Cheeseman blaw8e ch06

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Chapter 6Product and Strict Liability

Introduction to Product and Strict Liability

Product Liability: Liability of manufacturers, sellers, lessors, and others for injuries caused by defective products

Strict Liability: A plaintiff may recover punitive damages if the defendant’s conduct has been reckless or intentional

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 6-2

Product Liability: Negligence

Negligence Requires the defendant to be at fault for causing

the plaintiff’s injuries The plaintiff must prove that:

The defendant breached a duty of due care to the plaintiff

This breach caused the plaintiff’s injuries

Only a party who was actually negligent is liable to the plaintiff


Product Liability: Negligence

Failure to exercise duty of care includes: Failing to assemble a product carefully Negligent product design Negligent inspection or testing of a product Negligent packaging Failure to warn of the dangerous propensities of a

product


Product Liability: Misrepresentation

Misrepresentation Occurs when a seller or lesser either:

Fraudulently misrepresents the quality of a product

Conceals a defect in it Recovery is limited to persons who relied on the

misrepresentation


Product Liability: Strict Liability

Doctrine of strict liability in tort Strict liability is liability without fault Makes manufacturers, distributors, wholesalers,

retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, irrespective of fault



Liability without fault Does not require the injured person to prove that

the defendant breached a duty of care Casual sales and transactions by nonmerchants are

not covered Applies only to products, not services



Chain of distribution Comprises of:

Manufacturers Distributors Wholesalers and retailers Lessors Subcomponent manufacturers

All parties in the chain of distribution of a defective product are strictly liable for the injuries it causes



Parties who can recover for strict liability Any injured party Privity of contract not required Recovery possible even if the injured party had no

contractual relations with the defendant Bystanders and non-users are entitled to the same

protection as users



Damages recoverable for strict liability Damages recoverable vary by jurisdiction Property damage recoverable in most jurisdictions Economic loss in few jurisdictions Some jurisdictions limit the dollar amount of the

award Punitive damages generally allowed if defendant

recklessly or intentionally injured the plaintiff


Product Defects

To recover for strict liability, the injured party must first show that the product that caused the injury was somehow defective

The injured party does not have to prove who caused the product to become defective

Plaintiff can allege multiple product defects in one lawsuit


Product Defects

Defect in manufacturing Defect in design Defective packaging Failure to warn Inadequate instructions

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Case 6.1: Defect in Manufacture

Case Shoshone Coca-Cola Bottling Company v.

Dolinski 82 Nev. 439, 420 P.2d 855, Web 1966 Nev. Lexis

260 Supreme Court of Nevada


Case 6.1: Defect in Manufacture

Issue Should the state of Nevada judicially adopt the

doctrine of strict liability? If so, was there a defect in the manufacture of the Squirt bottle that caused the plaintiff’s injuries?


Defect in Design

Defect that occurs when a product is improperly designed

Evaluation of adequacy of a product’s design: Risk-utility analysis Consumer expectation test


Case 6.2: Design Defect

Case Domingue v. Cameco Industries, Inc. 936 So.2d 282, Web 2006 La. App. Lexis 1593

(2006) Court of Appeal of Louisiana

Issue Is the forward blind spot on Cameco’s 405-B

dump truck a design defect?


Defect in Design

Crashworthiness doctrine:

Automobile manufacturers have duty to design automobiles taking into account the possibility of a second collision

They should take into account the possibility of harm from a person’s body striking something inside the automobile in the case of a car accident


Failure to Warn

Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown

Proper and conspicuous warning insulates all in chain of distribution

Failure to warn is a defect that will support a strict liability action


Defect in Packaging

Manufacturers owe a duty to design and provide safe packages for their products

Containers should be: Tamperproof Clearly indicate tampering

Defective packaging subjects the chain of distribution to strict liability

6-19Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall.

Other Product Defects

Failure to provide adequate instructions Inadequate testing of products Inadequate selection of component parts or materials Improper certification of the safety of a product


Defenses to Product Liability

Generally known dangers Certain products are inherently dangerous These products are known to the general

population to be inherently dangerous Sellers are not strictly liable for failing to warn of

generally known dangers



Government contractor defense Contractors that manufacture products to

government specifications are not usually liable if such a product causes injury

Abnormal misuse of the product Relieves the seller of product liability if the user

abnormally misused the product



Supervening event

The manufacturer or seller is not liable if:

A product is materially altered or modified after it leaves the seller’s possession

The alteration or modification causes an injury



Assumption of risk Defendant must prove that the plaintiff:

Knew and appreciated the risk Voluntarily assumed the risk



Statute of limitations Plaintiff must bring action within a certain number

of years from the time that he or she was injured by the defective product

Limitation period set by each state Defendant is relieved of liability if action is not

brought within limitation period



Statute of repose

Limits the seller’s liability to a certain number of years from the date when the product was first sold

Varies from state to state



Plaintiff partially at fault Types

Contributory negligence Comparative negligence



Contributory negligence Plaintiff who contributed to own injuries cannot

recover from the defendant in negligence Contributing plaintiff cannot recover damages

even if the product was defective



Comparative negligence Applies when a plaintiff is partially responsible for

causing his own injuries Liability is assessed proportionately to the degree

of fault of each party Damages are apportioned proportionally between

the plaintiff and the defendant



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Cheeseman blaw8e ch06