CHAPTER 10
Product Liability
INTRODUCTION
Product liability is the legal liability of the
manufacturer or seller of a product which, because
of a defect, causes injury to a purchaser, user, or
bystander. This chapter discusses the evolution of
the strict liability doctrine. It focuses on the bases
for strict liability, including manufacturing defect,
design defect, and failure to warn. Defenses to
product liability claims are discussed. Additionally,
the law of product liability in the European
Community is addressed.
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THEORIES OF RECOVERY
 Breach of Warranty
 UCC Warranties.
 Privity of Contract - a contractual relationship must exist
for a Plaintiff to recover.
 Negligence To prove negligence in a products case,
the injured party must show that the defendant did
not use reasonable care in designing or
manufacturing its product or in providing adequate
warnings.
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THEORIES OF RECOVERY
 Strict Liability in Tort—absolute liability
for an unreasonably dangerous product.
 To recover, Plaintiff must prove:
1. He or his property was harmed by the product;
2. The injury was caused by a defect in the
product;
3. The defect existed at the time the product left
the defendant and did not change substantially
afterwards.
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STRICT LIABILITY
IN TORT (CONT’D)
 Rationale
 Law should protect consumers against unsafe products.
 Manufacturers should not escape liability simply because they
typically do not sign a formal contract with the end-user of their
products.
 Manufacturers and sellers of products are in the best position to
bear the cost of injuries caused by their products.
 Strategy and Punitive Damages
 Employees Memos and Testimony
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NEGLIGENCE
Case 10.1 Synopsis. MacPherson v. Buick Motor Co. (N.Y. 1916).
MacPherson purchased a new Buick from a Buick dealer who had
purchased the car directly from Buick, the manufacturer. MacPherson
was injured when the car ran into a ditch after a wheel collapsed due to
faulty wood in the spokes of that wheel. The wheel was made by a
manufacturer other than Buick. MacPherson sued Buick Motor Company
and won. ISSUE: Can a consumer who purchases a product from a
retailer sue the manufacturer directly for negligent manufacture of the
product even though there is no contract per se between the consumer
and the manufacturer? HELD: Yes. The court held that Buick, as the
manufacturer, owed a duty to any person who could foreseeably be
injured as a result of a defect in the automobile it manufactured.
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DEFECTIVE PRODUCTS
 Manufacturing Defect—a flaw in the product that occurs
during manufacture.
 Design Defect—inadequate design or poor choice of
materials that make a product dangerous to users.
 Inadequate Warnings, Labeling, or Instructions:
 Causation Requirement—Plaintiff must show that Defendant
both breached a duty to warn and that the failure to warn was
the proximate cause of the Plaintiff’s injuries.
 Bilingual Warnings.
 Unavoidably Unsafe Product
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BILINGUAL WARNINGS
Case 10.2 Synopsis. Ramirez v. Plough, Inc. (Cal. 1993).
Jorge Ramirez, four months old, was given St. Joseph’s Aspirin
for Children, for a cold or upper respiratory infection, by his
mother. Jorge developed Reye’s Syndrome, resulting in severe
neurological damage and retardation. Plough, the manufacturer,
knew Hispanics purchased its product, but the warning on the
label was only in English. ISSUE: May a manufacturer of
nonprescription drugs that can lead to a deadly illness when taken
as normally expected incur tort liability for distributing its
products with warnings only in English despite the fact that the
manufacturer knows that there are non-English-reading users?
HELD: Case dismissed because federal law only requires warning
labels in English.
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DEFINITION OF PRODUCT
Case 10.3 Synopsis. Bell v. Miller Mill Company, Inc. (Feb. 4, 2000).
On August 12, 1995, Jasmine Bell and her two children, Jasmarie and
Jason, were driving in their car on a highway. A van parked on a
driveway near the highway rolled down a hill and struck a guy-wire
attached to a telephone pole. The telephone pole broke, causing the
telephone lines to sag down over the highway and strike Bell’s car. The
lines lifted Bell’s car into the air. When the car landed on its back,
Jasmarie was ejected; she subsequently died. Jasmine Bell filed a
wrongful-death action under the Alabama Extended Manufacturer’s
Liability Doctrine (AEMLD) against the manufacturer of the telephone
pole, claiming that the pole had been defective and unreasonably
dangerous. At the end of Bell’s case at trial, Miller filed a motion for
directed verdict, which the court granted. Bell appealed. CONTINUED
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DEFINITION OF PRODUCT
Case 10.3 Synopsis. (Cont’d)
ISSUE: Is a telephone pole installed in the ground a
“product” for purposes of establishing product liability?
HELD: The Supreme Court of Alabama found that a
telephone pole was a “product.” The directed verdict in
favor of the defendant was reversed.
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WHO MAY BE LIABLE
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Manufacturers
Wholesalers
Retailers
Sellers of Used Goods and Occasional Sellers
Successor Liability
Market-Share Liability
Premises Liability
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DEFENSES
 Assumption of Risk – when a person voluntarily and
unreasonably assumes the risk of a known danger,
the manufacturer is not liable for any resulting
injury.
 Comparative Fault – damages reduced by the
degree to which the plaintiff’s own negligence
contributed to the injury.
 Unforeseeable Misuse of the Product
 Statute of Limitations and Revival Statute - a time
limit, established by statute, within which a lawsuit
must be brought.
