CHAPTER 3

Strict Liability in Tort: Design

Chapter Contents

§ 3.01 Introduction[ 1 ] Restatement (Second) of Torts § 402A[ 2 ] Policy[ 3 ] A Comparison[ 4 ] Elements[ 5 ] Recreation and Sports Products

[ a ] Above-Ground Swimming Pool[b] Airplane[ c ] Amusement Ride[d] Bicycle[ e ] Exercise Equipment[f] Football Helmet[ g ] Golf Cart[h] Horse[ i ] Hunting Club Gate[j] Leg Press Machine[k] Media[ l ] Mobile Home[m] Motorcycle[n] Parallel Bars[ o ] Pole Vaulting Standard[p] Publication[q] Shotgun[ r ] Ski Binding[s] Slingshot[t] Snowmobile[u] Swimming Pool[ v ] Water Slide[w] Yacht

§ 3.02 Engaged in the Sale[ 1 ] Retailers[ 2 ] Lessors and Bailors[ 3 ] Component Part Manufacturers[ 4 ] Product Responsibility

[ a ] Substantial Change[b] Delegation

[ i ] Installation of Safety Devices[ii] Filler of Specifications

[ 5 ] Successor Corporations

[ 6 ] Recreation and Sports Products[ a ] Above-Ground Pool[b] Boat Propeller[ c ] All-Terrain Vehicle

[ i ] Open and Obvious Danger[ii] Subsequent Alteration

[d] Bowling Ball[ e ] Exercise Machine

[ i ] Leg Press[ii] Squat Machine

[f] Football Helmet[ g ] Golf Cart

[ i ] Casual Lessor[ii] Spoliation

[h] Golf Club[ i ] Motorcycles

[ i ] Post-Manufacture Alteration[ii] Documentary Evidence

[j] Porch Swing Hook[k] Powered Parachute[ l ] Rowing Machine[m] Sailboat[n] Ski Passenger Tramway[ o ] Sled[p] Trampoline

[ i ] Design Defect[ii] Sufficiency of Warning

[q] Volleyball Net Standard§ 3.03 Defect

[ 1 ] Background[ 2 ] Consumer Expectations[ 3 ] Risk-Benefit[ 4 ] The Prudent Manufacturer[ 5 ] The Open and Obvious Rule[ 6 ] Recreation and Sports Products

[ a ] Above-Ground Swimming Pool[b] Bass Boat[ c ] Bicycle[d] Bicycle Helmet[ e ] Hockey Helmet[f] Motorcycle Helmet[ g ] Motorcycle[h] Motor Home[ i ] Outboard Motor Boat[j] Rifle[k] Sailboat[ l ] Ski Bindings

[ i ] Improper Adjustment[ii] Defectiveness

[m] Skis[n] Swimming Pool[ o ] Three-Wheeled Cycle[p] Toy Building Block[q] Water Ski

§ 3.04 Feasibility[ 1 ] Alternative Designs[ 2 ] Custom, Standards, Regulations and Statutes[ 3 ] State of the Art[ 4 ] Recreation and Sports Products

[ a ] Bass Boat[b] Helmet[ c ] Motor Home[d] Outboard Boat Propeller[ e ] Spa (Water Pump)

§ 3.05 Users, Consumers and Bystanders[ 1 ] Definition[ 2 ] Recreation and Sports Products

[ a ] Baseball Field Electrical Line[b] Machete[ c ] Snowmobile[d] Swimming Pool Sanitizer

§ 3.01 Introduction

Arguing that manufacturer responsibility should be derived from"public policy" and "public interest" rather than culpability, JusticeTraynor planted a seed that would eventually bear considerablefruit.1 The majority affirmed the trial court's application of res ispaloquitur in an exploding bottle case, but Justice Traynor, in hisconcurring opinion, argued that liability should be based upon therationale of charging those who, while not necessarily negligent,possess superior means to prevent the marketing of defective prod-ucts and can best distribute the resulting losses as a cost of doingbusiness.2 Although the phrase "absolute liability" was used to de-scribe this more straightforward recovery approach, his concurringopinion rejected the notion that injury caused by the product, with-out more, would justify the imposition of manufacturer liability.3

1 Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 (1944).2 Id., 150 P.2d at 440-441.3 In addition to the phrase "absolute liability," Justice Traynor remarked that " .

. . the risk of injury can be insured by the manufacturer and distributed among thepublic as a cost of doing business." 150 P.2d at 441. In view of the followinglanguage contained in the opinion, it appears that the intent was not to make the

Nineteen years later in Greenman v. Yuba Power Products, Inc.,4

Justice Traynor harvested the carefully planted policy action ap-proach for product defect recovery earlier sown by him in Escola.In Greenman, a new, more plaintiff-oriented, cause of action wascreated;5 one that would not expose a prospective plaintiff to in-surmountable burdens of proving fault6 or that unexpected harsh-ness of losing the right to recover for failing to comply with a tech-nicality of warranty law.7 In accord with his expressed dissatisfac-tion with Escola's reliance on res ipsa loquitur rather than on therelevant policy issues of manufacturer responsibility and user pro-tection, Justice Traynor refused to affirm the lower court's findingof liability on the basis of the available traditional legal theories.Instead, he chose a more compatible philosophical basis to do so.8

After initially recognizing that the lower court was correct inconcluding that the injured plaintiff established that the power toolwas negligently and defectively manufactured, Justice Traynorchose to dwell on the defendant's claim that the breach of expresswarranty theory was invalid because of lack of timely notice. Inaffirming the lower court, the strict liability nature of the warrantyprovisions was used as a springboard to launch strict liability in tortas an alternative and more appropriate theory of recovery.

