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Products Liability Exam Outline Outline for an exam question for PL: figure out what it is that the

manufacturer did improperly, usually the untaken precaution. What type of wrong was it? Design or manufacture defect, failure to warn. Then look to a theory of recovery. Negligence is typically the largest judgments since the jury feels that the was wrong and should have prevented the harm could have a negligent design or warning case. Duty Manufacturers must act with regard to reasonably foreseeable risks and must produce products that are reasonably safe for their reasonably foreseeable uses and misuses. The must show that she was using the product properly or at least foreseeably, while can raises improper use as a defense. PRODUCT DEFECTS Third RST of Torts: Products Liability decided to abandon the single definition approach used in 402A and to replace it with separate functional rules for manufacturing defects, design defects, and defects due to failure to warn was its most fundamental change. 1 Liability of Commercial Seller of Distributor for Harm Caused by Defective Products One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. 2 Categories of Product Defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (a) Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparations and marketing of the product; (b) Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; (c) Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor 1

in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.


Part I: Theories of Manufacturer Liability A. Negligence To prove any PL claim sounding in negligence a plaintiff must establish that the seller owed a duty to plaintiff, that the seller breached that duty, that the breach of duty was a cause in fact of the plaintiffs injury, that the cause in fact was a proximate cause of the injury, and that damages for the harm suffered are recoverable in negligence. DUTY: Manufacturers have a duty to exercise reasonable care to refrain from selling products that contain unreasonable risks of harm. This duty is limited to requiring protection only persons foreseeably placed at risk and to avoiding only risks that are foreseeable, not all risks. BREACH: A breach of duty is established by proving that a manufacturer or other product seller failed to conform to the standard of reasonable care that defines the duty. [Because the duty required by negligence is defined in terms of reasonable care, the mere fact that a product is defective will not ordinarily establish breach. Instead, to establish breach, a plaintiff must establish both that the product was defective and that the manufacturer was negligent in some manner in making or selling the product in that defective condition..] In determining breach of his duty of ordinary care, most courts use the formulation of Judge Learned Hand, or a comparable risk-benefit model. Manufacturers are charged with duty of design, manufacture, and marketing commensurate with an experts awareness of the particular products foreseeable environments of use and special dangers within that environment. This duty is limited by reasonable foreseeability. If manufacturer violates a safety statute in a manner that harms a plaintiff, the doctrine of negligence per se may permit a plaintiff to establish the breach of the defendants duty by proving the statutory violation. The appropriate standard of behavior is set by a statute or regulation if the plaintiff was injured by the type of risk the statute was intended to prevent and the plaintiff was in a class of persons the statute intended to protect. (A) Negligence- Difficult to prove because have to prove defect AND fault, unlike SL which is only defect.. There can be negligence in manufacturing, design, or warnings. Juries respond more favorably to negligence than SL. Did the manufacturer consciously expose the plaintiff to an unreasonable risk? Did the manufacturer pay the requisite attention to the consumers interests? Four elements must be present for a product liability case to be considered under the negligent tort principles:

The particular defendant owes a duty to the particular plaintiff to act as a reasonably prudent person under the same or similar circumstances. There is a breach of such a duty by the defendantthat is, a failure to act reasonably. There is an injury, including personal injury or property damage. 3

There is a causal link between defendant's breach of duty and injuries sustained by the plaintiff.

The breach is commonly determined by balancing the burden of safety precautions against the safety benefit the precautions seek to provide. The Hand Formula assesses the reasonableness of an act or omission by evaluating a calculus of 3 factors: the burden of taking precautions balanced by the likelihood that the actors conduct will produce the harm multiplied by the seriousness of the harm. If B is less that P*L then N. MacPherson v. Buick Motor Co. (1916) Allowed negligence to be used in PL cases against manufacturers. Has become in short, a general rule imposing a duty on manufacturers to make products carefully. cannot rely on its suppliers; it is responsible for the finished product and is not at liberty to put the finished product on the market without ordinary inspection The general rule: imposing negligent liability upon all sellers of chattels, whether damages is to person or property, whether the manufacturer produced the whole product or a significant component part, whether the injured person was the immediate purchaser or subsequent. NEGLIGENCE IN THE MANUFACTURING PROCESS Whether the manufacturer will be liable in negligence to such persons will depend upon a determination of whether the manufacturers production and quality control procedures were conducted with reasonable care. Zahn D missed sharp ashtray during quality control, in SL open and shut case, here have to show negligence in quality control proceeding - use interrogatories to find out how defective product was manufactured, how it could have been prevented, who manufacturing supervisors were, and who operates the machine. Be precise. "How often is inspection?" When dealing with quality control procedures - Nicklaus case-must prove that manufacturer was negligent in both manufacturing and inspection; contrast w/ RS 2nd 437, which says negligence in manufacturing is enough. reas. care afterward is irrelevat. Glazer: elements: (1) a product defect, and (2) negligence in making or selling the product with the defect. Theory that a manufacturer cannot ordinarily be negligent for making and selling a non-defective product, a product that is good. Negligence stat of limitations may be longer than stat of limitations for strict liability NEGLIGENCE IN DESIGN - in the design context negligence is based on a decision to design the product failing to take cost effective precautions to avoid foreseeable preventable accidents Metzgar v Playskool implies negligence, cost benefit analysis. Was risk foreseeable? Ct says it was a foreseeable risk based on statistics. When safety benefits are greater than safety costs, actor must undertake safety costs. Ds will argue that cost of loss of enjoyment caused by the precaution would be extremely high (high B) along with high costs of implementing precaution The definition of negligence in the Third Restatement of Torts follows Hand formula. 4

NEGLIGENCE IN WARNING CASES Manufacturer failed to fulfill its duty of due care to the consumer by failing to provide adequate warnings of foreseeable injuries. 1. Boyl- there were plenty of warnings; not specific to type of injury suffered; warning about thoroughly cleaning and destroying container after use shows that manufacturer should have foreseen type of injury suffered Beware warnings (about danger in using or misusing product) v. instructions (how to use product correctly; how to avoid danger) -B<PxL will almost always weigh in favor of an obligation to warn of latent dangers.

