Product Liability Law

Product Liability – Negligence

duty of care

4,700 Mazda CX7s and 3s on board

Mazda’s Problem • 4,703 New Mazda’s• Weeks bobbing at 60º angle• Cars safely strapped down – no

movement of cars other than the angle• You are the CEO of Mazda what would

you do? Why?• Sell them? How? What limitations? • Schools wanted them for shop• Hollywood for stunts

Requirements of Strict Product Liability—Summarized

The defendant must sell the product in a defective condition.The defendant must normally be engaged in the business of selling that product.

The product must be unreasonably dangerous to the user or consumer because of its defective condition (in most states). A court may consider a product so defective as to be unreasonably dangerous if either (a) the product was dangerous beyond the expectation of the ordinary consumer or (b) a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.The plaintiff must incur physical harm to self or property by use or consumption of the product.The defective condition must be the proximate cause of the injury or damage.The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.

Greenman v. Yuba Power Products, Inc.

When Greenman was injured by a defect in the design of a “Shopsmith” woodworking tool, he sued claiming breach of warranty and negligence. The court instead held the manufacturer strictly liable.

Liability w/o fault – applies to:– Abnormally dangerous activities– Food, drink, intimate body usage products– Any product that is “defective.”

Ape Attack

Strict Liability Why shift standards? Product Focus. Focus on product itself rather than duties Chain of Liability. Claim against anyone in the chain of distribution; including the

– immediate seller, – the wholesaler, – the manufacturer, and – the manufacturer of component parts

Elements– One who sells any product in a defective condition unreasonably dangerous to the user or

the consumer… Must be engaged in the business of selling the product No substantial change in the product

– The rule applies even though Seller exercised all possible care in the preparation and sale of the product, and The user or consumer has not bought the product from or entered into any contract with the seller.

End-of-Chapter Q: 10.6 Plastic Capped Glass Jar• Godrey purchased a 24-ounce glass jar of peanuts from a convenience store.• To obtain a $2 rebate, she used an exacto knife to remove part of the label.• Weldge (a boarder) used the jar without incident.• Weldge a week later removed the cap took some peanuts and when he put the cap back on

the glass broke in his hand causing injury. • Sued the store, the peanut manufacturer and the manufacturer of the glass jar.

Debate – Political Perspective pl. 238 (2) for tort reform v. (11) opposed

5

Interesting Successful Lawsuits – Negligence and Strict Liability Broken Ankle Tripping over Toddler Loose in Store - $780,000. Ms Robertson tripped when a

toddler ran in front of her in store. Toddler was her son. Restaurant Patron Tripped Over Cola Can on Floor - $113,500. Amber Carson slipped on a cola

can and broker her tailbone. She had thrown the can seconds earlier at her boyfriend in a fight. Hand Ran Over - $74,000. Mr. Truman’s hand was ran over while trying to steal the hubcaps off the

car and the owner failed to see him. Locked in Garage - $500,000. Mr. Dickson spent a week locked in a garage because the garage

door malfunctioned and the door to the house locked when he closed it. He subsisted on a case of Pepsi and a large bag of dried dog food. He was robbing the house at the time.

Dog Bite - $14,500. Jerry Williams was bitten on buttocks by neighbor's beagle. The beagle was on a chain in the owner’s fenced yard and Williams, who climbed the fence, was repeatedly shooting it with a pellet gun.

Fell in Bathroom Window -$2,000. Kara Walton fell into a bathroom window and broke her two front teeth. This occurred while she was sneaking into a bar to avoid paying a cover charge.

Winnebago with Cruise Control - $1,750,000. Set the Winnebago to cruise control at 70 mph and calmly left the driver’s seat to make himself a cup of coffee. Vehicle left highway and was demolished.

First Place Winner Per Article Source: Financial Services Advisor, May/June 2004

Yamaha Rhino

Not a car/not an ATV Not regulated Test rider started tipping – put leg out to stop from

tipping over and 1,100 pound machine snapped leg.

