Winterbottom v.

Wright - 1940s Eng case

 One of the earliest cases treated as product - Winterbottom v. Wright - 1940s Eng case
 Entered into contract w British Post Office to provide stage coaches
 PO then contracts w someone else to provide horses & people to deliver mail
 This third party hires Winterbottom to ride horse
 Coach collapses, Winterbottom thrown from coach and disabled for life
 Winterbottom sues guy who made coach - Wright
 British court adamant he can't have cause of action
 Idea this is all about contract
 He wasn't a party to the contract involving the sale of the coach
 Therefore can't sue
Next 70 years - steady erosion of Winterbottom v Wright, culminating in MacPherson
 
 
 MacPherson v. Buick - COA NY 1916 (p5)
 Facts
 MacPherson drove, wheel splintered, car collapsed, he was thrown & injured
 Wheelmaker - Imperial sells wheel to Buick, who puts it on car and sells car to Retail car deal who sells car to
MacPherson
 According to Winterbottom - can't sue unles sin privity w person suing
 M is not in privisty
 PH
 Brings claim against Buick: Negligence - manuf failed to check wheel when purchased from other manuf
 Theory: failure to inspect
 Arg: reasonably prudent co would have inspected the wheels
 Not done in this case; had it been done, would have discovered defect
 Wins below
 Manuf appeals to COA
 COA affirms
 Holding
 Rationale
 Cardozo evades force of Winterbottom
 Acts like he's following what the law is
 Points to all the other exceptions about inherently dangerous products - poison, coffee urn
 Then makes an argumentative move:
 Any defective product is inherently dangerous
 ^now what was an exception to the general rule swallowed the rule, but he made it very modest**
 Doesn't say it's huge; does it incrementally
 Cardozo - Palsgraf
 Negligence - train, bump on platform, package, explosion
 She lost
 Modern interpretation of case - matter of proximate cause
 But Cardozo cast it as a matter of duty
 Said no duty to her
 Bc she was not in the zone of danger
 But who is in the zone of danger?
 Cardozo says foreseeable victims
 What Cardozo is saying in MacPherson is the other side
Who is the ultimate victim, the passenger of the case = in the zone of danger
 
 
 Hauter v. Zogarts - Supr Ct of Calif 1976 (p13)
 *Innocent Misrepresentation
 Facts
 Gizmo = Golf product - take swing and golf comes back to you
 When Ptf Fred took swing, rubber band snapped and ball hit him
 Suffered brain damage & currently epileptic
 PG
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  Bring lawsuit - misrepresentation claim
 Representation: box said: "completely safe ball will not hit player"
 
 Lane v. Swanson - Calif COA 1955 - (p25)
 Express Warranty: Interpretative Problem
 Facts
 Ptf purchased can of chicken - can said "boned," advertised as boneless - "no bones"
 Ate chicken - bone lodged in throat - severe personal injuries
 Theory: Breach of warranty - express warranty claim
 Lane argues these representations were not true
 Defs: packager & seller
 Argue: no one believes advertising;
 Label: Boned chicken - can't say has no bones
 Boned chicken should be read as chicken from which major bones have been removed
 Textual arg ^ - never made promise that you claim that we made
 
 Dewitt v. Eveready (p32)
 Implied Warranty of Merchantability
 Facts
 Ptf bought batters to put in lantern.
 Batteries manuf by Eveready
 Decided to return lantern; placed in btw ankles to remove batteries
 Notice fluid on some batteries
 Returned lantern
 Noticed sock wet, thought bitten by insect
 Later back of foot black - thought flesh eating virus
 Burned by battery acid
 Asserts claim: the batteries breach an IWM
 This is about a defective that makes product affirmatively dangerous
 Batteries shouldn't leak
 Won't operate lantern
 Also filled with alkaline which will harm you
 Ptf's problem is that lacking conclusive proof that battery is defective
 Isn't the defect inferable from leak?
 Def's expert proposed diff theories as to why battery leaked
 One including ptf installed batteries in wrong direction
 Issue of timing
 In order to hold manuf liable for violation of IWM must demonstrate product was not merchantable AT TIME
OF SALE, when left merchant's control
 If not merchantable later, not on manuf
 Ptf could testify he didn't put batteries in backwards
 Experienced battery user due to occupation
 What else can Ptf do? How can he prove they were defective at the time of sale?
 Similar to Res ipsa loquitor
 Something bad happens; trying to blame party
 Court infers the goods didn't comply with the warranty
 Batteries put to ordinary use
 Can infer at time purchased, defective
 Allows ptf to reason backwards from existence of problem to non-merchantability at the time of sale
 We don't know why batteries leaked, but don't have to prove why
 Compex v. Taylor (p44)
 Implied Warranty of Merchantability: Privity
 Facts
 Stephen Taylor visiting parents. Sat on chair in their home. It collapsed, injuring him.
 Chair sold by K-Mart, manufactured by Compex
 Chain of distribution:
 Compex V

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  K-Mart V
 Taylor parents --> Stephen Taylor
 Why not get compensation from Kmart? They sold chair directly
 K-Mart went bankrupt
 So sue Compex
 Compex claims IWM claim does not work bc no privity of contract between them and Stephen Taylor
 Why not sue them in tort? Strict liability in tort?
 Statute of Limitations**
 So bring IWM claim
 Question on privity
 Court: KY still requires privity for IW
 No privity between Compex & Stephen's parents
 Lower court held KY's version of UCC provision allowed IWM
 KY Supr Ct: although UCC has provision that effectively does not make horizontal privity an issue, allows household
membrs recovery, that doesn't provide any relief unless in vertical privity w def being sued
 Stephen taylor gets to stand in parents' shoes - but only gets you claim against K-Mart, not Compex
 Court in KY articulates attitude toward case
 What's the court's main logic
 They’re not judicial activitist
 This is an issue for the legislature - for the legislature to decide public policy
 Institutional competency argument ^
 Proper institution to do this is the legislature
 KY statute adopts UCC. UCC commentary says
 Express no opinion on question of vertical privity
 UCC section says if you buy it and you're injured, your husband, kids, roommate have claim; but punt as to q as to
whether vertical privity required
 Is Compex the majorty opinion?
 States are pretty evenly divided
 Prof says hunch thi sis minoroity; most states have abolished priv requirement
 
 Henningsen v. Bloomfield Motors (p.48)
 Implied Warranty of Merchantability: Privity
 Facts
 Car virtually brand new
 She drives car, something goes wrong with steering, she's injured
 She claimed breach IWM
 Obvious she lacks both horiz & vert privity
 Husband purchased it
 Key Issue:
 not the privity issue (although more famous aspect of case)
 Court says will extend liability although no privity (this is in opp to Compex)
 Key issue is disclaimers put in place - signif disclaimers here
 Automobile gave you diff warranty and said that's the only warranty they're making
 Court says
 "The terms of the [express] warrant are a sad commentary upon the automobile manufs' marketing practices…
An instinctively felt sense of justice cries out against such a sharp bargain"
 Landmark decision in the widening of manufs' liability
 Methodology used to attack the limitation of warranty:
 Court itemized the various reasons why that disclaimer/limitation of warranty was not effective
 Unequal bargaining power
 The ultimate take it or leave it
 The trade association for the automotive industry had adopted this language - universal provision
 Fine print - disclaimer is not sufficiently conspicuous
 Buyer is likely to be surprised by the nature & scope of the disclaimer
 Harshness of the terms
 Lack of alternative products with diff warranties
 Lack of alternative (extended) warranties

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  Unconscionability*
Henningsen imp bc says some limitations may be unconscionable**
 
 
 Potomac Plaza (p56)
 Disclaimer & IWM
 No physical injury; just leaky roof
 Talks about various ways ptf can fight back against disclaimer
 Technical
 UCC
 Some aspects specific to DC
 Roofing case
 Facts:
 Layered: roof deck/existing deck, spray p. foam, UV protective coating
 Roof isn't water proof so middle layer added
 Foam made by IPI
 Protective coating made by QSC - ultimate def here
 All installed by Ron-Ike Foam Insulators
 Didn't work well = apartment building has defective roof
 Water leaking; defective damage to building
 Question: what remedy can they have?
 QSC disclaimed the general IWM and substituted a more limited 10 year warranty, with limited remedies
for breach
 UCC Requirement for Valid Disclaimer of IWM (2-316)
 [set out in Potomac Plaza]
 Language of a disclaimer usually should mention merchantability specifically
 However can use AS IS or WITH ALL FAULTS to disclaim all warranties
 Can be oral but if writing must be CONSPICUOUS
 In some states, NO disclaimer allowed for sales of "consumer goods" (by virtue of special legislation)
 PP - apt building argued this was the sale of a consumer good - role the dice arg; not a consumer good,
roofing material
 In the Potomac Plaza case (roofing case) ptf alleged
 QSC did not conduct (Adequate) weather and durability tests of its sealant
 Prof not sure; seems good faith reason to disclaim warranty
 Not making representation it works; disclaim warranty
 QSC did not (properly) train and instruct the employee who issued the warranty
 QSC did not (sufficiently) investigate Ron-Ikes qualifications to install
 Court finds these create a GIMF as to whether the disclaimer of the IWM was made in bad faith. DO THEY?
 Gives you template to use on behalf of a client
 
