Chapter 1. Introduction 118 results (showing 5 best matches)
- Products Liability: A Nutshell of a Nutshell
- Owen, Products Liability Law (3d ed. 2015).
- Negligence in producing or selling a product is the classic products liability claim, and it remains a fundamentally important theory of recovery. Notwithstanding the rise of “strict” theories of manufacturer liability in recent decades, negligence retains a vital role in modern products liability law. Courts in many modern cases, some state legislatures, and the
- Today, products liability occupies a central role in American law: products liability litigation and product safety figure prominently in corporate and legal decisionmaking as plaintiffs’ lawyers across the nation file tens of thousands of products liability suits each year. In an effort to prevent and manage such high stakes litigation, many major corporations and law firms have established separate teams or departments for products liability matters. In short, products liability now ranks as one of the most important fields of law.
- The roots of modern products liability law reach deep into history, beyond the law of ancient Rome at least to the law of Mesopotamia. The early origins of products liability law are mostly located in the tort-contract hybrid warranties of quality, both express and implied, although there are early signs of seller liability in negligence as well. However, as a broad and coherent set of legal principles for the recovery of product-caused harm, products liability law is of recent origin. With the exception of a few cases involving fraud and the sale of defective medicines and food, the appearance of products liability cases in the law reports coincides with the rise of the Industrial Revolution in the late 1800s. By 1900, such cases had begun to appear with some frequency. Yet, as late as the 1950s, “products liability” was not even a term of art, much less a field of law.
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Chapter 8. Design Defects 96 results (showing 5 best matches)
- The concept of a design defect is the heart of products liability law. Just as strict liability in tort remains the dominant liability theory in major products liability litigation, design defectiveness is the dominant claim in most major products liability cases. Yet, finding an acceptable definition for what constitutes a “defective” design has proved a difficult task.
- Manufacturers and other sellers are subject to liability for defective design under each of the major theories of liability. Thus, as is true for other types of defects, product suppliers are subject to liability in negligence, for negligently making and selling products that are defectively designed; in implied warranty, for selling products that are not “fit” (not safe enough, and hence “unmerchantable”) for their ordinary purposes because of a defect in their design; and in strict liability in tort, for simply selling products that are defective in design.
- In the 1960s, products liability scholars began to search for a way to define strict liability in design (and warning) cases in a manner that distinguished the strict liability standard from mere negligence. As modern products liability law was just beginning to emerge in the 1960s, Deans Page Keeton of Texas and John Wade of Vanderbilt, both Advisers for the ALI’s , offered separate versions of a similar definition of product defectiveness that fundamentally distinguished negligence-based responsibility from liability called “strict.” The test they developed, which in time became known as the “Wade-Keeton” test, quite simply was a negligence test stripped of its
- Products Liability Restatement
- A product’s design is “defective” under a risk-utility (cost-benefit) test if the costs of avoiding a particular hazard are foreseeably less than the resulting safety benefits. In other words, if the , the product’s design is defective under a cost-benefit standard of liability.
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Chapter 5. Strict Liability in Tort 164 results (showing 5 best matches)
- The doctrine of strict liability in tort is widely considered the predominant theory of recovery in modern products liability law. Indeed, the development and growth of the doctrine of strict products liability in tort was the centerpiece around which the rest of modern products liability law was formed. This chapter describes the origins, evolution, nature, rationales, tests, and decline of the doctrine of strict products liability in tort, particularly under § 402A of the . For a more thorough examination of strict liability in tort, see Owen,
- While increasing case law in America weakened the liability foundations of “strict” manufacturer liability for product accidents from the front, another powerful development in modern products liability law assaulted strict products liability law as a from the rear. This development was most clearly revealed by judicial decisions and state reform statutes that forthrightly allowed a defense to products liability claims based on a manufacturer’s compliance with the state of the scientific and technological art—often dubbed a “state of the art” defense—at the time a product was manufactured and sold.
- For these and other reasons, courts increasingly are abandoning the consumer expectations test as the sole or principal means for determining defectiveness in most products liability cases, as further discussed below. Yet, while the consumer expectations test may be withering as the true, sole test for strict products liability in tort, it remains an important consideration in many products liability cases. In some states it remains the principal, or only, test of liability; in others, even if considered only as a factor in the risk-utility balance, it may be determinative in certain situations; and in a small set of special cases (such as those involving food products and used products), it remains a central liability consideration.
- Another issue arising from the confrontation of negligence and strict liability concerns a problem of inconsistent jury verdicts. Suppose a court submits a case to a jury on both negligence and strict liability in tort claims, and, on special interrogatories, the jury decides for the plaintiff on negligence but for the defendant on strict liability. The problem is that these two verdicts usually are logically inconsistent. A strict liability ruling requires a finding that the product was defective; and a negligence ruling requires two implicit findings: (1) that the product was defective, and (2) that the defendant was at fault in selling it in that condition. A seller can hardly be faulted for supplying consumers with a “good” product, to wit, one that is defective. So, a finding that a product is defective for purposes of strict liability in tort logically precludes a finding that a manufacturer was negligent in making or selling it that way.