III. Chapter 3: Tortious Misrepresentation Tortious Misrepresentation: Arises if a manufacturer or other seller makes a false and material communication about a products characteristics to a person who is harmed by reasonably relying on the truth of the communication. Misrepresentation claims require no defect in the product, but are based on the communication of false words that cause harm. Beware puffing, which is opinion, not a fact. No action for sales talk that extols the quality of a product. Fraud [intentional misrepresentation]: Elements vary from state to state but generally (1) a representation of an existing fact, (2) its materiality; (3) its falsity; (4) the speakers knowledge of its falsity or ignorance of its truth; scienter (5) the speakers intent that it should be acted on by the hearer;[ Determines whether MR is intentional or negligent. ](6) the hearers ignorance of its falsity; (7) the hearers reliance on its truth; (8) the hearers right to rely thereon; and (9) the hearers consequent and proximate injury. Rule 9(b) must plead with specificity all fraud claims. Must be JUSTIFIABLE reliance. Negligent Misrepresentation: The element of fraudulent INTENT is replaced by elements of duty and negligence. Uncommon Strict Liability for Misrepresentation: RS 2d 402B: Misrepresentation by Seller of Chattles to Consumer One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though, (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller 2. most cts do not have a 402B claim; possible feeling that 2-313 (Express Warranties by Affirmation, Promise, Description, Sample) preempts SL

CHAPTER 4 WARRANTY Defenses to warranty claims: no privity in K; warranties can be disclaimed; buyer needs to notify seller about defect; more reasons why might want to bring claim under negligence theory. NOTICE is key, UCC 2-607(3)(a) states the buyer must notify the seller of a breach within a reasonable time or be barred from any remedy. Most courts have refused to bar recovery for unreasonable delay of notice in consumer injury cases. (1) Express Warranties

Express warranties are affirmative assertions, made by a seller in connection with a sales transaction, that a product possesses certain characteristics of quality construction, performance capability, durability, or safety. Claims for breach of express warranty rest on the falsity of such information rather than any deficiency in the product itself. 2-313 establishes how express warranties are created. NOTE: The basis of bargain language places reliance at or before time of K, post-sale statements are not material. 2-313. Express Warranties by Affirmation, Promise, Description, Sample. (1) Express warranties by the seller are created as follows: a. Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. b. Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. c. Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. (2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. (2) Implied Warranties (Merchantability and Fitness for a Particular Purpose) An assurance, imposed by law upon a seller that a product is reasonably suitable to the general uses for which it is bought and sold. 2-314. Implied Warranty: Merchantability [limited to merchants]; Usage of Trade. (1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be 7

merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as a. pass without objection in the trade under the contract description [exploding flashcube]; and b. in the case of fungible goods, are of fair average quality within the description; and c. are fit for the ordinary purposes for which such goods are used [FIT means reasonably suited for the general purposes for which such an article is sold and used]; and d. run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and e. are adequately contained, packaged, and labeled as the agreement may require; and f. conform to the promise or affirmations of fact made on the container or label if any.

(3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade. 2-315. Implied Warranty: Fitness for Particular Purpose. Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. Arises in one-on-one dealing between a buyer and a seller that is calculated to create quite explicit expectations in the buyer that the product the seller selects will safely and effectively accomplish the buyers particular task. Unlike 2-314, 2-315 requires reliance (and sellers knowledge of that reliance). Envisions specific use by the buyer which is peculiar to the nature of his business. Owen states that purposes cannot be both ordinary and peculiar. Parties and Privity: What defendants are bound by warranties and what plaintiffs obtain their benefits? Vertical privity defense, in chain of distribution, was expressly abolished by statute in several states. Originally, the only ones liable were the ones who sold the article directly to the consumer, thus manufacturers could escape liability through the privity requirement. After Henningsen in 1960, most jurisdictions abolished the manufacturers vertical privity defense in implied warranty actions involving durable goods. Most court now hold that express warranties in advertisements run directly to purchasers, despite absence of privity of K. Some states still 8

maintain a vertical privity requirement for warranty claims, however. Horizontal privity is addressed by 2-318. 2-318. Third Party Beneficiaries of Warranties Express or Implied. Alternative A a plurality of states A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section. Alternative B A seller's warranty whether express or implied extends to any natural person who may reasonably be expected to use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section. Alternative C A seller's warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section with respect to injury to the person of an individual to whom the warranty extends. 2-316. Exclusion or Modification of Warranties. (disclaimers- 1: express warranties; 2-3: implied warranties) (preempts Henningsen) (1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable. (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof." (safe harbor provision) (3) Notwithstanding subsection (2) a. unless the circumstances indicate otherwise, all implied warranties are excluded by 9

expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and b. when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and c. an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. (4) Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (Sections 2-718 and 2-719) 2-718. Liquidation or Limitation of Damages; Deposits. (1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. 2-719. Contractual Modification or Limitation of Remedy (1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, a. the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and b. resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not. 10

2-714. Buyer's Damages for Breach in Regard to Accepted Goods. \ (3) In a proper case any incidental and consequential damages under the next section may also be recovered. 2-715. Buyer's Incidental and Consequential Damages. (1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. (2) Consequential damages resulting from the seller's breach include

(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty.

Notice a buyer must within a reasonable time after he discovers or should have discovered the breach of warranty notify the seller or be barred from any remedy NOTE: Under the UCC, terms should be construed whenever reasonable as consistent with each other, so disclaimers of express warranties are inoperative. If not reasonable to construe, terms are inoperative. Cmt 3 of 2-719 states that 2-316 can trump 2-709 unconscionable provisions where nothing is given for the rights that are taken away, but what about 2-302 which states that courts may refuse to enforce contracts with unconscionable provisions? MAGNUSON-MOSS FEDERAL WARRANTY ACT OF 1975 Statutory reform 2308. Implied warranties (Federal Law supersedes UCC) (a) Restrictions on disclaimers or modifications. No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product. (b) Limitation on duration. For purposes of this chapter (other than section 2304(a)(2) of this title), implied 11

warranties may be limited in duration to the duration of a written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear and unmistakable language and prominently displayed on the face of the warranty. Four factors: 1. Reasonableness, 2. Must be conscionable, 3. Clear and unmistakable language, and 4. Prominently displayed. (c) Effectiveness of disclaimers, modifications, or limitations. A disclaimer, modification, or limitation made in violation of this section shall be ineffective for purposes of this chapter and State law.