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ASSUMPTION OF RISK
Case 10.4 Synopsis. Crews v. Hollenbach (Md. 2000).
John Hollenbach, an employee of Honcho & Sons, Inc., was excavating
land for Honcho in its role as a sub-contractor of Excalibur Cable
Communications a subcontractor of Maryland Cable Partners, L.P. During
his work, Hollenbach struck a buried natural gas line owned by Washington
Gas Light Company and caused a leak in the line. Gas escaped into the air
and, as a result, the neighborhood where the gas line was located had to be
evacuated. The fire department notified Washington Gas, which dispatched
a repair crew to the scene of the leak. Lee James Crews, an employee of
Washington gas for over twenty years, was the foreman of the gas line
repair team dispatched to repair the leak. While he and his crew worked to
repair the leak, the gas ignited and an explosion occurred, seriously
injuring Crews. Crews sued Hollenbach, Honcho & Sons, Excalibur Cable
Communications, Maryland Cable Partners and Byers Engineering
Company (which marked the utility lines), claiming negligence and strict
liability.
CONTINUED
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ASSUMPTION OF RISK
Case 10.4 Synopsis (Cont’d)
The trial court dismissed the case on the grounds
that Crews assumed the risk as part of his job. The
Court of Special Appeals affirmed the judgment.
Crews appealed. ISSUE: Is assumption of risk a
viable defense against a suit by an employee hired
to repair gas leaks who was injured during the
process of repair? HELD: Affirmed.
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DEFENSES (CONT’D)
 Government-Contractor Defense:
1. The product was produced according to government
specifications.
2. The manufacturer possessed less knowledge about
specifications than did the government agency.
3. The manufacturer exercised proper skill and care in
production.
4. The manufacturer did not deviate from the specifications.
 State of the Art Defense—no safer product design
is generally recognized as being possible at the
time of manufacture.
 Preemption Defense.
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PREEMPTION DEFENSE
Case 10.5 Synopsis. Geier v. American Honda (U.S. 2000).
While driving a 1987 Honda Accord, Alexis Geier crashed into a tree
and was seriously injured. Although the car had manual shoulder
and lap belts that Geier was using at the time of the accident, it had
no airbags or other passive restraint devices. Geier and her parents
sued American Honda under state law for failing to include a driver’s
side airbag. The Federal Motor Vehicle Safety Standard (FMVSS) 208,
promulgated pursuant to the National Traffic and Motor Vehicle
Safety Act, required auto manufacturers to equip 10 percent of their
national fleet of cars with passive restraints, but did not require
airbags. The district court dismissed plaintiff’s claim on the grounds
that it was preempted by federal law. The U.S. Court of Appeals
affirmed, and the Geiers appealed. CONTINUED
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PREEMPTION DEFENSE
Case 10.5 Synopsis. (Cont’d)
ISSUE: Does the Safety Act preempt state tort
claims based upon a manufacturer’s failure to equip
a vehicle with air bags? HELD: The Supreme
Court held that the state product liability claims
asserted by Geier conflicted with the objectives of
FMVSS 208 and were preempted by the Act. The
claims were dismissed.
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LEGISLATIVE
DEVELOPMENTS
 Statutes of Repose—cut off the right to assert a
cause of action after a specified period of time from
delivery of the product or completion of the work.
 Limitations on Punitive Damages.
 Codification of Defenses.
 Plaintiff’s Negligence.
 Assumption of Risk.
 Misuse of Product.
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LEGISLATIVE
DEVELOPMENTS (CONT’D)
 Limitations on Non-Manufacturer’s Liability Plaintiff must show:
 Defendant had some control over the design or
manufacture of the product or warned the manufacturer
of the alleged defect.
 Defendant actually knew of the defect.
 Defendant created the defect.
 Limitations on Joint Liability
 Penalties for Frivolous Suits
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PRODUCT LIABILITY
Case 10.6 Synopsis. Potter v. Chicago Pneumatic Tool Co. (Conn.1997).
Plaintiffs, grinders in a shipyard, were injured in the course of working
for General Dynamics Corporation. The injuries occurred from using
pneumatic tools (to chip, grind, and smooth metal surfaces)
manufactured by Defendant. Plaintiffs suffered permanent vascular and
neurological impairment of their hands which causes, inter alia,
numbness, pain, and an intolerance to cold and were no longer able to
work at their former jobs. Plaintiffs sued Defendants for defective tool
design (excessive vibrations) and inadequate warnings by Defendant.
The trial jury found for Plaintiffs. Defendants appealed. ISSUE: Did the
plaintiffs have to show a reasonable alternative design to win in a
defective design case? HELD: No. The Connecticut Supreme Court said
they did not. However, the jury verdict was vacated and a new trial
ordered because the Court found that the Plaintiff’s employer had
modified the tools prior to use by Plaintiffs.
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PRODUCT LIABILITY IN
THE EUROPEAN UNION
 Comparison with U.S. Strict Liability - similar
in both situations.
 Implementation: EU Member States can
choose to:
 Allow the development-risks defense.
 Impose a cap on damages of not less than 55 million
pounds.
 Exclude all agricultural products.
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REVIEW
1. Should pharmaceutical companies that distribute
drugs with known side effects be liable when those
side effects occur in a small percentage of users?
2. If a product is targeted at a typically non-English
speaking market, should warning labels be in
languages other than English too?
3. Should the state-of-the-art defense be 100%
successful?
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