- Early courts and commentators offered a variety of rationales for a manufacturer’s strict products liability, generally predicating such liability on the increasing intricacy and danger of modern products comprised of complex mechanical and chemical substances. In contrast to simple products of previous generations, modern consumers often have no practical way to evaluate the safety of such products in order to avoid dangerous defects.
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Chapter 13. User Conduct Defenses 74 results (showing 5 best matches)
- How a plaintiff’s misconduct affects liability in warranty is one of the most confused issues in all of products liability law. The issue examined here is what the effect should be, on a claim for breach of express or implied warranty against a product seller, if a plaintiff uses a product in a careless manner, ignores warnings or instructions, deliberately and unreasonably engages a product danger, or puts a product to an unforeseeably dangerous use. While the developing warranty law on these questions in some states roughly parallels the law applied in strict products liability in tort, the law on warranty misconduct defenses teeters on the edge of chaos.
- and continued to apply the traditional elements of assumption of risk (a voluntary encounter of a known and appreciated risk) even for claims brought in strict products liability in tort. Yet many jurisdictions adopted comment ’s approach of restricting the availability of the assumption of risk defense in strict products liability in tort to cases of (“negligent”) assumption of risk. In effect, such jurisdictions engraft an additional element—unreasonableness—onto the traditional assumption of risk elements. So altered, the assumption of risk defense to claims for strict products liability in tort requires that a plaintiff’s risk encounter be:
- The correlative ideas of restricting a seller’s responsibility to normal or expectable product uses, on the one hand, and making users responsible for their injuries caused by particularly unusual product uses, on the other hand, have been central pillars of products liability law for many years. In negligence law, the limits the liability of a manufacturer to intended and probable uses. In warranty, UCC Article 2 treats improper use as lying outside the scope of a warranty. And in strict liability in tort, an original premise of manufacturer liability was that the victim’s injury arose out of use of a product, as Judge Traynor explained in
- Contributory negligence is the conventional common-law defense to products liability negligence claims. In the products liability context, as in others, contributory negligence is defined as conduct of a plaintiff which falls below the standard of reasonable behavior required for a person’s own protection that proximately contributes, together with a defendant’s negligence or other breach of duty, to cause the plaintiff’s harm.
- Assumption of risk is a classic defense in products liability litigation, even to claims for strict products liability in tort, and it remains a total bar to liability in a fair number of states. Its underlying idea is that a user has fully consented to incur a risk that he or she fully comprehends. By choosing voluntarily to incur the risk, the user thus implicitly agrees to accept responsibility for any harmful consequences that may result from the encounter and so relieves the person who created the risk from responsibility. In other words, (“to a willing person, no injury is done”).
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Chapter 6. Nature and Proof of Defectiveness 101 results (showing 5 best matches)
- At least implicitly, each of the three major causes of action in products liability law requires that the product be defective. Negligence claims are predicated on the defectiveness of a product, because its supplier ordinarily cannot be faulted for selling a product that is good (i.e., not defective). The implied warranty of merchantability is breached if a product is “unfit” for ordinary use, meaning essentially the same thing as “defective.” And strict liability in tort, of course, explicitly rests on the sale of a defective product. The centrality of the concept of defectiveness to products liability law is reflected in the , both of which ground liability on the notion of product defect. Quite simply, product defectiveness is the heart of products liability law. For a more thorough examination of product defectiveness, see Owen,
- Section 6(a) provides that makers of medical products are subject to true strict liability for manufacturing defects in their products, just as sellers of other types of products. But § 6(c) strictly limits design liability to cases where a drug is shown to have no net value for class of patient. Section 6(d) provides that medical products are defective if not accompanied by reasonable warnings, usually directed to health-care providers, not to patients. Section 6(e) provides that and other retail sellers are subject only to negligence liability for selling such products in a defective condition.
- Misrepresentation, the fourth principal basis of products liability, is not generally classified as a product “defect.” Since § 402A first roughly sketched out a general doctrine of strict products liability in tort, the need for separate treatment of issues distinctive to each of these very different defects has become a well-accepted axiom. Today, that the three separate types of defect create independent sets of obligations is a fundamental premise of American products liability law.
- Section 5 provides that a supplier of such products is subject to liability (1) if the material or component is itself defective, or (2) if the component supplier so substantially participates in integrating the component into the assembled design of the integrated product that the supplier becomes in essence a co-designer of that final product.
- In most products liability cases, the plaintiff’s basic claim is that a defect in a product sold by the defendant proximately caused the plaintiff’s harm. The plaintiff has the burden of proof on each element in such a case, including the product’s defectiveness. Sometimes, a plaintiff may introduce evidence that the product violated a safety standard—of industry or the government—to establish a product defect and possibly the manufacturer’s negligence. Or a defendant may rely on its with such safety standards as evidence of its product’s -negligence. Sometimes a plaintiff may seek to prove that a product’s design or labeling is defective by proving similar failures of other similar products made by the defendant; and sometimes a defendant may prove the of similar accidents (the product’s record of safe performance) to prove the converse. Finally, a plain tiff may try to prove a product’s defectiveness or the defendant’s negligence by showing that the defendant itself acknowledged...