The court held that an injured consumer with no contractual re-lationship or privity with the manufacturer of a defective productshould not be required to give notice to maintain a successful war-ranty action.9 Furthermore, it was recognized that although strict manufacturer absolutely liable as an insurer of the product: "The manufacturer'sliability should, of course, be defined in terms of the safety of the product innormal and proper use, and should not extend to injuries that cannot be traced tothe product as it reached the market." 150 P.2d at 444.

4 Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 377P.2d 897 (1962).

5 A new theory of recovery was created and labeled but one reading the opinionwithout a products liability background could easily conclude that the court wasapplying a theory that had long been utilized by the courts.

6 Although res ipsa loquitur was frequently available to soothe the pain ofattempting to prove the manufacturer's negligence, the technical prerequisites ofthe inference doctrine tend to overshadow even the fault-based policy ofmanufacturer responsibility.

7 Id., 377 P.2d at 901, quoting Davis v. Van Camp Packing Co., 189 Iowa 775,176 N.W. 382. ("The remedies of injured consumers ought not to be made todepend upon the intricacies of the law of sales").

8 Rather than metamorphosing warranty into tort, the court could have eitherconcluded after agreeing with the lower court's finding of manufacturer negligence,or found that the notice of breach of warranty furnished to the manufacturer wastimely or not necessary under the circumstances. This simpler approach was nottaken since it would have delayed the birth of the strict liability in tort doctrine.

9 The notice provision cited by the court was based upon the Uniform Sales

liability actions had historically been based upon warranty theories,more recent defective product decisions had discarded the normalbut often harsh incidents of contract in favor of a less technical ap-proach.10 In short, the basis for defective product suits alleging in-jury to the person was concluded to be tort and not contract.

Thus, Justice Traynor reaped the rewards of patience and perse-verance. Seemingly reasoning that the doctrine was already in ex-istence but merely not yet formally introduced, he delivered thethird major defective product action with the following words: "Amanufacturer is strictly liable in tort when an article he places onthe market, knowing that it is to be used without inspection for de-fects, proves to have a defect that causes injury to a human be-ing."11

[1]—Restatement (Second) of Torts § 402A

In the years from 1961 to 1965, the Council of the AmericanLaw Institute changed their role from restating the law as it actuallyexists to actively participating in the law's evolution.12 Prior to

Act. See UCC § 2-607(3)(a) for a similar requirement of notice of breach.

10 The leading example was Henningsen v. Bloomfield Motors, Inc., 32 N.J.358, 161 A.2d 69 (1960), decided after Escola, N. 1 supra, 150 P.2d 436, but priorto Greenman, N. 4 supra, 377 P.2d 897. In a lengthy and thought-provokingopinion, the New Jersey Supreme Court laid some important groundwork forGreenman. The court was faced with a horizontal privity issue in a pre-UCCwarranty action. (The purchaser's wife was injured in an automobile manufacturedby the defendant). Citing, among other factors, the mass advertising employed bylarge manufacturers and aimed by them at individual consumers, it was reasonedthat the requirement of privity was inappropriate. Those who create the productdemand in foreseeable plaintiffs should not hide behind the skirts of privity. Inaddition, the use of standard form contracts, which led to a lack of free bargainingbetween manufacturers and consumers, the general public's unfamiliarity withtechnical language employed to avoid certain otherwise existing obligations, andthe use of fine print were cited as support for the striking of the manufacturer'sdisclaimer. Thus, liability was imposed without the impediments of thecontractual dressing—one short step toward Greenman and strict liability in tort.

11 Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697,700, 377 P.2d 897, 900 (1963).

12 At the time the Restatement (Second) of Torts § 402A was published, thestrict liability in tort approach was, in the main, reserved for food and products forintimate bodily use which had caused human injury. Certainly, there were a smallbut significant number of product defect decisions in addition to Greenman, N. 11supra, 377 P.2d 897, that had applied the strict liability rationale by then, butthese were only a sample of progressive judicial thought on the matter and not anaccurate picture of the existing law.

See generally:California: Vandemark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal. Rptr. 896,

Greenman, the Council justifiably proposed that the then forth-coming Restatement (Second) of Torts should reflect the strict li-ability approach that many courts had applied to the food con-sumption cases.13 Shortly thereafter, in 1962, the Institute approvedan expansion of the strict liability theory application to includeproducts for "intimate bodily use."14 Finally, one year after Green-man, an even more expansive final draft was approved15 and pub-lished.16

[2]—Policy

Since Justice Traynor's seminal decision in Greenman and thepublication of Section 402A, many states have enacted legislationdealing specifically with products liability actions. These productsliability acts typically define the scope of a products liability action,provide special statutes of limitation and repose, and set forth vari-ous defenses to liability.17

391 P.2d 168 (1964).

Michigan: Spence v. Three Rivers Builders & Masonry Supply, 353 Mich.120, 90 N.W.2d 873 (1958).

New Jersey: Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d69(1960).

It was not until shortly after the Restatement was published that the state of thelaw reflected strict liability as an acceptable approach to defective product issues.

13 Restatement (Second) of Torts § 402A (Tent. Draft No. 6, 1961). Seegenerally, Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976)(history and analysis of § 402A).

14 Restatement (Second) of Torts § 402A (Tent. Draft No. 7, 1962). Seegenerally, Markovich v. McKesson & Robbins, Inc., 106 Ohio App. 265, 149N.E.2d 181 (1958).

15 Restatement (Second) of Torts § 402A (Tent. Draft No. 10, 1964).16 Restatement (Second) of Torts § 402A.

"(1) One who sells any product in a defective condition unreasonablydangerous to the user or consumer or to his property is subject to liability forphysical harm thereby caused to the ultimate user or consumer, or to hisproperty if

"(a) the seller is engaged in the business of selling such a product, and"(b) it is expected to and does reach the user or consumer without sub-

stantial change in the condition in which it is sold."(2) The rule in Subsection (1) applied although

"(a) the seller has exercised all possible care in the preparation andsale of his product, and

"(b) the user or consumer has not bought the product from or enteredinto any contractual relation with the seller."