CHAPTER 5 Strict Liability in Tort Greenman v. Yuba Power Products, Inc. first to declare manufacturers of defective products are strictly liable in tort, the birth of modern PL law in America. The Greenman decision was followed up by 402A of the Restatement. 402A Special Liability of Seller of Product for Physical Harm to User or Consumer (products liability) (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if a. the seller is engaged in the business of selling such a product, and b. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although a. the seller has exercised all possible care in the preparation and sale of his product, and

b. the user or consumer has not bought the product from or entered into any contractual relation with the seller. The obligation imposed on sellers under 402A is to provide products that are not unreasonably dangerous or defective, not to provide products that are perfectly safe. All court require a plaintiff to prove two core elements, which imply a third: (1) that the defendant sold a defective product; (2) that the product defect proximately caused the plaintiffs harm; and (3) that the product was defective at the time of sale. That a product is more dangerous than it properly should be. Today courts capture that single concept in a single word: defective. 402A is unaffected by warranty,402A applies to bystanders rescuers and anyone else who is foreseeably put at risk by defects, and SLiT applies to all parties in a commercial chain of a products distribution, but it does not apply to the occasional private seller. Damages under 402A/SLiT can recover for personal injury and death, emotional distress is often allowed, some have allowed consortium. Great debate over pure economic loss, most courts apply the economic loss rule denying recovery for pure economic loss. Limited exception for when such damages result from product defects that present a hazard to property or human safety. Punitive damages are widely recoverable.


cmt. J of the 402A states that when a warning is given, seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous; Possible argument that warning would cancel out design defect - are cmt's black letter law? RS 3d: rejects cmt j; warning defect is separate from other defects (design and manufacturing); may be related somewhat to design-the more obvious the danger than might have less liability to warn All defects defined under 402A by consumer expectations: that is the violation of the ordinary (objective) consumers reasonable expectations is a defect. Applies only to commercial sellers This applies to property damage as well as physical harm Any product in a defective condition unreasonably dangerous to the user or consumer language is being used to address very different types of defects: 1. Manufacturing defects: occurs when a product that injures a person does so because there is a flaw that is not in the general product line, but a failure of quality control. 2. Defect attributable to failure of design: the entire product line is challenged. 3. Failure to warn: 402A - defective condition unreasonably dangerous a) In business of selling good of that type b) Reaches consumer w/o substantial change Denny- Bronco was unmerchantable but not defective; cmt. 7 of amendments to 2-314 rejects this idea - if a product isnt defective, then the manufacturer cant be neg.



Manufacturing Defects R3D (2)(a) - Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparations and marketing of the product; manuf. Defects have remained Strict liability Under R3d Section 2(a) the only test is whether a product departs from its intended design. Reasonable care is immaterial to this analysis. This is the well-accepted test. Proving a manufacturing defectPouncey -Ps expert probably would not pass Daubert test Expert reached decision by ruling out other possible causes (thoroughly explained himself) (Etiology/diff. diagnosis) *ct accepted this systematic elimination of alt. causes was relevant enough to reach jury. Post Daubert fan blade: Rudd -expert had properly applied science to case; ct concluded testimony was reliable and relevant; step by step of reasoning processes upon which testimony relied Ct holds for , the accident was type that wouldnt occur w/o defect & proves there was nothing else that caused it, it can go to the jury w/o expert proving defect. Ducko -malfunction doctrine proves causation Under this doctrine, if the circumstances of an accident indicate that a defect caused the accident, and the plaintiff can produce evidence that removes other possible causes, then the plaintiff can prove causation even if the product is damaged or destroyed. This doctrine is similar in application to res ipsa loquitur in the law of negligence. Daubert v. Merrell Dow Pharmaceuticals, Inc. Judges are the gatekeeper for expert testimony The Frye test: Scientific evidence is admissible if it is based on the scientific technique generally accepted as reliable within the scientific community. OVERULED BY THE SUPREME COURT The new test (the Daubert test): (1) does the experts testimony reflect scientific knowledge derived from the scientific method and whether their work product amounts to good science; (2) whether the testimony is relevant to the task at hand i.e. that it logically advances a material aspect of the proposing partys case. the fit requirement. Factors to consider in whether to admit expert testimony: Whether the theory or technique employed by the expert is generally accepted in the scientific community; 15

Whether it has been subjected to peer review and publication; Whether it can be and has been tested; and Whether the known or potential rate of error is acceptable. Thus a court must determine whether the analysis undergirding the experts testimony falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions. Thus the test is not of the correctness of the experts conclusion but the soundness of his methodology. Significant factor is whether the expert is testifying about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for the purposes of testifying. Evidence Rule 702- admissible is testimony will assist the trier of fact Daubert comments -cts do not necessarily have to hold Daubert hearing if party presents affidavits, etc. that firmly establish that expert meets Daubert standards -less cases are brought, but Ps are winning higher percentage; makes sense-Ps are forced to bring stronger cases in order to get case in front of jury Food and Drink Kolarik -Brown precedent: foreign-natural test v. reasonable expectation; ct does not accept test b/c ambiguous as to what is foreign/natural in certain types of dishes; ex. chicken fingers-would a bone be natural or foreign in a chicken finger? -notes: Heipel dissent argues that foreign-natural test is useful for judicial efficiency; but the test has been thrown out by majority of jxs in favor of the consumer expectations standard: a harm-causing ingredient of the food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient. RS3d Shosone -decomposed mouse in soft drink, argued tampering -Phipps elements: p. 163: 1) product was in defective condition, 2) unreasonably dangerous, 3) defect was cause of injury, 4) product was expected to and did reach the customer w/out substantial change in its condition; D in instant case focuses on element 4 -only burden on P is to prove that his injury was caused by a defect in the product and that such a defect existed when the product left the hands of D -expert testimony: mouse had been there been for extended amount of time; probably alive when it entered bottle (evidence of feces); stains were on bottom of bottle-must have gotten there before liquid was added -sufficient evidence on either side to get it in front of jury; reasonable for jury to believe Ps expert over Ds 16

