Strict Product Liability

• A manufacturer, seller, or distributor can be held strictly liable for placing a defective product into the stream of commerce that causes injury.
• The injured party does not need to prove that the defendant acted without reasonable care.

Policy Arguments For and Against Strict Liability:

• Deterrence/Risk Reduction: Places liability on the party that can most effectively reduce hazards, usually the manufacturer, since they control product creation. The counter-argument is that it may deter innovation.
• Loss Spreading: Shifts the loss to the party who can best insure and spread the loss among users of the product. The counter-argument is that negligence theory is preferred for small businesses.
• Justice/Fairness (Buyer Expectations): Consumers no longer can investigate a product’s soundness and are confident in manufacturers' abilities to produce safe products. The counter-argument is that strict liability is too harsh and unfair.

Categories of Product Defects

• A product is defective when it contains a manufacturing defect, a design defect, or inadequate instructions/warnings at the time of sale or distribution.

Manufacturing Defects

• Exists when a product departs from its intended design, even with all possible care in preparation and marketing.
• The product must be defective when it leaves the factory.

Consumer Expectations Test

• A product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

Defective Design

• Exists when foreseeable risks of harm could have been reduced or avoided by adopting a reasonable alternative design (RAD), but the omission of the alternative design renders the product not reasonably safe.

• The plaintiff has the burden of proving the product is defective and needs to gather enough evidence to prove the following RAD factors:

• Magnitude and probability of risk

• Instructions and warnings accompanying the product

• Nature and strength of consumer expectations, including expectations based on marketing

• Relative pros and cons of the product and its alternatives, including longevity, maintenance, aesthetics, consumer choice, and cost

Consumer Expectations Test

• (More favorable to the plaintiff): The product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Best for products that are not very complicated and have a very simple design.

Risk Utility Test

• (More favorable to the defendant, with the burden on the defendant to prove): The defendant has the opportunity to show evidence on why they went with that specific design.

Inadequate Instructions or Warnings

• Occurs when foreseeable risks of harm could have been reduced or avoided by providing reasonable instructions or warnings, but the omission of those instructions or warnings renders the product not reasonably safe.
• Elements to see if there is warning/instruction defect:
• Is there a need for a warning? Dangers that an ordinary consumer would not expect to encounter trigger the need for a warning defect. Consider whether the danger is generally known.
• If so, who would the warning address? Users, adults who are supervising children
• Is the warning adequate? Adequate in content and adequately communicated with pictures or big wordings, or that it's "not a toy" or "not meant to be consumed"
• Would the user notice the warning if adequate? Presumption that the user would have noticed the warning if adequate, which the defendant must rebut.

Pittman Elements:

• The warning must adequately indicate the scope of danger.

• The warning must reasonably communicate the extent or seriousness of the harm.

• Physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger.

• A simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it.

• The means to convey the warning must be adequate.

• Must be in different languages, and for children, it should be in a way for them to understand it.

Defenses to Design Defects

Crashworthiness Doctrine

• Applies only to motorized vehicles, not bikes. A manufacturer must take into account the possibility that a product will be involved in an accident or be used in a foreseeable way that might cause an accident and must design the product to withstand these accidents.

• If they take these foreseeable accidents into account, the manufacturer won’t be responsible for all injuries if there is an accident, just the enhanced injuries that are causally related to the design defect car crashes are foreseeable, so manufacturers are required to implement minimum level of safety precautions in cars to protect users from unreasonable risks of harm.

Open and Obvious Dangers

• If a danger is open and obvious, the consumer expectations test cannot be used because the consumer could not expect the product to be safe. (Example: A bulletproof vest obviously only covers certain parts of the body).
• Can lead to assumption of risk and proximate cause defenses.
• Products with known dangers but no reasonable alternative design (RAD), such as knives.

Misuse of the Product

• A consumer uses a hairdryer while taking a bath, despite clear warning labels stating “Do not use near water.” The hairdryer malfunctions and causes injury.

Damages

Compensatory Damages

• Life expectancy, work-life expectancy, inflation, interest rate, discount rate, taxation, lump sum vs. periodic payment, single judgment rule, attorney’s fees.

Economic Damages

• Lost earnings, past and future.
• Medical expenses, past and future.

Non-Economic Damages

• Pain and suffering, past and future.