 Escola v. Coca Cola - Supr Ct of Calif 1944 (p69) - emergence of strict liability
 Judge Traynor concurrence
 Facts
 Ptf waitress picked up a coke bottle while loading delivery into refrigerator
 Picked up glass bottle, exploded in her hand, 5-inch cut in hand
 Escola brings a negligence claim
 But no direct proof of negligence
 So rely on res ipsa loquitor theory
 "The thing speaks for itself"
 Applies when an accident that wouldn't normally occur w/o negligence comes to pass, we lack info, &
def had exclusive control of the thing causing the injury
 Don't need the doctrine if have info of misconduct; use when in state of misconduct
 If your theory is that someone did something wrong with a product, good chance you lack info
 I can't narrow your fault of behavior down to X; all I can say is you may have done A, B, or C, but ABC
all represent negligence
 *Substitutes for direct proof of breach
 *Elements
 Accident would not normally occur w/o negligence
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  i.e., accident of a type that occurs with negligence
 Any negligence was likely attributable to def
 Often showed by proof that D was in control of the object
 Application in Escola
 Court found whatever caused bottle to explode (either defective bottle not caught by facility or
over-carbonated bottle) = result of negligence
 Possible negligence:
 Overcarbonation - a reasonably prudent bottler doesn't put more gas in beverage bottle than bottle can stand
 **Failure to reasonably inspect bottles
 Manufacturing bottles "carelessly"
 Need to define carelessly
 Also Coca Cola probably doesn't manufacture bottles
 Def here - CC of Fresno; stand alone co
 Buying bottles from unreputable seller
 Careless handling
 By def
 By ptf
 By third party
 Other possible cause of explosion - between bottling & Escola picking it up = delivery
 We don't know; know way to figure out how carbonated - bottle gone
 Screwed up on just one bottle
 u?
 Court says yes
 Coke will argue - test and reasonably inspect bottles
 Exercising ordinary care - still wouldn't have found defect
 **Just bc defect in bottle, doesn't mean reasonable prudence would uncover defect
 We would need to know - how often are bottles subject to problems that interfere with their structural integrity where those
bottes are not …
 If they're subject to impermissible defect
 If modern technology has no way to reveal that fact - hard to say cause here is due to negligence
 This is why Traynor concurrence is big deal
 Says may legit res ipsa case
 Maybe can apply res ipsa bc elements satisfied
 But we should cut the bs - fess up to fact that what we really need to do is hold manufacturer strictly liable
 Traynor's Arguments
 Manufs can insure, and spread costs of injuries (among all their other customers)
 Consumers can't inspect - they're helpless in a mass market
 Warranty that runs only to retail dealer is stupid - they don't use item
 Cant rely on law of warranty
 Retailer is liable to consumer under warranty and can then get indemnity from manuf so might as well make manuf directly
liable
 
 
 Greenman v. Yuba - Supr Ct Calif 1963 (p74)
 Facts
 Ptf buys power tool - Shopsmith - complete power workshop
 He'd studied the manuf's brochure
 "rugged construction from end to end" = arguably making EW
 Greenman was using the device as a lathe when he was injured
 Significance of this case: Traynor uses it to do what he wanted to do with escola
 We can discuss whether there's an inference of negligence, whether the warranties in the booklet constituted
kind of warranties legally enforceable (issue as to whether Ptf gave reasonable notice) --- forget it ---- when
manuf puts product on the market, he should be strictly liable
 This comes out when Rest. 2d in process of being completed
 Traynor involved in this
 Rest enshrines idea of strict liability for defective products by adding new section
 Number 402a - indicates added late - inserted in btw 2 sections that had already been approved
Section becomes big deal
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 Hunt v. Ferguson Supr Ct Oregon 1966 (p113) - Manuf def
 Facts
 Ptf bought cherry pie from vending machine. Bit into it, broke his tooth on cherry pit
 Def owned and maintained vending machine
 Does this fail consumer expectation test? / Rest 2d
 Yes
 It is defective condition - consumer wouldn't expect cherry pit in the pie
 It is unreasonably dangerous - consumer wouldn't expect to chip tooth eating pie
 Rest 3d test?
 Fail to conform to its intended design?
 Def would argue the cherry pit is a natural part of the food
 If def will be unsuccessful under a test, fight the test
 Try to overthrow it entirely - abandon, need new rule
 Or try to do a carve out - this case falls into a factual subcategory as to which there should be a different
rule
 Here: special subcategory of cases: food cases - use foreign-natural test
 "Foreign-Natural " Test (p114)
 Applies in food cases - special subcategory
 Food not found reasonably fit for consumption due to presence of a foreign substance, or an impure and
noxious condition of the food itself
 E.g., glass, stone, quarter, razor blade
 ^any of these things foreign and def concedes would be defective
 Whereas def argues if natural to food, not defective
 This test was accepted by many courts but no longer in majority rule
 Critique of Test: Mexicali Rose Dissent
 Chicken enchilada with bone at restaurant
 Cow eye example
 So at odds w fundamental fairness, public policy, and common sense can't withstand informed
scrutiny
 Carries day
 Rest 3d of PL S7 adopts approach for food products - carve out for foods, adopting Rest 2
 One engaged in the business of selling or otherwise distributing food products who sells or
distributes a food product that is defective…is subject to liability for harm to persons or property
caused by the defect. Under 2(a) a harm-causing ingredient of the food product constitutes a defect
if a reasonable consumer would not expect the food product to contain that ingredient
 Welge v Planters Lifesavers - 6th Cir 1994 (p106) - manuf defect
 Facts
 Roommate buys glass jar of peanuts
 Snapping lid back on jar, jar shatters
 Problem w establishing defect in Welge: plaintiff's roommate cut label off with knife for promotion at K-Mart
 Defs lawyers seize on this - took razor to product, impacting structural integrity
 Posner: ptf doesn't have to rule out every possible explanation
 Problem is establishing defective when def relinquished control over jar
 Maybe yes or maybe no
 Maybe razoring of label caused problem
 Posner: can’t rule out every possibility - snide elves remark
 *Take away: Ptf does not have to establish to a 100% degree of certainty - dealing with inference, with probabilities
 Here court's conclusion is that the probabilities still are fairly strong in favor of ptf/likelihood that product was
defective
 Jar has moved through at least 3 corporate hand
 Jar manuf
 Fills jar with peanuts - selling to retailer
 Retailer selling to consumer
 ^does this make it easier or harder?
 Welge /Planters case - when, where, who caused defect arose
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  Existence of defect conceded - bad bottle; know more dangerous than consumers would expect
 Each def is arguing other def responsible; blame each other
 / who's responsible for the defect
 If you have multiple defs, have to show defect existed at time product left def's hands
 Here:
 Brockway: created jar
 Planters: filled with peanuts
K-Mart Retailer: sold
 
 Smoot (p118) - Mazda case - was there a manuf defect at all
 Facts
 Recall on airbag of Mazda: oversensitive airbag - more likely to deploy in low speed crash/minor impact
 Ptf driving 1 year old car 35-40 mph
 Dispute as to whether hit chunk or asphalt or pothole (over something raised or into indentation)
 By time brought suit, had repaired and sold car
 Pictures taken, but not of airbag mechanism
 Gray v. Manitowoc - 5th Cir 1985 (p126) - design defect
 Facts
 Crane case
 Ptf working for construction co
 Crane in boom down position - parallel to ground
 Changing sections of the boom
 Ptf standing on left side of boom
 Boom came around and hit him
 Happened twice
 Ptf alleged crane defectively designed
 Absence of safety mechanism: should have had device to
 Court applies the consumer expectations test
 Rest 2d of torts section 402A
 Rest 2d never distinguishes btw different kinds of defects
 Some mention in commentary, but not isolated
 So single unitary design
 Rest 3d PL does
 This test is arguably pro-plaintiff in manufacturing defect case
 But here applying in design defect case
 Court: not latent (hidden), it was patent (obvious)
Patent = consumer expects it, def has not liability, ptf has no claim
 
 Keller v. Welles Department Store (132) - design defect
 Facts
 Keller fam purchased gas cans from Welles dept store
 2.5yro child playing in basement of home with 2 yr old
 No adult supervision
 Playing with gas can
 Spill gas
 Water heater down there = explosion = child badly burned
 Arg: gas can defectively designed
 Should have had child proof lid
 Court applies consumer expectations test
 But comes out differently
 
 Bourne v. Gilman - 7th Cir 2006 (p.135) - design defect
 Fact
 Bourne rushed university football field. Goal post fell on struck him in the back and is now paraplegic
 School encouraged people to tear down goal post - sign: The goalpost looks lonely
 Why is this in the case book
 Gray - obvious danger

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  Keller - have to characterize danger before talking about it being obvious
 Here - whether there is a risk in general, whether ptf aware
 *court moves away from patent danger rule [see * below]
 Indiana law: if they had found this was an obvious danger
 Defective design claim
 Instead of gradually falling, giving people opportunity to run away, snapped and fell quickly
 Arg: could have created post out of material that was more ductile - bend/gradually fall instead of snap
 Bourne argues not obvious to average football fan that goal posts are incredibly heavy or that they naturally snap
 Court: it's obvious enough
 What's the consequence of a finding of obvious in this case?
 Doesn't bar recovery***
 Court moves away from obvious danger rule
 *not all open and obvious dangers will defeat a design defect claim. Product can still be defective if
 Danger is "easily foreseeable"
 Danger Is "cheaply preventable:
 *However obviousness of danger remains relevant
 *And the mere existence of a safer product is not enough to establish liability (CB 141) ("Otherwise, the
bare fact of a Volvo would render every KIA defective.").
 Could imagine range of designs with safety scores
 There's a point in continuum where think defective
 Above point - not defective
 Part of way ptf tried to make point was with expert
 Expert here not persuasive/helpful
 What was wrong with the expert testimony?**
 No basis for his claims about what consumer's expect
 No comparison of safety of aluminum v steel
 No tests of safety of competitor's alternative design
 Should have been able to say every other design is every other design out there is safer
 Toppling goal posts = systemic problem
 
 
 Phillios v. Kimwood Machine Co - (p147) – Design Defect: Risk Utility
 Six head sanding machine
 Machine regurgitated board and injured ptf
 If you put metal teeth - prevents this regurgitation from hitting worker
 Phillips v. Kimwood - Supr Ct Oregon 1974 (p147) - Design Defect: Risk Utility
 Facts
 Kimwood Six Head Sanding Machine
 Insufficient tension to hold thin sheet in place - can regurgitate
 Ptf injured by this ^
 Adopts risk-utility approach
 Defective products - strict liability
 To what degree is this different than negligence - according to this court?
 SL - focuses on product
 Attributes knowledge to manuf
 Neg - focuses on manuf
 Plus what manuf could foresee
 But objects come to existence based on decisions made
 Hindsight v Foresight
 "A dangerously defective article would be one which a reasonable person would not put into the
stream of commerce if he had knowledge of its harmful character. The test, therefore is whether
the seller would be negligent if he sold the article knowing of the risk involved."
 Fair?
 More liability --> higher cost problems
 If you decide co liable based on unknowable risks - strict
 Effectively - sometimes bad things happen, want you to pay cost, buy insurance,
spread cost

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  What does hindsight encompass?
 Notes raise arg that hindsight discussion here was dicta
 Somewhat redundant
 To avoid problem -
 machine could have teeth to prevent regurgitation
 Knowable technology; not new
 Known thin sheets could regurgitate
 Could make it automated w/o having person standing there
 This machine used significantly in applications where automatically fed - no one could get
bumped in abdomen
 Whether way to mitigate risk downstream - does this affect whether design defective?
 
