold (so this would require us to say something like the client was real careful with the product) * also with RIL we are looking for expert testimony, see the case below* Case Law: Whitted v. GM Facts: a large man crashes his Nova and his seatbelt breaks. He is trying to use RIL to show that a manufacturing defect exists - He has to use RIL because he only circumstantial evidence that seatbelts dont usually break when they are only about 6 yrs. old. But he didnt have any specific evidence to show how the product deviated from the manufacturers intention, so he had to use circumstantial evidence - The problem with RIL in products cases is that the product is never under the manufacturers exclusive control. However, most modern courts have relaxed that standard and now say that the evidence as a whole has to point to the D. Holding: The court holds that because the P did not put on good circumstantial evidence they did not buy his RIL argument, basically what happened was 2

that he presents causes, or

did not have any expert testimony. We find that a P may use circumstantial evidence to establish that a manufacturing defect existed only when the P evidence by way of expert testimony, by way of negating other possible by way of some combination of the two. In sum Whitted failed to produce enough evidence to raise a material issue of fact that the 1987 Chevy Nova Seatbelt broke due to a defect of any sort.

4. RS 3rd 3: Circumstantial Evidence Supporting Inference of Product Defect - It may be inferred that the harm sustained by the P was caused by a product defect, without proof of the specific nature of the defect, when a). the incident resulting in the harm was of a kind that ordinarily would only occur as a result of a product defect; and b). evidence in the particular case supports the conclusion that more probably than not: 1. the cause of the harm was a product defect rather than other possible causes, including the conduct of the P and 3rd persons; and 2. the product defect existed at the time of sale or distribution Design defect: a. defined: when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product unreasonably unsafe. * So the first question that we want to ask here is What is the alternative design? Next, compare the alternative design (safety improvement, not much more cost, not much loss in utility) to the current design Then based on this comparison decide that the existing design if the existing design is defective. The existing design is defective if the alternative design is feasible, and so much safer that it makes the product on the market unreasonably dangerous. * May want to say something here like: similar to the needle case, that the use of the new product is great, but it does not make the of the of the old product unreasonably unsafe. - Key things to look for when making this argument How often does the accident that was caused by the defect occur in the needle stick case there were not many occurrences that lead to this type injury and the new design was harder to use, that is why they held that old needle was not inherently defective in design. b. there is a design defect when the product should have been designed differently c. Two Tests: 3

of the

have expectations.

1. Consumer Expectations: If the design is not as safe as the consumer expects it to be, then the product is defective **NOTE: this test has become highly disfavored and is really no longer used - Pryor says that reasons for this are 1). Consumers do not always know enough about what to expect; like in pharmaceuticals. Often u dont previous experience to compare, consumers often dont have Also, if the expectation is just that it will be safe, then that is way too broad to be meaningful. 2). Also, it limits innovation people can expect un-safety and then the manufacturer does not have to change anything. 2. Risk/Utility Test: does the utility of the specific design feature at issue outweigh its risks? - The risk utility test is somewhat like the BPL in weighing the costs vs. benefits - Asks whether, as a matter of social policy, the risk of loss is appropriately placed on the manufacturer - There are 7 factors used to decide if the risk outweighs the utility: 1. The usefulness and desireability of the product 2. Safety aspects (like the BPL) 3. The availability of a safe substitute product 4. The ability to make the product safe without impairing the usefulness or making it too expensive to be useful 5. Users ability to avoid danger by exercise of care 6. The users anticipated awareness of the dangers in the product and their avoidability either because of general public or warnings 7. Feasibility of spreading the loss by getting liability insurance - Remember that most courts do require you to show/say what a safer design would be, just like in negligence

knowledge

Case Law: Camacho v. Honda Motors Facts: Man fell down on his motorcycle and the bike did not have lay down bars so his legs were injured. If the bike had had bars his legs would have been protected. He is arguing that the lack of bars was a design defect. Issue: Was the lack of the lay down bars a design defect? What is the proper legal test to apply to decide this: consumer expectation or risk/utility Holding: The court decided that the risk/utility test was the proper test to apply (although the dissent disagreed, and felt that in cases such as these expectations was the proper test and R/U should be used in cases pharmaceutical.) Because the court the goes with the risk/utility test 4

consumer like

and not the that the lay

consumer expectation test it decides in favor of Camacho holding down bar would be an easy safety feature to add. - NOTE: this is the case where the 7 factors came up, functionally similar to R3d.

- Crashworthiness Doctrine: the court also adopts the crashworthiness doctrine in this case. This doctrine stands for the notion that a motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries. - a manufacturers duty encompassed designing and building a product reasonably safe and fit for the for its intended use, that cars are intended to be used on the roadways and that injury producing collisions are frequent foreseeable and statistically expectable results of such normal use Riley v. Becton Dickinson Vascular Access: Facts: Nurse stabbed herself while giving and HIV infected patient a shot and contracted HIV herself She argues that the needle was defectively designed because it should have been designed to protect her from stabbing herself. Issue: was the needle defectively designed? Holding: the court applied the R/U test- 7 factors test and found that because it was only a one in a million possibility that an accident of this sort would happen. The safer design did not meet the factors above because the new recommended needle really wasnt that much safer and was much more expensive. Ultimately the court found that there was not a design defect here because the risk was so remote. - We will first consider the danger inherent in the Angiocath under the R/U test to determine whether the product is unreasonably dangerous in light of its utility and the availability of similarly useful devices which might reduce or eliminate the risk to healthcare worker from exposed IV catheter needles. 7 factors in more detail (look at both products under these factors & compare): 1. The usefulness and desireability of the product Look at: the products utility to the user and to the public as a whole 2. The safety aspects of the product Look at: both the likelihood of injury from the use of the product 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 manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making to expensive to maintain its utility 5

5. The users ability to avoid danger by the exercise of care in the use of the product 6. The users 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 the existence of suitable warnings or instructions 7. The feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying liability insurance Warning Defect: Defined: when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor and the omission of the instructions or warnings renders the product not reasonably safe. Consumer Expectation Test is used by some courts still, but R3d R/U Test is used more often now. R/U Test (or a similar version used here too) 1. weigh the burden of adding the warning that is articulated and the risk that it would prevent - What are costs of warning here 1. one argument will always be over-informing the consumer a. Scaring them off and not making a sale b. Or just over informing and people not listening anymore 2. other costs can also be considered, but really how much does it cost to add a warning? 3. but as previously mentioned the cost of giving too much information could be huge for a seller 4. substantive or procedurally inadequate - Benefits of warning: 1. What number of injuries would be prevented if they put the warning on, how severe would those injuries be? Other Considerations (according to Pryor) These are the steps for the warning defect: 1. They should have had a warning 2. It should have looked like this and been placed in this location 3. What were the risks without the warning, and would the risk have been reduced with the warning?- if the answer to this question is yes, then the manufacturer should have warned 4. would the warning really work? It is possible that the warning may create the glazed eye effect because there are too many warnings out there? 5. Is there some kind of no-duty rule in this jurisdiction for warning defect? If so, may need to go through a duty to warn analysis. If not, then dont. The possibility of a no-duty rule is not a problem with design or mfg defect b/c its always feasance so have a duty usually. Also, if the injury is way too obvious, no duty to warn. 6

Burke v. Spartanics Employee was aware of the danger. An additional warning on the back of the machine wouldnt have changed his behavior because he was already aware. Discusses no duty to warn of obvious dangers.