outline product liability riina spr2009 outline[1]

1 CHAPTER 1: AN INTRODUCTION TO PRODUCTS LIABILITY AND SAFETY LAW

a. McKinnon v. Skil Corp : since plaintiff had known guard was not retracting for some time and continued to use it, defendant’s verdict affirmed.

b. Barrash v. Dewalt : lower blade failed to retract and placed his thumb on the guard to fix it – held plaintiff’s claims barred by assumption of risk.

2) Malfunction theory : Where the ¶is unable to prove the precise nature of the product’s defect, he may, in some cases, rely on the malfunction theory of product liability, which permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abornormal use or reasonable, secondary causes for the malfunction. [The plaintiff is relieved] from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and the absence of reasonable, secondary causes. * Where the alleged malfunction occurs shortly after the product has been delivered to the user, the inference that the defect originated with the manufacturer is stronger.

2 CHAPTER 2: NEGLIGENCE

1) Three Principle Contexts : three duties toward customers: (1) manufacture; (2) the provision of warnings and instructions; and (3) design.

2) Product liability is a continuum of fault:a. negligence (in detail tonight) is no different than the negligence theories we learned in tort

– lack of due care; not acting reasonably under the circumstances. We have to take the circumstances exactly as found – what does a reasonable manufacturer of automobiles do; what does the reasonable manufacturer of circular saws do? The reasonable manufacturer with specialized knowledge. (Example: lack of inspection).

b. Strict liability : a strict liability does not focus on the conduct actor or the actor you look at the product (is this product safe / defective) (focus on the product). The conduct of the engineer or manufacturer does not matter.

Dressler-CrimPro-spring2007 1 - 16

3 CHAPTER 4: WARRANTY

1) Three relevant code warranties : (1) express warranty; (2) the implied warranty of merchantability; and (3) the implied warranty of fitness for a particular purpose.

3.1 Express Warranty1) Kolarik v. Cory International Corporation (Express Warranty): Salad contained olives and fractured a

tooth on a pit (pimento-stuffed-olives). SJ affirmed for Δ. Gvt allowed 1.3 pits per 100 (QC).2) Express warranty created: UCC § 2-313 : * extends to other persons

a. Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a part of the basis of the bargain

b. Any description of the goods which is made part of the basis for the bargain.c. * comments: trade usage is relevant when analyzing express warranties.d. no showing of fault required: No defect other than a failure to conform to the warrantor’s

representations need to be shown in order to establish a breach of express warranty.e. Swanson : no bones. If there could be a doubt as to the meaning of “boned chicken” it

was removed by the statement that it contained no bones. f. Essential idea of the advertisement: SUV going through 2 feet of snow.g. Puffing (an affirmation merely of the value of the goods or the sellers opinion is not a part

of the warranty). Facts have to be more specific? Strong and durable ladder?h. Post sale statements may be considered modifications to the warranty and need not be

supported by consideration. (§2-209). Comment 7: only while the deal is still warm.3) Stang v. Hertz (nuns & rental): Many states / courts require reliance in adaptation of §2-313.4) Hauter v. Zogarts (golfing gizmo): Δ liable. Whereas plaintiffs in the past have had to prove their

reliance upon specific promises made by the seller the UCC requires no such proof. some say that it merely shifts the burden of proving non-reliance to the seller. All statements of the seller become a part of the basis of the bargain unless good reason is shown to the contrary. defendant’s presented no evidence which could remove their assurance of safety from the basis of the bargain.

3.2 Implied Warranty of Merchantability (p.104)1) UCC § 2-314 : Implied Warranty: Merchantability; Usage of trade:

a. Unless excluded or modified…b. goods to be merchantable must be at least such as… (c) are fit for ordinary purposes for

which such goods are used; andc. * reliance not required; defendant must be a person; A bank which sells repossessed

boats many not be a merchant for the purposes of §2-314d. Generally only to hidden, non-obvious defects

2) Maybank v. S.S. Kresge (Flashcube purchased at K-mart exploded in her eye): Court drew a distinction between the warned about shattering and the explosion that occurred. Exploding flashcubes are not merchantable.

3.3 Implied Warranty of Fitness for Particular Purpose1) UCC § 2-315 : Implied Warranty: Fitness for a particular Purpose

a. Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

b. Hybrid : Between express warranty and implied warranty for merchantability.c. Reliance is a required element.d. A merchant is not required. (A merchant is not required in an express warranty either).

2) Barb v. Wallace (go cart engine): Reversed SJ (factual issue) – was he relying upon appellee’s knowledge of the capabilities of this particular engine.


3.4 Parties and Privity: Proper Defendants and Third Party Beneficiaries1) UCC § 2-318 : Third Party Beneficiaries of Warranties Express or Implied (Privity statute)

a. Alternative A: extends to family or household… injured in person by breach.b. Alternative B: extends to any natural person who may be reasonably expected to use…

who is injure in person by breachc. Alternative C: reasonably expected to use and injured by breach. (Does not have to be a

personal injury claim).d. * NJ has adopted alternative A which is the most restrictive.