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Chapter 16. Special Transactions and Products 74 results (showing 5 best matches)
- When a licensor (or bailor) provides a product as a service to its customers without charging a separate fee for the use of the product, whether strict liability in tort should apply is difficult to determine. If the use of the licensed (or bailed) product is necessary or “integral” to the sale of some product—such as a defective wine glass provided by a restaurant, or a defective propane gas container provided by a gas supplier—then courts generally have considered the provision of the
- Some products liability litigation involves transactions other than the typical of a , the paradigm around which most products liability law is centered. The principal issue examined here is whether the usual principles of products liability law, particularly the doctrine of strict liability, should be extended from the new chattel sale situation to contexts where other policies and principles may predominate. In some of these situations, the differing objectives and doctrinal borders of products liability, premises liability, professional malpractice, public health, free speech, and other areas of the law are brought into sharp relief. For a more thorough examination of special types of transactions and products, see Owen,
- Consumers and businesses are shifting to a large extent away from purchasing many types of products, most notably automobiles, toward lease transactions. In general, products liability principles that govern a supplier’s of a product also apply to product . But some jurisdictions have not yet completed breaking down the barriers between the law governing product sales and leases.
- Products liability law conventionally is defined as the liability of suppliers for harm from defects in their property. Thus real estate, including any fixtures attached to it, would not appear to be a proper subject of “products” liability law. Probably most courts thus refuse to apply strict products liability in tort to claims involving defects in land, houses, and most other structures attached to the land. See , 971 So. 2d 918, 924 (Fla. Dist. Ct. App. 2007) (conveyor system at a Pottery Barn was “a structural improvement to real property, not a product,” precluding plaintiff’s strict liability claim); , 807 N.E.2d 480 (Ill. App. Ct. 2004) (strict liability in tort does not apply to buildings and indivisible components thereof such as bricks, beams, and railings).
- In other contexts, courts have refused to extend strict products liability law to a large miscellany of service providers who commercially provide “products” to their patrons—health clubs, for providing defective exercise equipment; amusement ride operators, for providing defective rides; ski facilities, for providing defective ski lifts; travel agents, for providing defective trips with unexpected dangers; and baseball stadiums, for providing defective protection from foul balls. Such providers are subject to liability, of course, for negligence. But, not being commercial suppliers of products in the chain of distribution, they appropriately are immune from strict products liability.
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Chapter 17. Automotive Vehicles 52 results (showing 5 best matches)
- Automotive products liability cases in many ways are similar to other types of products liability cases. But certain issues that may control the outcome of an automotive products liability case—crashworthiness, damages apportionment, and the role of plaintiff fault—involve special considerations. This chapter explores the most important, recurring, special issues in automotive products liability law. For a more thorough examination of automotive vehicle litigation, see Owen,
- The general role of plaintiff fault in products liability litigation, including the defenses of contributory negligence, assumption of risk, product misuse, and comparative fault, was previously considered, in chapter 13. But courts and legislatures have encountered a number of special issues involving the fault of drivers and other plaintiffs in automotive products liability cases.
- Many products liability cases involve claims against manufacturers of cars, sport utility vehicles, vans, trucks, motorcycles, and other motor vehicles alleging that defective conditions in such products caused injuries to the plaintiffs. The usual victims in such accidents are the drivers and passengers in the allegedly defective vehicles, but sometimes an accident vehicle injures someone in another vehicle or a pedestrian. There are two major types of automotive products liability cases:
- An issue that cuts across nearly every automotive accident, regardless of its cause, is the extent to which the design of the vehicle protected the safety or aggravated the injuries of the occupants during a vehicular accident. This is the issue of automotive “crashworthiness,” one of the most important aspects of design defectiveness in modern American products liability law.
