LAW 512-001 – Torts II

Product Liability


Product liability is the liability of a manufacturer, seller, or other supplier of chattels to one who suffers physical harm therefrom.

Product liability can be based on three different theories:

  1. Negligence
    • All jurisdictions accept that one does not have to be in privity for a claim based on negligence.
    • Generally, negligence liability is imposed upon all sellers of chattels—whether damage is to person or property, the manufacturer produced the whole product or a component part, or the injured person was the immediate purchaser or not.
  2. Warranty
    Express Warranty

    A manufacturer is liable for a breach of an express warranty, even though a consumer purchased the good from a third-party.

    For a warranty to be express, the manufacturer must have made a representation of a material quality of the product, on which the consumer relied.

    Liability for express warranties is based on the principle that:

    1. The original act of delivering the product is wrong.
    2. The article is not safe for the purposes for which the consumer would ordinarily use it.
    3. It lacked qualities which the manufacturer represented it as having.
    4. The absence of the qualities could not be readily detected by the consumer.

    It also must still cause damage.

    Implied Warranty
  3. Strict Liability

There are three kinds of defects that can lead to product liability:

  1. Manufacturing Defect
  2. Design Defect
  3. Warning Defect
Product Liability Table
Manufacturing Defect Design Defect Failure to Warn
Negligence

Breach of duty of care results in the product departing from its intended design

Plaintiff must prove failure to measure up to standard of care. Plaintiff would be expected to produce evidence of unreasonable conduct during the manufacturing process (an impossible task in many instances)

The design decision is evaluated.

Plaintiff must prove reasonable alternative design.

Risk/Utility analysis is used by overwhelming majority of courts.

State of the art evidence is a factor to consider.

Breach of duty of care

Plaintiff must prove that adequate warnings or instructions were not provided and defendant had actual or constructive knowledge of the potential risk or danger

Obvious dangers/generally known risks – no liability

State of the art evidence is a factor to consider.

Strict Liability

Product departs from the intended design.

Plaintiff must prove that the product does not conform to the design or the other products in some way.

Foreseeable risks of harm could have been reduced or avoided by adoption of reasonable alternative design.

Design decision is evaluated

Plaintiff must prove reasonable alternative design.

Risk/utility analysis is used

The majority considers the O'Brien factors, state of the art evidence, and whether the defect was open and obvious.

Foreseeable risks of harm could have been avoided by the adoption of reasonable instructions or warnings.

Plaintiff must prove that adequate warnings or instructions were not provided and that defendant had actual or constructive knowledge of the potential risk or danger.

Obvious dangers/generally known risks – no liability

State of the art evidence is a factor to consider.

Breach of Warranty

Express warranty is breached when there is a misrepresentation of a material quality of the product, on which the consumer relies.

Implied warranty of merchantability is that it is fit for its intended use.

Express warranty is breached when there is a misrepresentation of a material quality of the product, on which the consumer relies.

Implied warranty of merchantability is that it is fit for its intended use.

Implied warranty of merchantability is that it is fit for its intended use.

State of the art evidence is a factor to consider.