Quite Confused on this. My torts II prof skimmed products liability, so I blame her for my incompetence, as that is always easier than to be accountable. Anyways, my issue is applying strict products liability or simple negligence theory under products liability.
What I understand is that there a 5 theories to sue under products liability. A commercial supplier who places an unreasonably dangerous item into the stream of commerce is liable under strict tort liability. However, where does the analysis of defect go? Is it the same application under a negligence theory? Is it just the duty is different? Where does a discussion about foreseeable misuse go? Thanks in advance for any clarifications. If I am totally off on what I thought was correct, please let me know. Cheers.

Under SPL theory, the conduct of the manufacturer is irrelevant. If the product is defective, then the manufacturer is liable. Thus the issue is whether the product itself is defective.

Under negligence, the conduct of the manufacturer is at issue. To be liable, the manufacturer's conduct must breach the standard of care, i.e., did not act as a reasonable manufacturer in the same or similar circumstances.

So different theories, different tests for liability

As per my understanding;-

Duty is same in both except that in strict liability, you mention that stict duty is owed, but in both it is owed by a commercial supplier to a forseeable P.

STANDARD OF CARE

No need to discuss in product liability because it is strict liability

Negligence:
How a reasonable commercial supplier would act, a manufactuer is held to have a higher standard of care because he possess specialized knowledge.


BREACH

Strict Liability - defect that makes the product unreasonably dangerous and the product was defective at the time when it left the defendant's control.

I am taking an example of a past essay in which customer suffered injury by using a cold drink blender because of poor locking technique and failure to warn.

eg. "cold drink" blender has design defect because it could have been made less dangerous without adding too much cost and without compromising on its utility. Plus there was inadequate warning that the blender shall not be used for blending hot drinks which makes the product unreasonably dangerous.

So the analysis focus upon that the product is unreasonably dangerous defect.

Negligence - Did the manufacturer acted reasonably by not including warnings or not making a safer product.

same eg. The manufactrer has breached the duty because it has fallen below the standard of a reasoanble manufactuer by not making the blender safe by providng a better locking mechanism and not adequately warning the consumers.

So the analysis is whether the manufacturer was reasonable.

Also a retailer is strictly liable but he can escape laibility in negligence by a cursory inspection.

ACTUAL AND PROXIMATE CAUSE

This is where I would discuss the foreseeable misuse, also I would discuss it under contibutory negligence and the analysis is same in strict liability and negligence.

So basically its the way you approach both. In strict liability it does not matter whether the merchant acted reasonably and the retailer can escape liability in negligence.

Hope it helps!

It is my understanding that the following theories could be relevant in a question concerning products liability: strict liability in tort, negligence, express warranty, implied warranty, misrepresentation and an intent theory.

Under strict liability in a products liability essay the breach is analyzed as to whether it was a manufacturing defect, design defect or a failure to warn defect. Then you would proceed to analyze causation, damages and any possible defenses such as assumption of the risk.

Bubba's post is where I have been most confused and told different things.

I think that a common element under all products liability theories is defect and that the defect must be in existence when the product left the D's control. Thus, as one mentioned above, you would apply the defect analysis under breach for any of the theories. Obviously, the use of see above will be helpful on the exam.

But I have heard the same as above, where you only apply the defect analysis under Strict tort liability. Good stuff thus far, thanks!

You are correct in having to show that the defect was present when the product left the defendant’s control.


This is how I understand a strict liability analysis should go. Start with the general rule.

Step One - State the general rule such as - A commercial seller who places a defective product into the stream of commerce is strictly liable in tort for injuries to persons or property caused by a foreseeable use of that product.

Step Two - Then determine if the plaintiff and the plaintiff’s use was foreseeable.

Step Three - Then analyze breach as to the defect which could be a design defect, manufacturing defect or a failure to warn defect. **

Step Four - Then analyze causation (actual and proximate)

Steps Five and Six - Discuss damages and defenses.

For a negligence product liability the breach would be similar analysis as above. (For example - Did the manufacturer act reasonably in not putting a warning that product is caustic?) .

However, the duty in a negligence product liability essay is that of a reasonably prudent manufacturer such as a reasonable manufacturer would have designed the product with the safety latch.

**I am not sure whether just mentioning that the product was defective when it left the manufacturer is enough, although it might be. I was under the impression that the three types of breaches (defect, manufacturing and failure to warn) have different elements.

I hope this helps.

Let me clarify my answer in light of bubbas' second answer. As bubbas indicated, the analysis of SPL and negligence is similar except for step one.

In SPL, the analysis focus solely on whether or not the product was defective under various tests discussed in other answers. The manufacturer's behavior is simply irrelevant. A reasonable manufascturer, who places a defective product in the stream of commerce, is strictly liable for harm caused by the product. That's the real point. In strict liability actions, P is relieved from having to prove whether the manufacturer's actions were reasonable. P must simply prove the existence of the defect.