2) Vertical Privity : suppliers manufacturer purchaser. No more privity in the UCC.3) Horizontal Privity : extending away from the purchaser: UCC §2-318 privity on this path.4) Lukwinski v. Stone Container Corporation (¶ adjusting strap and it broke): ¶ not a party between

Stone and Coca-Cola. Not a guest; too far removed / try other legal theories.

3.5 Contractual Limitations on Responsibility1) Manufacturers are permitted to exclaim, exclude warranties (express or implied warranty)2) Disclaimers Under the UCC: § 2-316 : Any case of a writing must be conspicuous, and to exclude or

modify any implied warranty of fitness the exclusion must be a writing and conspicuous. For example: There are no warranties which extend beyond the description on the face hereof.

3) Dorman v. International Harvester Co : Disclaimer invalid: not conspicuous code defined conspicuous as so written that a reasonable person against whom it is to operate ought to have noticed it. … larger or other contrasting type or color. (fact issue). Req. precise terms.

4) An affirmative defense: “the burden is upon the party asserting the disclaimer to establish [it] was delivered at the time of sale and constituted an integral part of the transaction.:

3.6 C. Limitations Under UCC1) SECTION 2-719. CONTRACTUAL MODIFICATION OR LIMITATION OF REMEDY

a. (a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, …; and

b. (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

c. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act. lemon clause

d. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

2) Consequential damages: anything besides the price of the replacement of the product if the product because of its defect injuries a person or property other than itself. E.g. also loss of business profits from lost contracts (tractor case).

3) McCarty v. E.J. Korvette, Inc : Tire blow out limited remedies to price of tire; can’t exclude damages for injury (prima facie unconscionable).

4) Ford Motor Co. v. Moulton : Car veered to right and jumped rail. Consequential damages clause does not control disclaimer of implied warranties. No breach = no damages.

5) SOL : Minors toll; NJ PL = 2 yr. UCC (in NJ) is 4 yrs.6) Statutory Reform : Written warranty ($5); Full Warranty or Limited Warranty.1) 15 USC § 2308. Implied warranties


4 CHAPTER 5: STRICT LIABILITY IN TORT

1) Escola v. Coca Cola Bottling Co. : Selling bottles which exploded because of excessive pressure.a. Relied on Res Ipsa Loquitur (The thing speaks for itself) Evidence of wrongdoing

inferred from the mere fact that the accident happened:i. Accident does not happen without negligence

ii. Exclusive control of the defendantiii. No ¶ contributory negligence

b. Traynor’s concurring opinion laid the foundation for strict liability in tort: The retailer is under an absolute liability to his customer for the implied warranty for proposed use and merchantable quality include a warranty of safety of the product.

2) Greenman v. Yuba power Products, Inc : Liability governed by the law of strict liability in tort when:a. An article he places on the market,b. Knowing that it is to be used without inspection for defects,c. Proves to have a defect that causes injury to a human being.d. * Plaintiff using the product in the manner intended no misuse or abuse

3) Denny v. Ford Motor Co. : We hold that the causes of action are not identical and that, under the circumstances presented here, it is possible to be liable for breach of implied warranty “fit for the ordinary purposes for which such goods are used”even though a claim of strict products liability has not been satisfactorily established. (Ford Bronco rollover). (NJ have to pick one)

4.1 C. The Deterrence Rationale – Accident Prevention (182)1) Rationales into three categories

a. Morale group: justice and fairnessb. Deterrence and accident preventionc. Risk / Loss spreadingd. Reducing administration costs (litigation costs) / Judicial administrabilitye. Information accessf. Fairnessg. Punitive / retributionh. Justice / consistency / predeictability / coherence


5 THE CONCEPT OF DEFECTIVENESS (187)

5.1 2. The Manufacturing Process: Fabrication and Quality Control1) Manufacturing Defect : Strict liability is not absolute liability. There has to be a defect first.

a. Four basic factors of a manufacturing defect : safety of the user; usefulness (what does the product do); feasibility (how feasible to modify the design to make it safer); and cost

b. Looking at either the raw material or component is flawed or the assembly or manufacturing process causes the defect.

c. One in which the final product fails to meet the design specifications or the quality control standard or the reasonable expectation of the manufacturer, the user of both.

d. * Causation is usually the most hotly contested topic… * Misuse; wear and tear2) Ford Motor Co. v. Zahn (bur on cig lighter took out eye during crash): Foreseeability –not the injury

that you would expect to occur with that defect, a reasonable person anticipate a violent auto crash.

5.2 Design Defect: Consumer Expectations1) Matthews v. Lawnlite Co. : (Rocking chair / severed finger). §398 made under dangerous plan or

design. “One would not expect fingers amputated when grasping the hand grip”.2) McCormack v. Hankscraft Co. : (Steam vaporizer). A manufacturer has a duty to use reasonable care

in designing its product so that expected users are protected from unreasonable risk of harm while the product is being used for its intended use. *manufacturers with same design = relevant, but no bar.