 
 Fallon v. Clifford - Supr Ct NY 1989 (p158) - Design Defect - Risk Utility Test
 Facts
 Ptf working with Hannay Hose Reel - no guide
 Installed on propane gas delivery truck
 While running with hose, entangled on reel, locked, he fell and got hurt
 Sued manufacture - defective because didn't have guide master
 Just as teeth were known technology in sander and problem of regurgitating board known at time product went
on market in Kimwood, here this was a known problem
 Guides prevent tangling
 Guide definitely would have made this safer
 Would have avoided scenario
 Known technology
 Why selling this product w/o guide nonetheless not subject to liability given posed risk & safer alternative?
 Def arg ptf's employer knew about guide and equipped some trucks with guide and some without
 Should be left to downstream purchaser to decide
 Injury and risk can vary based on conditions of delivery - employer/purchaser in best position to
determine what's needed
 *this case in book bc need to know variables, factors for risk utility balancing
 This design - no reel guide
 How much risk?
 Def: not much risk
 Aware lack of guide - hose tangles - when hose tangles it stops - when it stops, takes
a lot of force to pull - can't be pulled when stopped - aware when continue to run with
fully tangled hose can't move forward and fall
 **if risk obvious to user, then there wasn't much risk
 Argue don't have to design safer product if aware of risk
 Stinnett v. Buchele - negligence case
 Def not negl bc you were an experienced roofer, knew hazards so not on him to provide safety equipment but on you to ask
for them
 Obviousness of risk = consumer expectation test
 Patent danger = no more dangerous than consumers would expect
 Risk utility = patent danger may mean user can protect self therefore product's danger may not be too great
 How much utility?
 Cost of design will be variable
 "it's cheap"
 Demonstrate cost of building: compare cost with guide & cost w/o guide
 Intro own catalogs, person from department testify
 Durability
 Ease of use
 Users testify as to experience of using with guide, or w/o
 *bottom line is that every product can be made safer
 Posner often uses example that cars could be made with armored plate
 Collision - unlikely injured
 Or incapable of not going more than 25mph
 But although much lower risk ^, much lower utility
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  Not enough for ptf to come up and say this design better, less risk design
 Have to show less risky design would have been plausible or feasible
 Learned Hand
 B < PL
 Barker v. Lull Engineering - Supr Ct Cal 1978 (p168) - Design Defects: Combining Consumer Expectations Test
 Facts
 A high-lift loader --variant on fork lift
 Barker using device, it tips over, he's injured
 Claims should have had stabilizer bars, outrigger bars, making it less likely to tip over
 Barker's approach to test of design defect
 Design Defect in California
 An either/or approach
 Rather than picking and choosing between the two tests, gives ptf option to choose
 Pro-ptf outcome
 May have product with patent danger, but if it could be eliminated at very low cost, still defective
if could make safer at low cost
 Ptf can prevail by showing that the given the design, the product failed to perform as safely as an ordinary
consumer would expect
 A product "may be found defect in design, even if it satisfies ordinary consumer expectations, if through
hindsight the jury determines that the product's design embodies 'excessive preventable danger'."
 Follows Phillips v Kimwood hindsight approach
 "Excessive preventable danger"
 Every product can be made safer
 Amount of preventable danger has to be too much, more than legal system willing to
tolerate
 Excessive danger - doesn't make product cheaper, easier to use, more durable, easier to
store/ship/transport - just danger and it's excessive
 
Romito v. Red Plastic Co. Ca. 1995 - Design Defect: Misuse
 Facts
 Decedent was working on the roof of a building and tripped and fell through a skylight
 Skylight was made of plastic
 P argued plastic was defectively designed because it should have been thicker to withstand more weight
 D's argument: basically all arguments = "D's conduct was NOT foreseeable"
 Unforeseeable misuse
 No duty of care owed to D--because unforeseeable
 No breach
 Skylight NOT defective--because used in an unforeseeable way
 No proximate cause--because unforeseeable way
 In negligence claim, court finds that the manufacturer owed NO duty to the decedent
 Court considers the question of whether there's a duty as a question of LAW and one of public policy
 Professor: as a public policy matter, there should be a DUTY in these case (relatively common for roof workers to fall
through skylights)
 
 Boatland of Houston, Inc. v. Bailey - Supr Ct of TX 1980 (p187) - Design Defect: Changes in Technology
 Facts
 Boat hits tree stump, man follows out, boat turns sharply and propellers kill him
 Alleged defect: boat missing kill switch
 Timing in the risk utility context*
 Barker v lull - reference to hindsight
 Q of hindsight here
 Notes (194)
 Editors distinguish between hindsight re risk and hindsight re technology
 If we have a hindsight rule, then we're saying a def can be held liable for a design defect
even if X was unforeseeable
 Risk: talking about product. At time marketed didn't think about risk - so unforeseeable at
that time. If hold liable, saying hindsight - should

10
  E.g., asbestos - reasonably prudent people didn't know asbestos caused various types
of lung disease
 Medicine/pharmaceuticals - drugs with latency of side effect 20 years - didn't come
out in medical trials
 Should merchants be liable for unforeseeable risks?
 Technology: quality of improvement becomes later down road. Should have incorporated.
Arg no one knew about it - well should have - hindsight
 E.g., seatbelt - just waist v across body (3pt)
 Editors suggesting judicial approach to these two types of hindsight is different
 Risk that a reasonable person would not see
 "Hindsight re generic risk"
 A safety technology that a reasonable person would not know about
 Court held def not liable
 Not expected to have 20/20 hindsight with technology developed after time placed on market
 State of art defense:
 Rebuttal to idea that you're obligated to use hindsight
 Rationale: technology ptf suggested would have made boat safer didn't exist
 But Ptf's expert testified this was invented about time this boat was put on market
 Prof thinks def has better of arg - doesn't think unknown technology, were around
 Dissent:
 Disagrees with majority's interpretation of state of the art
 Is state of the art a defense or are we going to impute hindsight to a vendor of products w regard to
technology that comes on after the fact
 Majority: only at time of manuf
 Dissent: should revolve around knowledge of industry instead of practice
 Torts case: The TJ Hooper
 Tugboat tugged barges of coal in heavy storm. When cargo lost, blamed for not having radio. Defense: no one has a radio.
Opinion by Learned Hand - should have had radios -- the entire industry may be at fault; just bc common practice may not
have radios, doesn't mean shouldn't have them
 Here: Dissent saying majority is confusing common practice with available
technology
 Patent doctrine of obviousness: patentability denied if invention obvious
 Recap on case:
 "Whether a product was defectively designed must be judged against the technological context existing at the
time of its manufacture" = state of art
 A design alternative proposed by ptf to prove defect must be feasible
 Feasibility is NOT based on a "hindsight" test
 Manufacturers will not be liable for failure to use technology that didn't exist
 *doesn't apply to unforeseeable risk
 
 Smith v. Louisville Ladder Co - 5th Cir 2001 (p194) - Design Defect: RAD
 Facts
 Man setting up ladder on cable - hooks to put on cable, ladders slides, he falls
 One hook comes loose while ladder sliding - ladder pivots outward, man propelled horizontally and falls
 Recovered 1.5 mill in damages after losing 15% in contributory negligence
 Ptf's expert Dr. Packman quoted a lot in opinion
 Posited alternative design in which
 *In order to prevail in design defect under risk utility test ptf may be obligated to offer evidence of a reasonable
alternative design
 Jurisdictional disagreement as to a reasonable alternative design
 Whether proof of a reasonable alternative design is mandatory
 5th Cir holding here: says yes
 Court says here they proved an alternative design but it wasn't reasonable
 A ptf who claims that a product is defectively designed has the burden of proof of offering a
reasonable alternative design
 So ptf has to hire expert - spend $ up front in hopes of recovery -
 onerous obligation to place on ptfs in design defect cases
 Need to out think def's manufacturing dept
11
  Big difference btw manufacturing defect & design defect
 Manuf = one in a million = exposed to 1 million
 Design = exposed to a million lawsuits
 At beginning of design defect theory = manufs flipping out
 "Reasonable alternative design"
 Risk:
 has to have lower risk than the version marketed (the product that hurt ptf) and would have
prevented this accident
 Second part: But for your failure to adopt RAD I would not be hurt today
 Utility:
 not harder to use; not cumbersome, awkward
 Not terribly more expensive, AND
 Doesn't introduce new problems
 Hypos
 Version marketed gests risk score 30 and utility score 70
 Useful ladder but risky
 RAD: risk 20, utility 70
 Ptf wins as long as difference in risj enough to prevent incident
 RAD risk 20, utility 65
 RAD risk 3, utility 69
 At a point you get some reduction of risk and some reduction of utility
 Would choose 20/65 over 30/7- bc greater in aggregate but assigning numbers is
bs
 This is the approach fo the Rest of PL
 Section 1 = 1 you're liable if sell defective product
 RSPL Section 2 definitions
 2(b) defines design defect (see book): "…or avoided by the adoption of A
REASONABLE ALTERNATIVE DESIGN by the…"
 Mandatory obligation to prove RAD - controversial
 Many states have refused to require this
 RAD
 Must be safer
 Would have prevented accident or signif reduced risk of an accident
 Must Not substantially impair product's utility
 Mus tbe Economically feasible
 Must be Technologically feasible
 Stringer v. NFL - SD OH 2010 (p199) - Design Defect: RAD
 Facts
 Pro football player for Mn Vikings
 Practice camp July - wearing gear - suffers heat exhaustion - hospital 108d - major organ failure - dies
 Fam brings negligence claim against NFL
 Plus design defect claims against makers of should pads
 Ptf's arg - could have ventilated helmet (but might make helmet weaker)
 Evidence on issue of venting helmet - but venting doesn’t make it cooler
 *This court's approach to reasonable alternative design: they say it's not mandatory, it's a factor, don't have to prove it
in every case, btu then say as a practical matter hard for us to believe how you could win w/o proving it
 
