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Ordinary rules of negligence apply
Y
Y
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Y u „liminated privity requirement, extended negligence principals
to all those =
  injured by its products. Comes from a duty imposed in all
contracts of sale.
   mifficult to prove fault, although P can invoke á


, m can still show it used
the utmost care in manufacturing the product.

£!""#$Vesult of a contractual relationship, Manufacturer liable for injuries resulting from

defective products from breach of warranty or misrepresentation.

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Y
u Privity requirement eliminated, PL can sue manufacturer directly from
misrepresentations of an express warranty.
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Y 

=u held manufacturer has  warranty that extends to the

ultimate user.
. %£ &All sellers of goods provide an  warranty that goods are fit for
ordinary purposes ANm what the manufacturer  warrantees.

##c"#$Most modern courts use SL

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 Originated the SL claim for products. Held liability for
defective products is to be grounded in strict liability, not contract. Purpose is to insure costs of
the injuries resulting from defective products are borne by manufactures that put products into the market
place, rather than the injured PL who is powerless.

DDDD#"# #'#"# %&(£
DDDD

r
One who sells a product in a defective condition unreasonably dangerous to the consumer or to his
property is subject to liability for physical harm thereby caused to the ultimate consumer, or to his
property, if
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the seller is [regularly] engaged in the business of selling such a product, and
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PL must prove that the product was defective when it left ms control rm sold it when it was
defective

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The rule in r
applies „„N IFu
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the seller has exercised all reasonable care in the preparation and sale of his product
rb
the user/consumer has not bought the product from or entered into any K w/ seller.

.Y mO„S NOT apply to 


Y
 u PL w/ economic loss has grounds in duress/fraud
.Y A product is defective if it was unreasonably dangerous beyond Consumers Veasonable
„xpectations.

$"'c )*###c"#$
. Lack of relationship between consumers and manufactureru PL has to rely a distant on manufacturer for
information.
. Manufacturers encourage purchase of their products.
***3. „nterprise liabilityu redistributes liability through insurance, to all users of the product. Seen as a
cost of a doing business.
4. Fairnessu PL does not provide a reciprocal risk on the consumer.
5. meterrenceu „ncourages m to make safer products and disclose risks.
Specificu MKT decides what goods cause harm
Generalu Legislature decides what actions pay greater cost.
6. Courts see aggressive efforts to simulate sales as a quid pro quou manufactures need to stand behind
their products.
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Physical departure from
a products intended design even though m may have used
reasonable care.
Can occur when nothing is wrong with the design itself.

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 )*#0")'#1-Unreasonably dangerous beyond
consumer expectations for intended use

£ '#0""#*""*'" 
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& )*#0")'#10#'# 4#

#"# # u Can be inferred from
i. when the event was a kind that ordinarily occurs as
the result of product itself
ii. Not solely the result of causes other than product
itself.

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Y
Y
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YNegligence not required,
Manufacturer liable in SL for defective products.
PL is required to proveu
. Not what defect caused the incident
. But may rely on circumstantial evidence to infer that it was
more probable than not, product was defective when it left
Manufacturers control.
3. Judgment for P if shows that product was defective when m
released into stream of commerce

A product is defective if it isu mangerous and unreasonable

beyond consumers expectations.
MANUFACTUVING m„F„CTSu US„ 40A
CONSUM„V „P„CATIONS T„ST
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.
mesign is defective because it is unreasonably dangerous beyond consumers
expectations
PL memonstratesu Product failed to perform safely, as an ordinary consumer
expect to when used in a reasonably foreseeable manner.
i. PL testimony
ii. Jurys own knowledge
iii. „xpert witnesses
A. Sometimes more advantageous to Consumersu leaves more leeway to the jury to
make a common sense evaluation of the product. Proving design defect under this
approach does NOT require PL to demonstrate a safer way to design the product.
She only need show product was less safe than a reasonable consumer would
expect. May allow PL to establish her claim without hiring expensive expert
witnesses to testify about the VAm.

£56##$""-)#"# #.But what if consumers dont know
what to expect because they have no idea how safe the product could be? Product
causes more risk than a reasonable consumer would expect.
A. Weighing the likelihood of harm
B. Gravity of harm if it occurs and;
C. The cost of preventing the harm by using a different design
. The cost of a different design would include
A. Any loss of benefits in the present design, and
B. Any direct costs of the alternative design rproduction/marketing costs

moes the VAm
3. In asserting the risku capacity of users to protect themselves is important.
Could be costlyu Involves evidence of cost of materials, production techniques
in a specialized industry, complex price calculations, and analysis of collateral
effects of a hypothetical VAm on function/marketability of the product.


Y
YÑu SL can be rejected if PL shows benefit to public of VAm is
outweighed by its dangers.
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PL needs to show a VAm is -. "$'"
")-£. "$'"
. Use of a VAm by another maker may establish technological feasibility but it
does NOT establish µeconomic feasibility
. Technological feasibilityu existence of a technological advancement
3. „conomic feasibilityu cost of applying that technology.
A. Use in marketplace alone not sufficient to establish
B. PL must prove cost of incorporating new technology

 *#*"### Y
YcY YPL can establish

SL products liability if the product is unreasonably dangerous b/c if fails the
consumer expectations test OV if it fails a risk/utility balancing test.

+01Courts that use Consumer expectations must logically reject VAm.

)*#)"$"#* -"*#.NO SL ù risk/utility test

is inapplicable because the risks arise from a function of the product, NO
m„F„CT.

If PL cannot demonstrate a reasonable alternative design that would eliminate

product risk, then the product is not presumably defective under the Third
restatement approach. Yet it might pose more of a danger than consumers would
expect. In such cases design would fail the consumer expectations test rnd
restatement
but not the Visk/Utility r3rd restatement
.


