LAW 512-001 – Torts II

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.