Warnings to wear seat belts, helmet and to drive straight up or down hills to avoid tipping.

Drivers suing Should Yamaha be liable?

Strict Liability – Product Defect and Other Issues

Product Defect. Material defect in design or failure to warn.– No Duty of Care Breached. Contains a manufacturing defect when the product

departs from its intended design even though all possible care was exercised in the preparation and marking of the product

– Economically Feasible Safer Design. Is defective in design when the foreseeable risks 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 by a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe

– Defective Due to Inadequate Warnings. Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings…

Black Talon Bullet.• Olin corp sells the Black Talon Bullet designed as a hollowpoint.• On impact it bends into six razor-sharp petals or “talons” that

increase the wounding power.• Colin Ferguson opened fire on a commuter train using the bullets

and killed six.• Plaintiffs sued Olin based on design defect.. • http://www.theonion.com/content/video/manufacturer_recalls_hollo

w_point

Black Talon Bullet

Subsequent Product Re-Design.

K2 Snowboards.• K2 sold snow board without pre-drilled holes to allow for placment of any

brand binding• Hyjek purchased this model and was injured when binding came loose

and struck him on the inside of his ankle• K2 developed a new system involving “through-core inserts” to improve

installation of binding to the board• Hyjek sought to introduce this design change in support of his claim for

design defect of the original model.

Our society does not want to discourage product improvement.

Warnings for dangers

Winners of Michigan Lawsuit Abuse Watch Award for Wackiest Consumer Warning Label

“Do not put any person in this washer” for a washing machine. “Harmful if swallowed” – three pronged fishing lure

“Do not use for personal hygiene” Disposable Toilet Bowl Cleaner

“Never use hair dryer while sleeping”

“Not intended for highway use”

Market Share Liability and Latent Defects

Market Share Liability– DES drug linked to rare cerverical cancer in daughters

(among other things) – Lawsuits not until 20 or more years after taking the drug– Prescribed to reduce miscarriages – Unable to prove which of the 300 manufacturers made the

precise pills– Identical formulas used

– Lead Paint example – lead paint used in houses – how can you know who produced the lead paint?

– Alternate liability: two hunters shoot in same direction. One bullet hits plaintiff in eye and lip. Summers v. Tice.

Latent Defects– Farsian v. Pfizer for heart valve– Valve failed in 4.2% of cases killing 2/3 of those

where the valve failed– Plaintiff where valve did not fail claimed lower

value of valve and emotional distress– Court dismissed case because no-injury suffered.

Ad Promoting DES to Physicians

Defenses to Product Liability

There are several defenses that manufacturers, sellers, or lessors can raise to avoid liability for harms caused by their products.

Assumption of Risk

Comparative Negligence

Other Defenses

Commonly Known Dangers

Product Misuse

Product Misuse

End-of-Chapter Q: 10.4 Nissan Altima into Tree• Roy Mercuiro drove his Nissan Altima into a tree at 30-40 mph.• He had a blood alcohol content of at least .18%• Spouse sued because car not crash worthy• Product Misuse. Risk of a 30-40 mph collision is foreseeable – regardless of

circumstances why (drinking in this case). • Voluntarily Assumed Risk. Assumed risk of an accident, but not risk that car un-crash

worthy – therefore, evidence of alcohol use not admissible.

Similar to Assumption of Risk Defense

Product misuse • pogo backflip • atv backflip

Compliance with Government Standards

Wyeth v. Levine - $6.9 million anti-nausea drug – gangrene 3/4/2009

Extra Slides

Product Liability

Overview. – Liability of

manufacturers, sellers, and lessors of goods

– to consumers, users, and bystanders

– for injuries or damages that are caused by the goods. Product liability claims are most often based on:

– Warranty Law– Misrepresentation– Negligence– Strict Liability

CASE in Point James v. Meow Media, Inc. (2003). P. 266. Is the creator of a violent video game liable if the child acts out?