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Failure to provide appropriate information about a
product may make an otherwise safe product unreasonably dangerous and
therefore defective.
. A product becomes defective when the products foreseeable risks of harm could
have been reduced by the provision of a reasonable warning.
3. Omission of such a warning renders the product unreasonably safe.

!"1$#0#$2' "
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a particular place, object, or activity is dangerous
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people need not risk the danger posed by such a place, object, or activity in
order to achieve the purpose for which they might have taken the risk.


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ALack of warning
B. was cause in fact and proximate cause of harm
C. Causation established by more probable than not rr>50%

. PL must prove that he would have avoided the risk if he was adequately warned.
. Burden shifts to m to rebut it.
3. Causation is established as more probable than not.

"'!"User is often the ³cheapest cost avoider´u she can avoid

the risks posed by the product at a low cost, by taking precautions in using it.
. Vedesigning a product to eliminate the risk could be considerably costly or
impossible.
3. If user is to avoid the risk, she must have clear instructions/warnings to allow
her to do so. Thus a product may be safe with appropriate warnings and directions,
but unreasonably dangerous without them.
4. Product, although reasonably designed was defective for failure to warn of
dangers of use.





+

56##$""'"#
. „xtent of risk
. Likelihood it will arise
3. Users likely understanding about the danger
4. Means available to convey a warning
5. Likelihood that excessive warnings will decrease the effectiveness
6. meciding on what warnings to vie.

#"# # &(£
Consumer should be warned if ³danger is generally not

known, or if known, one which consumers would reasonably not expect to find in
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the product´

#"# # Warnings should be provided for inherent risks that reasonably
foreseeable users/consumers would reasonably deem material or significant in
deciding whether to use the product.
Suggests SL for failure to warn liability on a ³reasonableness´ Standard

. Warnings must be adequate

3. Warnings can be required although danger is obvious
4. Better use is to provide information for telling people how to deal with
dangerous situations, and if there are safer alternatives.

2# *Learned intermediary doctrine

 a. When manufacturer provides adequate warnings to
b. doctor/bulk buyers or sophisticated users
c. responsibility shifts to them to know the risks
d. and pass them on to the end user
. Manufacturer can presume mr understands complex warnings and appropriately
. translates them to the patient
3. If physician already knows of the dangers, no warning is required to physician
4. Pharmacies are „xempt from SL liability when they properly fill prescriptions.

If manufacturer directly markets drugs to consumer

. Some cases hold that learned intermediary doctrine defeats the consumers
failure to warn claim.

#"# #21)Manufacturer must provide health risks or warnings to
consumers only when manufacturers know or had reason to know that
a. learned intermediary will not be in a position to reduce risk of harm in
accordance with instructions or warnings

"# )"Where birth control pills are routinely prescribed by

mV w/o individualized warningsu some jurisdictions require manufacturer
warnings.
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#"!"
Seller or distributor required to give post sale warning
. When a reasonable person would so so
3. Veasonable person would do so if
a. he knew or should have known
b. product possesses substantial risk of harm and
c. Needs to warn those who can be identified and
d. are assumed to be unaware of the risk.

#"!"u some courts hold duty to warn is generally given as a matter
of law no duty exists where the manufacturer could not feasibly identify the
potential victims because.
a. purchased second hand
b. purchased years ago
ù Members of a universe too diffuse and large for manufacturers or sellers
of original equipment to identify.

#"#*#")*"#may require post sale warnings or repairs

. Motor vehicles
. Notice of mefects
3. Vemedy mefects
4. Vecall products
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01+
. Contributory negligence of PL is not a defense when such negligence consists of
a. a failure to discover a defect in the product or
b. to guard against the possibility of its existence
. On the other hand contributory negligence which is voluntary and unreasonably
proceeding to encounter a known danger, µassumption of risk is a defense in other
cases of strict liability.

. „ither a PLs contributory negligence amounts to a voluntary assumption of the

known risk or it does not.
if it does then that conduct provides an otherwise strictly liable m with a
complete defense.
If it doe notu contributory negligence of PL provides no defense

Under negligence principals liability is determined according to fault.

. We seek to blame the person or persons responsible for having caused the loss to
pay for it.
. We blame the loss on the negligent party because it was they who could have
avoided the loss with due care.

Conversely in SL
. Manufacturer/seller of a defective product is respondible not b/c its blameworthy
. But because it is more able to spread the loss among those who use and thereby
benefit from the profit.
SL cannot be absolutely divorced from traditional concepts of fault.
In a sense we ³blame´ the loss on the manufacturer or seller b/c they introduce a
defective product into the market place.
BUTu SL is at odds with traditional notions of due care and negligence
The better reasoned decisions are those that decline to inject a PLs negligence into
the law of products liability.
Y
!Y
Y- mefective product is comparable to a µtime bomb, it maims its victims
indiscriminately, those who are careful and careless
When a faulty design or otherwise defective product is involved with litigation it
should not be diverted to consideration of negligence of the PL
Liability issues are simpleu mid m inject the product into the stream of commerce and
did the defect cause the injury
The ultimate consumer-victim who used the product in the contemplated or
foreseeable manner is wholly irrelevant to those issues.
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 ##&(£
u Assumption of Visk as a defense to defective products
If the user/consumer
 
 the defect and
" Y of the danger, and
Nevertheless 
 Y
 to make use of the product and is injured by it
ùbarred from recovery

 is a minority viewu most courts allow m to defend on grounds that P was
contributorily negligent, and damages can be reduced. Vestatement takes this
approach.
Misuse of the productu In some sense, misuse of the product is contributory
negligence.