Products Liability in a Nutshell
Author:
Owen, David G.
Edition:
9th
Copyright Date:
2015
26 chapters
have results for products liability
Chapter 5. Strict Liability in Tort 142 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.
- How strict liability differs from fault-based liability, and which is preferable, may be the most fundamental issue in all of tort law. It is elemental that the very basis of negligence liability, whether in products liability or other tort law context, is grounded on fault. In contrast, the very basis of the doctrine of strict products liability in tort is a supplier’s responsibility for harm caused by product defects § 402A “applies although … the seller has exercised all possible care in the preparation and sale of his product.” Liability is called “strict” because responsibility for those who sell defective products under § 402A is “no-fault” liability. In contrast to negligence, it is often said that strict products liability focuses on the
- 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.
- A number of states took a rather independent route from the start of modern products liability law, refusing simply to “adopt” § 402A yet adhering to the general principles of the developing jurisprudence on strict products liability in tort. For example, Oklahoma adopted an elaborate doctrine of strict products liability in tort, called “Manufacturers’ Products Liability”; Alabama adopted its own “Alabama Extended Manufacturer’s Liability Doctrine (AEMLD)”; and Louisiana, New York, and California also followed different drummers in adopting and developing their doctrines of strict products liability in tort.
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Chapter 6. Nature and Proof of Defectiveness 67 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.
- , hold that the separate forms of defect give rise to separate obligations that may independently support a products liability claim. The
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Chapter 17. Automotive Vehicles 17 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:
- Many automotive products liability cases involve accidents that allegedly result from some defect in the vehicle. Most such cases involve claims of defects in one of the vehicle’s essential control mechanisms or components, such as its steering, brakes, engine, transmission, acceleration or suspension system, wheels, or tires.
- 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.
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Chapter 1. Introduction 105 results (showing 5 best matches)
- 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.
- 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
- Products liability law is full of mixtures. It is a mixture of tort law—negligence, strict liability in tort, and deceit—and of the contract law of sales—mostly warranty. It is a mixture of common law, now mostly on its tort side, and statutory law, generally on its contract side—notably sales law under Article 2 of the Uniform Commercial Code (UCC). In addition, many state legislatures (and Congress, to a much lesser extent) have enacted products liability “reform” acts which address products liability matters, often functionally apart from tort and contract. Because of these hybrid characteristics of products liability law, plaintiffs often have a variety of available claims. Negligence, breach of implied warranty, and strict liability in tort are all based on the notion that something was wrong with the product, that it was unduly dangerous or “defective.” Remedies for breach of express warranty and also for fraud (and possibly other forms of tortious misrepresentation) may be...
- American Law of Products Liability 3d.
- 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 70 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.
- Products Liability Restatement
- 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
- Challenging a product’s design thus challenges the decision of the manufacturer’s engineers and managers to develop and sell a product containing a particular type and level of danger. Unlike a manufacturing defect claim, which implicates merely a single product unit, a design defect claim challenges the integrity of the entire product line and so pierces to the very core of the manufacturer’s enterprise. For this reason, design defect claims are of greatest concern to manufacturers, since a judicial declaration that the design of a particular product is “defective” condemns the entire product line. For a more thorough examination of design defects, see Owen,
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Chapter 16. Special Transactions and Products 69 results (showing 5 best matches)
- Some products liability litigation involves transactions other than the typical , 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,
- 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 product subject to strict liability in tort. See 777 N.Y.S.2d 268 (Sup. Ct. 2004) (glass of water exploded in patron’s hand; restaurant subject to liability in warranty and strict tort as “seller” of the container). Yet, when a product seller allows its customers to use an ancillary product without charge and merely as a —such as a hotel bed or shower mat, a grocery cart, or a bowling ball—most courts have reasoned that strict liability in tort does not apply because the product has not entered...
- So, simple refurbishing generally gives rise to negligence liability alone, and strict products liability generally does not apply to products furnished with only such basic upgrades. See , 306 F. App’x 781, 787 (3d Cir. 2009) (Pa. law) (no strict liability for refurbishing product with a few new parts). Yet, when restorers sell rebuilt and remanufactured products to compete with new products, buyers are entitled to expect the same legal protection from harm from manufacturing defects as buyers of new products. See
- 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.
- Many courts apply strict products liability to defective products incorporated as , 318 S.W.3d 893 (Tex. 2010) (synthetic stucco system is a product under the Texas products liability statute). Some courts make a simple “product” “real estate” division, while others use policy analysis to decide whether the goals of strict products liability are served by extending strict liability to a particular situation. See , 836 P.2d 968 (Ariz. Ct. App. 1991) (strict liability policies did not apply to custom swimming pool installer).
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Chapter 10. Limitations on Defectiveness 70 results (showing 5 best matches)
- liability claims is more problematic. “Strict” liability, theoretically at least, implies that liability is imposed merely for selling a product that is too dangerous, according to some standard of excessive danger, whether the manufacturer or other seller should be faulted for selling the product. Indeed, “strict liability” is often labeled “no-fault” liability.