 O'Brien v. Muskin Corp. - S Ct NJ 1983 (p208) - Design Defect: No RAD
 Facts
 Ptf dove into above ground swimming pool with a vinyl liner
 Hands hit bottom and hands slit apart, hitting head
 PH
 Alleges design defect bc pool liner slippery
 Trial judge found ptf failed to prove a design defect - didn't let issue go to jury
 Evidence indicated no alternative lining material available for above the ground pools
 Jury found warning inadequate, but ptf more at fault than def (comparative negligence)
 Majority

12
  Said willing to hold manuf liable for product with high risk and no alternative design
 Manuf response?
 Figure out annual profit from selling product
 Rational business maker would stop making that product
 Holding of liability for design defect despite absence of alternative design effectively drives the
product off the market*
 In this category of cases PL law works in effect as judicial declaration from a practical point of
view shouldn't sell product
 *some products may have a high degree of risk and no alternative - risk intrinsic to product
 We can always imagine some alternative but eventually moving from alt design to a diff product entirely - lawn
mower goat joke slide
 In trying to decide whether legally requiring someone to move design have to do a
 Market definition exercise
 How do we decide market definition?
 Look at what alternatives people would switch to
 Willingness to move fro one sub category to another as prices change
 comparing two products = cross-elasticity
 RSPL Section 2 Comment e
 (see book) §
 Main body of section 2 says must be reasonable alternative design - so carving out an exception here
 Reasonable person wouldn't sell this type of product
 Narrow category of cases
 But whenever courts hav tried to go this way, legislative response in opp
 After O'Brien NJ legislative tweak pulling back from doctrine
 RSPL Section 2 Comment e Manifestly Unreasonable Design Illustration 5
 Exploding cigar illustration
 Utility so low, risk of danger so high = should not have been marketed at all
 Note in book re Kelly v RG Industries
 A "Saturday Night Special" Handgun
 Prior to adoption of RSPL , court used this analysis - type of gun with high risk not utility - ought not be
marketed at all
 Problem w guns is that gun is being used by someone - proximate cause issue
 Need to determine whether person is a superseding cause
 Congressional Reaction
 15 USC 7902a: A qualified civil liability action may not be brought in any Fed or State Court
 15 USC 79035A -- defines term "qualified civil liability action"
 Doesn't preclude accidental discharge of weapon
 Are these Products Defective? (p217)
 Tobacco
 Utility: smokers claim pleasurable
 Risks: lung cancer rotten teeth etc
 Risk outweighs utility --- but even with whatever liability, such a long latency btw consumption,
development of symptoms, and bringing of lawsuit -- all users knew risk & continue to buy = $
 This is just a judicial declaration have to pay damages -- but they make a lot of $ here
 Whiskey
 Roller Skates
 Hair Dryers
 *Comment e, O'Brien, categorical this product shouldn't be on market, no alternative & every time use it hurt someone
=== rare category
 
 Mott v. Callahan AMS (p228) - Design Defects: Component Parts
 Facts
 Punch press injured ptf
 Customized set up of 2 pieces of equipment - spool of steel ribbon/coil fed into machine
 Ptf packing products in can - ribbon part of can - likely seal
 No guard or protection
 She enters area with sharp steel ribbon - injured
 2 possible people to accuse (forgetting her contributory negl)
13
  People who made ribbon
 People who put two products together as a final package
 Allocation problem: who has the responsibility?
 User clearly has some to exercise common sense for her own safety
 Dispute is whether item is a "component" of an integrated device, or a stand-alone machine
 Why does that matter?
 If it is a component, the q of design safety might not be "delegated" to the "assembler"
 In other words, the assembler would have responsibility to incorporate cost-justified safety features
 Mott: safety feature would be guard preventing you from walking through two pieces of machinery
 The Verge 3-part test for deciding who is responsible (Mott relies on - p 230)
 Trade custom
 At what stage (component manufacture, or final assembly) is the safety feature normally installed
 Relative Expertise
 Which party has more info and skill re designing for safety
 If always installed same way and component could have safety device - maybe put liability on that party
as well
 Practicality
 At which stage of production is incorporation of the safety feature most feasible
 Further Processing or Substantial Change
 Whether installed or incorporated as is or whether modified downstream
 Assume component is processed or modified by final assembler
 Should that let component manufacture "off the hook"?
 (similar to superseding cause from torts)
 Rest 2d took no position on this issue
 Some courts ask if there has been a "substantial" change
 RSPL Section 5, comment a: "As a general rule, component sellers should not be liable when the component
itself is not defective…"
 TMJ Joint - pivot point of your jaw (Note 9 p 238)
 If unhealthy = pain
 TMJ Implant
 Vitek implants were made from a product called Proplast
 Proplast supposed to have ability to be incorporated into your body - grow together
 But this joint lot of abuse - chew, talk
 One ingredient in Proplast was Teflon, from DuPont
 Teflon ensure smooth movement
 The Vitek implants eventually failed, causing excruciating pain to users
 At time they went to DuPont Dupont said
 This is not a medical device, hasn't been test
 Made them sign disclaimer - they'll have to undertake clinical testing
 They signed the disclosures
 Vitek goes bankrupt, victims try to go after DuPont
 But DuPont is a component manufacturer
 DuPont was for most part exonerated
 Not held liable bc nothing wrong with the teflon; not defective
 Teflon was a bad choice for a TMJ implant
 Final device was clearly defective - its risks so outweighed its utility, it shouldn't have been on market at all
 DuPont's disclaimer was a significant factor in some of the opinions
 [there can be cases where component itself fails]
 Problem is that complicated devices are made by multiple parties, further complicated by jur
 Grundberg v, Upjohn Supr Ct Utah 1991 (240) - Design Defects: Pharmaceuticals & Comment K
 Facts
 Halcion - medication primarily a sleep aid, popular for jet lag
 Dire results
 Somebody on this drug shot and killed her 83 year old mother
 Majority
 2d rest comment k - unavoidably unsafe products
 What does "unavoidably unsafe" mean?

14
  Is a kitchen knife?
 After all, it can't be made after w/o destroying its primary function
 But…
 It's not unsafe WHEN USED PROPERLY, so the danger is AVOIDABLE
 Compare certain medications and vaccines
 They are unsafe….
 If it's "unavoidably unsafe" --> It’s not defective
 But this is a comment - a gloss of section 402a (which defines liability) - definitional FN
 Comment makes it clear that it's principally about pharmaceuticals
 Why did the ALI include comment (k)?
 Aren't beneficial drugs with rare side effects justified under the risk-utility test
 Bc Rest 2d was mostly about the CONSUMER EXPECTATION TEST
 You don't expect a drug to make you blind, cause you to have babies w birth defects etc.
 Under that test user who suffers side effect ---- essentially this would always be met
 Comment k was supposed to be the only place in which risk-utility comes into doctrine
 How are prescription drugs different
 Necessary
 *nature of drugs: don't perform nature of what they're going to perform in a body - reacts differently with
everyone's body
 Risk/utility same for every user of say a bass boat w/o a kill switch
 But here not the same here - hopefully going to get same pleasure/benefit, but risk varies among
users
 Many users will have 0% risk
 Nature of medications: 98% users will have minimal negative consequences, the 2% may be catastrophic
 Risks and benefits not distributed equally - biological differences
 *risks and bens of most products are the same for lal users
 Every motorboat enjoys boat with risk of being mimed by propeller
 Football fan tearing down goalpost
 With drugs, diff sub-groups o fusers experience benefits and suffer harms
 When they work - they're amazing
 Majority: takes a categorical approach to the problem - if you're in a category, the rule follows
 Here - FDA approved drug = unavoidably unsafe = thus can never be found defective (provided properly
defective)
 Opp is a case by case approach, which dissent advocates
 Dissent argues some drugs are used to treat different conditions
 Utility of drugs related to the disease they address, but also their degree of efficacy
 FDA tests against placebo - but placebo effect
 Number needed to treat (NNT)
 Hypo re Julia - have to treat 5 people to cure 1
 If NNT is 70 ,even if drug does something very consequential, may not be useful drug
 Now look to side effects
 In addition - who is the actual "consumer" of Rx?
 The person who takes the drug consumes it, but in many respects it's the prescribing physician - they're
on the front line with the data, makes the decision, particularly if multiple options
 Recap
 Issue is how to read comment k
 Categorical or case by case
 Grundberg is in minority (categorical)
 Majority view is case by case
 
 Hollister v. Dayton Hudson - Information/Warning Defect
 Facts
 2 dept store chains
 DH today is Target
 Ptf bought some rayon shirts
 She burned herself when wearing one - came into contact with burner on stove - shirt went up in flames,
instantly caught on fire

15
  Ptf's claim: unreasonably dangerous, shirt failed to carry warning of flammability
 Is it fair to say a cotton shirt is reasonable alternative design to a rayon shirt?
1. Same product or equivalent to lawn mower & goat?
2. If only AD is cotton - then can't make rayon shirts
 What can you do to make rayon shirt less flammable
1. Use a different thread count
2. Passing reference in the case to - the fabric on this shirt was 1.5 denier = flimsy, essentially made out of tissue
3. If arguing defective design arguing ^^
 Warning Defect:
1. Def reaction to allegation you should have warned me and you didn’t: obvious if you stand near stove that shirt
will ignite (think obviously dangerous = not more dangerous than consumer would expect)
a. Can say if danger is obvious, don't need to warn
b. Warning would be superfluous
2. If you're litigating a warning defect - what is it that you want them to warn me about?
a. Flammable? Superfluous - we know fabrics catch on fire, seen in moves millions times
b. But it's way more flammable than I expected --- not a matter of y/n, but of degree
 Sets out elements under Michigan law
1. Seller had knowledge of the alleged danger (q is as of what point in time & who had burden of proof)
2. Seller had no reason to believe consumers would know of the danger
a. Hence no obligation to warn of "obvious danger"
3. Seller failed to exercise "reasonable care" to inform consumers of the danger
a. Covertly changed to negligence - balancing - here cases more explicit that we're balancing,
reasonableness analysis
 Flammable Fabrics Act
 Consumer Product Safety Commission shared responsibility with the FTC
 General rule: federal testing standards set a floor, but they do not give you immunity
Hollister had argued test product
 