17 Products Liability Acts.Alabama: Ala. Code §§ 6-5-500-504; 6-5-520-524.Arizona: Ariz. Rev. Stat. Ann. §§ 12-681 et seq.

There are numerous and often cited justifications for the rapidmovement toward strict liability in tort as a major product defectrecovery tool.18 The most popular of these is the distribution ofcost theory.

The manufacturer, usually the party ultimately liable for theplaintiff's injuries, is best able to absorb and insure against the costof the plaintiff's injuries by passing the economic burden down themarket chain.19 Consequently, what would normally be a cata-

Arkansas: Ark. Stat. Ann. §§ 34-2801 et seq.Colorado: Colo. Rev. Stat. §§ 13-21-401 et seq.Connecticut: Conn. Gen. Stat. Ann. §§ 52-572m-572r.Georgia: Ga. Code Ann. § 51-1-11.Idaho: Idaho Code §§ 6-1401 et seq.Indiana: Ind. Code Ann. §§ 34-4-20A-1 et seq.Kansas: Kan. Stat. Ann. §§ 60-33-1 et seq.Kentucky: Ky. Rev. Stat. Ann. §§ 411-300 et seq.Louisiana: La. Civil Code Ann. Art. 2545.Maine: Me. Rev. Stat. Ann. Tit. 14, § 221 (Restatement § 402A).Michigan: Mich. Comp. Laws Ann. §§ 600-2945 et seq.Minnesota: Minn. Stat. Ann. §§ 604.01 et seq.Montana: Mont. Code .Ann. §§ 50-30-101; 50-30-307.Nebraska: Neb. Rev. Stat. §§ 25-21, 180 et seq.New Hampshire: N.H. Rev. Stat. Ann. §§ 507-D:1 et seq.New Jersey: N.J. Stat. Ann. § 59-9-2 (sovereign immunity).North Carolina: N.C. Gen. Stat. §§ 99-B-1 et seq.North Dakota: N.D. Cent. Code §§ 28-01.1-01 et seq.Oregon: Ore. Rev. Stat. §§ 30.900 et seq.South Carolina: S.C. Code Ann. §§ 15-73-10-30.South Dakota: S.D. Codified Laws Ann. §§ 20-9-9, 20-9-10, 15-2-12-1.Tennessee: Tenn. Code Ann. §§ 29-28-101 et seq.Utah: Utah Code Ann. §§ 78-15-1 et seq.Washington: Wash. Rev. Code Ann. §§ 7.72.010 et seq.Wisconsin: Wis. Stat. Ann. § 218.01 (Motor Vehicles).18 See generally, McKay v. Rockwell International Corp., 704 F.2d 444, 451-

453 (9th Cir.), cert. denied 104 S.Ct. 711 (1983) for a comprehensive shoppinglist of policy considerations. The four major factors identified as underlying theimposition of strict liability are: (1) enterprise liability; (2) market deterrence, (3)compensation; and (4) implied representation of safety.

19 See generally:Alaska: Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42

(Alaska 1976) (snow machine) (public policy reasons for strict liability notincompatible with comparative negligence).

New Jersey: Dixon v. Four Seasons Bowling Alley, Inc., 176 N.J. Super. 540,424 A.2d 428 (1980) (bowling ball) (strict liability not imposed in favor ofbusiness invitee).

Pennsylvania: Pegg v. General Motors Corp., 258 Pa. Super. 59, 391 A.2d1074(1978) (swimming pool sanitizer). Where the sanitizer, when ignited, burned

strophic economic burden to one family is more easily borne bythe manufacturer and finally all uninjured consumers who purchasethe resulting theoretically higher-priced product. Even the defen-dant who is completely faultless fits well within this economicscheme since, aside from its cost-spreading simplicity, there is al-ways the argument that the manufacturer is responsible, if not cul-pable, since it purposefully introduced the product into the mar-ket.20

A certain resemblance exists between the foregoing distributionof economic risk and an insurance policy, but the defendant selleris not an insurer of product safety.21 While the absence of fault willnot shield the defendant from strict liability in tort,22 the mere oc-currence of injury will not entitle the plaintiff to recover.23 Thus themanufacturer of a fencing mask was held not liable in a design de-fect case when expert testimony proved that the plaintiff's injurywould have occurred no matter what design was used.24 Althoughthe strict liability doctrine has been designed to ease the plaintiff'sburden of proof25 and to some extent flirts with absolute liability,26

at 2000°F, the manufacturer of the car transporting the sanitizer was not heldstrictly liable for failure to make a seat resistant to such heat, since it was notreasonably foreseeable that the seat would be exposed to such a high temperature.

20 Arizona: Bailey v. Montgomery Ward & Co., 6 Ariz. App. 213, 431 P.2d108 (1967) (pogo stick) (manufacturer's strict liability imposed by law).

Florida: Zyferman v. Taylor, 444 So.2d 1088 (Fla. App. 1984) (enterpriseliability).

21 Bouillon v. Harry Gill Co., 15 Ill. App.3d 45, 301 N.E.2d 627, 630-631(1973) (pole vaulting standard). In order to recover plaintiff must prove that: (1)the injury was proximately caused by a condition of the product; (2) the conditionof the product was unreasonably dangerous; and (3) the condition existed at thetime the product left the manufacturer.

22 Colorado: Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Col. 1984)(plaintiff not required to prove that defect existed when product left distributor'shands).

Wisconsin: Barter v. General Motors Corp., 70 Wis.2d 796, 235 N.W.2d523(1975) (motor home) (fact that intervening seller resold motor home did notabsolve the manufacturer from liability).

23 See Hinckley v. La Mesa R.V. Center, Inc., 158 Cal. App.3d 630, 205 Cal.Rptr. 22 (1984) (motor home) (there should be no inference of defect solely fromoccurrence of accident).