- Thus, in most states today, a plaintiff must establish that an uncrashworthy design feature was a substantial factor in aggravating his or her injuries, after which the manufacturer is liable for all such injuries that it is unable to prove were
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Chapter 12. Proximate Cause 59 results (showing 5 best matches)
- By whatever name, proximate cause is an elemental requirement of every products liability claim. In applying proximate cause “principles,” products liability law draws from the law of negligence. In the early days of modern products liability law, in an effort to distinguish the then-new doctrine of strict products liability in tort from negligence, some courts and commentators sought to eliminate the proximate cause limitations of negligence law (principally, the limitation of responsibility to foreseeable risks) from the strict tort doctrine. In time, however, this effort proved futile, and proximate cause (with its foreseeability limitations) is alive and well today as an element of claims for negligence, breach of warranty, strict products liability in tort, and even fraud. For a more thorough examination of proximate cause, see Owen,
- An important limitation on the scope of a manufacturer’s responsibility for product accidents lies in the foreseeability of a product’s . While courts no longer limit liability to product uses that a manufacturer , a supplier’s accountability still is limited to consequences from uses of its products that it reasonably can
- This limiting principle may be stated in terms of the
- The question in such cases is whether the third party’s conduct, intervening upon a set of risks created by the defendant’s sale of a defective product, distances the seller from the plaintiff’s harm so much that the product defect and the seller’s conduct become legally “remote” and, hence, no longer a “proximate” cause of the plaintiff’s harm. Stated another way, the issue in products liability cases of this type is whether the third party’s conduct is so significant in comparison to the product defect as to trivialize the role of the defect in causing the
- Courts often treat product reconfiguring or removing a machine’s guard—in terms of whether the alteration “substantially changed” the product after it left the manufacturer. This perspective derives from § 402A(b) which provides for liability only if a product “is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” While some courts shield manufacturers from responsibility for injuries caused by an employer’s alteration of safety devices on “substantial change” grounds, other courts refuse to relieve the manufacturer from liability unless the change is deemed ., 731 F.3d 1081 (10th Cir. 2013) (Okla. law) (dictum; press brake). In addition, courts sometimes bar recovery in alteration cases on grounds of unforeseeable
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Chapter 14. Special Defenses 46 results (showing 5 best matches)
- come in various forms. All states have statutes of limitations applicable to personal injury torts and for wrongful death. In the absence of a more specific statute (addressing products liability claims), these general statutes of limitations govern products liability claims for both negligence and strict liability in tort. In addition, most states adhere to the uniform statute of limitations for breach of warranty claims in UCC § 2–725, which is 4 years from the date of sale. An increasing number of states, now a slight majority, have special statutes of limitations specifically applicable to products liability claims.
- Federal preemption is an important issue that products liability lawyers need to keep constantly in mind. The first thing a lawyer should do in any particular case is to determine if the courts have addressed the preemptive effect of a federal safety statute or regulation that might concern the pertinent product. If the courts have not yet spoken, the lawyer must ascertain whether the pertinent products liability claims would contravene either an express preemption clause or the purposes of the particular act of Congress. This is often a daunting task, but it is assisted by a growing body of jurisprudence specific to particular product safety statutes and specific products liability claims.
- Manufacturers of many types of products are subject to two (or even three) different forms of safety regulation—by federal (and possibly state) administrative agencies, , and by the judicial products liability system, . For example, manufacturers of industrial machines must conform to safety standards of a federal agency (OSHA), to the standards of each state’s industrial safety commission, and, finally, to a state’s standards of product defectiveness. If such a product causes harm and ends up as the subject of a products liability case in court, its manufacturer may fairly question the logic and fairness of being required to conform to safety regulations imposed by the government’s executive/administrative branch, before it markets a product only to have the judicial branch declare the conforming product “illegal” thereafter.
- Rooted in statutory construction, the federal preemption defense rests on a determination that Congress in a particular statute intended to preclude particular products liability claims. The preemption issue thus is both -specific, meaning that the resolution of this issue is governed in any given case by an interpretation of the relevant provisions of the particular federal statute in relation to the particular claims involved. While preemption analysis in every case will therefore turn on the meaning and purposes of a specific statute—as revealed by its express provisions, its structure, and its legislative history—the basic issue in every case remains the same: whether Congress intended, expressly or implicitly, to prohibit the type of products liability claims asserted by the plaintiff.
- also come in a number of forms. The most basic repose statute pertains to products liability claims generally, though sometimes making exception for particular types of products, such as asbestos. A quite different form of repose statute, often called a “useful-life” statute, bars a plaintiff’s claim at the expiration of the product’s useful life rather than after a set period of time. Another form of repose statute, that governs improvements to realty, may apply to products attached to land, such as large grain silos or overhead cranes. Finally, a federal statute of repose—the General Aviation Revitalization Act of 1994 (“GARA”)—provides an 18-year statute of repose for manufacturers of private planes and their component parts.
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Chapter 2. Negligence 89 results (showing 5 best matches)
- Negligence has been the classic claim in American products liability law for a century, and it remains a fundamentally important theory of recovery. Even as its doctrinal significance slipped into the shadows as various “strict” theories of manufacturer liability pushed to center stage in recent decades, negligence retained a prominent place in the developing law of modern products liability. Negligence is still the principal theory of tort recovery in the states (Del., Mass., Mich., N.C., and Va.) that chose not to adopt strict products liability in tort. In states that do recognize such strict liability claims, empirical studies show that juries—perhaps because negligence is “hotter” than strict liability—are more likely to find for plaintiffs, and in higher amounts, on negligence rather than on strict liability.
- Thus, in an increasing number of states, negligence principles are returning to the law of products liability as the dominant (and sometimes exclusive) tort law standard of liability in design and warning cases. Endorsed by the
- In adopting strict liability in tort during the 1960s and 1970s, many courts stated or suggested that the new strict products liability doctrine eliminated the need for a separate theory of liability in negligence. But as courts applied the new “strict” products liability doctrine in an expanding array of contexts, they increasingly recognized that liability for design and warning defects is best defined in negligence principles, centered on a balance of foreseeable risk, cost, utility, reasonableness, and optimality.