On the other hand, step one's negligence analysis is all about whether the manufacturer's conduct was reasonable under the circumstances. So here, the analysis must use the facts to show that the manufacturer acted with less care than other manufacturers of similar products.

Thanks for all your help with that. I think is much more clear now.

 

Strict products liability ( RST 402a)

CUDDIFE

(a) D Caused product to be placed on market;

(b) At time D put product on market it contained an Unreasonably Dangerous Defect;

c) P hurt while using product in Intended and Foreseeable manner;

(d) D Engaged in business of selling/supplying product

.Discuss> Tests, Defenses

CA TEST:Product does not meet Consumer Expectation; Risk of harm outweighs Benefit to society.

 FEASIBLE ALTERNATIVE TEST

 

DEFENSES:

Contributory negligence not a defense but assumption of risk, misuse of product, not following instructions are:

State of the Art Defense

NEGLIGENCE

(1) Duty: commercial sellers owe a duty of care to any foreseeable P, regardless of privity.

(2) Standard Of Care: Manufacturer must use reasonable care in designing & assembling safe product & must provide necessary warnings: wholesalers have no duty to inspect but retailer must if they know product is defective

 

See Belandrei's post above for the outline:

I hope the following helps you break down Product liablity for your test. (I did not do expressed warranty or implied warranty -- they are a tort/contract hybrid and you didn't ask for it to be broken down)

One quick word: Many of you have bumped over breach... don't. See, my discussion below on breach.

Breach in negligence is proving negligent conduct.

Breach in Strict Product Liability is proving that the Product has a defect that makes it unreasonably dangerous. [design, manufacturing, inadequate warnings] You have to tell the reader what makes it dangerous (the defect) and why it is unreasonably dangerou (risk and gravity vs. utility and cost to make safe). Think about it... if the D can show that it was not unreasonably dangerous... how can there be strict liability.

[ex. Knife -- is it dangerous. Yes... but not unreasonably dangerous.]

PRODUCT LIABILITY

The theories of Product liability are: (1) expressed warranty; (2) implied warranty; (3) negligence; (4) Strict Liability

Strict Product Liability

A COMMERICAL SUPPLIER DEFENDANT who RELEASES/SELLS an UNREASONABLY DANGEROUS DEFECTIVE PRODUCT into the STREAM OF COMMERCE is SRICTLY LIABLE for INJURY TO THE DOWNSTEAM PLAINTIFF if the PRODUCT REACHES the Plaintiff without SUBSTANTIAL CHANGE. THE DEFENDANT WILL BE LIABLE NO MATTER HOW MUCH CARE HE/SHE/IT USED.

To prevail, the Plaintiff must show that:(a) Duty owed; (b) Breach; (c)Causation; and (d) Damages

a. Duty owed. Defendant must be a COMMERICAL SELLER and not expected the product to be altered before reaching he Plaintiff. No privity between Defendant and Plaintiff is required.

b. Breach. Plaintiff must show that D's Product was in a DEFECTIVE CONDITION which made it UNREASONABLY DANGEROUS when placed into the stream of commerce.

DEFECTIVE DEFECTIVE theories are: (i) Product Manufacturing Defect; (ii)Dangerous Design Defect;(iii) Inadequate Warnings Defect.

UNREASONABLY DANGEROUS PRODUCT is when the Gravity of Harm and the Risk of injury outweighs the Social Utility of the product and the Commercial Practicality of making it safe.

c. Causation. The manufacturer/seller caused the product to be placed into the stream of commerce and the product caused the injury. Proximate Cause. It was foreseeable that the product would be used in the manner which caused injury and it was foreseeable that injury could occur.

d. Damages. Injury to person or property was caused by the product.

Defenses: Plaintiff's fault in Contributory Negligence cannot bar recovery but Comparative negligence can reduce Plaintiff's recovery.

I forgot Intent in Products Liability... it is another cause of action. However, I have never seen it tested.

What is the State of the Art Defense in Strict Products Liability?

From what I recall, State of the Art involves products that are made at the standards established in the field and that at the time of production, there was no way to know of the dangerous defect as it had not been discovered in the field of scientific or technical knowledge. I recall examples of cutting edge technologies, where a defect was unable to be discovered because of how new the technology was.

Scientifically unknowable risks

State of the Art Defense

(1) Did safer mechanism exist?

(2) Why didn't D use it?

(3) Did others use it?

(4) Would use of it at that time adversely affect benefit of product?

(5) Feasibility/scientific knowledge/practicality.

Indeed, your prof was pretty bad if you did not understand this:

Negligence : 1) duty of care 2) breach 3) causality 4) Damages

Strict liability : 1) Absolute duty to make safe 2) breach = manufacture
or design defect (here come the analysis about the defect) 3) causality
+ must be in existence when left defendant's hands 4) damages

The basis on product liability are : SL, Neligence, Intentional Tort
(rare), Breach of Warranty

Myriam

On 2/8/10 6:12 PM,