CHAPTER 7 Design Defects R3D 2(b) - Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; Proof by Expert Testimony -what Ps expert must show: danger of chosen design and unreasonable (defective) harm (RAD probably would have prevented harm (causation)-feasible, safer, cost effective, and no less useful) -what Ds expert must prove: reasonableness of chosen design and problems with Ps proposed alternative design that render them unreasonable Matthews -rocking chair that severs finger; RS 398; obligation of manufacturer in design in negligence; exercise reasonable care in the adoption of a safe plan or design -ct recognized that danger was concealed -ct found that providing a protective housing could easily have been employed -then compare this cost of precaution to the probability and extent of injury

McCormack -vaporizer that tipped over and scalded child; standard gallon pickle jar -slight loss of utility in RAD: have to screw lid on and off -other theories of recovery: water was too hot; not enough evidence to bring this issue to jury-water has to be hot to be effective; utility problem; center of gravity was too high; should have employed better shape; also a utility problem Design Defect Tests 1) Consumer Expectations If a consumer reasonably expects a product to be safe to use for a purpose, the product is defective if it does not meet those expectations. consumer would be surprised that self-cleaning mode would burn down house - didnt meet consumers reasonable expectation of safety -ct finds that pool is not defective; under standard of consumer expectations; rules out cases where consumer saw what they were getting; doesnt take into account the easily applied solution -notes: rock striking pickup truck causing accident; did this meet consumer expectations?-how much does size of rock affect expectations; More experienced consumers should not gain from having ordinary expectations credited to him. Problems w. Consumer Expectation -s always lose in obvious defect cases, bystanders have no expectations -its hard to define consumer expectations in cases involving technical products


2) Risk-Utility Test -cost-benefit analysis; defective if the costs of improving its safety are less than the safety benefits resulting from the improvement. a product is deemed defective under a risk-utility test if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product. under a risk-utility analysis the openness and obviousness of a products design is simply a factor to consider in determining whether a factor is unreasonably dangerous. what would a reasonable manufacturer do? It is not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it also would have introduced into the product other dangers of equal or greater magnitude (ex. Shroud over propeller creates a larger target area). Micro v Macro Examination of Untaken Precaution -Ford Pinto example: macro balanceC:B analysis of cars in general; micro balanceexamining particular design and then C:B analysis of particular design, not macro product as whole. Seven Wade factors (Owen says if possible ignore them, like courts do): utility to user, likelihood it will cause injury, availability of safe substitute, ability to eliminate harm without affecting usefulness, user's ability to avoid danger with reas. care, user's anticipated awareness of dangers, and the feasibility of spreading the loss by setting the price or carrying liability insurance. Wadenot very useful, largely a thing of the past (Page 261) Wade-Keeton test: doing away with foreseeability requirement; distinguish SL from negligence - imputes knowledge it is enough that had he known of the risk and dangers he would not have marketed the product at all or he would have done so differently -probability of loss (P in Hand formula): foreseeability is not required Alternative Tests -Cronin: kicked out unreasonably dangerous and only used defect, that's all you need to prove. Some courts need both. -Barker: P can win in either (a) consumer expectations test or (b) risk-utility; once P has shown an injury, D has burden of proof to prove that not adopting RAD was justified under risk-utility test - has BOP b/c they have all relevant documents Shifting of BOP to is not widely accepted b/c places a huge burden on the -Soule (same court): retraction of Barker; consumer expectations-only for simple products accident-in this type of case no need for experts; must use risk-utility if complicated products accident; need for expert testimony; depends on complexity of accident; what is simple and what is complex R3d adopts the test whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design rendered the product not reasonably safe. Relevant Factors to Consider in R3D P.279 adopted by SC is R3D 18

1) Magnitude & probability of foreseeable risks 2) Instructions & warnings 3) Consumer expectations -Potter: injurious vibration from hand-held tools; modified version of consumer expectation test; ct decided it should use 402A consumer expectations-ct decided that consumers expect manufacturers make reasonable risk-utility decisions; *Owen says this consumer expec combined w/ risk-utility is illegitimate Proof of design defects Knitz *allows prior accidents as evidence but subsequent evidence has little relevance as to the issue of knowledge or notice -notes: RAD required in every case?-depends on jx; 3d RS does require introduction of RAD; but it would be difficult to prove risk-utility on the micro balance scale; would be left with macro balance: is the danger of a car worth the use of car?-important point. Consumer expectations does not require proof of RAD -note 8: manufacturer cannot delegate duty of keeping product reasonably safe; Bexiga case -note 12: cannot introduce evidence of subsequent remedial measures to prove defect or negligence under Fed. R. Evid. 407 OSHA REGs P297-98 compliance with relevant govt standards is generally considered probative of non-defectiveness or non-negligence, while breach may show them both per se. Courts are split on whether a manufacturers adoption of a customary design is evidence of non-defectiveness. -OSHA stds affect the relationship btw. an employer & the employee (not the manufacturer) *However, manufacturers would sometimes like to get these stds in -cts are split on whether this is admissible. Calhoun -Ps argued that hand throttle was too similar to hand brake therefore defective -human factors engineer testified that stress would cause operator to squeeze throttle; did not pass Daubert test b/c he had no experience with marine vessels; could not establish any foundation for his theory about squeezing under stress * lost b/c experts were terrible Crashworthiness the protection a passenger motor vehicle gives its passengers against personal injury or death from a motor vehicle accident. A vehicles capacity to offer such protection is a function of its ability to withstand and absorb the physical stresses of a collision combined with its ability to prevent additional (enhanced or aggravated) injuries occupants may sustain in a second collision with the vehicles interior. Two principle types of automotive design cases: 1. Design defect caused the accident. 2. The design defect aggravates the injuries in an accident caused by something else, such as driving error. Evans court: Manufacturers had no duty to design a safer cause because the intended purpose of 19

