Torts II - VG - TORTS II Tamanaha Spring 2004 PRODUCTS...

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TORTS II Tamanaha Spring 2004 PRODUCTS LIABILITY STRICT PRODUCTS LIABILITY A. MANUFACTURING DEFECT 1. A seller of (manufacture or sale by defendant in line of distributions – not an employee) 2. A product 3. In a defective condition a. Defect existed when in hands of each defendant – plaintiff did not alter product after purchases b. Show why it’s defective i. Manufacturing Defect: The product departs from its intended design – it is different from the other products in the assembly line and this difference made it a dangerous defect 4. The manufacturing defect is unreasonably dangerous to the user or consumer or to his property a. Argue, given the defect, it is unreasonably dangerous 5. Causation a. The manufacturing defect was a substantial factor in causing plaintiff’s injury 6. Harm B. DESIGN DEFECT 1. A seller of (manufacture or sale by defendant in line of distributions – not an employee) 2. A product 3. In a defective condition a. Defect existed when in hands of each defendant – plaintiff did not alter product after purchases b. Show why it’s defective i. Design Defect: Given the risks we know about this product today, a reasonable manufacturer would not have made the product designed in this way. ii. This product conforms to its intended design , but it could have been built another way to reduce or avoid the risks of harm. 4. The defective design is unreasonably dangerous to the user or consumer or to his property a. Given the defect, it is unreasonably dangerous because the utility of the product did not outweigh the risk in making a product designed this way i. Risk/Utility Factors 1) Likelihood of injury 2) Gravity of injury 3) The availability of a safer design 4) The degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff i. Obviousness of danger ii. Common knowledge and normal public expectation of the danger 5) The ability of the plaintiff to have avoided injury by careful use of the product (including the effect of possible instructions or warnings) 6) The potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced 7) The manufacturer’s ability to spread any cost related to improving the safety of the design 1
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8) Utility (usefulness and desirability) of the product to the public as a whole and to the individual user of the product i. Unavoidably Unsafe Product? 1. A product will not give rise to strict liability if it unavoidably unsafe and its benefits outweigh its dangers ii. Plaintiff Argument : the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner iii. Defendant Argument : the product is safe, one whose utility outweighs its risks when the product has been designed so that the risks are reduced to the greatest extent possible while retaining the products inherent usefulness at an acceptable cost. 5.
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Torts II - VG - TORTS II Tamanaha Spring 2004 PRODUCTS...

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