Product Liability
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Product Liability
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The liability of
manufacturers,
sellers, and others
for the injuries
caused by defective
products
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Product Liability
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Arguments in favor of strong product liability laws:
Traditional tort law doctrines based on fault and defenses related
thereto have not always adequately served the injured person. The
evolution of strict liability doctrines is a logical consequence of having
this deficiency in the law.
Contract law has also failed to provide adequate assurance to the
victims of product harm. Consumers traditionally have had less real
bargaining power in the contacting process when it comes to
attaching responsibility for harm created by a product.
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Product Liability
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Arguments in favor of strong product liability laws:
Various legislative enactments at both local and national levels designed to
protect consumers tend to be reactive rather than proactive. Bans on
products are enacted only after so many injuries have occurred that the
products continued existence in the marketplace can no longer be tolerated.
For example, do semiautomatic weapons really serve any purpose other than
criminals killing police officers, innocent bystanders, and each other?
As a practical matter, the protection against defects in products is best
provided by the manufacturers of those products. Compared to the
consumer, they have the resources to research, develop, and test against
harm. Can you as a buyer of an automobile really test the airbag before you
buy the car?
Finally, the sanctions imposed by law for defective products should act as a
deterrent to further introduction of faulty products into the marketplace. If
sellers of goods know this, they will try harder to make products safer in the
first place.
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Product Liability
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Arguments in favor of restricting the use of product liability
doctrines:
The cost of the present system has simply run amok and is a model of
inefficiency. For every dollar that is spent on paying for the cost of the
harm done by defective products, nearly fifty percent is spent on the
transfer cost without reaching the victim.
Technology never has been and cannot be expected to be one hundred
percent precise. The potential harm created by products is dependent
on the state of the art at the time, and to require more is to impose
20/20 retroactive hindsight.
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Product Liability
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Arguments in favor of restricting the use of product liability
doctrines:
Many socially beneficial products are kept out of the U.S. marketplace
because of fears raised by our product liability system in the eyes of
potential importers. Conversely, the enhanced cost of U.S. products
based on built-in liability insurance costs makes U.S. products less
competitive overseas. This diminished participation in the worldwide
marketplace hurts all of us. The rules of product liability in the U.S.
compared to those of Japan illustrate this point.
Finally, there is a prevailing "lottery" mentality as a result of large
damage awards from product liability costs. The harm one suffers may
be minimal, but the pain and suffering losses coupled with potential
punitive damages have inspired too many consumers (and their
attorneys) to go down the treasure hunt path in the courts.
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Product Liability Based on
Fault
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Negligence
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A tort related to
defective products
where the defendant
has breached a duty
of due care and
caused harm to the
plaintiff
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Misrepresentation
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When a seller or
lessor fraudulently
misrepresents the
quality of a product
and a buyer is
injured thereby
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Strict Liability
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Strict liability is imposed irrespective of fault
All parties in the chain of distribution of a
defective PRODUCT are strictly liable for
injuries caused by that product
Privity of contract between plaintiff and
defendant is not required
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The doctrine applies even if the injured party had
no contractual relations with the defendant
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Strict Liability
• PRODUCT OR SERVICE?
• hybrid transactions: combining the performance of services and the
sale of a product,
• Is the dominant element the provision of a service or the sale of a
product?
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Defects in Manufacture
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Manufacturer fails to properly assemble a
product
Manufacturer fails to properly test a
product
Manufacturer fails to adequately check the
quality of a product
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Defects in Design
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Defects that occur
when a product is
improperly designed
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Crashworthiness Doctrine
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Automobile
manufacturers are
under a duty to design
automobiles so they
take into account the
possibility of harm from
a person’s body striking
something inside the
automobile in the case
of a car accident
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Defect in Packaging
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Occurs when a
product has been
placed in packaging
that is insufficiently
tamperproof
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Defect in Packaging
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Elsroth v. Johnson and Johnson
Facts: Diane Elsroth took tablets
manufactured by the defendant and later died.
Tests indicated that the product had been
tampered with and contained cyanide, a
poison. Another party had purchased the
product. Diane’s administrator sued the
defendant under the strict liability doctrine.
Issue: Was the packaging defective which
allowed the tampering?
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Defect in Packaging
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Decision: Judgment for the defendant.
Reason: In determining whether a particular design is
defective, the question is whether the product as designed was
not reasonably safe. The defendant after previous instances of
tampering had redesigned its packaging to make it extremely
difficult to tamper with the product in such a way as to conceal to
the average person that tampering had occurred. It is still
possible to tamper with the product by very sophisticated means.
