Products Liability - Defects

Question 1

Products Liability - Focus

Answer 1

• concept that products liability is the intersection of two activities: making of the product and use of the product
• for products liability suit, need to focus on DEFECT, since that deals w/ making of the product (manufacturer not responsible for misuse)
• defect is the attribution rule - activity cost goes to manufacturer

Question 2

Kinds of Defects

Answer 2

Two:

• manufacturing defect (particular product messed up)
• design defect (all the product is messed up)

Question 3

Manufacturing Defect

Answer 3

• one product in particular is flawed
• one item deviated from normal output of manufacturing line
• theoretically pretty easy to establish - just need to compare to other units

Question 4

Design Defect

Answer 4

• all products with the particular design are problematic

- generally more difficult to show

Question 5

Tests for Design Defects

Answer 5

Two options:

• expectation test
• balancing test

Question 6

Expectation Test - General Concept

Answer 6

• did risk associated with product design offend expectations of ordinary consumer?
• derived from contract (implied warranty of safety)
• hindsight-oriented
• very strict test b/c deals w/ user expectations (also b/c don’t need to show there was an alternative available)

Question 7

Expectation Test - Cons

Answer 7

• many products for which ordinary consumer doesn’t have sufficient knowledge for safety expectations
• tends to eliminate liabilities for observable (expected defects)
• > perverse effect b/c manufacturer who makes manifestly hazardous product escapes liability

Question 8

Green v. Smith & Nephew - Facts

Answer 8

• 2001
• Green = healthcare technician -> developed latex allergy b/c of using def’s latex gloves from 1978-1989
• pl alleges defective design b/c def made gloves w/ high levels of allergy-causing latex proteins

Question 9

Green v. Smith & Nephew - Holding + Reasoning

Answer 9

• court stresses that def’s lack of knowledge doesn’t take away liability
• def tries to argue pl’s claim of “offended expectations” isn’t applicable w/ such a complex product, but court disagrees - > says not about how the product functions, but overall performance expectation
• fairness rationale which goes towards holding def liable (vs. no risk awareness means no background safety/CCA arg)
• but, also idea that award to pl would incentivize def to do research in the future

Question 10

Green v. Smith & Nephew - Rules

Answer 10

• doesn’t matter whether manufacturer knew about the risk of its design
• consumer expectation doesn’t depend on particular scientific knowledge of the product’s function - it’s an overall performance expectation test

Question 11

Balancing Test

Answer 11

• did risks of design outweigh design’s utility? (is design’s risk justified?)
• oriented towards prudent manufacturing
• doesn’t go beyond negligence, but can be administered by hindsight
• concept is if you’d known then what you know now, would you still have been okay to proceed with the design? (basically hindsight BPL - assuming you’d better understood the risks of loss) - if we know in hindsight you violated the balancing test, then you’re liable

Question 12

Factors for Balancing Test

Answer 12

• availability of substitutes
• likelihood + magnitude of risk
• obviousness + public expectation of danger (consumer assumption of risk)
• ability to avoid danger through warnings
• ability to eliminate danger w/o undue expense

Question 13

Dart v. Wiebe Manufacturing Inc - Expectation Test vs. Balancing Test

Answer 13

• Prof highlighted passage in class that says design defect should be decided on consumer expectation test if possible, + if that test fails to provide a complete answer, should look at whether reasonable manufacturer would continue to market product in the same condition w/ knowledge of the potential dangerous consequences revealed by the suit
• hindsight test necessary to preserve fundamental difference between negligence + strict liability

Question 14

Henderson v. Ford Motor Co.

Answer 14

• 1974
• pl sues over a design defect in her car that made her unable to brake
• both options def had for the design appear to be non-negligent
• majority holds no design defect based on balancing (vs. dissent points out expectations test would have been a clear basis for liability)

Question 15

Tabieros v. Clark

Answer 15

• 1997
• reasonable expectation test low (danger in using this particular product, vehicle used to move shipping containers, obvious -> liability unlikely under consumer expectations test)
• but balancing test would have led to liability

Question 16

Fairness Rationale for Strict Liability

Answer 16

• Prof cited passage from Tabieros v. Clark - “risk of loss associated with the use of defective products should be borne by those who have created the risk and who have reaped the profit by placing a defective product in the stream of commerce”

Question 17

Barker v. Lull Engineering - Burden of Proof

Answer 17

• case says once pl makes prima facie case that injury proximately caused by the product’s design, burden shifts to def to show that the product is not defective

Question 18

Barker v. Lull Engineering - Rule

Answer 18

• 1978

Product’s design can be found defective if either:

• plaintiff establushes that the product failed to perform as safely as an ordinary customer would expect (consumer expectations test) OR
• plaintiff demonstrates that product’s design proximately caused his injury AND the def fails to establish, in light of relevant factors on balance, that the benefits of the challenged design outweigh the risk of danger inherent in such design

Question 19

Shanks v. Upjohn

Answer 19

• 1992
• held that prescription drugs aren’t immune from claims of strict liability for design defect if they do not meet the doctor’s expectation when used correctly by a patient

Question 20

Oberdorf v. Amazon.com Inc- Facts

Answer 20

• 2019
• Oberdorf bought dog leash from seller called The Furry Gang on Amazon -> leash ultimately snapped + caused blindness in one eye
• Oberdorf couldn’t find Furry Gang + sued Amazon
• Amazon requires vendors to indemnify it + provide product warnings, + retains right to reject vendors, + marketplace customers cannot communicate with vendors
• q of whether Amazon qualifies as a seller for purposes of product liability law

Question 21

Oberdorf - Holding + Reasoning

Answer 21

• court says Amazon IS liable as a seller

Factors considered:

• whether buyer can hold anyone else in the marketing chain liable
• whether imposing strict liability will encourage safety
• who stood in better position to prevent sale of defective products
• who can spread defective-product injury costs
• basically, these all weigh in favor of holding Amazon accountable