Chapter 12: Products Liability

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1 Law 580: Torts Thursday, November 19, 2015 November 24, 25 Casebook pages Chapter 12: Products Liability

2 Products Liability Prima Facie Case: 1. Injury 2. Seller of products 3. Defect 4. Cause

3 Restatement (3d) of Torts: Product Liability (1998) 1. LIABILITY OF COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM CAUSED BY DEFECTIVE PRODUCTS One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

4 Restatement (3d) of Torts: Product Liability (1998) 2 Categories of Product Defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) 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 by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

5 Products Liability Prima Facie Case: 1. Injury 2. Seller of products 3. Defect Manufacturing defect, or Design defect, or Failure to warn 4. Cause

6 Restatement (3d) of Torts: Product Liability (1998) 2 Categories of Product Defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (b) 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 by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe Comment d. Design defects: general considerations. Whereas a manufacturing defect consists of a product unit's failure to meet the manufacturer's design specifications, a product asserted to have a defective design meets the manufacturer's design specifications but raises the question whether the specifications themselves create unreasonable risks. Answering that question requires reference to a standard outside the specifications. Subsection (b) adopts a reasonableness ( risk-utility balancing ) test as the standard for judging the defectiveness of product designs. More specifically, the test is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design by the seller or a predecessor in the distributive chain rendered the product not reasonably safe.under prevailing rules concerning allocation of burden of proof, the plaintiff must prove that such a reasonable alternative was, or reasonably could have been, available at time of sale or distribution.

Jackson v. General Motors (Tenn. 2001) p.936 1. Who sued whom? 2. What happened?

7 Jackson v. General Motors (Tenn. 2001) p Who sued whom? 2. What happened? 3. What s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why?

8 Certified Question in Jackson v. GM: In a products liability action under Tennessee law, may the plaintiff use the consumer expectation test to prove that his seatbelt/restraint system was unreasonably dangerous because it failed to conform to the safety standards expected by an ordinary consumer under the circumstances?

9 In response to the certified question, we conclude that the consumer expectation test is applicable to any products liability case in which a party seeks to establish that a product is unreasonably dangerous under Tennessee law. We affirm our decision in Ray ex rel Holman v. BIC Corp. that the consumer expectation test and the prudent manufacturer test are not exclusive of one another and therefore either or both of these tests are applicable to cases where the product is alleged to be unreasonably dangerous. However, we recognize here, as we did in BIC, that it may be difficult for plaintiffs in cases involving highly complex products to establish that the product is dangerous to an extent beyond that which would be contemplated by an ordinary consumer, even though the consumer expectation test may, technically, apply. Jackson v. GM (p. 940)

10 Tenn. Code Ann : (a) A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.. (d) A product is not unreasonably dangerous because of a failure to adequately warn of a danger or hazard that is apparent to the ordinary user. Tenn. Code Ann (8) [definition of unreasonably dangerous ] 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, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

11 The ability to go forward on a claim that a product is unreasonably dangerous based on the consumer expectation test requires that the plaintiff provide sufficient evidence to create a question of fact that the product was 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. See Tenn. Code Ann (8). Once this question of fact is established, however, [t]he general rule in Tennessee is that the issue of whether a product is defective or unreasonably dangerous is one for the jury, [Citation.] Under the consumer expectation test, a plaintiff is required to produce evidence of the objective conditions of the product as to which the jury is to employ its own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. Jackson v. GM (p. 939)

12 Restatement (Third) of Torts: Products Liability 3 Circumstantial Evidence Supporting Inference of Product Defect It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: (a) was of a kind that ordinarily occurs as a result of product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

Branham v. Ford Motor (SC 2010) p.941 1. Who sued whom? 2. What happened? 3. What s the procedural history? 4.

13 Branham v. Ford Motor (SC 2010) p Who sued whom? 2. What happened? 3. What s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why?

14 In 1974, our Legislature adopted the Restatement (Second) of Torts 402A (1965), and identified its comments as legislative intent. S.C. Code Ann (2005). The comments in section 402A are pointed to as the basis for the consumer expectations test. Since the adoption of section 402A, the American Law Institute published the Restatement (Third) of Torts: Products Liability (1998). The third edition effectively moved away from the consumer expectations test for design defects, and towards a risk-utility test. We believe the Legislature s foresight in looking to the American Law Institute for guidance in this area is instructive. The Legislature has expressed no intention to foreclose court consideration of developments in products liability law. For example, this Court s approval of the risk-utility test in Claytor yielded no legislative response. We thus believe the adoption of the risk-utility test in design defect cases in no manner infringes on the Legislature s presence in this area. Some form of a risk-utility test is employed by an overwhelming majority of the jurisdictions in this country. Some of these jurisdictions exclusively employ a risk-utility test, while others do so with a hybrid of the risk-utility and the consumer expectations test, or an explicit either-or option. States that exclusively employ the consumer expectations test are a decided minority. We believe that in design defect cases the risk-utility test provides the best means for analyzing whether a product is designed defectively. Unlike the consumer expectations test, the focus of a risk-utility test centers upon the alleged defectively designed product. The risk-utility test provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer s design. Conversely, we find the consumer expectations test and its focus on the consumer ill-suited to determine whether a product s design is unreasonably dangerous. Branham v. Ford Motor (p. 947)

15 In sum, in a product liability design defect action, the plaintiff must present evidence of a reasonable alternative design. The plaintiff will be required to point to a design flaw in the product and show how his alternative design would have prevented the product from being unreason- ably dangerous. This presentation of an alternative design must include consideration of the costs, safety and functionality associated with the alternative design. On retrial, Branham s design defect claim will proceed pursuant to the riskutility test and not the consumer expectations test. Branham v. Ford Motor (p )

16 Restatement (3d) of Torts: Product Liability (1998) 2 Categories of Product Defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (b) 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 by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe Comment d. Design defects: general considerations. Whereas a manufacturing defect consists of a product unit's failure to meet the manufacturer's design specifications, a product asserted to have a defective design meets the manufacturer's design specifications but raises the question whether the specifications themselves create unreasonable risks. Answering that question requires reference to a standard outside the specifications. Subsection (b) adopts a reasonableness ( risk-utility balancing ) test as the standard for judging the defectiveness of product designs. More specifically, the test is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design by the seller or a predecessor in the distributive chain rendered the product not reasonably safe.under prevailing rules concerning allocation of burden of proof, the plaintiff must prove that such a reasonable alternative was, or reasonably could have been, available at time of sale or distribution.

Strict Liability and Product Liability PRODUCT LIABILITY WARRANTY LAW

Strict Liability and Product Liability PRODUCT LIABILITY The legal liability of manufacturers, sellers, and lessors of goods to consumers, users and bystanders for physical harm or injuries or property