Chapter 6
Strict Liability and
Product Liability
§1: Strict Liability
Defendant’s liability for strict liability is
without regard to:
Fault.
Foreseeability.
Standard of Care.
Causation.
Liability is based on creation of
extraordinary risk.
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Abnormally
Dangerous Activities
Defendant is strictly liable for an
“abnormally dangerous activity” if:
Activity involves serious potential harm;
Activity involves high degree of risk that
cannot be made safe; and
Activity is not commonly performed in the
community or area.
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Wild Animals
Persons who keep wild animals are
strictly liable for injuries caused by the
beast.
Persons who keep domestic animals are
liable if the owner knew or should have
known that animal was dangerous.
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§2: Product Liability
Product Liability is not a new tort.
Liability can be based on:
Negligence;
Misrepresentation; or
Strict Liability;
Warranty Theory.
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Product Liability
(Negligence)
Negligence-based product liability is
based on a manufacturer’s breach of the
reasonable standard of care and failing to
make a product safe.
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Product Liability
(Negligence) [2]
Manufacturer must exercise “due care”
in:
Designing products;
Manufacturing and Assembling Products;
Inspecting and Testing Products; and
Placing adequate warning labels.
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Product Liability
(Negligence) [3]
Manufacturers who violates state or federal law
in the manufacture or labeling of a product,
may be negligent per se.
No privity of contract required between
Plaintiff and Manufacturer. Liability extends to
any person’s injuries caused by a negligently
made (defective) product.
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Product Liability
(Misrepresentation)
Occurs when fraud committed against
consumer or user of product.
Fraud must have been made knowingly
or with reckless disregard for safety.
Plaintiff does not have to show product
was defective.
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§3: Strict Product Liability
Manufacturers liable without regard to
fault based on public policy:
Consumers must be protected from unsafe
products;
Manufacturers should be liable to any user of
the product;
Manufacturers, sellers and distributors can bear
the costs of injuries.
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Strict Product Liability [2]
Requirements for strict liability:
Product is unreasonably dangerous when sold
Defendant sells the product;
Plaintiff injured by use or consumption of
product and defective condition is the
proximate cause of injury.
Greenman v.Yuba Power Products (1962).
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Strict Product Liability [3]
Plaintiff must show product was so
“defective” it was “unreasonably
dangerous”:
Product was dangerous beyond ordinary
consumer expectations; OR
A less dangerous alternative was economically
feasible but rejected.
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Market Share Liability
Theory of liability when multiple
Defendants contributed to manufacture
of defective product.
Liability of each Defendant is
proportionate to the share of the market
held by each respective Defendant.
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Liability of Suppliers
Suppliers of Component Parts may be
liable if:
Component is defective at the time of
sale/distribution;
Supplier “substantially participates” in the
design and integration of defective product.
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Liability of Suppliers [2]
Manufacturers, distributors, suppliers,
sellers liable to an injured bystander who
did not purchase, use or consumer the
product.
Injuries to bystanders from defective
products are reasonably foreseeable.
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§4: Strict Liability—
Restatement (3rd) of Torts
The terms “unreasonably dangerous”
and “defective” are used interchangeably
and subject to differing definitions by
different courts.
Restatement defines three different types
of defects: manufacturing, design and
warning defects.
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Strict Liability:
Manufacturing Defects
Occurs when a product “departs from its
intended design even though all possible
care was exercised in the preparation and
marketing of the product.”
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Strict Liability:
Design Defects
Occurs when the “foreseeable risks of
harm posed by the product could have
been reduced or avoided by the adoption
of a reasonable alternative . . . and the
omission of the alternative design renders
the product not reasonably safe.”
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Strict Liability:
Warning Defects
A product may be defective because of
inadequate warnings or instructions.
Liability based on foreseeability that
proper instructions/labels would have
made the product safe to use.
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Warning Defects [2]
There is no duty to warn about obvious
or commonly known risks.
Seller must also warn about injury due to
product misuse. Key is whether misuse
was foreseeable.