 Rosa v. Taser Int'l - Information/Warning Defect
 Facts
1. Man reportedly creating disturbance set upon by local police
2. Autopsy = may have been high on drugs
3. Acting peculiar violent way = use taser on him
4. Taser shoots darts into you connected with wires = assumed to be nonlethal
5. Tased 18 times = 36 darts = dies
6. Autopsy dies based on him developing condition called asedosis
7. Death after tasing not rare
a. A lot of people tased on drugs; struggling and bang heads; have preexisting medical conditions
b. Correlation, not necessarily causation
c. Establishing tasing caused death not easy
 Claim: taser should have had warning to accompany it
1. Odd bc normally warning on product aimed to protect user from injuring self
2. Here warning that could be harmful to someone else - e.g., repeated tasing could be fatal
3. But if only tase twice then how do you proceed to subdue?
 *whether the risk was knowable
1. Evidence was essentially they should know bc isolated incidents - 4 peer review articles with evidence of
dangers of tasers
2. Manufacturer should have seen these and known taser could have killed guy
3. *there were hints/clues in the scientific literature about the potential fatal consequences of using tasers
4. Do they have an obligation to warn of that which is impossible to know? Duty which could never be fulfilled?
a. That becomes a form of true strict liability - minority position
b. Notes after Rosa cite this view
c. Most jurisdictions do not impose duty to warn about unknowable risk*
d. So what do we mean by knowable? How much data has to be out there?
 Rosa
1. Substance abuse problem. Tased to death
2. Q of state of the art - Should we have it re a warning problem
3. Notes following Rosa allude to 2 nj cases
a. Whether we should deem a product defective bc it lacks a warning ab a risk that was unknowable at the
time the product was marketed
16
 a. This would be v strict liability
b. Position of the Rosa court that that is not the rule
a. Looks v meticulously at state of scientific lit and basically say one would not know about this
asestosis problem at time put on market so won't hold defective for not having warning
b. All turns on sufficiency of evidence/state of scientific lit at time
 Notes after Rosa
1. NJ case Beshada (p277-78) - well-known case
a. Asbestos case
b. Def: Johns Manville had been sued on multiple theories
c. Defense: Not knowable at time; asbestos common industrial material, prevalent in all kinds of industrial
uses
d. NJ Supr Ct held tough - should have known
a. In effect strict liability would be interpreted so that you're going to bear the costs
b. Court was saying in world of SL, not pointing accusatory finger, however you need to pick up the
costs - on you bc cost of having product in the economy and therefore can be spread across all
users
2. 3 years later feldman - nj
a. Don't have to know about unknowable risk -- not defective
b. If no reasonable person could have known about risk at time, will not deem defective for lacking warning
c. F is only about its facts (just as B only about its facts)
d. So state of art def for pharmaceutical products hindsight approach for asbestos, but what about the many
other products?
e. Prof: F carried day
a. To extent B has any vitality, only in the asbestos context
b. NJ courts have essentially said this ^
 Dosier v. North & Judd - Informatino/Warning Defect: Misuse
 Facts
1. N&J makes equipment for people who use horses
2. Ptf uses machine - united airlines employee
3. Hoisting something heavy
 Arg: Failure to warn
1. What kind of warning would he have hoped to have?
a. Weight limit?
 Def Response: unforeseeable misuse
 Degree to which vendor has to anticipate various ways a product can be used
1. Three Kinds of Uses One Might Expect to See
a. Intended (by Seller / manuf)
a. E.g., clothes iron = iron one's clothes
b. Unintended (misuses)
a. E.g., iron one's skin or hair, grilled cheese
b. Foreseeable - seller must warn re non-obvious risks
c. Unforeseeable - this court says seller does not need to warn re non-obvious risks
d. If unknown and nonobvious risks, seller must warn
 Warning and Product Misuse
1. Recall that the focus is not on PROPER use
2. Rather it is on FORESEEABLE USE
3. There is thus no duty to warn about uses that are not foreseeable
a. How do courts determine what uses are foreseeable?
a. Common practice - Although an object not intended to be used in a certain way it being used in a
certain way
1. Marketing channels bear on effect
b. What is the relevance of how the produc tis marketed
c. How could uyou prove tha thte use in D should have been foreseen
a. Prof says not to uncomfortable w outcome - man took shortcut, paid price
1. Clear on job injury; had nothing to do with him; even if did, would have workers comp
b. [Dosier Identifies Two factors - ]
1. Market for which it is produced
 Dosier: for use w horses
 Foreseeable bc don't expect someone
Intended marketing scheme

17
  
 
 Spruill v. Boyle Midway - Adequacy of Warning
 Facts
1. Mother doing housekeeping, polishing furniture. Found something to give to relative next door. Puts polish on a
table as far away from crib as possible
2. Polish on decorative cloth on table
3. Baby pulls cloth, bottle comes down in crib, baby drinks, dies
4. This product had a warning (distinct from other cases so far)
a. So now q of adequacy of warning
 Ptf prevails
 Problems w Red Oil Warning?
1. Insufficiently prominent
a. This label: Warning Combustible Mixture, in red
b. Here hidden - Didn't put this one in red
c. Arg: hidden, small type, obscure location, color doesn't stand out
2. *Mother admitted she never read the warning - already knew how to use it
a. Why didn't that defeat the claim?
3. Notice placed "so as to conceal it from all but the most cautious users"
a. The Heading of the warning focused on combustibility
b. Might discourage reading if not being used near flames
4. Warning was too "tepid" (weak; wasn't strident/hands up screamy enough)
a. Court quotes what warning said would happen to you if you drink it - "May be harmful if swallowed,
especially by hum"
b. But the reality: very small quantity will result in certain death
c. *Suggested harm was "not certain but merely possible"
 Bottom line: not all warnings are created equal
 Questions
1. Drinking the polish is not a proper use
a. Why isn't that a winning argument for def
2. Ptf admitted she didn't read warning
a. Why isn't that a winning arg for def ?
3. Should warnings be milt-lingual? If so, when?
a. If warning has to be adequate, communicative of the danger to the user
b. Problem: open pandora's box- so many people speak many languages
c. Solution: pictographs to communicate danger (e.g., airplane pamphlets)
 Warning Defect or Design Defect?
1. Prof at least 2 aspets of design problematic - could hav ebeen litigated as design defect
a. Why wasn't there a child-proof cap
b. Why was it opaque - why wasn't I ta disgusting or neutral color - looks lik echerry coolaid
c. *could Spruill have argued the furniture polish was defectively designed
d. If a product has a design def & there is a reasonable alter design, does a warning defeat liability
a. Punch press lack 2 button controls
b. 2 button contrls are cheap
c. Vendor sells w/o 2 button controls but w warning
d. WARNING: Punch press can cause catastrophic injuries to hands - kepe hands clear of active work
area at all times
2. Again topic-specific statute: Poison Preventio Packaging Act --- why prescription meds have child proof caps
 
 Edwards v. California Chemical - Inadequate Warning
 Facts
1. Groundskeeper of golf course
2. He doesn't read
3. He's instructed to apply an insecticide (arsenate) to a golf club
4. P294 lawns and golf greens named specifically
5. We don't know if he saw the package, but it's bad; not supposed to get it on your skin; not supposed to inhale
a. Supposed to use respirator, rubber gloves for this powerful chemical
6. Warning on package: skull & cross bones, uses word poisoning, do not inhale…
7. He gets ill & brings lawsuit
 What case does this man have for a defective product?
18
 1. There is no alternative design - can't claim a design defect
2. Arguing warning defect, but there's a warning on the product
3. His arg: inadequate warning - they should have warned him how to use the product - wear gloves, cover skin,
wear respirator
a. *product here had very detailed warning
a. Prominent - skull and crossbones
b. Said not to inhale or get on skin (specifically mentioned risk at stake)
c. So what's P's theory?
 No instructions on how to mitigate danger
 Indeed specificity of instructions re application may have made lack of instructions
on safety even more of a problem
 *Product should have said, do not use w/o a respirator
 CB Question: Must manufacturers warn against circumventing safety devices?
 Notes after case talk about 2d cir case (loreano sp?)
 17yro kid working in supermarket operating meat grinder. Supermarket
had removed hand guard. L pushing meat into machine per job, pushed
too hard, hand mangled
 He was not able to speak eng too well
 Court found in his favor
 Case about obvious danger
 Court said in that particular case, it was at least a jury q whether or not
there should have been a warning on his machine saying do not use w/o
hand guard
 
 This is an information problem, not a warning problem
a. 2 kinds of information: warnings and instructions
b. Even if a product has all kinds of warnings, may be inadequate if lacks instructions
c. Assume Edwards could read and product said do not use w/o a respirator
d. E would go to his boss. If boss doesn't have a respirator, what do you do?
e. A lot of law ab warnings based on fictional set of assumptions
f. To the extent we're really concerned about safety and needs respirator, maybe should be sold bundled with
respirators
 
cc. Rhodes v. Interstate Battery - Adequacy of Warning
i. Facts
1. Guy at a bar for a few hours, presumably drinking
2. Goes out and his car is dead
3. His theory: the battery is dead
4. He couldn't see, so he lit a match
5. There's an explosion
ii. Another seemingly adequate warning
1. Referenced precise danger which came to pass
2. Not a q of "instructions"
3. P admitted that he didn't read the warning
4. Lack of Prominence Arg
1. He said the warning of flammability wasn't big enough on the battery itself
i. Def response would be: it was as big as we could possibly make it; no space; limit to how big
could make warning given vent cap relatively small
2. Warning is not prominent bc it was dark and often times when looking at car battery in place where dark;
at minimum hood shading from sun
i. *many times when you're going to need to service the battery, you're going to be under minimal
light conditions - inevitable some degree of battery in shade bc of hood of car
ii. ****this case teaches that to be adequately prominent is not a fixed concept. Has to do w an
analysis of the situation in which the product will be used. As a manufacturer have to think in a
dynamic way
iii. What could defs have done?
 Painted warning with phosphorescent paint (Essentially glow in the dark)
 Judge said wouldn't be enough light for it to absorb and give back light
 Plus anything that glows , generates heat = bad
 There's a danger, fairly consequential danger
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  Can't design it out
 Danger many people will be unaware of
iii. Court holds this is q for jury
1. Diff from furniture polish case?
iv. Dissent
1. Def arg - P's failure to read warning - doesn't matter whether it had been more prominent
2. P arg would have read if more prominent
i. Judge Hill pissed about this
3. Warnings should be reasonably calculated to reach potential users
4. He concludes this Ptf kind of person that doesn't care about warnings
i. Page 303 "It appears that any product manuf would have been hard-pressed to bring his message
home to Rhodes"
5. Can't penalize def for the insufficiently prominent warning in this case
i. Is this persuasive?
 