3) Donegal Mutual Insurance v. White Consolidated Industries, Inc : More dangerously than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. (Self-clean mode started a fire). Jury awards $104,000.

4) Subrogation : insurance company paying the home owner’s insurance and stepping into the shoes of their insured to recover the policy holders compensation.

5) Comment i. Unreasonably dangerous. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not …

5.3 B. Risk-Utility (risk / benefit) B (Burden) < P (Probability) X L (Magnitude of loss)1) Concurring: balance two factors existing at the time of manufacture / sale: risk v. benefit

a. (1) the likelihood that the product would cause the claimants harm or similar harms, and the seriousness of those harms; against

b. (2) the manufacturer’s burden of designing a product that would have prevented those harms and the adverse effect that alt design would have on the usefulness of the product.

2) Sperry : untucked shirt in auger. duty to make its product reasonably safe, regardless of whether the plaintiff is aware of the product’s dangerousness. ¶ is still responsible for his own actions.

3) (Accident Prevention) Costs < (Safety) Benefits Defect4) Wade Factors :

a. usefulness and desirability of the prod – its utility to the user and to the public as a whole.b. The safety aspects of the product – the likelihood that it will cause injury, and the

probable seriousness of injuryc. The availability of a substitute prod which would meet the same need and note be unsafed. The manufacturer’s ability to eliminate the unsafe character of the product without

impairing its usefulness or making it too expensive to maintain its utilitye. The user’s ability to avoid danger by the exercise of care in the use of the product.f. The user’s anticipated awareness of the dangers inherent in the product and their

avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. (e & f ~ CET) design features.

g. The feasibility of the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.(Jury not allowed to know about insurance)


6 CHAPTER 8: WARNINGS

1) Fundamental, whether the information supplied was “adequate”, given the nature of the individual product and its probable environment of use.

2) Boyl v. California Chemical (warning – chemical burns): A manufacturer who undertakes to produce and sell to the general public a product with high risk of human harm must provide specification, instruction, and warning, so that it is reasonably safe for ordinary persons to use it, not only for the purposes for which it is produced and intended to be used but also all other necessarily incidental and attendant uses (such as storage or disposal) and to give reasonable notice and warning of after or delayed effect or latent or lingering dangers not known or reasonably to be expected by the ordinary user, but which are foreseeably probable to the manufacturer with his expertise.

3) Lewis v. Sea Ray Boats : Gas engine & AC. Need more specific definition of “adequate warning”. 4) White v. ABCO : Perfect warning does not save the manuf. from liability.5) No warning at all : Warning of one risk does not satisfy the duty to warn of other material risks

warning that baby could get diarrhea does not include a warning of paralysis. * particular hazard.6) Warning Polution : put where makes sense; selective to call consumer’s attention7) Duty to warn : Consists of two duties: one is to give adequate instructions for safe use, and the other

is to give a warning as to dangers. operating instructions do not take away the duty to warn.8) Burch v. Amsterdam : Gluing down floors: read the warnings; but forgot about the pilot lights and

there was an explosion. warning not adequate: particular hazard not mentioned.9) Defenses : (A) Bulk Supplier and (B) Sophisticated Users.

a. Bulk Supplier : No control how the end user labels if they are not supplying the packaging. End user in better position to know how the product would be used and to supply the warnings. Confusion from warnings from multiple suppliers.

6.1 Prescription Drugs1) Learned intermediary : medical doctor –between the drug man. and the consuming patient – has

requisite knowledge and prof. judgment properly to assess the benefits and risks of matching and monitoring particular dangerous drugs with distinctive medical conditions of individual patients.

2) Whether the warning is adequate – the recipient of the warning is the doctor.a. The warning must adequately indicate the scope of the dangerb. The warning must reasonably communicate the extent or seriousness of the harm that

could result from misuse of the drugc. Physical aspects of warning must be adequate to alert a RPP (e.g. doctor) to the danger;d. A simple directive warning may be inadequate when it fails to indicate the consequences

that might result from failure to follow it ande. The means to convey the warning must be adequate.

3) Means to convey the warning : Evaluate the insert’s language for its accuracy, clarity, fully descriptive and complete, and it must convey updated info as to all of the drug’s known side effects.

4) Continued duty : Timeliness is an issue; even small % of cases w/ side effect to be communicated.5) PDR (physicians desk reference): info there and letter to dr. or rep to dr. office (if major).6) Allergic reactions: egg shell plaintiff; take them as you find them.7) Idiosyncratic plaintiff: Is there a time when the egg shell victim is so rare the proximate cause is

broken? Egg shell gives way and there is a break in the causation.8) Zytec: learned intermediary does not apply to over the counter.9) exceptions : If a prescription drug is dispensed under circumstances where the doctor does not render

the type of individualized balancing of risks and benefits contemplated by the learned intermediary doctrine, the manufacturer may have to provide warnings directly to the patient.

