Chapter 9
Strict Liability
and Product Liability
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
Strict Liability
• Does not require fault, intent or breach of
duty.
• Usually involves ‘abnormally dangerous’
activities and risk cannot be prevented.
– Dangerous Animals.
• Product Liability—manufacturers and
sellers of harmful or defective products.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Warranty Law
• Under the Uniform Commercial Code,
certain warranties can arise in a contract for
sale of goods.
• Consumers and others can recover from any
seller for losses resulting from a breach of
express or implied warranty.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Express Warranties
• Those made by oral or written
representations concerning the goods.
– Quality, condition, description or performance
potential of goods.
– Buyer relies on the representation.
– Can be made in advertising or salesperson.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Implied Warranties
Warranty of Fitness for
Warranty of
a Particular Purpose:
Merchantability:
• Arises when any seller
• A merchant warrants
knows
of
the
particular
goods are “reasonably fit
purpose for which a
for the ordinary purposes
buyer will use the goods
for which such goods are
and knows the buyer is
used.”
relying on the seller to
select suitable goods.
• Applies only to
merchants!
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Liability for
Breach of Warranty
• The legal 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.
Negligence.
Misrepresentation.
Strict Liability.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Product Liability
Based on Negligence
• In order to prevent claims of negligence, due
care must be used by the manufacturer in:
–
–
–
–
–
Designing the product.
Selecting materials.
Using the appropriate production process.
Assembling and testing the product.
Placing adequate warnings on the label or product.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Privity of Contract
Privity of contract is not required. A
manufacturer is liable for failure to exercise due
care to any person who sustains an injury
proximately caused by a negligently made
(defective) product.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
8
Product Liability Based
on Misrepresentation
• Fraudulent misrepresentation of a product
may result in product liability based on the
tort of fraud.
• Examples include:
– Intentional mislabeling of packaged cosmetics
– Intentional concealment of a product’s defects
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Product Liability
Based on Strict Liability
• Under the doctrine of strict liability, people may be
liable for the results of their acts regardless of their
intentions or their exercise of reasonable care.
• If a child is injured by a toy, should the manufacturer
be held liable regardless of the circumstances?
• Case 9.1 Greenman v. Yuba Power Products, Inc.
(1962).
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Requirements for
Strict Liability
Product Defects: Section 402A of
the Restatement (Second) of Torts
1. One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to
his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer or to
his property, if
a. the seller is engaged in the business of selling such a
product, and
b. it is expected to and does reach the user or consumer
without substantial change in the condition in which it
is sold.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Requirements for
Strict Liability
Product Defects: Section 402A of
the Restatement (Second) of Torts
2. The rule stated in Subsection (1) applies
although:
a. the seller has exercised all possible care in the
preparation and sale of his product, and
b. the user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Requirements for
Strict Liability
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.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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“Unreasonably
Dangerous” Products
• Claims that a product is so defective as to be
unreasonably dangerous generally allege that the
product is unreasonably dangerous for one of the
following reasons:
– Because of a flaw in the manufacturing process.
– Because of a design defect.
• Case 9.2 Rogers v. Ingersoll-Rand, Co.
(1998).
– Because the manufacturer failed to warn adequately of
harms associated with the product’s use.
– Obvious Risks.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Market-Share Liability
• In cases in which plaintiffs cannot prove which of
many distributors of a harmful product supplied
the particular product that caused the plaintiffs’
injuries, some courts have applied market-share
liability.
• All firms that manufactured and distributed the
harmful product during the period in question are
then held liable for the plaintiffs’ injuries in
proportion to the firms’ respective shares of the
market, as directed by the court.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Other Applications of
Strict Liability
Bystanders:
Suppliers of
Components:
• Manufacturers and other
sellers are liable for harms
suffered by injured bystanders • Suppliers of component
parts are strictly liable
due to defective products.
for defective parts
which, when
incorporated into a
product, cause injuries
to users.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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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
Product Misuse
Comparative Negligence
Commonly Known Dangers
Other Defenses
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Defenses to
Product Liability
• Assumption of Risk
– The user or consumer knew of the risk of harm
and voluntarily assumed it.
• Product Misuse
– The user or consumer misused the product in a
way unforeseeable by the manufacturer.
– Case 9.3 Pelman v. McDonald’s Corp. (2003).
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Defenses to
Product Liability
• Comparative Negligence
– Liability may be distributed between plaintiff and
defendant under the doctrine of comparative
negligence.
• Commonly Known Dangers
– If a defendant succeeds in convincing the court that a
plaintiff’s injury resulted from a commonly known
danger, such as the danger associated with using a sharp
knife, the defendant will not be liable.
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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Other Defenses
Lack of Required Elements
– A defendant can also defend against a products
liability claim by showing that there is no basis
for the plaintiff’s claim (that the plaintiff has
not met the requirements for an action in
negligence or strict liability).
Miller • Cross 4th Ed.
© 2005 by West Legal Studies in Business / A Division of Thomson Learning
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