- Since the 1980s, there has been a growing movement to return to negligence in design, warning,
- is a rule of , not strict products liability, such that the inferences (or presumptions) must point to a probability that the defendant was in allowing a product to defective, not merely that the product was defective—such as when a mouse shows up in a bottle of Coke. What must be inferred is the defendant’s in allowing the defect into the product and in selling it in that condition. And proof, no matter how strong, of the product’s defectiveness alone simply will not suffice. For the latter, there is a closely similar, more recent doctrine (the “malfunction doctrine”) discussed in § 7.4, below, tailored to proof of defect for purposes of establishing strict products liability.
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Chapter 7. Manufacturing Defects 43 results (showing 5 best matches)
- Manufacturing defects may generate any number of products liability claims. For example, a manufacturer may misrepresent the purity of its products or a supplier of contaminated food or drink may be negligent per se for violating a pure food statute. More commonly, however, a seller of a defectively manufactured product is subject to liability under one or more of the three primary products liability theories of recovery—negligence, breach of implied warranty, and strict liability in tort.
- In earlier times, most products liability cases for manufacturing defects were brought in negligence, including , 111 N.E. 1050 (N.Y. 1916), discussed above. Indeed, until the development of the doctrine of strict products liability in tort in the 1960s, most products liability cases were manufacturing defect cases brought in negligence. Because negligence is much more difficult to prove than strict liability in manufacturing defect cases, negligence claims in such cases are less common today than formerly. Nevertheless, negligent manufacturing (including negligent testing and quality control) remains a viable basis of products liability recovery in almost every state.
- Manufacturing defects—flaws or irregularities in products arising from errors in production—give rise to the most basic type of products liability claim. The law governing production errors is now quite settled, and it fairly may be viewed as the first pillar of modern products liability law. In general, manufacturers and other suppliers are liable for injuries caused by manufacturing defects in products that they sell.
- Products Liability Restatement
- Having spread across the nation with little fanfare over the last half century, the malfunction doctrine has become a well-established precept of modern products liability law. A substantial and growing majority of American jurisdictions (usually the “malfunction doctrine” label) now accept this principle of circumstantial evidence for proving defectiveness in strict products liability. Certifying its widespread acceptance, the
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Chapter 15. Special Defendants 73 results (showing 5 best matches)
- , which allowed tort claims against an employer, had an intriguing yet short and narrow life in products liability law. In , 361 N.E.2d 492, 496 (Ohio Ct. App. 1976), an appellate court first applied the dual capacity doctrine to a products liability case. While driving a company truck equipped with Uniroyal tires, a Uniroyal employee was injured when a tire blew out. Relying on cases from other contexts, and reasoning that “[i]t was only a matter of circumstance that the tire on the truck in which the plaintiff was riding was a Uniroyal tire rather than a Sears, Goodyear or Goodrich,” the court allowed the Uniroyal employee to maintain a products liability action against his employer. Twelve days later, a California appellate court similarly extended the dual capacity doctrine to the products liability context. See , 137 Cal. Rptr. 797, 801 (Ct. App. 1977) (“when an employer engages in the dual capacity of manufacturer of a product for sale to the public, the employer assumes all...
- Many cases involving miscellaneous defendants address the issue of whether the particular type of defendant is subject to strict products liability in tort or liability for breach of warranty. Because most secondary participants in product marketing do not design, manufacture, market, or sell products to consumers, they generally are subject to strict products liability, either in tort or warranty. Such defendants ordinarily neither “sell” nor “otherwise distribute” such products, as variously required for UCC Article 2 warranties,
- Products Liability Restatement
- responsible for the predecessor’s debts and other liabilities, including products liability claims and judgments from defective products made and sold by the predecessor before the transfer. Yet, courts have recognized that a successor be responsible for the liabilities of a predecessor in certain situations, to undertake the predecessor’s liabilities; or, ; or a transfer is to avoid liability. Thus, where one company sells its assets to another, a majority of jurisdictions hold that the purchaser is liable for the seller’s products liability obligations
- Normally, if an employee is injured on the job by an unguarded punch press or a defective tire blowout, the employee may recover both workers’ compensation benefits from the employer and damages in a products liability action from the manufacturer (subject to a damages offset). But if the product manufacturer is also the employee’s employer, the question is whether the injured employee may maintain a typical products liability action against the company in its capacity as manufacturer; or whether, on the other hand, the employee is limited to workers’ compensation benefits as the “exclusive remedy” for such injuries.
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Chapter 4. Warranty 104 results (showing 5 best matches)
- Thus, the implied warranty of merchantability is an assurance, imposed by law upon the seller, that a product is reasonably suitable for the general uses for which it is purchased and sold. As the central warranty in Article 2 of the UCC, the implied warranty of merchantability can be a vital theory of liability in products liability litigation. Because liability is based merely upon a product’s inadequate condition or malfunction without regard to the seller’s fault, it truly is a form of “strict” liability.