dd. Broussard v. Continental Oil - Adequacy of Warning
i. Facts
1. Carpenter's helper working in area w natural gas vapors
2. He's building a sum(?) pump
3. Using hand drill - apparently generates sparks
4. Explosion when this happens where there are natural gas vapors
i. B and his colleague went to the relevant people at the plant - we smell gas, we don't want to
work where there's gas
5. Escalated up to plant manager, who said nothing I can do about it other than shut down plant, not gonna
do it for you to build your box for sump pump
ii. People who made the drill knew about problem, but the warning about not using in gaseous atmosphere was in the
manual and not the drill
1. 2 Problem w putting in manual (at least)
2. For the home user, the manual is either never read or read only once at or near time of purchase & drill
may be home for years
3. For workers
i. Disconnect btw purchaser and user
ii. Purchaser - B's corporate employer
iii. User - employees going to job site
iv. Apparently someone asked B if he wanted the "box" for the drill, didn't say manual, just took
iii. Could use symbol - but wouldn't be recognizable to general public
iv. Statement on product that say s go read manual
v. He lost bc court decided effectively there was no way to do more than what was done
vi. *this case tells us that the pros and cons of warnings have to take into account the feasibility
1. At least 2 feasibilty conditions may cause failure to warn in more prominent way
2. Practical - if product small, then may not be able to attach to product
3. Multiple hazards
i. This is not a case w one danger; but situation where many users may not be the purchasers
ii. If warn about all of then could be problem of process overload
iii. *B & the Problem of multiple hazards
 Is warning in Owner's Manual sufficient?
 Many users might not be purchasers
 Even purchasers might forget manual contents over time
 Info overload
 Lack of viable alternatives
 
 
Warning RECAP
 
In the world of warnigns there are a lot of subissues the courts have to grapple with. Each of them generates at least some
efffort to come up with a predictive test. Here's what we've talked about. Each of the cases we've had is a representative icon
of these issues.
 
First question — Is there a duty to warn?
 Is hazard obvious to the user?
20
  A duty to warn presupposes a risk with a product but also a risk not obvious to the user. If it's obvious you don't need
one, a kitchen knife is not defective bc it lacks a sticker that says "sharp edge."
 Is the risk known or knowable by seller?
 Was there a sufficient scientific literature to make a taser maker aware of the danger of acidosis s.t. they should have
given a warning. You need a simultaneous state of affairs where USERS don't know risk but vendors know or should
know.
 Notice that this standard of knowing or should knowing is a negligence standard. It's a strict liabilityworld but this is
negligence hiding in sheep's clothing.
Second Question — Is there a duty to warn about misuses?
 Hook that was sold for horses or various equestrian gear. Guy uses it to hoist a weight in an airport repair shop. 
 Standard here is foreseeability.
 Duty to warn about misuses if it's a foreseeable misuse provided it was known to the user and unknowable to the
vendor.
 This is a proximate cause kind of concept.
Third Question — Was the warning adequate?
 The warning was not sufficiently strident on the furniture polish. It just said harmful if swallowed, not that you'd certaintly
die.
 Adequacy is not JUST about content. It's about all the other things relevant to communication.
 Is it in contrasting color
 What size is the type
 How many languages is it in
 Lots of room for plaintiff's to make arguments! This is an area where you don't just mouth
the principle on the exam, you get creative with it.
 Did it include risk-mitigation instructions?
 Boca Raton country club case. The product had a lot of warnings but it didn't say how to MITIGATE the problem! It's
not really a warning defect., it's an informaiton defect. Need info both about risk and how to deal with the risk. If it can
blind you, you don't write just that, say "wear goggles while using."
 Case about drunk man fixing battery. He takes off the cap and lights a match to check the water level, there's an
explosion. Warning was on the cap of the battery! BUT
 Problem was that that warning wasn't adequate for the circumstances in which it was used.
Fourth Question — Was the warning feasible?
 The other gentleman using a handdrill in a place where he smells gas. Boss said he wouldn't shut down the gas bc he would
have to shut down the plant. There were so many hazards with the drill that putting a sticker on the drill wasn't enough. The
only feasible warning was putting them in the instruction booklet and a sticker saying "go read the instruction booklet."
 
This recap "decodes" why the editors put these cases in the casebook.
 
 
Campos v. Firestone - Warning
 
Mr. Campos puts tires on truck wheels. The standard 18-wheel big truck is called a "tractor trailer." That word describes the
two pieces of that thing. The front part is the tractor. The part with the engine. Big square box with the cargo is the trailer. Mr.
Campos' job is very dangerous. You snap rubber on the rim but if you inflate the tire wrong it explodes and is bad. You use a
"tire inflation cage" to protect you. This is a thing!
 
Long story short, Campos sees something amiss in the cage, puts his hand in, is badly injured. Question is whether or not
there should have been a warning. This seems not to raise an issue. A case about the obviousness of the danger. I wanted to
ask you "why is this in the book" but a more sophisticated way is "What is Mr. Campos's argument notwithstanding that he is
an experienced worker in this task and he knows about the danger."
 
Why did Campos put his hand in the cage? It was a reflex! He didn't think about it. The argument about that . . . Why would
you need a warning? The theory is, if I had a warning in a place that would intercept my instinct, that would be a meaningful
and helpful warning. Something on the cage that says "don't reach in." That would be a deterrent.
 
 If you can anticipate that a user will be distracted, will forget, will act on instinct or reflex rather than
rational deliberation, then a warning, vis-a-vis the obvious danger, would still be required.
 

21
 Obviousness doesn't eliminate duty to warn, it's merely a factor bearing on the duty. "A manufacturer is not automatically
relieved of his duty to warn because the danger is obvious." That's the big quote of the opinion according to Schecter.
 
RSPL § 2 comment (j): "In general, a product seller is not subject to liability for failing to warn or instruct regarding risks and
risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users."
 
But this says IN GENERAL. These circumstances might be an exception.
 
 
The area of warning defects is reminiscent to the informed consent material you study in 1st year torts about medical
malpractice. Give people sufficient info to make rational choice. Doctor says you should have your gallbladder out, you don't
know what that means, what post surgical pain might be, how bad your gallbladder is, etc. Doctor shares the info with you.
Same is true with company. Company shares info with product that you don't know. Company knows this sand blasting silica
will cause you a lung disease and you have no comprable information. Trying to put people on an even playing field.
 
 
 
Gomez - Who Must Be Warned?
 
Use of quartz or silica. Commonly used in blasting. You shoot silica sand at an object to smooth it out. As you shoot it, it
breaks up into microscopic parts which, if inhaled, can do severe damage. The Gomez case is about whether the hazards of
silica inhalation, which can cause this lung disease unsurprisingly called "silicosis" whether it's sufficiently common s.t. you
don't have to warn. He doesn't care that much about that issue. The question is who do you have to warn?
 
This is a situation w/ a 3-party scenario. This is like the industrial machinery cases—purchaser is the business who puts
employee in harm's way. Purchaser is not the user. In design context, we considered whether vendor could rely on  employer
to use safety devices or whether they had to do so themselves. Here it's about warning.
 
 What if some parties (Direct purchasers) know of the danger, but others (actual users) do not? You're supposed to wear some
sort of a space suit to prevent you from breathing in silica. Can sellers depend on intermediaries to warn or must they attempt
to warn end users directly?
 
Not surprisingly, court does not announce a definitive answer. It says the answer to the question of whether you can rely on
the intermediary or whether you as vendor must make direct warning, that is a function of a multi-factor test. Scalia would
hate this. He preferred firm rules to flexible standards.
 
In this case, court said we're going with flexible standard.
 
 Gravity of the risk posed
 Learned Hand Formula. If it's relatively minor, you can rely on intermediary to pass down the chain. But if it can give
you a deadly lung disease like silicosis, we're going to perhaps impose a duty to warn.
 Likelihood intermediary will warn end user
 Schecter is not sure how you can factually assess that. Maybe industry practice and custom. I would look to whether
most of the workers are unionized. A union shop is one in which there's ongoing dialog between factory owner and
workers. There's a grievance procedure. Because of this ongoing communication line, the likelihood of warning is
slightly greater. That's not in a case that's just Schecter trying to be concrete.
 Feasibility and effectiveness of warning end user
 RSPL § 2 comment (i) [quoted in the book]
 Plus
 Social, economic, and political questions
 Risk, foreseeability, and likelihood of injury
 Social utility of D's conduct
 Magnitude of the burden
 Consequences of the burden
 Whether one party has superior knowledge
 
