at the time when sold or marketed
(
burden on P
)
BLACK LETTER LAW
: Negligence & PL 2 separate COA
BUT
P cannot recover double for same injuries
Historically
:
Winterbottom
: since P&D NO contract, P could not recover
Macpherson
: established general principle –
once P shows product
unreasonably dangerous
IF
defective
may sue for negligence w/o privity
TODAY:
grounded in separate body of law called
strict products liability
*
every state
has accepted
Macpherson
Universal Rule
R2D §395
one who negligently manufactures a product
is liable
for
any personal injuries proximately caused by negligence
Emergence
1963
:
Greenman v. Yuba Power Products Inc.
permitted
man injured while using defective power tool
to
recover
from the manufacturer on a theory of liability that
NOT
relied on
proof of fault nor warranty
NOT
: casual sellers (craigs list);
NOT
: sellers of used goods;
NOT
sellers of services (
generally)
Who can Sue?
Person using product
;
employer
of person using product;
manufacturer
; any
seller
of product;
INDEMNIFICATION
Prima Facie:
AMOL
(1)
P has suffered an
injury
(emotional, economic, property damage)
(2) D
sold
product (
NOT
: services, human body parts, live animals, textual material (except maps/charts),
intangible)
(3)
D is a commercial
seller of such products
(4)
At the time it was sold by D, the product was in a
defective condition; and
(5) The
defect functioned as an actual and proximate cause
of P’s injury
**
Policy
choices come into play with products liability.
Defect
of product not negligence of product.
74
DEFENSES:
Assumption of risk
Contributory:
if act of P combined with product caused harm
Knowingly pursues high-risk
& even in absence of defect injury could have occurs
Ignoring safety precautions
Misuse of product
(unless misuse is
reasonably foreseeable
and could be guarded against)
o
Misuse may be SUPERCEDING case –
preventing defect from being deemed a
proximate cause
BAD DEFENSE
P “negligently” fails to discover risk
o
Response to Defense
: may turn to
TJ Hooper
:
custom is NOT dispositive on the issue of negligence b/c an entire
industry may have lagged in the installation of safety devices.
3 main theories under which seller of chattel liable:
1:
Negligence
– used to make manufacturer liable for failing to use
reasonable care
in designing, manufacturing, or
labeling
o
Privity
: NOT REQUIRED. Negligent manufacturer is liable to “
remote
” purchaser (one who bought from some
intermediary in the distribution channel), or “
user
” or “
bystander
”
P MUST BE FORESEEABLE
2:
Warranty
– 2 main ways liable under warranty (
note: UCC attempts to deal statutorily with warrantie
s)
o
Express Warranties
: If goods turn out not to have these qualities, the purchaser (or affected persons) may sue
for this breach of warranty.
Most commonly
, breached by making a
false claim
about the product’s attributes in
advertising
or on the
label.
