Strict liability

Winterbottom v Wright Who can sue Whom?

1. 
   Negligence: Driver (P) was a foreseeable victim, D had a duty to safely maintain the coach
   

1. 
   Limits to who can sue. To whom do legal rights extend? Limited by K terms.
   
2. 
   As national markets develop, the user of a product can be far from the manufacturer who will not know the person or the use they made of the product.
   
3. 
   It may be very difficult to get the facts of what really happened, time may pass between the incident and a lawsuit filed.
   

1. 
   Negligence of Manufacturer/vendor which is imminently dangerous to life/health of people, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life is actionable by 3^rd parties.
   
2. 
   One who sells/delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury there from which might have been RA anticipated, whether there were any contractual relations between the parties or not.
   
3. 
   Owner’s negligence causes injury to one invited by him to use his defective appliance on O’s property.
   

p.722 (Best example of an expansion of an exception to a rule for the purpose of destroying a rule.)

P bought a buick from a retail dealer, the car later suddenly collapsed injuring P. A wheel was made of defective wood. P had no privity of K with Buick. Other potential Ds: Wheel manufacturer.

1. 
   Is there a duty of care owed by Buick to MacP? If privity limitation – NO.
   
2. 
   Cardozo: Privity limitation doesn’t apply if the product is of an imminently/inherently dangerous character. If beyond Privity limitation, get to forseeability analysis. A foreseeable person who is hurt, could sue. “if the nature of a thing is such that it is RA certain to place life and limb in peril when negligently made, it is then a thing of danger”
   

The court doesn’t have to decide if the manufacturers of component parts should be held liable.

p.729
McCabe v LK Ligget Drug Co.

p. 735

Breaches of implied warranty of fitness and merchantability. “Merchantable Quality” means that goods are Ra suitable for the ordinary uses for which goods of that description are sold.

3. 
   The Restatement
   
   1. 
      A tale of two texts
      

1) One who sells any product in a defective condition unRably 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

1. 
   the seller is engaged in the business of selling such a product and
   
2. 
   it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold
   

1. 
   the seller has exercised all possible care in the preparation and sale of his product and
   
2. 
   the user or consumer has not bought the product from or entered into any contractual relation with the seller
   

F. Business of Selling. The rule applies to any manufacturer of such a product, to any wholesaler or retail dealer or distributor, and to the operator of a restaurant.

R3d § 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 person or property caused by the 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 b/c of inadequate instructions or warnings. A product:

1. 
   Contains a MANUFACTUING DEFECT when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.
   
2. 
   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 RA alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not RA safe.
   
3. 
   Is defective b/c 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 RA 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 RA safe.
   

2. 
   The Theory of Products Liability: Tort or K?
   

p. 750

Rule: The Economic Loss rule applies to the purchase of houses.

1. 
   Express warranties by the seller are created as follows:
   

1. 
   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.
   
2. 
   Any description of the goods which is made part of the basis of the bargaining creates an express warranty that the goods shall conform to the description.
   

3. 
   Proper Ds under Section 402A
   

p. 760

4. 
   Product Defects
   
   1. 
      Manufacturing Defects
      

p. 769

2. 
   Design Defects
   

p. 774

Maryland won’t apply strict liability to design defect cases.

p.782 Trooper was killed when shot while wearing a bullet proof vest. The vest stopped all bullets in areas where it covered. Trooper died from shots to areas the vest did not cover.

Issue: Was the vest defectively designed and unRa dangerous?

Rule: The vest was designed to prevent the penetration of bullets where there was coverage, and it did so; the amount of coverage was the buyer’s choice.

p.788 P, a substitute driver, was injured while operating a high-lift loader.

Trial court: for D. P appeals the jury instruction “that strict liab for a defect in design of a product is based on a finding that the product was unRA dangerous for its intended use”.

Rule: Reversed. Jury instructions had errors:

1. required P to prove the loader was ultrahazardous or more dangerous than the average consumer contemplated

2. the instruction misinformed the jury that the defectiveness of the product must b e evaluated in light of the products ‘intended use’ rather than its ‘RA foreseeable’ use

Factors to Consider:

1. usefulness and desireability of the product- its utility to the user and to the public

2. safety aspects of the product- likelihood that it will cause injury, and the probable

seriousness of the injury

3. availability of a substitute product which would meet the same need and not be as unsafe

4. manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

5. the user’s ability to avoid danger by the exercise of care in the use of the product.

6. The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions

7. the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

p. 797 P claims defective design b/c they exposed P to excessive vibrations, and D failed to provide adequate warnings regarding the potential danger presented by excessive vibrations.

Majority of JX: do not require Ps to prove a feasible alternative design.

A jury may consider these factors:

1. 
   usefulness of the product
   
2. 
   feasibility of an alternative design
   
3. 
   likelihood and severity of the danger posed by the design
   
4. 
   financial cost of an improved design
   
5. 
   ability to reduce danger w/out impairing its usefulness or making too expensive
   
6. 
   feasibility of spreading the loss by increasing the product’s price
   

3. 
   The Duty to Warn
   

p. 805 P suffered a stroke after taking Ortho-novum. P claims D was negligent in failing to warn adequately of the dangers associated with the pills and that D breached its warranty of merchantability.

Issue: What is the extent of a drug manufacturer’s duty to warn consumers of dangers inherent in the use of oral contraceptives.

CL duty to warn: requires a warning “comprehensible to the average user…conveying a fair indication of the nature and extent of the danger to the mind of a RA prudent person”. A decision for the jury.

Rule: A drug manufacturer owes a direct duty to the consumer to warn her of the inherent dangers of taking their pills.
Vassallo v Baxter Healthcare

p. 822 P claims D were liable for silicone breast implants manufactured by a predecessor company. She claims they were negligently designed, had negligent product warnings, and breached the implied warranty of merchantability. The warnings did not address gel bleed, the possibility of chronic inflammation, or the consequences of gel migration in the body.

Majority View: R2 402A comment j “the seller is required to give warning against a danger if he has knowledge, or by the application of RA, developed human skill and foresight should have knowledge of the danger”

A seller is charged with knowledge of what RA testing would reveal.

Rule: D will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not RA foreseeable at the time of sale or could not have been discovered by way of RA testing prior to marketing the product.

5. Plaintiff’s Conduct

p. 831 Ps car struck a metal divider, the car spun and decedent was thrown from the door. P claims the door locks were defectively designed b/c a push button might have been forced open during the initial crash.