The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

Presenting a live 90-minute webinar with interactive Q&A

Drones and Personal Injury Liability: Navigating

the Evolving Regulatory Landscape and

Emerging Theories of Liability Guidance for Personal Injury Counsel Pursuing Claims for Bodily Harm,

Property Damage, Invasion of Privacy, Trespass and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, JUNE 14, 2017

Donald Chance Mark, Jr., Shareholder, Fafinski Mark & Johnson, Eden Prairie, Minn.

Andrew D. Myers, Attorney, Law Offices of Andrew D. Myers, North Andover, Mass. & Derry, N.H.

Carlos Soltero, Partner, McGinnis Lochridge & Kilgore, Austin, Texas

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-871-8924 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail sound@straffordpub.com immediately so we can

address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

DRONES AND PERSONAL

INJURY LIABILITY

Donald Chance Mark, Jr., Esq

Fafinski Mark & Johnson

PREDATOR DRONE

Source: http://science.howstuffworks.com/predator.htm

6

MANY TYPES OF DRONES

Sources:

http://www.gizmag.com/autodesk-

octocopter-3d-images/22083/ &

http://www.suasnews.com/2011/11/9

731/taleuas-tactical-long-endurance-

unmanned-aerial-

system/135865main_soaring_uav/ &

http://dronelifestyle.com/dji-phantom-

review-2014

7

MODEL AIRCRAFT

• Model aircraft defined:

1. Capable of sustained flight

2. Flown within visual line of sight of operator

3. Flown for hobby or recreational purposes

• Often operated in specific areas designed for hobbyists

FAA Modernization and Reform Act of 2012 (a) § 336 Special

Rule for Model Aircraft

8

UAS STATUTORY DEFINITIONS

• (8) Unmanned aircraft – The term “unmanned aircraft” means an

aircraft that is operated without the possibility of direct human

intervention from within or on the aircraft.

• (9) Unmanned aircraft system – The term “unmanned aircraft

system” means an unmanned aircraft and associated elements

(including communications links and the components that control

the unmanned aircraft) that are required for the pilot in command to

operate safely and efficiently in the national airspace.

FAA Modernization and Reform Act of 2012 § 331. Note: 49 USC

40101

9

PIRKER DECISION

• Date: November 18, 2014

• Opinion issued by NTSB

• NTSB determined:

• UAS are “aircraft”

• An “aircraft is any device used for flight in the air”

• “This definition includes any aircraft, manned or unmanned, large

or small”

Michael P. Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker ,

NTSB Order No. EA-5730, 10 (November 18, 2014) (“Appeal Order”).

10

CONCLUSIONS FROM PIRKER DECISION

• FAA has authority to regulate any UAS as an aircraft

• FAA prohibition on commercial UAS use is enforceable in

court

• Violators of FAA are subject to civil penalties (fines) up to

$10,000/violation

11

PART 107 ELEMENTS

Operational Restrictions

1. Must weigh less than 55 lbs.

2. Visual line of sight only

3. May not operate over people

4. Daylight operations

5. Yield right-of-way to other aircraft

6. Maximum airspeed of 100 mph (87 knots)

7. Maximum altitude of 400 feet

8. Operator must be at least 16 years old

9. Operator must pass aeronautical knowledge test

10. Operator must be vetted by TSA

12

FARMING USES

Source:

http://tywkiwdbi.blogspot.com/2014/05/

Source:

http://www.lockheedmartin.com/us/products/procerus/indago-

uas/precision-agriculture-case-study.html

Checking crops’ viability

13

FARMING USES

Source:

https://www.technologyreview.com/s/526491/agricu

ltural-drones/

Measuring moisture

Source: https://www.geospatialworld.net/article/drones-and-robots-future-

agriculture/

14

FARMING USES

Source: http://www.zdnet.com/article/data-driven-

farming-with-agricultural-drones/

Monitoring erosion

Source:

https://www.agweb.com/article/drone-dos-and-donts-naa-

ben-potter/

15

POWER LINE INSPECTION

Source:

http://www.ua

svision.com/2

015/09/24/ne

w-zealand-

drone-takes-

out-

powerlines/

Source:

https://www.li

nkedin.com/p

ulse/utilities-

deploy-

drones-

inspect-

distribution-

transmission-

michael-dim

Source:

http://texasdro

neprofessiona

ls.com/

16

REAL ESTATE USES

Source: http://www.airnest.com/blog/2016/4/12/how-drones-

are-revolutionizing-real-estate

Source: http://bestdroneforthejob.com/drone-buying-guides/fly-it-or-

buy-it-the-complete-guide-to-using-camera-drones-for-real-estate-

marketing/

17

FLARE STACK INSPECTION Source:

http://www.unmannedsystemstechnol

ogy.com/2012/12/video-unmanned-

aerial-inspection-of-gas-flare-stacks/

Source:

http://www.houstonchronicle.com

/business/energy/article/Drones-

give-energy-companies-high-

hopes-for-safer-5488028.php

18

BRIDGE INSPECTION

Source: http://statescoop.com/ohio-

testing-drones-for-bridge-inspections

Source:

https://mntransportationr

esearch.org/2015/09/28/

using-drones-to-inspect-

bridges/

Source:

http://smartsensys.com/suave/

19

TURBINE BLADE INSPECTION

Source:

http://www.asctec.de/en/drone-uav/uav-uas-

drone-wind-park-inspection/

Source:

https://motherboard.vice.com/en_us/article/wind-turbine-drone-

inspection-will-be-a-6-billion-industry-in-under-10-years Source:

http://www.offshorewind.biz/20

13/06/25/unmanned-aerial-

vehicles-safe-air-inspection/

20

OIL & GAS INSPECTION

Source: https://www.intellisystem.it/en/oil-gas-drone-uas-uav-

inspection-monitoring/

Source: http://www.offshoreenergytoday.com/offshore-helicopter-firm-

invests-in-drones/

21

ENVIRONMENTAL MONITORING

Source: https://www.nytimes.com/2014/04/22/business/energy-

environment/drones-are-becoming-energys-new-

roustabouts.html?_r=0 Source: http://sociable.co/technology/how-drone-technology-sows-

restoration/

22

WILDFIRE USES

Source: http://www.mirror.co.uk/news/technology-

science/technology/firefighters-blame-drones-putting-lives-6108779

Source: http://www.asianjournal.ca/drones-tested-to-help-fight-blazes-

in-difficult-b-c-wildfire-season/

23

AMAZON’S DELIVERY DRONES

Source: http://fortune.com/2017/03/13/amazon-delivery-drones-sxsw/

Prime Air – a delivery system from Amazon designed

to safely get packages to customers in 30 minutes or

less using UAS

Source: Star Tribune

24

Source: Star Tribune

25

FLIR TECHNOLOGY

Source:

http://www.f

lir.com/suas

/aerial-

thermal-

imaging-

kits/

26

FAA MISSION

“Safety is the FAA’s top mission, and the agency maintains the

world’s safest aviation system. As a provider of air traffic control

services, the FAA also must ensure the safety and efficiency of

the nation’s entire airspace.”

- FAA FACT SHEET – Unmanned Aircraft Systems,

Jan. 6, 2014

27

FAA SAFETY MANDATE

“The FAA’s Safety Mandate under 49 USC § 40103 requires it to

regulate aircraft operations conducted in the NAS, which include

UAS operations, to protect persons and property on the ground,

and to prevent collisions between aircraft and other aircraft or

objects.”

- From FAA “Law Enforcement Guidance for Suspected

Unauthorized UAS Operations.