10) Mass immunizations – inoculated by other than a physician. (lack of contact and close communication with the doctor).

11) Birth control pills : no mention of strokes – not seeing doctor for extended period of time.


12) Direct-to-consumer advertising : NJ Perez v. Wyeth Labs: “[W]hen a mass marketing of prescription drugs seeks to influence a patient’s choice of a drug, a pharmaceutical manufacturer that makes direct claims to consumers for the efficiacy of its products should not be unqualifiedly relieved of a duty to provide proper warnings of the dangers or side effects of the product.

13) RST 3rd §6(d): if the manufacturer should know that health care providers are not in a position to reduce the risk / harms in accordance with the instructions of warnings.


6.2 Proof – Rule 702: Testimony by experts1) Daubert v. Merrell Dow Pharmaceuticals : Gatekeeping function Requires expert testimony be

sufficiently related to disputed facts to help the jury resolve facts or issues in dispute. Court determines if the expert will testify: a threshold obligation to render a preliminary determination of both the:

a. Reliability (validity), andb. Relevance (fit) of the expert’s reasoning or methodology underlying the testimony.c. * the reliability factor of the gatekeeping test

i. Testability : whether the theory or technique is testable and has been tested – its ability to withstand objective, verifiable challenge and scientific trial;

ii. Error Rate : whether it has an acceptable known or potential rate of error;iii. Control Standards : whether the scientific technique’s application was subjected

to appropriate standards of control; andiv. Peer Review : whether it has been subjected to peer review and publication;v. General Acceptance : whether it is widely accepted in the relevant scientific

community.vi. Added: reliable tecniques; expert qualifications; non-legal uses of the method.

d. Inquiry “must be solely on principles and methodology, not on the generated conclusions.2) Booth v. Black & Decker, Inc. : Standard is abuse of discretion. (toaster defective – failed to provide

the court with “enough basic, objective information” on the reliability of the investigation / opinions.3) Kemp v. State : NJ 702 Gatekeeper function.

a. N.J. R. Evid. 702 3 requirements: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

b. In a new field of scientific research there are 3 ways a proponent can prove general acceptance of an opinion or theory within the scientific community: (1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions that acknowledge general acceptance of expert testimony.

c. N.J. R. Evid. 104 hearing, an expert must be able to identify the factual basis for his conclusion, explain his methodology, and demonstrate that both the factual basis and underlying methodology are scientifically reliable. The court's role is to determine whether the expert's opinion is derived from a sound and well-founded methodology that is supported by some expert consensus in the appropriate field. Support for an expert's methodology may be found in professional journals, texts, conferences, symposia, or judicial opinions accepting the methodology. Courts also may consider testimony from other experts in the field who use similar methodologies

4) Rudd v. General Motors Corp .: injured by broken fan adjusting timing. Rule 702. SJ denied.a. (1) sufficient data: GM tune-up manual, background and training metal fracturesb. (2) reliable principles and methods, and (ruling out causes; pub had method)c. (3) reliable application of the methods to the facts. (the associated alternative causes).


7 CHAPTER 9: REGULATING DEFECTIVENESS

1) §2A:58C-4: No liability if warning is provided (handout)2) Rebuttable presumption: burden is on the other party to shift the burden of presumption.3) Southland Mower Co. v. Consumer Product Safety Commission : power mowers. Foot probe.

a. an unreasonable risk of injury the test will ameliorate it, and that the benefits are reasonable in light of the burdens it imposes on products manufacturers and consumers.

b. Safety standard’s provisions shall be expressed in terms of performance requirements.c. Labeling: (no blood or graphics that could shock a child)

4) Aqua Slide ‘N’ Dive Corporation : Courts set aside: they failed to evaluate the standard’s likely effects on the products, utility, cost and availability. tests were not done in an empirical way.

7.1 Pre-emption1) Supremacy clause: the clause states that federal law “shall be the supreme law of the land”.2) Types of preemption: express and conflict preemption3) Savings clauses: in statutes.4) Moe v. MTD : Preemption provision: No state shall have prescribes any requirements as to

performance, composition… etc (saying that the no state law can define a compliant mower)a. Savings clause: shall not relieve any person from liability at common law or under

statutory law to any other person. (you can have an action at common law)b. Mower met the standards – but Moe still had a cause of action.c. * the preemption analysis is around the performance standard itself….

5) Levine v. Wyeth : Vermont Supreme Court and said the claim was not pre-empted. The FDA regulation provided a floor not a ceiling for state regulation and nothing prevented the manufacturer from going further and providing additional warnings.

6) Rigel v. Medtronic : The pre-emption clause “no state [] may establish for human use … any requirement… applicable to the devices in this chapter”. Requirement = pre-empting common law.