- It is difficult to untangle “merchantability” in warranty from “defectiveness” in tort, and at least in products liability cases involving personal injuries, the two concepts appear largely, if not entirely, congruent. See , 2011 WL 31462, at *11 (M.D. Tenn. 2011) (“[a] finding that a product was not defective or unreasonably dangerous forecloses an implied warranty claim”). So, proof that a product is “defective” under strict liability in tort generally will establish that a product is not merchantable, and vice versa. See
- Warranty law concerns the legal obligations arising from assertions related to sales and other transactions. In the products liability context, the law of warranty prescribes the legal effect accorded to assertions associated with the transfer of a product for value, usually through a sale. Assertions about a product may be express, from a seller’s affirmative communications about a product’s attributes, or they may be implied by the nature of the sale transaction. For various reasons, such as a statute of limitations (4 years from sale) that normally is longer than tort law (2 or 3 years from discovery), warranty claims are an important part of modern products liability litigation.
- In contrast to most products liability law, which today is generally based in tort, the law of warranty ordinarily is conceived as part of the modern law of contract. Most states that never did adopt the doctrine of strict liability in tort for the sale of defective products (Del., Mass., Mich., N.C., Va.) have constructed much of their modern products liability jurisprudence on an implied warranty of quality. Yet much common-law “warranty” doctrine of such states has been patterned after the developed tort law jurisprudence of § 402A of the and so in essence (if not totally in doctrine) is part of the larger law of tort.
- As with any damages claim, a products liability action consists of two major components: (1) a breach of legal duty, and (2) resulting damage. In warranty law, a seller breaches a legal duty by making and breaching a warranty that has not been disclaimed. As previously discussed, a disclaimer is an explicit means by which a seller may contractually nullify warranties, particularly implied warranties, that otherwise may arise from the sale of a product. One might view disclaimers as a seller’s “front-door” method for avoiding warranty responsibility for product accidents.
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Chapter 18. Drugs and Medical Devices 61 results (showing 5 best matches)
- Because the answer to the question posed above was that products liability law indeed plays a crucial role when people are harmed by defects in pharmaceuticals and medical devices, we must ask whether the ordinary rules of products liability law should be applied in drug and device cases as they are in other contexts, or whether the legal principles need to be adjusted to fit the context of these special types of product. While some scholars believe that consumer protection requires application of the full array of conventional products liability principles to medical products, the law has long and broadly recognized that many pharmaceuticals and certain other medical products are indeed fundamentally different from other types of products—a distinction that requires a variety of nuanced adjustments to ordinary principles of products liability law when they are applied to this special context. See
- Courts widely apply all three theories of liability to cases of this type—negligence, breach of the implied warranty of merchantability, and strict liability in tort—as well as special warning liability provisions of state products liability statutes. As earlier discussed, courts have been drawn to negligence principles in warnings cases more than in cases involving other types of defects. This has been especially true in cases where prescription drugs and medical devices are involved. Except for instances of contamination, drugs (like food) were largely exempted from strict liability in tort from the very start of modern products liability law in comments And courts have continued to apply negligence principles—and to reject true strict liability principles—in landmark prescription drug and medical device cases over the years. See , 479 A.2d 374 (N.J. 1984) (in warnings cases, negligence and strict liability are “functional equivalents”);
- The Act sought to restore balance to a vaccine market destabilized by products liability litigation that had disrupted liability insurance markets, driving most drug manufacturers from the childhood vaccine market, which in turn led to a sudden and drastic decrease in the availability of such vaccines and a commensurate increase in their cost.
- Courts long have been befuddled in trying to decide how products liability principles should be applied to prescription drugs and, to a lesser extent, medical devices. In addition to featuring two prominent
- The question of interest here is what role, if any, does the American medico-legal system leave for the law of torts and products liability? Because the system just described breaks down in many ways in practice, revealing many weaknesses, the answer to the question must be that products liability law—putting aside for now the substantial constraints of federal preemption, see § 14.5, above—has a vital role to play in compensating persons harmed unnecessarily by defective drugs, and some role (if a lesser one) in deterring their sale and promoting drug safety.
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Chapter 10. Limitations on Defectiveness 83 results (showing 5 best matches)
- Truly unknowable risks are a true rarity in products liability law. Cases involving genuinely unforeseeable hazards surely must represent less than one in a hundred products liability cases, and probably less than one in a thousand. Manufacturers of
- , the two most important judicial decisions in modern products liability history may well be
- In products liability law, “state of the art” is an unrefined concept whose meaning and proper role still continue to evolve. Nevertheless, emerging from the cases and statutes is a common theme: reluctance to impose liability on manufacturers for dangers that were unknowable, or unpreventable, at the time their products were sold—reluctance to hold producers responsible for risks they cannot control.
- In dramatic fashion, the duo marks the rise and fall of the duty to warn of unknowable hazards—and, more broadly, of the doctrine of strict manufacturer liability for warning (and indirectly design) defects—in American products liability law. For a time, had reigned supreme as the first major decision in the nation to apply a truly strict manufacturer liability rule in a warning or design context, where the difference between strict liability and negligence really mattered. But ’s moment in the sun was brief, and its fall from glory was spectacular and complete. Today, New Jersey’s products liability statute defines an adequate warning as one that a reasonably prudent person would provide; and it conditions liability for a design defect on the availability of a feasible alternative design at the time of manufacture.
