Restatement (Third) of Products Liability (1999) § 1. Liability of Commercial Seller or 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.
Defects (§ 2)
Manufacturing defects (§ 2(a))
Strict liability.
Design defects (§ 2(b))
Negligence
BPL, including factor of foreseeable misuse.
Most jurisdictions are in accord with § 2(b).
Duty to warn and instructions for safe use (§ 2(c))
Negligence
Benefits of information weighed against such excess warning that people either don’t read or don’t use the product at all.
Circumstantial evidence (§ 3)
If harm is of a sort ordinarily caused by a product defect and was not the result solely of other causes, the effect is evidence of the cause.
Apportionment (§ 17)
If plaintiff’s conduct was inappropriate and contributed to the harm, recovery may be reduced.
Contractual defenses (§ 18)
Contractual limitations, waivers, etc., do not affect ability to recover.
Comment a
“It is presumed that the ordinary product user or consumer lacks sufficient information and bargaining power to execute a fair contractual limitation of rights to recover.”
Products (§ 19)
Tangible personalty distributed commercially for use or consumption.
Things like realty and electricity to the extent the context makes them analogous to personalty.
Plaintiff must prove that product was in unreasonably dangerous condition at the time it left manufacturer’s control and that the injury was caused by that condition.
Defect need not be patent.
Dunham v. Vaughn & Bushnell Mfg. Co. (IL 1969)
Recovery even though plaintiff used hammer for 11 months before defect became manifest.
Welge v. Planters Lifesavers (7th Cir. 1994) Posner, J.