28

FAA V. SKYPAN INTERNATIONAL

• New York and Chicago aerial photography company

• Developed system of providing 360 degree panoramic imagery

• 65 unauthorized UAS flights between March 21, 2012 and December

15, 2014

• 43 flights flown in restricted New York Class B airspace

29

FAA V. SKYPAN INTERNATIONAL

• FAA violations

• No airworthiness certificate

• No certificate of waiver or authorization

• No Section 333 exemption

• No clearance for ATC

• FAA conclusion: “Skypan operated the aircraft on the flights referenced

above in a careless or reckless manner so as to endanger the life or

property of another.

• FAA penalty $1,903,000.00

30

FAA POSITION ON SKYPAN

• “Flying unmanned aircraft in violation of the

Federal Aviation Regulations is illegal and can

be dangerous.” – FAA Administrator, Michael

Huerta (FAA Press Release)

• “It does send a message that anyone operating

in the airspace system needs to do it in a safe

manner. If you’re flagrantly violating the rules,

we will take enforcement action.” – FAA

Administrator, Michael Huerta (Wall Street

Journal)

Michael Huerta,

FAA Administrator

(sworn into office on

January 7, 2013)

31

BIOGRAPHY

Donald Chance Mark, Jr.

Shareholder & Co-founder of Fafinski Mark & Johnson

Donald Chance Mark, Jr. is a founding member of FMJ with more than 35 years of

experience handling general litigation, aviation litigation, employment litigation,

products liability, commercial litigation and medical malpractice defense matters. A

graduate of St. Olaf College, with a Bachelor of Arts degree, Don received his Juris

Doctorate from Vanderbilt University School of Law.

Don is certified as a Trial Advocate by the National Board of Trial Advocacy and as a

Civil Trial Specialist by the Minnesota State Bar Association. He has been named

one of Minnesota’s “Super Lawyers,” and has been selected by his peers as a

“Leading American Attorney.” He has also been named one of Minnesota’s “Top 100

Lawyers.”

In 2014, Don was asked to testify before the Minnesota Senate and House Judiciary

and Civil Law Committee in a joint hearing on the topic of unmanned aircraft systems

(UAS). The hearing covered public, private and commercial usage of UAS and the

data they collect. Don addressed UAS regulations at state and federal levels, as well

as current and future legal issues.

donald.mark@fmjlaw.com

32

For more information

On our UAS practice, visit

www.fmjlaw.com/practice-area/

unmanned-aircraft-systems

C A R L O S R . S O L T E R O

State Law Drone Issues

June 14, 2017

®

FAA—UAS Goals 35

Electronic identification and tracking of UAS for local law enforcement

Establish a process for property owners and those who oversee critical infrastructure to restrict flight over those properties.

Amendment to part 107 - allow operations over people under certain operational conditions, as well as open opportunities for night operations and swarming.

Full Integration into the NAS: refining our existing regulatory framework to accommodate operations for unmanned aircraft and any other aviation innovations.

Huerta v. Haughwout, (D. Conn. July 18, 2016)

36

It appears from oral argument as well as from the FAA’s website that the FAA believes it has regulatory sovereignty over every cubic inch of outdoor air in the United States (or at least over any airborne objects therein). If so, that ambition may be difficult to reconcile with the terms of the FAA’s statute that refer to “navigable airspace,” see, e.g., 49 U.S.C. § 40103(b), and that might sensibly and plausibly be understood to condition the exercise of the FAA’s authority on either the protection of or regulation of activities related in some manner to navigable airspace and related equipment and facilities...

Congress surely understands that state and local authorities are (usually) well positioned to regulate what people do in their own backyards. The Constitution creates a limited national government in recognition of the traditional police power of state and local government. No clause in the Constitution vests the federal government with a general police power over all of the air or all objects that leave the ground.

Amendment X 37

The powers

not delegated to the United States by the Constitution,

nor prohibited by it to the States,

are reserved

1. to the States respectively, or

2. to the people

Limits to FAA/Regulatory Compliance

As the Texas Supreme Court wrote:

"a permit is not a get out of tort free card."