7) Cipollone v. Liggett Group, Inc. : 1965 – smoking may be hazardous label is not preemption; 1969 statute: no requirement or prohibition on smoking of health will be imposed on advertising = prempt.

a. not just baring statements: saying no requirements or prohibitions. Court interprets requirements as common law action (law suit).

8) Rules : Strong presumption against pre-emption; narrowly construed; statutory interpretatio


8 PART III: CAUSATION (CAUSE IN FACT AND PROXIMATE CAUSE)

8.1 Cause in Fact1) Known as direct causation: has the product defect contributed to or brought about the harm.2) Substantial factor test : was cause a substantial factor not the cause, but a cause. (but-for test).3) Drayton v. Jiffee Chemical Corp. : Identifying the Δ. Liquid-plumr v. Mr. Plumber (preponderance).

A lot of ways to satisfy – CVS only makes hanks craft vaporizers…4) Multiple defendants : two or more parties combine to cause the ¶’s harm: if each party is a

“substantial factor”, each is liable. General Rule: apportionment if possible, else use the principle of joint and severable liability.

5) Multiple defendants : ¶ has the burden to identify the product that caused the harm. The burden is preponderance of the evidence. Preponderance is tipping the scales ever so slightly.

6) Tortous Conduct : Two people shooting the gun at the same time and the plaintiff is hit by the bullet from one and the defendant can not determine who – CA only – burden shifts to Δ.

7) Snider v. Bob Thibodeau Ford : Dealer (sued) or manufacturer. Court shifted the burden based on close relationship between the dealer and the manufacturer). Court willing to shift in cases.

8) Sutowski v. Eli Lilly & Co. : market-share liability. 100s drug man. Difficult to prove which. Uncontested the drug caused the harm. Elements: (NY recognizes theory / NJ does not).

a. Injury caused by a fungible product.b. Plaintiff had to join a substantial share of the manufacturers of the productc. * man pay damages based on their market share.d. * still have to show causation –only relaxes which defendant caused the harm.

8.2 B.Establishing Causation: Sufficiency of the Evidence1) Henderson v. Sunbeam : Elec. Blanket / fire. Verdict for ¶ ¶ had 2 experts with diff. theory. OK2) 1 expert testifying to >1 theory = Equivocation; opinion needs reasonable certainty not possibility.3) Bitler v. A.O. Smith Corp. : Daubert requires: reliability and relevance

8.3 The Special Problem of Warnings and Reliance1) Lack of the warning = design defect –is the cause of the injury. Assumption: Had there been an

adequate warning, the ¶ would have read it, followed it and the accident would have been avoided.2) Greiner v. Volkswagenwerk Aktiengesellschaft : Roll over: split second decision; risk driving into

wall or rollover? Difficult to prove causation.3) Comment J to 402(a): where warning is given, a rebuttable presumption that the warning to be read

and heeded. The heeding presumption is a policy decision. Shifts burden of production to the Δ.


9 CHAPTER 13: PROXIMATE CAUSE P. 5471) Proximate Cause: some factual connection between defendant’s breach of duty and plaintiff’s injury

and addresses the policy question of whether the fairness the defendant ought to be held legally accountable for the plaintiff’s harm in which some manner is remote from the defendant’ breach.

a. (1) was the accident the natural and probable consequence of defendant’s act, andb. (2) were the results of defendant’s conduct reasonably foreseeable?

2) Comparative: In NJ, Δ less responsibility that ¶ (51%) then Δ prevails. (In NY, strict percentages).3) Crankshaw : Shrimp and vomit dismissed on SJ.4) Winnett v. Winnett : 4-yr old on work product. Forseeability means that which is objectively

reasonable to expect, not merely what might conceivably occur. ¶ case dismissed.5) Richelman : Child into hopper; but no evidence playing on and adult operater could have slipped into

opening designed for size 12 shoe. For ¶.6) Suicide : Yes, if irresistible impulse (brain damage in car accident).7) Precise manner of harm need not be foreseeable. Amputation from finger infection.8) Palsgraf – only to foreseeable plantiffs.

9.1 Intervening Causes.1) Dygan v. Sears : lawnmower threw stone into eye. Proximate cause: natural or probable sequence

produced the injury complained of. Superceding cause is an act of a third person or other force by its intervention prevents the actor from being liable. Mowing with other is foreseeable. For ¶.

2) Anderson v . Dreis: 2-button control disconnected. Only non-forseeable intervening acts are deemed superseding causes. Superseding needs to bring different type of harm and independent of situation created by Δ. Reversed for ¶ remanded for trial.

3) Superseding factors:a. Intervention brings about different harmb. Events are extraordinaryc. Intervening force operating independently of situation created by actord. Operation is caused by a third partye. Act of third party makes them liablef. Degree of culpability of third party

4) Price v. Blaine : celebrity masks (heavy). Remand to jury push not superseding as matter of law.5) Wiliams v. RCA : defective radio – distinguished where radio was instrument of crime prevention.6) In Re 9-11 litigation : Boeing can not dismiss as a matter of law inadequate cockpit door – nature of

the sensitivity of the cockpit area. Went to jury.