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§5: Defenses to
Product Liability
Assumption of Risk.
Product Misuse (Plaintiff does not know
the product is dangerous for a particular
use).
Contributory/Comparative Negligence.
Commonly known dangers.
Statutes of Limitation.
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Case 6.1: Greenman v. Yuba Power Products
(Strict Product Liability)
FACTS:
A piece of wood flew out of the lathe attachment of
a Shopsmith (a consumer power tool) while
Greenman was using it, causing serious injuries.
Greenman sued the retailer and the manufacturer
for breach of warranties and negligence.
The jury ruled in favor of Greenman, and the
Defendants appealed.
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Case 6.1: Greenman v. Yuba Power Products
(Strict Product Liability)
HELD: AFFIRMED. FOR GREENMAN.
Greenman proved that the design and
construction of the Shopsmith were defective and
that his injuries were caused by the defects.
“A manufacturer is strictly liable in tort when an
article he places on the market, knowing that it is
to be used without inspection for defects, proves
to have a defect that causes injury to a human
being.”
Purpose of liability is for manufacturers to bear the
costs.
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Case 6.2: Embs v. Pepsi-Cola
(Strict Product Liability)
FACTS:
Embs was buying groceries at Stamper’s Cash
Market.
A carton of 7-Up was sitting on the floor at the
edge of the produce counter about one foot from
where she was standing.
Several of the 7-Up bottles exploded severely
injuring Embs.
Embs sued Pepsi but the court ruled against her
and dismissed her case.
Embs appealed.
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Case 6.2: Embs v. Pepsi-Cola
(Strict Product Liability)
HELD: REVERSED. FOR EMBS.
The appellate court extended the protection of the
Restatement (Second) of Torts, Section 402A “to
bystanders whose injury from the defect is
reasonably foreseeable.”
The court based this extension on the policy that
“the loss for injuries resulting from defective
products should be placed on those members of
the marketing chain best able to pay the loss, who
can then distribute such risk among themselves by
means of insurance and indemnity agreements.”
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Case 6.3: Liriano v. Hobart Co.
(Warning Defects)
FACTS:
 Super Associated store bought a Hobart Corp. meat grinder
that had no warning that it should be operated only with the
safety guard.
 Liriano, a SA employee, removed the guard and was
severely injured when his hand was caught in the grinder.
(Liriano was seventeen years old, a recent immigrant, and
on the job only a week. He had not been told how to
operate the grinder.)
 He sued Hobart claiming that the lack of a warning about
the safety guard was negligence. The jury returned a
verdict for Liriano.
 Hobart appealed, arguing that the danger was so obvious
no warning was needed.
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Case 6.3: Liriano v. Hobart Co.
(Warning Defects)
HELD: AFFIRMED. FOR LIRIANO.
A manufacturer can be liable for failing to warn
about alterations, such as the removal of a safety
guard, that would make its product unsafe.
It doesn’t matter how obvious the danger is.
“Even if most ordinary users may * * * know of
the risk of using a guardless meat grinder, it does
not follow that a sufficient number of them will
* * *.”
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Case 6.4: Smith v. Ingersoll-Rand
(Comparative Negligence)
FACTS:
Smith was injured while attempting to start the diesel
engine for a compressor manufactured by IngersollRand Company.
Smith, a mechanic, was not wearing a hard hat when
he was dispatched to start the engine. The door had to
be propped open.
Smith started the engine and the door fell from its open
position and hit his head causing severe injury. Smith
sued Ingersoll-Rand.
Ingersoll-Rand defended that Smith’s failure to wear a
hard hat and his propping the door open in an unsafe
manner constituted contributory negligence.
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Case 6.4: Smith v. Ingersoll-Rand
(Comparative Negligence)
HELD: FOR INGERSOLL.
The court recognized that under a “system
of comparative fault * * * , a plaintiff would
still be able to recover if he was
comparatively at fault for his injuries, but
his recovery would be reduced in
proportion to his percentage of fault.”
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