 Johnson & Johnson v. Karl - Warnings & Learned Intermediary Doctrine
 Facts
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  Involves prescription medication called Propulsid - supposed to deal with acid reflux
 Associated with various heart problems
 Enough people died == MDL consolidation
 Woman died = estate ptf
 Warning Claim: argument that medication defective because lacked adequate warning
 Learned Intermediary Doctrine
 
ss. Kaempfe v. Lehn & Fink - Duty to Warn of Potential Allergic Reactions
i. Ptf purchased over the counter deodorant product with aluminum sulfide (standard ingredient)
ii. She had a severe allergic reaction - dermatitis = skin inflammation
iii. She argued product defective bc lacked warning that could occur
iv. Whether vendor of product that could be used on or in body has to warn about potential reactions
v. Court says sometimes
vi. *Duty to Warn of Potential Allergic Reactions
1. Only a duty when manuf knows or should reasonably know that
i. Substantial number or
ii. Identifiable class
2. [But if it's obvious (e.g., lactose intolerant reaction to milk) no]
i. Talking about an allergic reaction that the allergy sufferer wouldn't be aware of
3. Will be allergic
4. How do you determine "substantial number"?
i. Case by case estimate
tt. Lovick v. Wil-Rich - Post-Sale Duty to Warn
i. Post-sale duty to warn
ii. Lovick dealing with a cultivator, a device with hooks/prongs low to ground and you drag it thorough soil, it rips up
soil, makes it possible to put seeds in ground
1. This was a second-hand device; didn't buy directly from Wil-Ricj
iii. Do they owe a duty to go back to people out in field who own these things and say don't stand under there when get pin
iv. *Post-Sale Duty to Warn
1. More limited than duty to warn at time of sale
2. Risk-utility factors apply differently post-sale
i. Sellers cannot reasonably keep track of new risks associated with older products
ii. Sellers may no be able to identify current owners, especially for "Durable" goods that may be resold
iii. Sellers may find it difficult and expensive to communicate with owners, if not impossible
 But now in age of e-mail, could be diff
iv. ^stock arguments
uu. Burke v. Spartanics – Factual Causation in Warning Defect Cases
i. Facts
1. Burke works in factory
2. Being trained to work on shearing machine = big scary machine
3. Claimed warning defect
ii. *Def argues: Open and obvious not to put your hands near the blade
1. Obvious danger = no duty
iii. A hazard might be obvious to most everyone, to the average person OR alternatively to this particular ptf
1. This particular ptf may have info that the average user might not have
i. Could be bc very familiar with this piece of equipment, bc of past accident, etc.
ii. Maybe had duty to warn and bad bc breached duty to warn, but this ptf can't establish causation -->
factual causation
2. If the danger is obvious to most everyone/average user = legal issue of (no) duty
i. If obvious to everyone - no duty to warn
iv. Def arg causation issue, not warning issue
v. Arg: in this particular case the failure to warn is not a factual cause bc the warning would have been superfluous
1. You're trying to empower users to avoid harm by giving them data
2. But giving them data they already have won't
vi. Counterargument for Burke: he could try to argue that warning on back of machine would have reminded him
1. He argues it's not whether it was obvious to me, it was obvious to everyone
2. Issue is forgetfulness
3. Warning at front of machine - ptf argues should be at back
vii. Apparently this was common practice in the factory - idea that he forgot doesn't have much traction*
1. They were practicing before the incident happened
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 2. Def argues that there was a warning on it and ptf well aware of it bc had seen it at work w machine for well
amount of time, therefore def shouldn't be liable for inadequate warning
viii. Situation where ptf unsuccessful
ix. Court ultimately holds trial court gave bad question -- but ultimately harmless error
x.  
xi. So def gets two bites at apple
1. Duty issue - want to work at macro level - what people are aware of
2. Second opportnity to argue obvious to this guy
 
vv. Bridport v. Sterline Clark Lurton – Causation & Reliance on Warnings – Heeding Presumption
i. Bridport - small town in Vermont
ii. Lease top floor of town hall to local masonic lodge
iii. Masons planning an event and notice floor not in good shape so going ot refinish floor
iv. They buy: gum spritis of turpentine (Turp gums) and linseed oil
v. Make 50/50 combination
vi. Didn't read packages carefully, but listened to vendor / hardware store guy
vii. Mop it all over floor
viii. Dried floor with saw dust (like a sponge)
ix. Sweep up saw dust after few minutes and put it in bucket
x. The entire town hall combusted = combustion from chemical products and bucket of staurated saw dust
xi. Argued based on warning theory
1. Claim should have been warnings about flammability and spontaneous combustion
xii. Defs argue there were those warnings
xiii. Whether or not warnings were adequate on merits
1. Court says this is a directed verdict issue - Pretty obvious warnings
2. Real q comes up over and above adequacy of warnings bc these guys testified they didn't read the warnings
xiv. In this case, the def uses the Heeding Presumption
xv. There was a warning on the product - even mentioned spontaneous combustion by name, nailed it
xvi. Can attack warning in 2 ways
1. Warning was substantively inadequate - it downplayed hazard, didn't mention most salient risk, lacked
instruction as to how to mitigate risk
2. warning insufficiently prominent
xvii. Arg here: adequate warning fully satisfies duty - def arg
xviii. Ptf gets around by arguing warning insufficiently prominent
xix. Court says so preposterous (as to placement so prominent) that we are directing verdict
xx. Notes after case
1. The "Heeding Presumption" for Defendants ?
i. Rest 2d S 402A, comment (j)
 Defs who gave a proper warning may presume ptfs will "read and heed"
 Therefore giving REASONABLE warning satisfies their duty and they don't have to do more
ii. Rest 3d rejects comment j in nits comment l
 Adoption of a (physically) safer design is (always)required
 If you sell a product w a design defect, you can't avoid liability by slapping a warning on it
 We want merchants to design the safest product that is economically feasible, and then warn
us about the residual risk (nothing is risk free)
xxi. The "Heeding Presumption" for Plaintiffs (from the notes after Bridport)
1. *Arises in cases where
i. There was no warning at al…or
ii. Warning provided too little information
2. *Presumption that if there had been a proper warning, plaintiff would have read it and "heeded" it
i. Thus harm would be avoided
ii. Omission of a warning is thus a factual cause of harm
3. *But this presumption is rebuttable
4. *What evidence would rebut?
i. One arg: would not have read and heeded if you're illiterate
 Ptf reply: you should have had symbols
ii. Limited intelligence may be better - you specifically suffer from a mental disorder, low intellect, or
mental disorder, so you wouldn't have been able to process even symbols
5. Two Burdens of Proof
i. Burden of Production aka Burden of Going Forward

24
  Burden to offer at least some evidence on the pain of losing; if remain silent, hold case against you
 Offering just one thing satisfies doc
 A "Bursting Bubble" or Thayer Presumption
 Satisfy by either
 (1) offering some evidence (some courts say can meet by offering only a scintilla amount)
OR
 (2) by invoking a presumption
ii. Burden of Persuasion
 If hear burden of proof with nothing else, often means this one
 Standard instruction to jury as to how to weigh proof
6. Discussion
i. Presumption that if there is a warning, it has been read
 Who does this help?
 Hypos
 No warning --> def would argue even if had been on there, you wouldn't have read it
and thus wouldn't have complied with it
 Goes toward factual cause
 A def's arg that there's a lack of factual cause boils down to - my bad, didn't make a
difference
 If can't prove w evidence, may have presumption that gets you out
 *heeding presumption is ptf's counterarg to no factual cause
ww. Grover v. Eli Lilly – Proximate Cause
i. DES & Causation
ii. So far factual causation (Would warning have made difference, would it have been heeded, is it sufficient to eliminate
any cause from bad design)
iii. This is different-- about proximate cause & allocation of liability (latter addressed in notes)
iv. Facts
1. 1930s/40s - DES = prescription medication dispensed by mult cos, sold under brand names
2. Supposed to prevent miscarriage
3. Turns out really bad drug, ticking time bomb - long latency period
i. Problems tended to occur in the children & grandchildren of the pregnant women who took DES, not the
women who took it themselves
ii. DES daughters - cancer in reproductive track, abnormalities w potential risks to various cancers; their
children also had birth defects
v. Whodunnit?
1. Mult defs sold (defective) product
2. Ptf can't prove whose product she used
i. Ptf is the user's daughter, granddaughter, or grandson
ii. Person who ingested drugs is probably deceased when litigating
iii. Maybe never told which brand took
3. That makes it impossible to prove causation
4. Particular problem with "long latency" injuries, as in the DES cases
5. So what have courts done?
i. Enterprise Liability
 Industry-wide Liability:
 Theory that the entire industry was going to be held collectively responsible
 Legal fiction that they were collaborators
 Legal fiction that all were acting as a group
 Limited to cases w small number of defs, group management of risk and delegation of risk mgmt
to trade association
·              Facts
o    In the 1930/ 40s DES was proscribed to pregnant women
o   Ps' grandmother took the medicine
o   Cause birth defects in P's mothers
o   Caused birth defects in P
   Child was not conceived at the time
 Slippery slope problem--we have to draw a line some where, otherwise liability would be infinite
 This is the exact rationale for the proximate cause doctrine
 Factual causation issue--who sold the medication?
25
  Multiple Ds sold DES and P can NOT prove who's product she used
 Particular issue when there are long latency injuries
 2 ways to solved this issue:
 Enterprise Liability: the entire industry was COLLECTIVELY responsible  
 Legal fiction that they were collaborators/ co conspirators
 Thus all can be hold JOINTLY liable
 When to use it
 Difficult to do this unless there's a small number of Ds in the enterprise/ oligopoly
 Group management of risk
 and delegation of risk management to trade association (e.g. all car manufacturers in auto safety
commission?)
 Alternative liability:
 Use basic negligence theory
 Summer v. Tice: burden shifting on factual causation
 Normally P has burden to same it was this SPECIFIC D—now, it D has to prove it was NOT them
 BUT requires ALL possible tortfeasors to be before the court
 Market share liability:
 Sindell v. Abbott Labs: acceptable to sue ENOUGH firms in the market (even if you can NOT sue ALL
of the firms)
 P must sue manufacturers representing a SUBSTANTIAL share of the TOTAL market for the injury
cause product
 Any D may prove it could NOT have made the product used by P
 E.g. NEVER marketed the product at issue to P's home state, suspended the product before P used
it
 If D can NOT offer such proof, its liability for the TOTAL damages is PROPORTIONAL to its SHARE
of the market
 Proximate Cause issue:
 Which victims are foreseeable?
 Does it happen frequently in our known experience?
 E.g. common for neighbors lend products to others
 
Robinson v. Reed-Prentice
NY 1980
·              Facts
o    Machine sold with a guard window
o   P's employee cut a hole in the window so P could put his hands in it
·              Employer made plastic beads with plastic string through it  
·              P’s argument:
 Reed knew that P's employer was using the product this way
 Defect: you sold a machine that was capable of having its safety features circumvented
 DISSENT: there was clear negligence here
 D’s argument:
 Manufacturer can NOT be held liability if purchases circumvents safe device
 Superseding cause: intervening event and the intervening event was so atypical that it should defeat liability
 Court: you have no duty to design safety features that are so iron tight that no one can modify them
 Connection between duty and proximate cause
 Here, downstream modification was foreseeable
 