“This is consistent with our common law rule that the mere fact

that an administrative agency issues a permit to undertake an

activity does not shield the permitee from third party tort liability

stemming from consequences of the permitted activity”

FPL Farming, Ltd. v. Environmental Processing Sys., L.C. (Tex. 2011)

38

PRIVACY

S t a t e L a w

PROPERTY RIGHTS

S t a t e L a w

AIR TRAFFIC SAFETY

State & Federal Law (FAA)

INJURY/ PRODUCTS LIABILITY

S t a t e L a w

POLICE POWER/

CRIMINAL LAW

S t a t e L a w

Traditional Areas of State Law 39

FAA vs. States State Tort Laws

• Property rights – where

does airspace/FAA

regulations begin?

• Is more than one sovereign

empowered to regulate?

• Who may complain? • Public

• Private

• Trespass

• Nuisance

• Invasion of Privacy

• Property damage &

Personal injury

• Negligence

• Products Liability

Legal Issues 40

National Conference of State Legislatures

In 2015, 25 states passed UAS legislation or resolutions

In 2016, 14 states passed 26 pieces of UAS legislation or resolutions

Intersection of Federal & State Laws

& Even Some Local Laws 41

85th Texas Legislative Session – Passed 3 Drone Related Bills

Texas 85th Legislative Session 42

Three Drone Related Bills Have Been Passed SB 840

Authorizes certain entities to use UAS to capture images

HB 1424

Creates a new offense for a person that flies a drone within 400 ft. above a correctional or detention facility and sports venue.

HB 1643

Provides that a municipality, county or joint board created under Section 22.074 of the Transportation Code may only adopt and enforce an ordinance, order or similar measure with regard to drones over certain facilities.

Commercial Uses 43

UAS are

already being

used in a

variety of

applications,

and many more

areas will

benefit by their

use, such as:

• Wildfire mapping • Agricultural monitoring • Disaster management • Thermal infrared power line surveys • Law enforcement • Telecommunications • Weather monitoring • Aerial image/mapping • Television news coverage, sporting

events, moviemaking • Environmental monitoring • Oil and gas exploration; and • Freight transport

More Public Safety Agencies in Texas

Embrace Use of Drones

Other Uses 44

May 31, 2017:

May 11, 2017:

May 10, 2017:

May 30, 2017:

Drones Will Soon Help First Responders

A&M: Drones Could Boost Crop

Production

Drone Acts as Flying Cell Tower to

Provide Coverage Kilometers Away

Some Concerns 45

Some Updates & Proposals 46

Rural Drone Issues 47

State statutes relating to:

Hunting/Fishing

Wildfire management

FAA Regulations

Drone Delivery

Rural areas provide great opportunities for UAS

usage

Agricultural crop monitoring

Nuisance Law 48

A "nuisance" is a condition that substantially interferes with the

use and enjoyment of land by causing unreasonable discomfort or

annoyance to persons of ordinary sensibilities attempting to use

and enjoy the land.

A nuisance invades

another’s interests in any

or all of these ways:

(1) a negligent invasion;

(2) an intentional invasion; or

(3) other conduct abnormal and out of place with its surroundings.

Trespass Law 49

A “trespass” is a

intentional use of

another’s real

property, without

authorization or

privilege to do so.

Personal Injury/Products Liability 50

Negligence & Strict liability

Invasion of Privacy 51

Property Rights 52

Boggs v. Merideth, (W. D. Ken. March 21, 2017)

53

A federal judge has dismissed a lawsuit brought against William Merideth, the Kentucky man who shot down a drone that Merideth believed was flying over his own property in 2015.

Dismissed for lack of subject matter jurisdiction.

Unlike Huerta v. Haughwout, federal question jurisdiction did not exist.

Boggs’ claim is a trespass claim for state court, no agency.

Thus, federal courts have not adequately addressed the question whether a drone flying over private property is trespassing.

The best guide is United States v. Causby (1946) where chicken farmer could assert property rights up to 83 feet in the air.