automobiles is not to collide with each other. Larsen: In view of the clear foreseeability of automobile accidents, the court ruled that car manufacturers must be held accountable for vehicular safety in the crash environment. So how crashworthy must a vehicle be? All courts now agree that a manufacturers obligation to produce a crashworthy vehicle is bounded by a reasonable balance of the costs and benefits of reducing various risks of injury. IN short, crashworthiness means reasonable not perfect automotive crash safety. Balance safety in one type of crash against its safety in other types of crashes. Supported by products liability restatement. Ford Pinto case: fuel tank exploded too easily because too close to the rear bumper. Head restraints, belts, and airbags must operate properly and not expose occupants to an unexpected and unreasonable risk of harm.



Warning Defects R3d 2(c) - Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. A product must include a warning that adequately communicates the dangers that may result from its use or foreseeable misues There are serious causation problems with warnings. Supplying adequate instructions (how to safely use product) will not satisfy the manufacturers duty to warn if the user is not adequately alerted to hidden dangers in the product.. Warning defect test (P 320) Duty to provide adequate info/ warning on all material risks and how to avoid them RS 3d: 2(c) inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of instructions or warnings renders the product not reasonably safe. -requires reasonable alternative warning -are experts required to prove what an adequate warning should be and did inadequate warning cause injury Most courts still apply a fault-based standard in warning cases requiring the show the knew or should have known of the risks. There is a presumption applied in most jurisdictions that the user would have read and heeded an adequate warning. Adequacy of Warning is the key issue in most warnings cases: usually left to the jury who usually rely on expert testimony. The two major exceptions to this are sophisticated users (companies) and the learned intermediary rule 402A Cmt j: a warning will insulate a manufacturer against a design defect *3d rest says this is wrong, these ideas are independent *Most cts hold theyre independent Lewis -carbon dioxide poisoning in boat; from gasoline generator; migrating carbon dioxide -warning only covered exhaust from the engine; needed to warn about other sources of carbon dioxide beside engine and how it could be trapped in cabin -warning was inadequate -Pavlides precedent: description of what an adequate warning should look like: 21

1) Designed so it can reasonably be expected to catch the attention of consumer 2) Comprehensible and give fair indication of specific risks involved with product and 3) Intensity matches magnitude of risk warning pollution; -3d RS; all that is required is optimal amount of info; must fairly convey most important info about serious/material risks to consumers Olson -ct decided that negligence is better approach in warning cases than SL approach (imputing knowledge wade-keeton test) -negligence principles apply; somewhat disingenuous -RS 3d: limited to foreseeable risks -note 5: tort reform in legislatures: some legislatures rejecting SL in tort in warnings and sometimes even in design defect; there is some de facto reform in cts. Warning Methods Meyerhoff Ps expert all but admitted that proposed warning was not feasible; Ps atty could have brought up the failure of project to minimize damage of failed experiment using proposed yellow warning; -if proposed warning did not work than there is a causation problem-lack of warning obviously didnt cause injury -Pictorial Warnings and their effectiveness especially in culture with increasing numbers of non-English speakers Non-verbal warnings -odors, symbols, warning lights & sounds Higgins -ct decides that jx does allow bulk supplier/sophisticated user defense *Ct held no duty to warn sophisticated users sophisticated user doctrine (buyer already knows of dangers) -bulk supplier idea: infeasible to slap warning on side of large drums that will eventually be put in smaller containers by downstream seller (who will need to put warnings on smaller, individual containers) -perhaps use condition of sale to downstream sellers (must manufacture clothes with appropriate warnings) Prescription Drugs -Almost always a warning case, basic warning principles apply to drugs -learned intermediary doctrine: exception to general warnings doctrine under 388 of RS 2d; Judge Wisdom; drug manufacturers duty to warn doctors not the end users -doctors more familiar with individuals idiosyncrasies and how patient will react to different drugs - -3 exceptions to learned intermediary doctrine manufacturer must provide warnings directly to the patient; 22

1) mass immunization 2) birth control pills only one case exists for birth control pill exception to learned intermediary doctrine; 3) direct to consumer advertising: should be exception b/c manufacturer is bypassing the learned intermediary doctor; one ct has adopted the exception (NJ); recently another st s ct has followed Perez


CHAPTER 9 Limiting Defectiveness: User Choice NOT WARNINGS ANYMORE Obvious Dangers The obviousness of a product hazard does not relieve a manufacturer from taking reasonable steps to design a danger out of a product, as by incorporating an inexpensive safety device that does not reduce the products usefulness. Yet in most states there is no duty to warn of obvious or widely known product hazards because little good is served by telling people what they already know.

Campo- Patent Danger Rule -onion topper machine injury -Ct held for b/c the danger was open & obvious (patent danger rule) Micallef -twenty years later same ct overruled patent danger rule; 402A had been formulated in the interim -was there reasonable way to prevent injury?-that is the new question and then weighing of costs and benefits of RAD. *open & obvious should be considered as one factor in the risk-utility test Curcio Cited 402A cmt j- if a manufacturer gives a warning, it is presumed to have been read and heeded and therefore the product is not defective and unreasonably dangerous. -Owen says this was intended only to apply to food cases; therefore the Curcio ct was wrong. Belling - a warnings case that has a causation issue; obviousness of danger made warning unnecessary Limiting Defectiveness: User Choice Inherent Dangers (Products that are inherently dangerous but that is what makes the products enjoyable) (macro v micro balancing) Thus, while manufacturers bear responsibility for unintended production flaws and for failing to warn of hidden dangers, such products are not defective for inherent risks, because they cannot be designed away. 2nd Rest. Cautioned that products whose inherent characteristics made them dangerous were not to be considered unreasonably dangerous. 402A cmt i- The article must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. *legislation prevents claims against gun manufacturer resulting from criminal cases Cigarette Cases -when fraud and intentional introduction of chemicals that make cigarette more dangerous, cts 24