- , 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.
- be held accountable for accidental harm caused by defective products. The focus of this chapter reverses direction to consider arguments and doctrine that a manufacturer’s responsibility for harm from product accidents. While the underlying justifications for assigning responsibility in such cases remain largely the same—feasibility, economic efficiency, manufacturer accountability, consumer choice and autonomy, personal responsibility, and judicial competency—the issues explored here (as in the remaining chapters) look past preliminary conditions and justifications for liability on manufacturers and other product suppliers, to factors that a supplier’s duty for harm from product hazards. For a
- 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
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Chapter 7. Manufacturing Defects 34 results (showing 5 best matches)
- 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.
- 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.
- Products Liability Restatement
- The quality control process is designed to catch such manufacturing mistakes, but sometimes it fails to do so. And while insufficient quality assurance may provide the basis for a claim of negligence, a manufacturer’s failure to adequately inspect or test its products is not itself a strict products liability claim. For a more thorough examination of manufacturing defects, see Owen,
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Chapter 13. User Conduct Defenses 59 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.
- The classic conduct defenses to products liability negligence claims are . With the advent of the modern doctrine of strict products liability in tort during the 1960s and 1970s, most jurisdictions added the new “defense” of product
- 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.
- 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
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Chapter 12. Proximate Cause 34 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
- “scope” of a product’s foreseeable risks
- Several state reform acts make product alteration a defense to products liability suits. Kentucky’s statute, for example, shields manufacturers from liability for injuries caused by “product alteration or modification [which] shall include failure to observe routine care and maintenance, but shall not include ordinary wear and tear.” Ky. Rev. Stat. § 411.320(1). Other reform statutes (Or., Tenn.) expressly limit the alteration defense to those that are unforeseeable.
- 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
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Chapter 18. Drugs and Medical Devices 34 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 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
- 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.
- properly exempts useful prescription drugs with unavoidably unsafe designs from strict products liability, assuming always that they are properly prepared and carry adequate warnings. And while design hazards in medical devices often can be designed away, some courts have nevertheless extended comment ’s exemption from design defect liability to cases involving prescription medical devices.
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Index 82 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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Chapter 15. Special Defendants 66 results (showing 5 best matches)
- 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,
- In most products liability cases, the only or principal defendant is the manufacturer that designed, manufactured, and marketed the product that injured the plaintiff. Thus, this book generally examines the responsibility of manufacturing enterprises. Yet parties in the product distribution chain other than manufacturers, notably retailers, often profit from moving products from factories to consumers and so may bear some responsibility when product hazards injure consumers.
- 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 of the duties and liabilities of such manufacturer”).
- The cases are sparse, but other courts agree that certifiers and endorsers may be liable for negligent misrepresentation. And they further agree that such defendants are not subject to liability for breach of warranty or strict liability in tort because certifiers do not “sell” products nor control product safety.
- 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, 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
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Chapter 2. Negligence 46 results (showing 5 best matches)
- 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
- 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.
- Restatement (Third) of Torts: Products Liability
- 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.
- , 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 4. Warranty 62 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.
- 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
- 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
- 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 14. Special Defenses 34 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.
- Federal preemption is an affirmative defense that arises, and a products liability claim is foreclosed, when the claim somehow conflicts with a federal product safety statute or regulation specifying design, marketing, or manufacturing standards.
- State statutes and administrative regulations are of course governed by the Supremacy Clause, but so too are products liability actions that can interfere, if less directly, with the administration of a federal safety statute or regulation. In determining whether a products liability claim conflicts with federal law, courts must interpret the statute to ascertain its aims. Congressional intent, divined by statutory construction, is thus the cornerstone of preemption analysis.
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Chapter 11. Cause in Fact 37 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.
- Enterprise liability.
- 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
- 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
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Chapter 9. Warning Defects 44 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.
- 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,
- 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,
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Chapter 3. Tortious Misrepresentation 22 results (showing 5 best matches)
- 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.
- 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.
- The action of intentional misrepresentation or “deceit,” commonly referred to as “fraud,” figures prominently (if not frequently) in modern American products liability litigation, often in claims against cigarette manufacturers. Although the precise specification of elements varies from state to state,
- Products Liability Law
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Outline 21 results (showing 5 best matches)
Title Page 1 result
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- explores the ever-changing terrain of this field of law, including its essential history, developments, policies, and tensions. Succinctly yet comprehensively, this work examines the classic cases, illustrative and provocative case developments, and the most important state and federal legislation, on such matters as grounds of liability; definitions and proof of product defect; rules for expert testimony, including important Supreme Court decisions and changes in the Federal Rules of Evidence; how courts and legislatures have dealt with the perplexing issue of “state of the art”; how the evolving jurisprudence on federal preemption, particularly in the Supreme Court, affects this field of law; other affirmative defenses; recent developments in various special types of litigation, involving such products as alcohol, tobacco, asbestos, lead paint, fast foods, automotive vehicles, and prescription drugs and medical devices; and various changes wrought by the R
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Table of Cases 5 results
- 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.