- But for a few rogue jurisdictions, mostly in the American West, courts no longer hold manufacturers responsible for unknowable product risks. The rise and fall of the duty to warn of unforeseeable hazards has played a decisive role in the more general rise and fall of “strict” products liability in America, a broader development surveyed in § 5.10, above.
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Chapter 9. Warning Defects 54 results (showing 5 best matches)
- Thus, the duty to warn in negligence, implied warranty, strict liability in tort, under § 2(c) of the , and under state products liability reform statutes, centers on one central issue: whether “adequate” warnings and instructions were provided with a product, provided there was a reasonable way to convey that information—if so, the supplier has fulfilled its duty to warn; if not, it has breached its duty and is subject to liability for resulting harm. Thus, regardless of the liability theory, the principal liability “test” for warning claims is “adequacy,” rooted in reasonableness.
- Suppliers have a duty to provide consumers with safety information about products that they sell, and products supplied with inadequate informational “software” of this type are deemed “defective.” If a user or consumer is injured as a result of a warning defect (“marketing defect,” in Texas), because appropriate safety information was not provided with the product, the manufacturer is subject to liability for the harm.
- So, when applied to warning cases, both design defect tests unhelpfully point toward liability in every case where a product supplier is charged with failing to provide reasonable warnings of material hidden risks. This frailty in the design defect tests has led courts largely to avoid them both and simply to apply negligence-like ideas in assessing warning defects—viz., if a product does not carry information about all foreseeable, hidden, and material dangers, and on how to avoid them, the product is defective if there was a reasonable way for the information to be conveyed to consumers. Thus, a manufacturer has a duty to provide adequate warnings of all foreseeable, latent, and material dangers, and how to avoid them, and it will be subject to strict liability in tort for physical harm if it neglects to supply reasonable warnings and instructions about such hazards with the products that it sells.
- A fundamental aspect of the duty to warn is its relationship to the duty of safe design. The duty to warn is undoubtedly linked to a product’s design, in that warnings and instructions provide information on hazards that are inherent in a product’s design, and on how those design hazards may be avoided. Yet, while design defect and warning defect claims often go hand in hand, almost all jurisdictions view the duty to warn and the duty of safe design as largely distinct, independent obligations. Thus, even if a product’s design is as safe as it can be, the manufacturer still has a duty to warn of hidden dangers in the product. And if a substantial danger can be designed out of a product practicably and at little cost, all but a few courts hold that even “adequate” warnings do not insulate a manufacturer who fails to employ the safer design, as discussed in § 6.2, above. For a more thorough examination of warning defects, see Owen,
- Warning defect claims may be brought in most jurisdictions on the basis of negligence, breach of the implied warranty of merchantability, and strict liability in tort. While plaintiffs often plead two or all three causes of action to support a warnings claim in modern products liability litigation, the negligence cause of action traditionally has been viewed as the most natural basis for such claims. To “apprise a party of a danger of which he is not aware, and thus enable him to protect himself against it,” , 306 N.E.2d 312, 316 (Ill. App. Ct. 1973), due care may require a manufacturer “to speak out if the product is capable of harm and does not itself carry a message of danger.” Dillard & Hart,
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Chapter 11. Cause in Fact 59 results (showing 5 best matches)
- A very few courts have applied some form of alternative liability to certain multiple-defendant products liability situations. But the alternative liability theory presumes that there are only two or a small number of defendants who are all before the court, and that the defendants are likely to know who among them caused the harm, conditions which reduce the unfairness of shifting to the defendants the burden of establishing causation. Because these conditions normally are not present in litigation on DES and many other products, the alternative liability theory was rejected by the California Supreme Court in , as it has been rejected by many other courts in various contexts in products liability litigation.
- In addition to market share liability, courts have fashioned a number of other collective liability theories in an attempt to provide compensation to plaintiffs who are unable to identify the manufacturers of the specific products that caused their injuries, sometimes (as in the asbestos context) to fix responsibility on members of an industry who still are solvent.
- Causation (sometimes referred to as “proximate causation”) is comprised of two distinct issues: (1) cause in fact, and (2) proximate cause. “Cause in fact” (or “factual cause”) is an actual connection between a product defect, or the defendant’s negligence, and the plaintiff’s harm. Although this type of physical (or metaphysical) nexus is not controverted in most cases, a plaintiff must always establish a true cause-and-effect link between his or her injury or disease and a defect in a product that the defendant sold—and also, in negligence cases, to the defendant’s negligence. The term “proximate cause,” though sometimes used to refer to factual causation, often (and most properly) refers to the of whatever actual causal connection is proven to exist. To satisfy the burden of proof on factual causation, a plaintiff must prove, more likely than not, that the defendant’s negligence, or a defective condition in the defendant’s product, was a cause of the plaintiff’s harm. For a more...