24 Garcia v. Joseph Vince Co., 84 Cal. App. 3d 868, 148 Cal. Rptr. 843(1978). The plaintiff also sued the putative manufacturer of the saber blade whichhad pierced the fencing mask. He was not able to produce enough evidence toestablish that this defendant had in fact produced the blade and therefore could onlygo against the maker of the mask.

25 Arizona: Dietz v. Waller, 141 Ariz. 107, 685 P.2d 744 (1984) (boat)(plaintiff precluded from pursuing negligence claim because of inability to provedefendant caused specific defect in product; plaintiff may prevail if indirect

the elements which form the prerequisites to Section 402A recoveryinsert sufficient impediments to recovery to assure the vitality of thelitigation contest.27

[3]—A Comparison

The question of the defendant's conduct, whether it be culpableor saint-like, is not relevant in determining liability under strict li-ability in tort.28 Unlike the negligence theory where specific acts ofthe defendant's unreasonable conduct need usually29 be proved,30

the major focus in strict liability actions is on the alleged defectivenature of the product and not the defendant's behavior.31-32 There

evidence is permitted which merely shows that a defect existed at the time theproduct left defendant's control; a more liberal use of circumstantial evidencelessens plaintiff's burden).

Colorado: Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Col. 1984)(plaintiff only required to prove that defect which rendered product unreasonablydangerous occurred in the course of its distribution and prior to purchase byconsumer).

Pennsylvania: Thompson v. Anthony Crane Rental, Inc., 473 A.2d 120 (Pa.Super. 1984) (plaintiff can recover under § 402A with proof that product wasdefective when delivered and that defect caused injury).

26 Stueve v. American Honda Motors Co., 457 F. Supp. 740 (D. Kan. 1978),applying Kansas law (motorcycle) (pure comparative fault applied to § 402Aactions; manufacturer's liability not absolute). See generally, Escola v. Coca ColaBottling Co., 24 Cal.2d 453, 150 P.2d 436 (1944). See also, § 3.01[1] supra.

27 See generally, Bouillion v. Harry Gill Co., 15 Ill. App.3d 45, 301 N.E.2d627 (Ill. App. 1973) (pole vaulting standard).

28 Restatement (Second) of Torts § 402A, Comment a.29 There are, of course, exceptions to the burden of proving specific negligent

conduct. The doctrines of negligence per se and res ipsa loquitur, when applicable,have long served to relieve the plaintiff from what might be an insurmountableevidentiary handicap.

30 Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis.2d326, 230 N.W.2d 794 (1975) (swimming pool) (where plaintiff proves strictliability under § 402A, not necessary to prove specific negligent acts bymanufacturer, "who is then deemed negligent per se").

But see, Herbert v. Outboard Marine Corp. 638 F. Supp. 1166 (E.D. La. 1986)(outboard motor), in which the court acknowledged that plaintiff must prove actualor constructive knowledge on the part of defendant in a negligent product defectcase, an element of proof not necessary in a strict liability action.

31-32 Georgia: Weeks v. Remington Arms Co., 733 F.2d 1485 (11th Cir.1984), applying Georgia law (shotgun) (injured customer need not provemanufacturer negligence to recover on strict liability claim).

Illinois: Nave v. Rainbo Tire Service, Inc., 462 N.E.2d 620 (Ill. App. 1984)See Restatement (Second) of Torts § 402A (". . . subject to liability . . . althoughthe seller has exercised all possible care . . ."). Note that a section of the Illinois

are, however, some inescapable similarities between the two causesof action. For instance, both theories of recovery share, to somedegree, the elements of reasonableness, causation and foreseeabil-ity.33 Moreover, it has been frequently held that there is little or nodifference between the analyses in negligence and strict liability intort defective design cases since a design is only defective when it isunreasonably unsafe, which calls for a negligence-like approach.34

Once again, the answer to this claim of negligence overlap is that itis the reasonableness of the product's design and not the defen-dant's conduct that is placed in issue. Similarly,35 the breach of war-ranty action, express36 or implied,37 does not require culpability.The focal point of liability under the express warranty theory is thetruth of the seller's claim, regardless of whether there was an honestbelief by the seller in its accuracy. Liability is imposed under theimplied warranties on the basis of product fitness without inquiry

Civil Justice Reform Amendments of 1995 provides that a plaintiff pursuing aproducts liability claim is required to file a "certificate of merit"—an affidavitdeclaring that the plaintiff "consulted with a qualified expert" regarding the meritsof the claim. See generally, Berg v. Jensen, 1997 WL 308857 (N.D. Ill. 1997)(gas grill).

Missouri: Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. 1977) (golf cart)(strict liability based on foreseeable use of product rather than harm product maycause).

Wisconsin: Barter v. General Motors Corp., 235 N.W.2d 523 (Wis. 1975)(motorhome) (liability under § 402A not based on lack of ordinary care, but onplacing defective product on the market).

33 But remember that § 402A requires that the product be unreasonablydangerous. Causation is a prerequisite under negligence, breach of warranty, andstrict liability in tort, see § 5.04 infra. It is the foreseeability from the vantagepoint of the user, not the defendant, that is one distinguishing point betweenstrict liability in tort and negligence. However, foreseeability still plays similarroles with respect to proximate cause in the three actions. See Restatement(Second) of Torts § 402A, Comments g and i, but compare Comment h. Seegenerally, Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740 (D. Kan.1978), applying Kansas law (motorcycle) (focus should be on the damage, not theevent which caused the damage, in a "second collision" case).

34 California: Balido v. Improved Machinery, Inc., 29 Cal. App.3d 633, 105Cal. Rptr. 890 (1973) (test for strict liability is same as test for negligence minusscienter; foreseeability "merely scienter under another name").

Maryland: Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955(1976) (strict liability another form of negligence per se).