might be willing to find liability

Trampoline Cases Parish -no RAD - argues based on Rest 2d 2(b) cmt e. which says that if a product is so dangerous and has no social value liability should attach even w/o RAD. -Ct holds this is very narrow and that trampolines do have some social value -warning claims related to these inherently dangerous products: consumer might not realize specific danger of product (like peanut butter) -cmt. j: where warning given, seller may reasonably assume it will be read and heeded; product bearing a warning, which is safe if followed, is not in defective condition; i, j, and k all deal with food and drugs-forms of product have inherent dangers (butter, whiskey, tobacco, drugs); didnt want to apply SL to these types of inherently dangerous products; cmt was written before durable products were covered by RS; what else can be done with these types of products other than give warning; no other way to make them safe; cant design defect out; inherent dangers, dangers that cannot be removed 2nd Rest. Cautioned not that products whose inherent characteristics made them dangerous were not to be considered unreasonably dangerous. -RS 3d: cmts. d and e: design defects; rejects product category liability and the idea that entire categories of products can be inherently defective in design; cant use macro-balance in finding design defect in inherently dangerous products; have to use defect tests in 2 which requires RAD in virtually every case; Misuse to establish the manufacturers liability it was sufficient that plaintiff proved that he was injured while using the shopsmith in a way it was intended to be used as a result of the defect in design and manufacturer of which plaintiff was not aware that made the shopsmith unsafe for its intended use. -if misuse is foreseeable then a question of RAD -for misuse to be a defense, it must be an unforeseeable misuse -foreseeable misuse is defense in that it negates element of Ps prima facie case Venezia -throwing beer bottle against telephone pole; -Ct holds implied warranty doesnt extend to intentional destruction Misuse is not those that are reasonably foreseeable, but those foreseeable misuses incident to or arising out of the products intended use. Ellsworth -ct finds that wearing nightgown inside out was foreseeable misuse that manufacturer should have planned for -there was a RAD; make fabric inflammable


Moran -teens trying to make scented candle; maybe events that led to fire were unforeseeable but ignition was foreseeable; ct found failure to warn -general risk of harm was foreseeable -then risk-utility test applies; adding warning would not have cost much *s must foresee the type of hazard for children, is it foreseeable kids might attempt to use product? *s cannot defend on the basis of the unforeseeability of the 1) extent of harm or 2) the manner of harm *Most states require to prove theres no misuses. Is it an affirmative defense? Some courts say yes, others say that foreseeability of a products use is just an element of the plaintiffs case. Note 14 P 423- reform stats make misuse a defense for s



Limiting Defectiveness: Passage of Time -wearing out, after being thrown away, and state of art defense -limiting manufacturers liability due to a passage of time Deterioration -There is no duty upon a manufacturer to furnish a machine that will not wear out -issue: was the product unsafe to begin with or was the product safe at time of purchase and only became dangerous due to the ravages of time Savage -nonskid paint had worn away -ct held that there was no defect; purchaser knew that paint would eventually wear away and would have to recoat; need for recoating had actually been pointed out to owner -RADs: steel grating with treads-C:B analysis: collect build up that would be even more dangerous -consumer expectations test: consumer would expect the paint to wear out; obviousness of danger; choice aspect to facts-owner/user chose not to recoat -note 3: Mickle case: impaled by gearshift (SC case); D knew that knob would deteriorate more quickly than other designs; defect was in the product at the time of manufacturing-D used material that would deteriorate more quickly and insidiously. *manufacturer has duty to make products that last a reasonably long time Ds have duty to give warning if deterioration is likely to cause a product eventually to fail dangerously w/o warning. NOTE: Rather than questions of duty, the life expectancy of products is often a factual question for the jury of CiF/PC. Disposal and Destruction -over time products wear out and then products are thrown away which sometimes requires dismantling (or other destruction) High -PCBs in transformers; P transported the dismantled transformers and was injured by presence of PCBs; -ct found that SL claim couldnt be sustained b/c the transformers were (1)used for intended purpose; (2)alteration of product changed the circumstances; foreseeable users are not people who would be dismantling the transformers under 402A-although foreseeable misuse has now become the test, cts have been reluctant to view destruction of these types of products in this light (in disposal cases) -but ct did allow negligent theory (failure to warn in timely manner) to go forward; did manufacturer fulfill its duty to warn in timely manner; manufacturer had duty to timely warn consumer (intended user) of danger so that consumer could timely warn disposer


State of the Art Today, no matter how dangerous a product may be, it is not defective in all but a few states if the manufacturer cannot reasonably foresee or avoid the risk when the product is sold. A products design or warning need only be as safe as reasonably possible under the prevailing state of the art. In recent years, the state of the art problem is characterized by the manufacturers lack of knowledge of risks of toxic substances, such as asbestos, drugs, and other chemicals. Part A of state of the art - Durable Products -can a plaintiff prove that a safer alternative design was feasible at the time of manufacture of whether, alternatively, the defendant may defend by showing that the plaintiffs proffered alt. design was not feasible at the time of man. Pontifex -ct found that there was no defect; mower was old and later development of safer rope should not make manufacturer liable; not even under negligence -ct allowing industry custom as defense; allow industry to decide how quickly standards should advance; state of art defense based on industry standard that was discounted by Hand quoting Holmes Bruce -after 402A, airplane seats that broke free during crash that trapped passenger in fire -football team crash -safer seats had been developed after plane had been built; newer seats did not exist at time plane was manufactured -ct answers that consumer expectations test requires an inquiry into state of art at time of manufacturing -similar to industry standard defense used in Pontifex; b/c under BPxL might be able to find negligence; but custom is assigned more importance *No ordinary consumer would expect a 1950s plane to have safety features of a 1970s plane Boatland -boater was thrown from boat at which point boat turned around and ran over boat; P argued that there should be Kill Switch -kill switches were used in race boats at the time of manufacturing but only by race boats -ct reinstated trial ct jury rule; feasibility of alternative design; most cts require feasible alternative design -patent issue: when was the RAD patented; idea had shelved -ct ultimately decided that parties were free to present evidence of feasibility of alternative design and jury could reasonably decide that design was not feasible Toxic Substances Beshada (NJ S Ct case) -cts application of Wade-Keeton test: assume D knew of products dangerous condition *S Ct: manufacturer has duty to manufacture safe products and if cant make safe product then must pay-policy reasons to support; unanimous decision 28