It is not reasonable to expect the producer to do more. The
product is reasonably safe, and the plaintiff has presented no
evidence to indicate how it could be made safer. The packaging
was not defective.
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Failure to Warn
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A defect that occurs when a manufacturer does not place a warning on
the packaging of products that could cause injury if the danger is
unknown
Nowak v. Faberge USA Inc.
Facts: Faberge USA manufactures Aqua Net, a hair spray that is
sold in an aerosol can. Alison Nowak, a 14-year-old girl, tried to spray
her hair with a newly purchased can of Aqua Net. When the valve did
not work properly, she cut the can with a can opener. She was
standing near a gas stove. A cloud of hair spray gushed from the can
and the stove’s pilot light ignited the spray into a ball of flame. Nowak
suffered severe, permanently disfiguring burns over 20 percent of her
body. Nowak sued Faberge for damages under strict liability, alleging
that Faberge failed to warn her of the dangers of flammability of Aqua
Net. She won, and Nowak appealed.
Issue: Did Faberge adequately warn the plaintiff of the
flammability of Aqua Net?
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Other Product Defects
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Failure to provide adequate instructions
Inadequate testing of products
Inadequate selection of component
parts or materials
Improper certification of the safety of a
product
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Defenses to Product Liability
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Supervening or intervening event
Generally known dangers
Assumption of risk
Misuse of the product
Contributory negligence
Comparative negligence
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Defenses to Product Liability
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Supervening or intervening event
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Generally known dangers
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Reasonable notice
Assumption of risk
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Inherent danger known to general population
Correction of defect
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Alteration of product by a party in the chain of distribution that absolves
prior sellers from strict liability
Plaintiff knowingly and voluntarily assumed risk
Misuse of the product
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Abnormal and unforeseeable misuse
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Defenses to Product Liability
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Doctrine of Contributory negligence
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Plaintiff’s negligent use of the product resulted in
the injury
No damages awarded
Doctrine of Comparative negligence
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Damages mitigated by plaintiff’s negligence
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Cases
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Benedi v. McNeil-P.P.C., Inc.
Facts: Antonio Benedi consumed three or more
glasses of wine a day. He also took Extra-Strength Tylenol.
He was admitted to the hospital with liver and kidney
failure. This was caused by a combination of Tylenol and
too much alcohol. His Tylenol bottle did not contain a
warning of the danger of the combination of Tylenol and
excessive alcohol consumption. Benedi sued McNeil-P.P.C.,
the manufacture of Tylenol, for negligent failure to warn.
Benedi won $7,850,000 in compensatory damages. McNeil
appealed.
Issue: Is McNeil liable for negligent failure to warn?
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Decision: Yes.
Reason: The court of appeals affirmed the
jury’s verdict in favor of Benedi. Tylenol now
contains a warning that persons who
regularly consume three or more alcoholic
drinks a day should consult a physician
before taking Tylenol.
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Cases
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: Shoshone Coca-Cola Bottling Company v. Dolinski
Facts: Dolinski purchased a bottle of “Squirt” and
began to consume it. After drinking a portion of the
contents, he became ill. Upon examination, part of a
decomposed mouse was discovered in the bottle. Dolinski
suffered physical and mental distress and had an aversion
to soft drinks. Dolinski sued Shoshone under the doctrine
of strict liability. The court ruled in favor of Dolinski.
Shoshone appealed.
Issue: Did a defect cause the harm?
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Cases
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Decision: Dolinski wins.
Reason: Public policy demands that someone
who places a bottled beverage in a dangerous
condition on the market be strictly liable for harm
resulting from usage. The plaintiff still must prove
that his injury was caused by a defect in the
product and such defect existed when the product
left the hands of the defendant. There was
sufficient evidence that the plaintiff met his burden
of proof.
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Cases
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Lakin v. Senco Products, Inc.
Facts: Senco manufacturers and market a variety of pneumatic
nail guns. John Lakin was using a Senco SN325 nail gun to build a new
home. The gun fired an unintended second nail that went through his
cheekbone and into his brain. Lakin is permanently brain damaged.
Lakin and his wife sued Senco for strict liability based on design defect.
Lakin and his wife won. Senco appealed.
Issue: Is Senco liable to Lakin for strict liability based on a design
defect in the SN325 that allowed it to double fire?
Decision: Yes.
Reason: The court of appeals held that the SN325 was defectively
designed and affirmed the award of damages to Lakin and his wife.