35 See Restatement (Second) of Torts § 402A, Comment m for a brief butinteresting discussion concerning the confusing similarity between § 402A andwarranty actions.

36 See generally: UCC § 2-313 and § 2.02 supra.37 See generally: UCC § 2-314 and 2-315 and §§ 2.03 and 2.04 supra.

into the reasonableness of the defendant's conduct.38 It was the vul-nerability of the strict liability warranty cause of action that encour-aged the birth and remarkable growth of strict liability in tort.39

Because they are subject to disclaimers,40 limitations of remedy,41

notice prerequisites42 and privity limitations,43 the UCC warrantyprovisions place considerably more stumbling blocks on the roadto recovery than does the strict liability in tort doctrine.44 For ex-ample, an attempt to disclaim liability via an exculpation clause in agolf cart rental ticket did not preclude recovery under strict liabilityin tort.45 However, unlike Section 402A, there is no requirementthat the product be unreasonably dangerous in order to recover ona warranty. Breach of warranty recovery is also available for per-sonal injury and property damage46 in addition to the most com-monly sought after Code remedy for economic loss.47

[4]—Elements

Although Section 402A avoids both the cumbersome contracttrappings of warranty and the potential harshness of having toprove specific acts of negligent conduct in a complex product suit,some prerequisites remain a condition to establishing the right torecover. The prima facie case for strict liability in tort consists of

38 Note that under UCC § 2-315, the fitness is particular in scope and that the

seller's conduct may have some impact on the analysis of the facts in issue. See §2.04 supra.

39 Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska1976) (snow machine).

40 See U.C.C. § 2-316.41 UCC §§ 2-718, 2-719.42 UCC §§ 2-605 and 2-607(3)(a).43 Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 477 N.E.2d 434 (1985)

(motorcycle).44 See Restatement (Second) of Torts § 402A, Comments 1 and m. See

generally:Michigan: Cova v. Harley Davidson Motor Co., 26 Mich. App. 602, 182

N.W.2d 800 (1970) (golf carts) (manufacturer's liability arises by operation oflaw, is not affected by UCC).

Montana: Thompson v. Nebraska Mobile Homes Corp., 647 P.2d 334 (Mont.1982) (mobile home) (strict liability not governed by UCC-theory extended toallow recovery where only damage is to defective product itself).

45 See Sipari v. Villa Olivia Country Club, 380 N.E.2d 819 (Ill. App. 1978).New Hampshire: Wentworth v. Kawasaki, Inc., 508 F. Supp. 1114 (D.N.H.

1981), applying New Hampshire law (snowmobile).46 See generally, UCC § 2-715 (2)(b).47 See § 7.02 infra for a discussion of the prospects of recovering economic

loss under § 402A.

the following elements of proof:

(1) the seller must be in the regular business of selling theproduct;

(2) the product must be defective and unreasonably danger-ous at the time it left the seller's control;

(3) a causal connection between the alleged defect and thedamages claimed by the plaintiff must exist,48 and

(4) there must be no substantial change in the condition of theproduct subsequent to the time it left the seller's control.49

[5]—Recreation and Sports Products

[a]—Above-Ground Swimming Pool

A head-first dive into four feet of water caused serious injuries toa sixteen-year-old boy, a guest at a pool party. Plaintiffs arguedthat the pool was defectively designed because of an aqua-coloredvinyl liner which confused the injured plaintiff as to the actualdepth of the water. In addition, it was further argued that the poolappeared to be deeper than it was because of the manner in which itwas installed. Two feet of the above-ground pool was built into theground and was partially surrounded by decking. Thus, plaintiffsclaimed that this method of installation gave the appearance of adeeper in-ground pool. The court was not impressed with theplaintiffs' aqua vinyl argument, indicating that it failed to amount toa triable issue of fact regarding a design defect. Similarly, the courtheld that the evidence established that the pool was designed andsold as an above-ground pool. Consequently, it was the installationand not the pool itself, which created any misleading depth percep-tion. A manufacturer which produces a safe product will not be ex-posed to liability for injuries resulting from "substantial alterationsor modifications of the product" which cause the product to be un-safe.49.1

48 See Scronce v. Howard Brothers Discount Stores, 679 F.2d 1204 (5th Cir.

1982), applying Texas law (action involving allegedly defective rifle; plaintiff'sfailure to prove causation resulted in a directed verdict for defendant). Seegenerally, § 5.04 infra.

49 Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311 (7th Cir. 1983)(inadequate warning may be a defect), applying Wisconsin law. See generally:

Arizona: Rocky Mountain Fire and Casualty Co. v. Biddulph Oldsmobile, 131Ariz. 289, 640 P.2d 851 (1982) (motorhome) (plaintiffs relied on circumstantialevidence to prove defect: "a motor home ... should not burst into flames within sixmonths of purchase").

Florida: Diversified Products Corp. v. Faxon, 514 So.2d 1161 (Fla. App.1987)(exercise machine) (where product malfunctions during normal use, it may beinferred that product was defective while in control of manufacturer).

49.1 Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525, 571 N.E.2d 645

In another case, a sixteen month old child wandered from hismother and almost drowned in an above ground pool installed inthe family's backyard. The child suffered severe brain injuries re-sulting from oxygen deprivation. It was alleged that the pool wasdefectively designed and manufactured because it lacked sufficientstructural support to prevent the pool sides from collapsing, andthat the child would not have been able to enter the pool if the sidewalls had not so easily pushed inward. The court found that thepool had been materially altered after delivery to the family. Itseems that the complete set of railings initially provided by the de-fendant, which would have maintained the structural integrity of thepool, were not in place at the time of the accident. The claim thatsome of the rails were lost was not helpful to the plaintiff familysince replacement rails were readily available and offered by theseller.49.2