Causation Cause in Fact -tests of CIF: (1) but for and (2) substantial factor tests -usually not much argument about injury being caused by the product; except in toxic substances cases, CIF becomes a huge issue -substantial factor: umbrella term from RS that was not adopted by most cts; cts usually limit the test to toxic torts; whether exposure to toxic substance was substantial factor in injury Drayton Proof case, which is where CiF usually pops up -problem of having sufficient proof to show P was injured by product but that the product was manufactured by D -P sued liquid plumr but D argued the drain cleaner could not have been liquid plumr. D presented evidence (circumstantial) that it must have been Mr. Plumber: Ps father used towel to cut down on odor (liquid plumr-had no odor and instructions did not call for towel), burn acted very quickly, dabbed at daughters face instead of flushed -ct found that P had presented enough evidence to prove by preponderance of evidence -arguing to jury: show that liquid plumr was more prominent product in market place *s wouldve had to prove all 3 witness testimony incredible -note 8: product identification: products that are destroyed or lost by plaintiff's attorney. Case will be dismissed and lawyer liable for malpractice. -note 9 C: concurrent causes: joint and several liability - Plaintiff only has to establish that the D's actions were A substantial factor, not the subs. factor. -note 10:multiple Ds with a single cause: 50/50 chance that particular lighter caused burning; had two lighters and couldnt show by preponderance of evidence which one it was; case dismissed; fencing accident when saber was placed back with other sabers that were from 2 different companies and bought in equal amounts; 50/50 situation except jx had Summers precedent-burden of proof to Ds to disprove that it was not its saber; but still didnt work b/c P couldnt prove that both Ds had produced defective products; Summers Ds were both wrongdoers who acted tortiously Sutowski -P argued for market share liability- every manufacturer who participated in market at time of injury should share liability; shift burden to enjoined manufacturers who now had burden to prove pills were not theirs; Sindell case which extended Summers precedent to multiple, multiple Ds - must id a (1) fungible good [each unit is identical to every other unit, such as in the case of grain, oil, or flour.]& (2) join a substantial share of the manufs -ct didnt adopt market share liability approach; too complicated for tort system -some jxs have adopted approach but restricted to DES cases -sufficiency of evidence: whether Ps experts have done enough to establish scientifically the 30

connection b/w the product and the injury, especially when the product has been damaged -if product is completely destroyed, may encounter difficulty finding a D Establishing Cause/ Sufficiency of Evidence Henderson v Sunbeam Electric blanket catches fire -s think it was blanket - says case should be thrown out b/c s experts dont agree what caused fire *Ct held this decision is left to jury to determine who to believe Bitler v A.O. Smith Corp. -water heater-gas explosion -s expert used differential diagnosis to determine cause -ruling out other causes -he ruled out other leaks *Ct held this theory fits and could be sent to a jury *must prove defect was in product when it was sold* Special Problem of Warnings and Reliance (would warning have prevented injury) * must show warning wouldve made a difference in the outcome this is, they would have followed it. Greiner -but for issue in warning context w/ VW beetle; driver had to swerve and car overturned -P brought a warning claim; ct held that presence of warning would not have prevented accident; warning about propensity to overturn would not have dissuaded P to purchase car; and warning would not have prevented P quick turning when about to run into wall -ordinary but for test and failure there of * a few cts recognize the wouldnt buy with warning argument, but not many* Nissen Trampoline -if Ds get heeding presumption (cmt. j of RS 2d 402A) (presumed that warnings are read and followed, or intentionally not followed), then it is fair to presume that if there is no warning then it is fair to presume that had there been a warning the consumer would have followed; empirical evidence shows that people do not heed warnings; presumption is illogical -rebuttable presumption: D can show that P is normally a reckless person, etc. *Ct allows presumption that it wouldve been read & heeded and allowed to rebut Show evidence of not heeding other warnings


CHAPTER 13 Proximate Cause 2 well-known tests was the accident the natural and probably consequence of defendants act and were the results of defendants conduct reasonably foreseeable -questions of fairness; foreseeable consequences -superseding factor: intervening factor that breaks causal chain; but if intervening factor was foreseeable, then proximate cause remains Duty and Foreseeability Limitations on Liability The second restatement if actors conduct is substantial factor in bringing about harm, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner of the harm does not prevent him from being liable. However, actors conduct may not be a legal cause of harm where after the event and looking back from the harm it appears to the court highly extraordinary that it should have brought about the harm. Third restatement an actors liability is limited to those physical harms that result from the risks that made the actors conduct tortuous. The risk standard is little more than a foreseeability standard in risk-standard clothing. Crankshaw -food poisoning caused vomiting and then woman slipped on vomit and injured hip -ct could have argued danger invites rescue; friend saw friend in trouble (caused by shrimp) and went to help her and was injured on the way -ct dismissed b/c lack of proximate cause; would not let reach jury -most cts place foreseeability in duty, breach, and proximate cause *Ct rarely takes prox cause issue away from jury* Note 2 P 584 -car wreck-horse case *Ct held general type of harm was foreseeable Note 3 -husband fell off boat, wife drowned. Ct held foreseeability issue was for jury Winnett -farm machinery for farming not for children; unforeseeable use for children to play with dangerous farm machinery * wins b/c it wasnt objectively reasonable to foresee this accident Richelman *Ct held injury was foreseeable b/c both adults & children couldve been injured -proximate cause is question of fact for the jury; most cts follow this reasoning as opposed to minority jx that view it as part of duty and therefore question of law -primarily a defense although it is doctrinally an element (P bears burden of pleading the proof)