10 CHAPTER 14: DEFENSES AND DAMAGES P. 5791) Defense based on Plaintiff’s conduct (Objective Standard = Reasonable Person)

a. Contributory Negligence : any amount of negligence by the ¶ is a complete defense.b. Comparative Negligence : Jury compares negligence ¶ & Δ. 2 types: pure and modified. c. Ultimate outcome : Jury told effect of their determination of their proportionate shares.

10.1 Contributory Negligence1) Reed v. Carlyle &Martin, Inc. : Objective standard. Not whether ¶ actually knew of the danger, but

whether in the exercise of reasonable care, he should have known he was in a situation of peril.2) UCC 2-316: when the buyer before entering into the contract has examined the goods… as fully

desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought to have revealed to him (or used the product in the face of the defect). injuries may be found to result from his own action rather than proximately from a breach of warranty.

3) Goodbar : no duty to look at and feel a candy bar prior to biting into it.4) § 402A Comment n (Contributory Negligence) : … Contributory negligence of the ¶ is not a

defense when such negligence consists of merely in a failure to discover a defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk… If a user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. (Objective & Subjective Hybrid)

5) Madonna v. Harley Davidson, Inc. : Brake caliper / drunken driving. User conduct not relevant if the product defect contributed in any way to the accident. Only where the ¶’s conduct is the sole cause and not related in any way with a product defect, it is relevant and admissible to prove causation.

10.2 Comparative Fault1) Daly v. GMC : Intox; no seat belt; adopted comparative fault. NJ = comparative fault.2) General Motors Corporation v. Sanchez : park; car rolled over him. Comment N. Ass. Of risk.3) Coulter v. American Bakeries Co. : metal wire in doughnut. The defense of comparative negligence

pertains to the misuse of the product as opposed to the failure to discover or guard against a defect.

10.3 Assumption of Risk (Subjective Standard)1) Moran v. Raymond corp. : Clear assumption of risk Moran was in a hurry and that he took a

calculated risk that he could get his hand out of the way before the forks hit him.2) Factors .

a. Plaintiff had actual knowledge of the danger.b. Plaintiff understood and appreciated the risk.c. Plaintiff voluntarily exposed himself to the risk (with knowledge of the obvious danger).

3) Bowen v. Cochran : Warnings: must be some evidence that Bowen knew that the cooker could explode if not properly lighted and ventilated, that he understood the risk if the cooker was improperly operated; and that he nevertheless decided to risk operating the cooker improperly.

4) Haugen v. Minn. Mining : No goggles / grinding wheel. ¶ aware of risk of small particles, but not the risk of breakage of the wheel. Specific latent defect and danger causing injuries not known by the ¶. ¶, therefore, could not have assumed the risk endangered by the defect.

5) Johnson v. Clark Equipment : Fork lift case; leans out instead of walking out and around; ¶ knew and appreciated the risk or defect and voluntarily encountered the risk. However, the fast pace of his job possibly made his conduct “reasonable” the case went back to be retried.

6) In NJ an employee hurt in an industrial setting by a tool supplied by his employer, ¶’s conduct is not a defense. (work setting; product supplied by employer and used for intended or foreseeable purposes).

7) Risk-Utility Factors: ¶’s conduct / ability to eliminate danger.8) ¶ conduct only relevant to proximate cause.


11 CHAPTER 10: LIMITING DEFECTIVENESS: USER CHOICE

11.1 Obvious Dangers1) Micallef v. Miehle Co. : Blemishes on printing press. Method observed=Product used as intended or

foreseeable. Reasonable care requires risk – utility balancing test.2) Belling v. Haugh’s Pools : dive inner tube. not the PC. no obligation to warn of obvious dangers.3) Most courts do not requiring warning of known, commonly known or obvious dangers. This is an

objective test (open and obvious to the ordinary person). Duty to remind: seat belt buzzer.4) A design case: the open and obvious is relevant but not conclusive; however if it is a warning case,

then the manufacturer has no duty for failing to warn of risks commonly known or obvious.

11.2 Inherent Dangers1) An exposed sharp blade is inherent to a carving knife and an inherent characteristic of a carving

knife. Want to distinguish between products with social value and usefulness.2) Bruner v. Anheuser : Comment i (unreasonably dangerous): “Good whiskey is not unreasonably

dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics”.3) Hot coffee reason for purchase. * was expecting 2nd degree burns, not 3rd degree. SJ for the Δ.4) Hearn v. R.J. Reynolds Tobacco Co. : The “Common Knowledge” Doctrine.5) Parish v. Icon Health & Fitness, Inc.: Trampolines. Clear warnings – no back flips.6) RST: alternative reasonable design where the utility is low and the risk is high; I need not

determine an alternative reasonable design (exploding cigar).