[b]—Airplane

The student pilot was killed while in the process of receivingaerobatic flight instruction. The right wing separated during theinstructional flight. Affirming the lower court's determination thatstrict liability did not apply to the action, the appellate court ex-plained that the doctrine of strict liability requires that the allegedlydefective product have been placed on the market, and that it not bein the possession and under the control of the defendant. This wasnot the case in the action at bar. The defendant was providing atraining service and was not engaged in selling or leasing the plane.Moreover, the flight instructor employed by the defendant nevercompletely relinquished possession and control of the plane.50

[c]—Amusement Ride

The plaintiff, a minor, suffered certain injuries when she fellfrom a carnival ride, the Flying Chairs, which was maintained andoperated by the defendant. While the Flying Chairs was not a prod-uct sold to the plaintiff, the court addressed the applicability of theConnecticut Products Liability Act to the sale of a ticket to ride theChairs. The court noted that the Act would apply even if the ticketsale merely amounted to a lease or a bailment. However, since thecourt determined that the ticket was at a maximum a license to rideand that the defendant maintained constant ownership and controlover the ride, the Act was not found applicable to the plaintiff'sproduct's claim.51

(1991).

49.2 Lamb by Shepard v. Sears Roebuck and Co., 1 F.3d 1184 (11th Cir. 1993).50 Estate of Cook by Cook v. Gran-Aire, Inc., 182 Wis.2d 330, 513 N.W.2d

652 (Wis. App. 1994).51 Bobryk v. Lincoln Amusements, Inc., 1996 WL 24566 (Conn. Super.

[d]—Bicycle

A child's finger was injured by the chain of the bicycle he wasriding. Prior to the accident, the plaintiff had removed the chainguard. The appellate court reversed the lower court's denial of theseller's and distributor's motions for summary judgment, findingthat the accident was unforeseeable and that liability should not beimposed upon the defendants under the theories of negligence orstrict liability in tort.52

[e]—Exercise Equipment

The plaintiff injured herself when she fell against an exercisemachine, but she was not “using” the product when she sufferedthe injury. The court held that actual use of the product at the timeof injury is not required for a defendant to be held liable underGeorgia law for defective design under a theory of strict liability.53

[f]—Football Helmet

Although plaintiff was wearing a football helmet, he neverthelesssuffered severe head injuries during football practice. Defendant'sdesigner and manufacturer of the helmet appealed from the lowercourt's denial of their motion for a directed verdict. Evidence hasbeen submitted to the lower court that related to the cause of im-pact, the protective function of football helmets in general, the in-jury to the plaintiff as one which "helmets are designed to prevent,"and that the helmet was inadequate in design to protect the plaintifffrom such injury. Since there was evidence that a jury could relyupon in finding a casual connection between the plaintiff's injuriesand the helmet's defects, it was held that the denial of a directedverdict for the defendants was proper.54

[g]—Golf Cart

The plaintiff was injured when the golf cart he was riding inoverturned and pinned him beneath it. The court, in recognizingthe applicability of strict liability in tort to defectively designedproduct cases, noted an important distinction between Section 402Aand negligence. The negligence action is based on a duty createdby the foreseeable harm that is likely to result from the defendant's 1996).

52 Marvin v. Seattle Bike Supply, Inc., 647 N.Y.S.2d 255 (N.Y. App. Div.1996).

53 Jones v. Nordictrack, Inc., 274 Ga. 115, 550 S.E.2d 101 (2001). The courtalso held that actual use of the product at the time of injury is not required for adefendant to be held liable under Georgia law for defective design under theories ofnegligence or failure to warn.

54 Austria v. Bike Athletic Co., 107 Ore. App. 57, 810 P.2d 1312 (1991).

conduct, but strict liability in tort points to the foreseeable use ofthe particular product. In summary, negligence related to the de-fendant's conduct, strict liability is concerned with the condition ofthe product.55

[h]—Horse

In a case in which the plaintiff was injured while attempting toride a horse at defendant's ranch, the court refused to find that aliving horse was a "product" because the nature of a product in astrict liability case must be fixed when it leaves the defendant'scontrol. The court also held that statutory law limited the applica-bility of strict liability in tort to sellers and manufacturers.56

[i]—Hunting Club Gate

Two minors were injured when the three-wheeler they were rid-ing struck the unlit gate of a club during evening hours. The courtaffirmed summary judgment in favor of the defendant huntingclub on the issue of negligent construction. It held that the clubbuilt the gate for its own purposes and did not intend to "place thegate into the system of commerce." Further, the court determinedthat the defendant had no duty "to place lights, markings or warn-ings on a gate on a private, rural, dirt road."57

[j]—Leg Press Machine

The plaintiff was injured when the machine fell on his chestduring use. The defendant manufacturer argued that the plaintiffwas required to prove the availability of a reasonable alternativedesign pursuant to Restatement (Third) of Torts section 2(b). Suchproof must tend to establish that the risk of harm resulting from the

55 Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. 1977). The court also

held that golf carts are not "unavoidably unsafe products" within the meaning ofComment k to § 402A. In addition, the following observations were made aboutthe plaintiff's burden of proof:

"To establish the manufacturer's liability it was sufficient that plaintiffproved he was injured while using the [golf cart] in a way it was intended to beused as a result of a defect in design and manufacture of which plaintiff was notaware that made the [golf cart] unsafe for its intended use."

551 S.W.2d at 608 (brackets in original), quoting Greenman v. Yuba PowerProducts, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 377 P.2d 897, 901 (1963).

56 Sixth Circuit: Nicholaou v. Yamaha Motor Corp., USA, 645 F. Supp. 227(E.D. Mich. 1986) (snowmobile) (plaintiff must either produce product or, at aminimum, identify product model and year).