Texas Statutory Law

• Texas Privacy Act-Government Code Chapter 423

Attempts to balance allowed commercial uses with privacy

concerns

Authorizes law enforcement and other governmental use

Must obtain a search warrant

Authorizes certain academic use

Authorizes certain electric or natural gas utility uses

Authorizes certain real estate uses

54

City/Local Ordinances 55

The FAA has made some suggestions for local

governments looking to regulate UAS, however these

recommendations have not been finalized or

adopted. Some examples of possible regulation later

would include:

A certification process for the issuance of a permit

A minimum operating age of 18

A maximum drone weight of 55 lbs

Operation in daylight hours only

No image capturing capability

Contact Information 56

Carlos R. Soltero

McGinnis Lochridge & Kilgore, LLP 600 Congress Ave., Ste. 2100

Austin, TX 78701

(512) 495-6033

csoltero@mcginnislaw.com

www.mcginnislaw.com

Drones

Personal Injury Liability

Emerging Theories of Liability

June 14, 2017

Andrew D. Myers

Law Offices of Andrew D. Myers

Massachusetts - New Hampshire

Pasedena, CA, Sept

15, 2015: A drone

crashes & shatters.

Flying pieces strike

an 11-year old baby

girl being pushed in

a stroller by her

mother.

58

Marblehead, MA, May 25, 2015: A drone crashes into a

crowd watching the annual Memorial Day Parade. One

witness reports seeing the drone flying over the parade,

striking a building, then falling and hitting two people.

One man, a former Boston TV reporter, sustained a small

cut to the back of his neck, the drone then bounced and

struck a nearby woman. The man had been holding his 1

year old daughter moments earlier.

59

New York, December, 2014:

A restaurant holds a "Mobile

Mistletoe" promotional stunt

in which a drone flew

around decorated with

mistletoe, encouraging

patrons to kiss for a nearby

camera. The stunt abruptly

ended when the drone struck

a photographer, lacerating

her nose with the unguarded

rotor.

60

Dinwiddie, VA, August 26, 2013: A crowd

gathered at the annual Great Bull Run at Virginia

Motorsports Park, a festival with live music, food

& drink, a tomato fight and a bull run.; A drone

being used to record video of the event crashed

into the grandstand causing what were described

as "minor injuries" to five people.

61

London, UK, July,

2014: in one of many

such incidents a drone

was reported to have

narrowly missed

striking an Airbus A320

at 700 feet as it took

off from Heathrow

Airport.

62

March, 2015, Washington, D.C.: A news

helicopter was covering a fire when the pilot

observed a drone flying too close for comfort.

No injury resulted in the "near miss" but FAA

statistics indicate 25 reports a month of drones

flying to close to aircraft.

63

Boston, MA, Christmas Day, Dec. 25, 2015: An

Air Canada flight crew on final approach to

Logan International Airport observes a drone

nearby. The drone, at an altitude of 800 feet, 2

miles from the end of a runway, was just 100 feet

below one of the aircraft's wings.

64

"Pilot reports of interactions

with suspected unmanned

aircraft have increased from

238 sightings in all of 2014

to 780 through August of

2015.“

FAA Fact Sheet - December

17, 2015

65

3 Theories of Recovery

I. Strict Liability

II. Negligence

III. Products Liability

66

I. Strict Liability

67

Rylands v. Fletcher

Rule of Strict

Liability or

"Absolute Liability

without Fault"

68

Rylands:

Reservoir constructed above vacant

mine shafts. When filled, water

flooded coal workings.

Defendant had no actual knowledge

of underlying mine shafts.

69

Held: one who for their own purposes brings to their

own land or keeps for their own purpose "anything

likely to do mischief" if it escapes is "prima facie

answerable for all the damage which is the natural

consequence of its escape.

70

Strict Liability Activities:

• Damage from Blasting Operations

• Wild Animals

• Walls left standing after Fire

• Excavation below water line causing flooding.