- While some courts (as in California) apply the substantial-factor test more broadly to establish factual causation in any context, most courts use the but-for test as the principal (usually exclusive) test for factual causation in ordinary products liability contexts involving single, durable products. The largely follows this approach, providing a general definition of factual causation in but-for terms and providing a separate standard for multiple causation cases. Compare
- As with other types of products liability claims, factual causation is a necessary element of a warning defect claim. No matter how dangerous a defective warning may make a product, the plaintiff must prove that the absence of that safety information caused the plaintiff’s injury. In warning cases, like most others, the plaintiff ordinarily must prove causation by the but-for test—that the accident probably would not have occurred but for the absence of adequate warning. If the provision of an adequate warning would have made no difference—if the plaintiff probably would have been injured anyway—then a warning claim will fail on causation grounds.
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Chapter 3. Tortious Misrepresentation 36 results (showing 5 best matches)
- A manufacturer or other seller who innocently makes a false statement about a product’s quality or safety that results in harm may be subject to liability in contract for breach of an express warranty, as discussed in the next chapter. Some states provide an additional claim for such strict liability for misrepresentation under a parallel cause of action in tort.
- Misrepresentation is the communication of false or misleading information to another. A tortious misrepresentation claim may arise in a products liability context if a manufacturer or other seller makes a false and material statement of fact about a product to a person who is harmed by reasonably relying on the truth of that communication.
- The common law recognizes three separate claims for tortious misrepresentation, distinct theories of liability differing mainly according to the defendant’s state of mind in making the representation. These independent claims include: (1) fraud (“deceit”), which is intentional misrepresentation; (2) negligent misrepresentation; and, in a small number of states, (3) strict liability in tort for making public misrepresentations about a product’s safety.
- Because misrepresentation claims hinge on particular words written or spoken by a defendant, those words require precise identification and close scrutiny. A lawyer considering a misrepresentation claim therefore, should first and foremost isolate the exact words challenged, framing the particular context in which they were communicated, in order to assess whether they sufficiently support a claim for tortious misrepresentation. For a more thorough examination of tortious misrepresentation, see Owen,
- The classic case widely credited with paternity of the doctrine of strict products liability in tort for misrepresentation is , 12 P.2d 409 (Wash. 1932). While the plaintiff was driving his Model A Ford, a pebble from a passing car struck his windshield, causing small pieces of glass to fly into his eye, which he lost as a result. The plaintiff sued Ford, based on its misrepresentations of the windshield’s safety characteristics in its advertising catalogues:
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © West, a Thomson business, 1998, 2003, 2005, 2008
- © 2015 LEG, Inc. d/b/a West Academic
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Index 94 results (showing 5 best matches)
- Abnormally dangerous products, strict products liability vs. strict liability for abnormally dangerous products, 170–171
- Product category liability. Inherent product hazards, above
- Restatement (Third) of Torts: Products Liability. Defectiveness, this index
- Restatement (Third) of Torts: Products Liability, 222–223
- Restatement (Third) of Torts: Products Liability, 218–219
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Preface 3 results
- IABILITY IN A
- This Nutshell is a highly abridged version of my hornbook/treatise, P (West, 3d ed. 2015). Readers seeking greater detail in analysis and citations are referred to that work, which is organized by identical sections and topics.
- Marshall Crane, Todd Lyle, Jennie Rischbieter, Danielle Salerno, and Andrew Walker. For his continuing (perhaps perpetual) guidance on the interstices of the Hand formula, I am indebted to John Lopatka. For numerous editorial and other enhancements, and for skillfully managing the book’s editing and production, I am especially grateful for the tireless contributions of Karen Miller, my learned research associate, who meticulously adapted revisions of my hornbook to this edition of the Nutshell.
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Outline 24 results (showing 5 best matches)
Table of Cases 72 results (showing 5 best matches)
- Cotton v. Buckeye Gas Products Co., 840 F.2d 935 (D.C. Cir. 1988) ............ 295
- Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963) ............ 11, 18, 136, 416
- Jarke v. Jackson Products, 631 N.E.2d 233 (Ill. App. Ct. 1994) ............ 245
- Killeen v. Harmon Grain Products, Inc., 413 N.E.2d 767 (Mass. App. Ct. 1980) ............ 278
- Malen v. MTD Products, Inc., 628 F.3d 296 (7th Cir. 2010) ............ 486
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- Publication Date: December 23rd, 2014
- ISBN: 9780314268402
- Subject: Products Liability
- Series: Nutshells
- Type: Overviews
- Description: This book provides an overview of products liability law, organizing and explaining the essential history, developments, policies, and tensions of this field of law succinctly yet comprehensively. An abridgment of Professor Owen’s acclaimed hornbook treatise, this short work examines classic and recent case and other developments in products liability law, including theories of liability; definitions and proof of product defects; standards for expert testimony; the assault on strict liability by the state-of-the-art doctrine; federal preemption and other defenses; and the Restatement of the Law of Torts, Third: Products Liability.