Tenth Circuit: Kaplan v. C Lazy U Ranch, 615 F. Supp. 234 (D. Col. 1985).57 Singletary v. Crown Zellerbach, 607 So.2d 804 (La. App. 1992).

product’s use could have been minimized or eliminated by a rea-sonable alternative design. The court declined to adopt section 2(b),noting that it “elevates the availability of a reasonable alternativedesign from merely ‘a factor to be considered in the risk-utilityanalysis to a requisite element of a cause of action for defective de-sign.’” Mandating such an inflexible prerequisite would discour-age suits regarding “highly complex” products due to the highcosts of expert testimony. The court did not believe that excessiveemphasis should be placed on just one of the several factors em-ployed in the traditional risk-utility analysis. Those other factorsinclude the “usefulness and desirability of the product; the bal-ancing of the reduction of risk and cost and utility of the product;and the necessity, presence and adequacy of warning.” The trialcourt’s directed verdict for the defendant manufacturer was re-versed.58

[k]—Media

A teenage boy shot eight fellow students, three of whom werekilled. The parents of the murdered students claimed that theshooter was influenced by the violence and pornographic materialcontained in a particular motion picture, various video games andcertain Web site material. The court, addressing the plaintiffs’ neg-ligence claim, concluded that it would be unreasonable to expectthe defendant producers of the movie, video games and Web sitematerial to have foreseen that a viewer would have been influencedto commit murder. Consequently, the court concluded that the de-fendant did now owe a duty of due care to the victims of theshooting. Similarly, the court determined that the “intangiblethought, ideas and messages” conveyed by the movie, video gamesand Web site materials were not “products” for the purpose ofstrict liability in tort—that doctrine does not apply to “words orpictures” and is not relevant in actions based on the dispensing ofinformation.59

[l]—Mobile Home

Strict liability in tort was held applicable to the plaintiff's claimthat the mobile home sold and manufactured by the defendants wasdefective. Although an implied warranty under the Uniform Com-mercial Code may be subject to disclaiming provisions, strict liabil-ity in tort is independent of the Code and generally cannot be dis-claimed.60

58 Vautour v. Body Masters Sports Industries, Inc., 784 A.2d 1178 (N.H.

2001).59 James v. Meow Media, Inc., 90 F. Supp.2d 798 (W.D. Ky. 2000).60 Thompson v. Nebraska Mobile Homes Corp., 647 P.2d 334 (Mont. 1982).

The alleged defects in the mobile home included insufficient caulking around the

[m]—Motorcycle

A motorcyclist was fatally burned when his cycle, manufacturedand distributed by defendants, burst into flames after colliding withanother vehicle. In its denial of summary judgment for the defen-dants, the court made the following interesting observation regard-ing the absence of radical substantive differences between the neg-ligence and strict liability in tort action recovery concepts:

"While a strictly-liable manufacturer may be subject to a dif-ferent standard of liability than a negligent individual, it is not bythe imposition of a 'higher duty' but by an easier method of re-covery. In this sense, § 402A is a procedural innovation in re-sponse to a felt need to encourage safe product design andmanufacture."61

In another case, injuries were incurred as a result of a car side-swiping plaintiff's motorcycle which was manufactured by defen-dant. Plaintiff argued that the cycle's extra-wide gas tanks and themanufacturer's failure to install a protective crash bar made theproduct unreasonably dangerous. The court disagreed, noting thatneither a narrow gas tank nor inclusion of a crash bar would protectthe rider in the kind of accident plaintiff was involved in. In refus-ing to find liability, the court stated the belief that the manufacturershould not be charged with being an absolute insurer against allforeseeable accidents.62

outlets, cupboards, and closets, a sagging ceiling and an ineffective furnace. Thecourt held strict liability applicable where the only injury was to the defectiveproduct itself and rejected the seller's claim that dismissal of the plaintiffs' strictliability count was harmless error, since strict liability, unlike a warranty, cannotbe disclaimed.

61 Stueve v. American Honda Motors Co., 457 F. Supp. 740, 753 (D. Kan.1978), applying Kansas law. The motorcyclist's widow had settled with themotorist involved in the accident prior to trial. The defendants attempted to set upthe common-law rule that a release of one joint tortfeasor is a release of all toshield themselves from liability. The district court held, however, that thecommon-law principle did not survive the enactment of the Kansas comparativenegligence statute, since the enactment of that statute caused the rationale for thecommon-law rule to disappear. The court proceeded to find comparative negligenceapplicable to strict liability cases, as well as "comparative contribution." Theapplication of comparative fault was thought to preclude the need for an inquiryinto the status of the crashworthiness doctrine in Kansas.

For a typical set of contribution statutes, see Mich. Comp. Laws Ann.§§600.2925(a) et seq. (Uniform Contribution Among Tortfeasors Act).

62 Kutzler v. AMF Harley-Davidson, Inc., 194 Ill. App.3d 273, 141 Ill. Dec.190, 550 N.E.2d 1236 (1990).

[n]—Parallel Bars

A student attending community college was injured while prac-ticing on parallel bars. The bolt holding the parallel bars in placefractured, causing the plaintiff's accident. Summary judgmentgranted in favor of the defendant was affirmed since no evidencewas presented indicating that the bolt was defective during themanufacturing process or at the time of the subsequent sale. Simi-larly, there was no proof presented relating to whether the equip-ment was unreasonably dangerous.63

[o]—Pole Vaulting Standard

The plaintiff was injured by a falling standard, which was manu-factured by one of the defendants, while under the supervision ofthe other defendant. In affirming a verdict for the defendants, thecourt remarked that although strict liability in tort does not requireproof of negligence, it does not make the defendant an insurer ofthe plaintiff's safety. The prerequisites to recovery are the estab-lishing of causation, the unreasonably dangerous and defectivecondition of the product, and proof that such condition existed atthe time the article left the defendant's control.64

[p]—Publication

A twelve-year-old boy read a supplement related to the shootingof firearms and was subsequently killed by the accidental dischargeof a rifle he was handling. The publisher's motion for summaryjudgment was granted and affirmed by the appellate court. TheCourt of Appeals of Texas observed that ". . . ideas, thoughts,words, and information . . . are not products . . . ."65