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Cases
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Strict Liability
6.1. Yes, the doctrine of strict liability applies to this case. The doctrine of
strict liability applies to products but not the provision of services. Jeppesen, the
defendant, argued that the landing charts it produced for pilots to use were not
a product, and therefore the doctrine of strict liability did not apply. The court
held that the landing charts were a product, subjecting Jeppesen to the doctrine
of strict liability.
The court held Jeppesen strictly liable for the deaths caused when the
airplane crashed into the mountain, which was not included in Jeppesen’s
landing chart for the aircraft at Cold Bay, Alaska. Jeppesen argued that it
should not be liable because it is without fault in this case, i.e., the error
stemmed from the incorrect data supplied by the Federal Aviation
Administration. The court rejected this argument, holding that the concept of
fault has been purged from the doctrine of strict liability, and that all parties in
the chain of distribution of a defective product are liable to the injured party
without regard to fault. The court stated:
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Cases
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The justification for strict liability has been said to be that the seller, by
marketing his product for use and consumption, has undertaken and
assumes a special responsibility toward any member of the consuming
public who may be injured by it; that the public has the right to and
does expect, in the case of products which it needs and for which it is
forced to rely upon the seller, that reputable sellers will stand behind
their goods; that public policy demands that the burden of accidental
injuries caused by the products intended for consumption be placed
upon those who market them, and be treated as a cost of production
against which liability insurance can be obtained; and that the
consumer of such products is entitled to the maximum of protection at
the hands of someone, and the proper person to afford it are those who
market the product.
The court held Jeppesen strictly liable for damages for the deaths of
people killed in the airplane crash. Brocklesby v. Jeppesen and
Company, 767 F.2d 1288 (9th Cir. 1985).
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Cases
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Product or Service
6.2. No, the pharmacist is not strictly liable for selling defective
prescription drugs. The court held that although a pharmacist is
engaged in a “hybrid enterprise” combining the performance of services
and the sale of prescription drugs, the dominant element is the
provision of a service and not the sale of product. The court reasoned
that a pharmacist is considered a professional, and must be licensed by
the state as such. Further, the court reasoned that a pharmacist is
involved in providing a “health service.” The court drew the analogy
that since hospitals are not strictly liable for providing blood products,
then pharmacists should not be strictly liable for selling prescription
drugs. The court held that the pharmacist was not liable to the plaintiff.
Murphy v. E.R. Squibb & Sons, Inc., 40 C.3d 672, 221 Cal.Rptr. 447 (Cal.
1985).
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Cases
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Defect
6.3. Yes, Remington is strictly liable for Lovitz’s injuries. In order to recover for
strict liability a plaintiff must show that the product that caused the injury was
somehow defective. The Restatement (second) of Torts Section 402A requires
that the product be in a defective condition that is unreasonably dangerous to
the consumer. One type of defect is a defect in manufacture. A defect in
manufacture occurs when a manufacturer fails to either (1) properly assemble a
product, (2) properly test a product, or (3) has inadequate quality control
measures that do not discover product defects. The court held that the
inclusions in the shotgun barrels were defects in the product. The testing
procedures that Remington used to check the shotguns were inadequate,
because not only did they fail to discover defects, the testing itself may have
started the development of the problem. Because Remington assembled a
shotgun that was in a defective condition unreasonably dangerous to
consumers, and had failed to adequately test the product, they were found
liable for Lovitz’s injuries. The court awarded $75,000 in compensation and
$1,600,000 in punitive damages. Lovitz v. Remington Arms Co., Inc., 532
N.E.2d 1091 (Ill.App. 1988).
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Cases
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Crashworthiness Doctrine
6.4. Yes, the Chevrolet station wagon was a defective product. A defect in the design of
a product will support an action for strict liability. The court held that there was a defect
in the design of the Chevrolet station wagon in which Christine was seated. The defect in
design consisted of placing the fuel tank in a vulnerable location in the back of the station
wagon and outside of the crossbars of the frame of the vehicle. This location left the fuel
tank exposed to the dangers of a collision from another vehicle. In evaluating the
adequacy of a product’s design, the courts consider the gravity of the danger posed by
the design, the likelihood that injury will occur, the availability and cost of producing a
safer alternative design, and social utility of the product. In this case, the court held that
General Motors could have produced a safer alternative design merely by placing the fuel
tank underneath the station wagon between the crossbars of the frame.