11.3 Misuse1) Using a knife as a toothpick. An affirmative defense or an element in the claim (NJ = element).2) Venezia v. Miller Brewing Co. : bottle thrown against pole. Thin walls. Manufacturer has to

understand and appreciate the environment will be used and the product will withstand intended use and reasonably foreseeable misuse Clinking the bottles together; falling off a table.

3) Ellsworth v. Sherne Lingerie : Nightgown inside out. Reasonably foreseeable.4) Moran v. Faberge, Inc. : Scent candle with cologne. For ¶. Not the type of harm sustained – but the

general danger area. = foreseeable (spill); not necessary for the sequence of events to be foreseeable.

11.4 State of the Art (p. 460)1) When product risk is generally unknown or the means of avoiding it unknown or unavailable at the

time the product was manufactured and sold (critical point is manufacture or sale).2) Pontifex v. Sears : Durable products: Not negligence to sell an old model machine not equipped with a

safety device of later models.3) Boatland v. Bailey : Boat tossed / propeller. Racing boats / kill switches. State of the art with respect

to a particular product. Extent feasible. Desent: economic feasibility not a part of state of the art.4) Feldman v. Lederle Labortories : Tooth discoloration. Comment k does not immunize all prescription

drugs. Knowledge was imputed industry knowledge at the time imputer on Δ.5) Comment k : an affirmative defense in those cases in which the following criteria are met:

a. The product is properly manufactured and contains adequate warnings;b. Its benefits justify its risks, andc. product at the time of manufacture and distribution incapable of being made more safe.

11.5 Post Sale Duties1) Exception to the standard it is the time of the distribution that determines if it is defective. Some

courts hold a duty to warn if the manufacture learns of a defect.2) Ostendorf v. Clark Equipment Company : Delta and forklift. Warning given. Eschewing a duty to

retrofit. No duty to retrofit. (Leaving to legislative bodies). Exception to products with product safety.3) Snow blower manuals. FAILURE TO WARN: mfg or seller shall not be liable for harm for failure to

warn if the product contains adequate instructions; or if the mfg reasonable discovers after it leaves his control; seller discovers or reasonably should discover. THERE IS A POST SALE DUTY TO WARN.


12 CHAPTER 15: DAMAGES

12.1 Personal Injury and Death (Compensatory and Punitive Damages)1) Anderson v. Sears: Sears heater fire – infant burned. Past Physical and Mental pain; medical expenses

loss of earning capacity; permanent disability and disfigurement. Time unit rule.

12.2 Emotional Distress1) Kroger Co. v. Beck : Entitled to recover for emotional loss even without an injury and even if it is

untreated (generally). As long as there is a contemporous physical reaction – vomiting, scream. There has to be some physical manifestation / reaction for the person to be compensated.

2) 3 seconds before death an action; Khan v. Shiley: Artificial valve implanted not. Injury required.3) Pearsall v. Emhart Industries, Inc. : Sees husband and child and their injuries.4) Test for emotional loss

a. Must be located near the scene of the incident of the accidentb. Shock from sensory and contemporaneous observance of the accident as contrasted with

learning of the accident after the occurrencec. Whether the plaintiff and the victim were closely related, as contrasted with an absence of

any relationship or the presence of only a distant relationship.d. Her emotional distress was not caused merely by others notifying her of the accident.

5) Economic Loss: Damage to the product itself, your recovery is limited to a warranty claim.6) Concrete case: Home owners with defective concrete. All had at the time was crumbling concrete.

12.3 Punitive Damages1) Flammable pajamas: Meet minimal flammability standards. Found company liable for punitive.

Whether punitive damages were even appropriate. Willful or reckless disregard for the plaintiff safety. Factors: Extent of the danger to the public; cost of reducing; feasible remedies; aware of danger; how long did the manufacturer fail to act; extent mfg intentionally created the danger or failed to meet standards. Aware that the pjs were flammable; newspapers meet the safety standard.

2) Whether punitive damages are excessive. Due process considerations in determining how far we go with punitive damages: Elementary notions of fairness enshrined in the constitution jurisprudence of fair notice of the conduct and the penalty that will be imposed. We have to be fair in assessing:

a. How bad was the conductb. What are the actual damages and the ratio of damages to the award.c. Conduct of the Δ being addressed in other cases Philip Morris being punished in other

place across the country.d. Net worth of the Δ is a factor (how rich is the company) as well as the net income.e. How much money did that manufacturer earn from that bad conduct (flammable pajamas).

3) NJ punitive damages statute (governed by statute since 1995)a. In many states (including NJ) – punitive damages are not insurable.b. Has to be asked for in the complaint (without asking for a specific amount)c. Δ is able to ask for and receive a bifurcated trial – a second trial with the same jury. The

horrible things will be presented at the second trial. Bifurcate since permitting the evidence in the main trial will bias the jury.

d. A limitation on 5-14: no defendant will be liable more than 5 times the compensatory damages or $350,000.

e. Has to be shown by clear and convincing evidence.f. Willful, disregard with actual malice.