[q]—Shotgun

The plaintiff was injured when her then-fiance fell, allowing ashotgun to strike the ground and discharge with the safety lock inplace. The defendant claimed that the product's trigger pivot pinhad been bent by the user's application of excessive force. Observ-ing that substantial alteration of the product may "reduce or negate"

63 Carmack v. Macomb County Community College, 199 Mich. App. 544, 502N.W.2d 746 (1993).

64 Bouillon v. Harry Gill Co., 15 Ill. App.3d at 45, 301 N.E.2d 627 (1973).Plaintiff was injured while vaulting when a standard (one of the uprightssupporting the crossbar) fell on him. Alterations made to the products byplaintiff's high school, such as taping additional wooden pegs to the standard,appear to have played some role in absolving the manufacturer from liability,while the school (a co-defendant) produced sufficient evidence of supervision thatit was not held liable in negligence.

65 Way v. Boy Scouts of America, 856 S.W.2d 230 (Tex. App. 1993).

the manufacturer's liability, the appellate court nevertheless con-cluded that the concept does not so apply when the alleged altera-tion occurs through normal, foreseeable usage of the product. Thecourt held that the alleged alteration was made because the productwas defectively designed when it left the manufacturer's control.66

[r]—Ski Binding

A safety binding failed during a fall, causing injury to the plain-tiff. The court noted that an attempt to disclaim liability in therental agreement was ineffective under the doctrine of strict liabilityin tort. Similarly, the express assumption of risk language con-tained in the rental agreement did not shield the defendant whorents equipment. The policy of protecting consumers from productrelated injuries precludes contractual escape from liability understrict tort liability.67

[s]—Slingshot

An object shot from a slingshot struck an eleven year old childin the eye. The Illinois Appellate Court observed that Illinois lawimposes absolute liability on inherently dangerous instrumentalities,which are defined as those products that are dangerous in their"normal or nondefective state." However, the court concluded that aslingshot is not an inherently dangerous instrument since it is notdangerous unless it is misused. Moreover, the court refused to findthat the seller was duty bound not to sell the slingshot to a child. Itwas determined that the eleven year old in the instant action shouldhave been cognizant of those dangers that are normally associatedwith slingshot use. The court additionally noted that even if such aduty were found to exist, there was no evidence submitted that indi-cated a breach of duty associated with the sale.68

[t]—Snowmobile

The plaintiff was injured while operating a snowmobile. Evi-dence was introduced indicating that the seller made certain modi-fications to the product, "including reducing the length of thethrottle springs" before the sale to the plaintiff. The plaintiff allegedthat the accident occurred because of his inability to "slow or stop"the product. Expert testimony indicated that "cutting the throttlesprings" may have contributed to the risk of the throttle stickingand, accordingly, the difficulty of "slowing or stopping" the snow-mobile. The lower court's granting of summary judgment in favorof the seller was found inappropriate in view of genuine issues of

66 Westlyle v. Look Sports, Inc., 22 Cal. Rptr.2d 781 (Cal. App. 1993).67 Klonowski v. International Armament Corp., 17 F.3d 992 (7th Cir. 1994).68 Vaughn v. Nevill, 286 Ill. App.3d 928, 677 N.E.2d 482 (Ill. App. 1997).

fact regarding whether the snowmobile was defective.69

[u]—Swimming Pool

An infant fell into his grandmother's pool and suffered severebrain damage prior to being rescued. The complaint alleged negli-gence and strict liability in tort on the part of the manufacturer andbuilder. In affirming the lower court's dismissal for failure to state acause of action, the court noted that the inability to establish ele-ments of strict liability in tort does not necessarily bar the plaintiff'sattempt to prove negligence. Since the absence of a self-latchinggate was not considered an unreasonably dangerous design defect,both actions failed to avoid dismissal.70

[v]—Water Slide

Although the principles of strict liability do not apply to struc-tural improvements to real property, if injuries result from a defec-tive product which was "incorporated" into an improvement to realproperty," strict liability may be the basis of an appropriate cause ofaction. In a Florida case, the court disallowed a strict liability actionbecause the alleged defect was contained in a water slide which thecourt held was constructed on the site into the land.71

[w]—Yacht

A consumer brought this products liability action against themanufacturer of a yacht to recover economic loss for damage tothe yacht, the product itself. Granting the defendant manufacturer'smotion for summary judgment, the court cited the United StatesSupreme Court's decision in East River S.S. Corp. v. TransamericaDelaval, Inc.72 that liability in tort is inappropriate where the only

69 Guiggey v. Bombardier, Ltd., 615 A.2d 1169 (Me. 1992).70 Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis.2d

326, 230 N.W.2d 794 (1975). The infant plaintiff had climbed up a retractableladder left in the down position and fallen into the pool. The court stated as ageneral test for defectiveness that there would not be a defect if the averageconsumer would fully appreciate the dangerous condition of the product and itsattendant risk of injury. Therefore, since the court felt the average consumer wouldbe "completely aware of the risk of harm" to unsupervised infants when the ladderwas left down, the absence of a self-latching gate was not a defect.

71 Craft v. Wet 'N Wild, Inc., 489 So.2d 1221 (Fla. App. 1986). See generally,Nicholaou v. Yamaha Motor Corp., USA, 645 F. Supp. 227 (E.D. Mich. 1986), inwhich the plaintiff was required to identify the model and year of the allegedlydefective snowmobile that caused his injury. The failure of the plaintiff to makesuch an identification meant that the product could not be examined, causing thegranting of the manufacturer's motion for summary judgment.

72 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).

claim is for injury to the product itself. The California court foundEast River applicable to both commercial and consumer cases.73

73 Lewinter v. Genmar Industries, Inc., 32 Cal. Rptr.2d 305 (Cal. App. 1994).