General Motors contended that defective design was not properly at issue in the case
because a design is defective only if it results in a product that is unsafe for its intended
use. Here, General Motors asserts, no evidence was produced to show the station wagon
was unsafe for its intended use—operation on the highway. The court rejected this
assertion, stating that this theory had been repudiated in Cronin v. J. B. E. Olson Corp., 8
C. 3d 121, 104 Cal. Rptr. 433 (Cal. 1972), where the Court stated:
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The argument that the van was built only for “normal” driving is unavailing. We agree
that strict liability should not be imposed upon a manufacturer when injury results from a
use of its product that is not reasonably foreseeable. Although a condition may not be the
“normal” or intended use of a motor vehicle, vehicle manufacturers must take accidents
into consideration as reasonably foreseeable occurrences involving their products. The
design and manufacture of products should not be carried out in an industrial vacuum but
with recognition of the realities of their everyday use.
The court held that a motor vehicle manufacturer is required to foresee that, as an
incident of normal operation in the environment in which his product will be used,
accidents will occur, including high-speed collisions between vehicles. Because of this
possibility, the manufacturer is required to design its vehicle to minimize unreasonable
risks of injury and death. From this duty it follows that a motor vehicle manufacturer
must take into account the possibility of a high-speed collision when it selects a location
for the fuel tank in the vehicle. The manufacturer must evaluate the crashworthiness of
its product and take such steps as may be reasonable and practicable to forestall
particular crash injuries and mitigate the seriousness of other problems. The court
ordered a new trial in this case. Self v. General Motors Corporation, 42 C.A.3d 1, 116
Cal.Rptr. 575 (Cal.App. 1974).
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Cases
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Misuse
6.8. Defendant Wilcox-Crittendon Company wins. The law of strict
liability provides that the abnormal or unforeseeable misuse of a
product by a plaintiff relieves the manufacturer from any liability for any
injuries caused by that misuse. A manufacturer or seller of a product is
entitled to assume that the product will be put to its intended use, and
is not liable in strict liability for an unforeseeable, unintended,
unexpected, or abnormal misuse of the product. The hook in this case
was intended to be used to tie animals to fences, posts, etc. and was
not intended to be used to lift a 1,700-pound counterweight into the air.
The use of the hook in this manner by Dosier was an unforeseeable and
abnormal misuse of the product that relieved Wilcox-Crittendon from
strict liability for any injuries suffered by Dosier when the hook broke
and crushed his arm. Dosier v. Wilcox-Crittendon Company, 45
Cal.App.3d 74, 119 Cal.Rptr. 135 (Cal.App. 1975).
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Cases
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Dangerous Product
6.9. No, Lederle Laboratories (Lederle) is not strictly liable to Elizabeth Kearl for the injuries she
suffered when she took the polio. Vaccine liability provides that manufacturers of unavoidably
dangerous products which serve an important social function are not liable for injuries or side effects
caused by such product if such dangers are reasonably warned against. A product is unavoidably
unsafe if, at the time of its distribution, there existed no alternative design that would have as
effectively accomplished the same purpose or result with less risk. This rule is based on the public
policy that society is benefited by the production and distribution of many unavoidably dangerous
products, such as the oral polio vaccine in this case. To hold the manufacturer of this vaccine strictly
liable would place an onerous burden on the manufacturers that may cause them not to introduce the
product.
The court held that the vaccine administered to Elizabeth Kearl was an unavoidably unsafe product
and that there was no alternative vaccine that could be legally marketed which would have immunized
children against whopping cough just as effectively but with less risk. The court held that Lederle
provided a proper and extensive warning of the possible side effects of taking the otherwise
unavoidably dangerous oral polio vaccine. The court held that a manufacturer of an unavoidably
dangerous product can only be found liable under the doctrine of negligence. The court granted
judgment to Lederle on the strict liability claim. Kearl v. Lederle Laboratories, 172 C.A.3d 812, 218
Cal.Rptr. 453 (Cal.App. 1985).
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Cases
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Defense
6.11. No, Honda Motor Co., Ltd. (Honda) is not strictly liable to
Camacho for the injuries suffered in the motorcycle accident. The court
held that certain products are inherently dangerous and are known to
the general population to be so. Sellers are not strictly liable for failing
to warn buyers of these generally known dangers. In this case, the
court found that motorcycles are built to serve a certain purpose, and
the Honda Hawk on which Camacho was injured was designed perfectly
for this purpose. The court held that the harm or danger was fully
apparent and commonly known to persons of ordinary perceptions and
sensibilities. Therefore, Honda did not owe a duty to warn Camacho of
the dangers of riding a motorcycle. Camacho v. Honda Motor Co., Ltd.,
701 P.2d 628 (Colo.App. 1985).
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