See: Clark-Aiken Co. v. Cromwell-Wright

Company, Inc., 367 Mass. 70, 323 N.E.2d 876

(1975).

71

5 Factors in determining

"abnormally dangerous" activity:

(a) existence of a high degree of risk of some harm to the person, land, or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous

attributes.

Restatement (Second) of Torts § 520.

72

Issue:

"whether the risk created is

so unusual, either because of

its magnitude or because of

the circumstances

surrounding it, as to justify

the imposition of strict

liability for the harm which

results from it, even though

it is carried out with all

reasonable harm"

73

Ground Damage From Aircraft

If physical harm to land or to persons or chattels on the

ground is caused by the ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft,

(a) the operator of the aircraft is subject to liability for the

harm, even though he has exercised the utmost care to prevent it, and

(b) the owner of the aircraft is subject to similar liability if

he has authorized or permitted the operation.

Restatement (Second) of Torts § 520A.

74

II. Negligence

75

Classic Negligence Elements

• Duty • Breach • Causation • Harm

76

Breach of Duty:

• Failure to Operate Drone Safety

• Failure to Maintain Drone Safely

77

Violation of Statute 3 Views:

• Negligence Per Se

• Some Evidence of

Negligence

• If liability indicated in

statute

78

"A small UAS may not

fly over people, except

those directly involved

with the flight."

FAA Small Unmanned Aircraft

Regulations Part 107, June 21, 2016

79

Who is responsible for Injuries?

Operator?

If negligent yes, always

Owner?

If different, under what theory?

80

Statute?

By analogy Massachusetts holds that the

registered OWNER of a motor vehicle:

"... Shall be presumed to have been then

operated, maintained, controlled or used by and

under the control of a person for whose conduct

the defendant was legally responsible ..."

M.G.L. c, 231 § 85b

81

Respondeat Superior

• Employee Always

Agent of Employer

• Works in

Commercial Drone

Operation Context

82

Negligent Entrustment

Must show ownership or control

And permission to use to one who was

inexperienced, or by showing actual knowledge

by the owner, at the time of the entrustment, of

prior instances of negligence, recklessness, or

lawlessness by the operator.

83

Negligent Supervision

1) the employer knew or should have known of the

employee’s proclivity to commit misconduct,

2) the employer failed to take corrective action, and

3) that failure proximately caused actual harm to the

plaintiff.

Bennett v. Eagle Brook Country Store, Inc., 408 Mass.

355, 358, 557 N.E.2d 1166 (1990).

84

Res Ipsa Loquiter

1. Instrumentality causing the accident

"was in the sole and exclusive control

and management of the defendant";

and

2. The "accident is of the type or kind

that would not happen in the ordinary

course of things unless there was

negligence by the defendant.

If so, raises an inference that the

defendant was negligent.

Wilson v. Honeywell, Inc., 409 Mass.

803, 569 N.E.2d 1011 (1991) But also see: Restatement (Second) of Torts, §

328D

85

Multiple Potential Causes of Action:

1) Pilot: negligent operation of plane.

2) Airline/owner: negligent maintenance of aircraft.

3) Employer of the pilot: vicarious liability for all negligence of pilot under the doctrine of respondeat superior.

4) Pilot and Airline/owner: strict liability

5) Manufacturer & or Maintenance company

Crosby v Cox Aircraft Company, 746 P.2d 581 1987 En Banc Decision of Washington State Supreme Court .

86

Multiple Causes of Action

• Negligent Entrustment

• Negligent Supervision

• Vicarious Liability /Respondeat Superior

• Piercing Corporate Veil

• “Educational Malpractice”

Garland v. Sybarias Club International

Originally filed in Illinois Appellate Court 2014, with numerous appeals including decision as recently as May 3, 2017.

87

Defenses

Supervening or intervening cause.

Failure to mitigate damages.

Comparative negligence – Contributory Fault

88

III. Products Liability

89

A. Design Defects

Law imposes duty upon manufacturers to design

products with reasonable care to eliminate

avoidable dangers, anticipating the environment

in which the product will be used, and to design

against reasonably foreseeable risks attending

the product's use in that setting.