CHAPTER 14 Defenses and Damages (1) Contributory Negligence- Contributory negligence is the failure to observe ordinary care for ones own safety. It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do under the circumstances. McCown court rejected this definition of simple negligence and stated that cmt n. only a defense if P voluntarily encounters known danger. flip side of ordinary negligence (must prove breach, cause in fact (but-for, substantial factor), proximate cause -synonymous with comparative fault w/ different procedural result (simply reduces damages) -but otherwise synonymous with CN (as complete bar) -has SL abolished these doctrines?-CN is basically same as comparative fault; some jxs have not adopted comparative fault (CN is the only doctrine); modified comparative fault (most jxs, Ps fault > Ds fault, no recovery at all, no liability; Ps fault > or = Ds fault-some jxs bar recovery in this situation) Reed -farm equipment case; P, due to his negligence, fell into dangerous farm equipment -P claimed he did not feel any fear; but ct applies objective standard; he should have known about peril; ct finds CN; ordinary person would have recognized danger in activity -test is based on objective, reasonable std -Ps argument that everyone else does it; ct responds with rule from TJ Hooper; customary behavior may be relevant but not conclusive -note 2: cannot have CN if P not aware of risk b/c not warned of risk; but if P should have known from prior behavior than CN may still apply; painter should have already know about risk from other sources; P must foresee particular type of risk, not necessarily the exact manner-painter should have foreseen general hazard; same way it is applied to D -note 5: Mr. Goodbar case: P did not have duty to look at candy bar before eating; no duty to inspect food b4 eating -pay attention to note 6 on p. 582; warranty and CN - UCC 2-314: "Actions by the buyer following an examination of the goods which ought to have indicated the defect complained of can be shown as matter bearing on whether the breach itself was the cause of the injury." 2-316(3)(b): No IW with regards to defects an examination under the circumstances would have revealed to him 2-715(2)(b): cmt. 5: Where the injury involved follows the use of goods without discovery of the defect causing the damage, the question of proximate cause turns on whether it was reasonable for the buyer to use the goods without such inspection as would have revealed the defects. If it was not reasonable for him to do so, or if he did in fact discover the defect prior to his use, the injury would not proximately result from the breach of warranty. McCown -majority rejected CN as a defense grounded in 402A; cmt. n to 402A-CN is only a defense if 33

P voluntarily and unreasonably encounters known danger Cmt n: CN if the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it. -in SC, comparative negligence that has not been applied in SL case; middle behavior should not be a complete bar Madonna v Harley Davidson - argues the P was drunk which is what caused the wreck, not brakes *Ct held could introduce evidence showing s actions were the sole prox. cause (2) Comparative Fault Daly The principles of comparative negligence apply to actions founded on strict products liability. In each instance the defense, if established, will reduce but not bar s recovery. *best argument is based on apportioning responsibility -manufacturers will still be incentivized to produce safe products by their responsibility for the damage caused by the defect -Cali has pure comparative fault GM v. Sanchez argues that the should have stopped and abided by the owners manual; should have used parking brake; Defect was a design that by its nature provided an unreasonable danger The jury says they both screwed up; *Ct held the conduct exceeded failure to discover defect, his conduct was negligent. A consumer's conduct other than failure to discover or guard against a product defect is subject to comparative responsibility. Thus, wins and award is reduced by his 50% fault A nice case to show alternative techniques by the courts Coulter v. American Bakeries was a slob and mean to the jury; very disrespectful; this is why she got such a lopsided ruling; point being: the way your client looks and acts is important to the jury Strict liability applies broadly; Appeal goes to the for full award Courts are split on whether comparative fault applies to warranty actions, but they generally do in cases involving personal injuries. Additionally, some courts refuse to reduce plaintiffs damages for comparative negligence, but the PL restatement takes the opposite view. (3) Assumption of Risk Three factors of Assumption of Risk: (1) Knowledge of risk (2) Appreciation of specific risk (some courts say you must have knowledge of the specific risk, others use the appreciated-risk approach. Regardless, humans have great difficulty 34

assessing true nature and extent of risk) (3) Voluntarily encountered Some courts say two: (1) knowledge and appreciation and (2) free and voluntary Appreciate means having specific knowledge and understanding the nature of the hazard that makes it dangerous to you

Moran v. Raymond sticks arm through cross bar and adjusts lever admits that he recognized the danger and knew that it was risky *Ct holds he assumed the risk *Assumption of Risk is a subjective doctrine- based on actors state of mind* Note 1; pg. 601: read carefully and guard your client from testifying like this; Bowen v. Cochran Gas grill blows up. has enough knowledge to know that the gas is flammable and will blow up if not used properly does not have to know that exact danger and specific risk to Assume the risk; *Evidence showed he knew, appreciated, & voluntarily exposed himself to the risk. - told him he was doing it wrong told him the right way to do it, but did it wrong anyway. Dissent: understood general risk, but not the specific risk Johnson v. Clark a virtual repeat of Moran, which said a clear assumption of risk this case comes out different; this was not a clear assumption of risk the court adds an additional prong to the test, whether the choice was reasonable look at cmt. n, under 402A, the black letter requires that the assumption of risk be unreasonable to preclude recovery; cmt. n refers to an unreasonable assumption of risk, the very worse type of behavior; easier for the to recover because the jurisdiction defines AofR only as an unreasonable one *Ct bheld its not unreasonable to cut corners (unreasonably) under work pressures Notes that many courts have decided that a risk that is concomitant with the job is not a voluntary one, especially when the alternative is to get fired the test for assumption of risk: (1) knowledge of risk (2) appreciation of the risk (3) voluntary (4)** unreasonable? *Some cts have done away w/ AR b/c if comparative fault. Some say they can co-exist (CNdiminishes recovery; AR- bars recovery) (4) Misuse -Some cts distinguish btw. reasonable & unreasonable misuse