13 SPECIAL TYPES OF DEFENDANTS, PRODUCTS, AND TRANSACTIONS (CHAPTER 16)1) Retailers, Wholesalers and Distributors: Wal-mart, by influencing the price, is the

manufacturer going to cut back on materials / quality.1) Zamora v. Mobil Corp. : Seller of propane who never had possession or control of the gas should be

held liable. No odor. Section 402A (strict liability) (liability for any sale of a defective product) for ¶.2) Look at NJ law. Sellers are excused if identify man. And man is available for trial. (Exceptions)3) City of Franklin v. Ford (Component Manufacturer): City sues sale comp, the chasis maker (Ford),

and wheel maker (Gunite); Where there is no change in the component part itself, but it is merely incorporated into something larger, and where the cause of harm or injury is found as here to be a defect in the component part we hold that as to the ultimate as to the ultimate user or consumer, the strict liability applies to the maker and supplier of the defective component part. Where component part is subject to further processing or substantial change, or where the causing of the injury is not directly attributed to defective construction of the component part, the result might be different.

4) Lee v. Butcher Boy : (Component Man): Meat grinding machine (kill switch and warning). No case in which a component manufacturer who had no role in designing the finished product and who supplied a nondefective component part, was held liable for the defective design of the finished product.

1) Apperson v. E.I. Du Pont : Teflon. Telfon was not inherently dangerous many safe uses. Warned of known dangers. Defective components and inherently dangerous raw materials.

2) Apperson is the current majority rule: the two factors: component part is defective or the component manufacturer substantially participates in the finished product.

13.1 Successor Corporations1) Semenetz v. Sherling : No liability for purchasing assets with four exceptions.2) 4 exceptions : Where a successor corporation “expressly or impliedly assumes its predecessor’s tort

liability; there is a consolidation or merger of seller and purchase; the purchasing corporation is a mere continuation of the selling corporation; or transaction is entered into fraudulently to escape obligations.

3) Product Line Exception : in Ca. where they manufacture the same products as previously manufactured. NY declines to adopt the Product Line exception. (Uphold corporate integrity).

4) NJ: has adopted the product line exception to some extent (the continuity of enterprise rule: if a successor corporation acquires all or almost all of the manufacturing assets of the predecessor and undertakes essentially the same manufacturing operations, then it remains strictly liable for products or defects of products of the same product lines).


13.2 Indemnity and Contribution (p.734)1) Two concepts:

a. Indemnification: allocation or the shifting of the entirety of fault to one party.b. Contribution: refers to the distribution of fault amongst all of the liable partys.

2) When does each apply:a. Express indemnity not too often in product liability setting. An agreement by one party to

indemnify.b. Implied indemnification (we generally see): generally a situation that arises where on

party is actively at fault and the others party’s fault is passive. Example: 402A case where you have a distributor in a chain who has not touched a product, repackaged it; modified it etc. Just put a closed box on the shelf and sells it. That retailer is liable, but has implied indemnification claim against those above him in the distribution chain.

c. Contribution: Usually based on state statutes and shifting the liability amongst the parties.3) Digregorio v. Champlain Valley Fruit Co. : A foreign product in a food product, the ultimate

consumer brought a banana and is injured by a piece of glass and she sues the retailer. Retailer informed (impleads) the distributor (a thermometer inserted into the banana). Retailer defends because the distributor never joined. The Δ’s refusal to join in the party and the seller’s settlement does not bar the ¶ from going after the Δ. At this point the ¶’s were entitled to undertake the defense and to proceed in good faith to reach a reasonable settlement. ¶ shifting the blame to the active infringer.

4) Promaulayko v. John Manville : an intermediate distributor in a chain of distribution should indemnify the ultimate distributor when both are strictly liable in tort to the injured plaintiff. (up the chain).

5) Worker’s comp. Will pay medical bills and partial lost income (maybe 70%) and a third component is a permancy award (a dollar amount based upon a schedule). (Impair ability to earn into the future).

6) Employee not entitled to sue employer and limited to formula based damages. Benefit is that this is a no fault system entitled to benefits whether you or the employer were negligent.

7) Add context that there is some other fault at play – e.g. a product – that caused the injury. ¶’s ability to sue a third party.

8) Majority system (NJ): the employer who pays worker compensation benefits is then entitled to cover those benefits from any third party recovery.

a. Subrogation : employer entitled to recover what it paid to its employee from a third party tort feasor. NJ statute provides that the recovery is 2/3 of ¶ recovery for their payment.

14 SOCIAL ISSUES – EFFECTIVE MEANS TO MODIFY HUMAN BEHAVIOR? (GUNS, HAMBURGERS AND HOT COFFEE)

1) Pelman Case: The obesity case. Proximate cause issue.2) Halliday (guns): disregard warnings and shot himself. Legislation.


outline product liability riina spr2009 outline[1]

Documents