90

A product 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 and the omission of the

alternative design renders the product not reasonably

safe.

Third Restatement, Torts, Products Liability. § 2(b),

at 14.

91

Reasonableness or risk-utility balancing test: Plaintiff

must prove that a reasonable alternative design:

1) was, or reasonably could have been, available at

time of sale or distribution, and

2) that it would have reduced the foreseeable risks of

harm posed by the product at reasonable cost, and

3) that the failure to adopt the safer alternative was

unreasonable. 92

"We hold a manufacturer liable for defectively

designed products because the manufacturer is

in the best position to recognize and eliminate

the design defects.“

Solimene v. B. Grauel & Co., K.G., 399 Mass.

790, 796, 507 N.E.2d 662 (1987).

93

In evaluating the adequacy of a product's design:

gravity of the danger posed by the challenged design,

likelihood that such danger would occur,

mechanical feasibility of a safer alternative design,

financial cost of an improved design,

adverse consequences to the product and to the

consumer that would result from an alternative design.

Back v. Wickes Corp., 375 Mass. 633, 642, 378 N.E.2d

964 (1978).

94

B. Failure to Warn

A product manufacturer

or supplier also may be

liable for a failure to

provide adequate

warnings or instructions

with the product.

MacDonald v. Ortho

Pharmaceutical Corp.,

394 Mass. 131, 475 N.E.2d 65 (1985)

95

Duty to Warn

Manufacturers have duty to warn foreseeable users of

dangers reasonably to be known by the manufacturer

but unknown by the user, and must employ a

sufficiently emphatic form of warning to be comprehensible to the ultimate user.

96

The common law duty to warn necessitates a warning

comprehensible to the average user fairly indicating the nature

and extent of the danger to the mind of a reasonably prudent

person.

Whether a particular warning measures up to this standard is

almost always an issue to be resolved by a jury; few questions

are "more appropriately left to a common sense lay judgment

than that of whether a written warning gets its message across

to an average person.“

Ferebee v. Chevron Chem. Co., 552 F. Supp. 1293, 1304

(D.D.C. 1982). 97

C. Breach of Warranty

Liability for breach of warranty

of merchantability.

• Uniform Commercial Code

§§ 2-314 - 2-318 (1986 ed.)

• Restatement (Second) of

Torts § 402A (1965)

98

Unlike negligence liability,

warranty liability "focuses

on whether the product

was defective and

unreasonably dangerous

and not on the conduct of

the user or the seller.“

Correia v. Firestone Tire &

Rubber Co., 388 Mass.

342, 446 N.E.2d 1033

(1983) 99

Because a breach of

warranty does not require a

defendant's misconduct, a

manufacturer may be liable

on a theory of breach of

warranty of

merchantability even

though he or she properly

designed, manufactured,

and sold his or her product.

100

Aviation Accident Laws Domestic Flights:

• Lawsuits filed by passengers against airlines

have the burden to prove negligence in

domestic flights.

• No strict liability because flying in an airplane

is not viewed as an abnormally dangerous

activity.

101

Warsaw Convention, created in 1929

• 150 nations became members.

• The Warsaw Convention created strict liability

for injuries or death on international flights,

but limited the amount of damages awarded to

$8,300.

102

The Montreal Convention of 1966

• Agreement modified the amount of “absolute

liability” damages awarded to $75,000.

• However, not all airlines have signed the Montreal Agreement.

• An additional limitation under the convention

is the injured party only has two years after the accident occurred to bring a claim.

103

Domestic Flights

Passenger must prove negligence by showing:

1)the accident is of a kind that ordinarily does not occur absent someone’s negligence,

2)the accident or injury was caused by an agency or instrumentally within the defendant’s exclusive control , and

3)the accident or injury was not due to any voluntary action or contribution of the plaintiff”.

104

105