 
Anderson v. Dreis & Krump Manufacturing Corporation
WA 1987
·              Facts
o    Press that squeezed pieces of metal
o   2 types of safety features
o   2 button control

26
 o   Foot petal
o   Employer changed the 2 button control to a 1 button control on a cable
 P alleges 3 superseding causes
 Buy installs new activation system that bypasses safety device (single button on a cable)
 Buy failed to install guards or other safety devices
 BUT this is a NON delegable duty
 Very duty rule: if you have an obligation to guard against someone's carelessness, then you can't say
"well P was careless"
 Here, the reason you have to put in safe features is because downstream purchasers won't do it
  Product NOT defective when it leaves D's hands
 Intervening cause: modification of the machine
 How to approach foreseeability:
 Was it foreseeable that they would change the button press?
 Was it foreseeable that the user could get his hand hurt?
 This is exactly what happened here
 It happened by a different mechanism, but same nature of the harm
 
*Robinson & Anderson: Post-sale Alteration
hhh.Robinson & Anderson
i. Post-sale alteration of pieces of machinery to accommodate manuf needs of purchaser
ii. Someone got hurt bc those post-sale alterations undermined safety
1. Machine for plastic
2. Two button machine w foot control - manuf opted for one button
iii. Had to determine whether superseding cause, whether should eliminate liability of manuf or within scope
iv. Cases come out oppositely
v. Some courts: it's an entirely sep element in PL case for ptf to demonstrate that the product has not been altered -
defect existed at time left seller's hands (in addition to defect)
1. Harder to do further up distribution you go
2. Idea is that strict liability is not an insurance policy - has to be a defect that was present when left their
3. Subsequent alteration does not cut off alteration
 
 
iii. Southwire v. Beloit Eastern – proximate cause
i. Almost no fact -n in book as mini treatise on law
1. Tubular stranding machine that braids metal (cables on bridge)
ii. Issue: burden of proof on q of substantial alteration/change
iii. *Burden of Proof on Substantial Change
1. *Is it the ptf's burden to show that the product as used did not undergo substantial change?
i. Potential issue if it is:
 Manuf - wholesaler - retailer - consumer
 Rule out wholesaler and retailer - still haven't proven product not altered, but there's the whole rest
of the universe
 Proving product hasn't been altered is whack - proving a negative is always difficult
2. *Or is substantial change an affirmative defense, meaning def bears the burden of proof?
i. Same problem - they can attempt to prove condition product was in when left hands, but never occurred
to them to document condition product was in
3. Whoever gets stuck w burden of proof may lose bc satisfying it is hard
4. *Beloit approach: def has burden of production, ptf has burden of persuasion
i. Burden of production / going forward - if nobody says anything, default assumption is that there was no
change and this element drops out of case
ii. Up to def to intersect subject into case, come forward -
 def has to show some evidence there may have been a change
iii. Once def does that, don't have to offer more than slightest scintilla of evidence - teeniest thimble full of
evidence
iv. So raised by def but then burden shifts back to ptf
v. *So But seems obvious def would say there's a change
5. *Conventional rule
i. P has burden of persuasion

27
 ii. P gets benefit of presumption in certain cases
jjj. Barry v. Quality Steel - proximate cause
i. Facts
1. Roofers putting shingles on pitched roof
2. Put in temporary mini scaffolds, horizontal to ground, can stand on them, nail brackets into roof, wen done pull
out boards and ails
3. Here one of boards failed - barry fell to ground & got injured
ii. Claims defective bracket - deformed bracket next to him on ground
1. Could have been deformed in advance but then would have thought the roofers setting up boards would see it
and not use it
2. Deformed probably from fall
iii. Theory: injured person may have gotten workers comp, looking for added comp so has this theory
iv. Nails used to attach bracket too small
v. This is in book to show that some courts have taken position that "superceding" cause is now superfluous
1. Modern analysis of proximate cause turns on foreseeabiliity
2. This case throws superceding cause language overboard
vi. *"Superceding" Cause
1. Traditionally referred to a factual cause not attributable to def that was
i. New and surprising
ii. Caused a diff harm than expected
iii. Made it "unfair" to hold original def liable
iv. Thus def='s breach was no longer a "legal" cause
2. Barry holds that this doctrine does not require a separate analysis - What is their approach?
3. Note that if the "second cause" is within the risk, that may result in joint or proportional liability
i. Imagine bracket here was in fact defective and people who nailed in brackets were 3d party firm, not
roofers themselves. If that 3d party came in and used nails too small, they would have been liable =
negligent
 
kkk. Barry v. Quality Steel – Compliane w/safety statutes: negligence per se
i. Facts
1. Roofers putting shingles on pitched roof
2. Put in temporary mini scaffolds, horizontal to ground, can stand on them, nail brackets into roof, wen done pull
out boards and ails
3. Here one of boards failed - barry fell to ground & got injured
ii. Claims defective bracket - deformed bracket next to him on ground
1. Could have been deformed in advance but then would have thought the roofers setting up boards would see it
and not use it
2. Deformed probably from fall
iii. Theory: injured person may have gotten workers comp, looking for added comp so has this theory
iv. Nails used to attach bracket too small
v. This is in book to show that some courts have taken position that "superceding" cause is now superfluous
1. Modern analysis of proximate cause turns on foreseeabiliity
2. This case throws superceding cause language overboard
vi. *"Superceding" Cause
1. Traditionally referred to a factual cause not attributable to def that was
i. New and surprising
ii. Caused a diff harm than expected
iii. Made it "unfair" to hold original def liable
iv. Thus def='s breach was no longer a "legal" cause
2. Barry holds that this doctrine does not require a separate analysis - What is their approach?
3. Note that if the "second cause" is within the risk, that may result in joint or proportional liability
i. Imagine bracket here was in fact defective and people who nailed in brackets were 3d party firm, not
roofers themselves. If that 3d party came in and used nails too small, they would have been liable =
negligent
 
 Southland Mower v. CPSC--- Regulation v. Litigation
i. Facts
1. Def is administraive agent - cpsc consumer prod safety comm
2. Lawnmowers at issue

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 3. Decided enough accidents that created a regulation - foot probe test - blades had to be set back far enough that if
toes under there, would get toes chopped off; also rules re guards on mowers
4. Industry group challenges regulation on number of grounds - the outdoor power equipment institute - OPEI
  lawnmower
i. Case litigated in large part by trade association - Outdoor Power Equipment Institute
ii. Regulations at issue
1. Re: Guard preventing foot from going underneath deck of mower
i. Whether guard should extend to area near discharge shoot
ii. Industry ok with guard near where operator normally stands
2. Re blade control mechanisms
i. Multilever contraption on handle
ii. One of the bars is a deadman switch --> mower still chugs along but blade no longer moves
iii. If blade moving, have to be behind bars - place of safety
3. This course: how do we make products we use every day to make life comfortable and efficient, safe?
4. We all agree don't want to make items perfectly safe
i. In doing so either price out of market or make difficult to use
ii. Balancing act
 After someone injured --> lawsuit
 Retrospectively litigate whether item was as safe as should have been
 Risk utility - used in design & warnings
iii. Court:
1. Regulations largely upheld against arbitrary and capricious challenge
2. Standard is that the regs have to meet a cost benefit standard
3. court held they did
4. Sole exception was the foot guard reg at the discharge shoot
i. Reviewing court held - this portion unjustified
ii. Not enough number of accidents to justify reg
iii. Admin had extrapolated ^
iv. Industry challenges this because compliance costs $
v. But if it makes mowers more expensive, it makes it more expensive for everyone in industry - not just one co
vi. Relatively low elasticity with other products - if you need a more, you need a mower
vii. So what was the industry's litigation vote? Lay down marker to prevent commission from messing w them in future
viii. *takeaway - reg will stand or fall based on whether passes cost-benefit test**
1. Costly regulation - if it is a regulation, it has past a cost-benefit test
i. Somebody methodologically determine d(not frivolously, although they could be wrong)
ii. Every reg is costly but has benefits - if it didntm it wouldn’t be there
iii. Once you get a benefit, you can adjust the cost
 E.g., design solutions like rebates
iv. Every time you regulate something, it will on the whole make something less efficient
 
 
 
nnn. Bates v. Dow Agrosciences (SCOTUS) = Preemption
i. Facts
1. Involves chemical meant as a fertilizer used by man peanut farmers
2. Arg: mislabeled - the instructions basically said it was good for all soil
i. But actually not good for ALKALINE soil - soil w a pH over 7 and consequently rather than nourishing
the peanut crop, killed I
ii. Argue claim is preempted by federal statute - FIFRA (Federal Insecticide, Fungicide, and Rodenticide
Act)
3. Defs argued any label that complies with FIFRA can't be attacked under state law bc federal law is supreme
i. If comply with FIFRA and you come after me, you're imposing reqs that I don't have to live by under
FIFRA
ii. *3 Kinds of Pre-emption
1. Express
2. Conflict
3. Occupy the Field
iii. Express Pre-Emption
1. Federal statute explicitly states that inconsistent state law is displaced
2. Disputes can arise over scope of the pre-emption, a question of statutory interpretation

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 3. Cippoline (Cigarette warnings)
i. Woman was a smoker for most of her adult life
ii. Mostly prior to advent of Surgeon General's requirement for a warning
iii. She claimed warning did not inform her fully of hazard
 Warning: cigarette smoking may be hazardous to your health
 Claimed not sufficiently dire, etc
iv. Inadequate Warning Theory
v. Tobacco companies argued that's preempted - contrary state warnings are not allowed
vi. SCOTUS said a state product's theory case predicated on an inadequate warning theory is not a
requirement for a different warning
vii. In effect majority held that a company could continue to market cigarettes w the federally mandated
warning and pay judgments as they came due or co could turn around and change warnings, but it
wouldn't be doing it under mandate of state
viii. State remedy was not an injunction saying change your warning, rather paying ptf's damage
ix. **Pre-emption goes beyond state STATUTES
x. Warning claim against tobacco co
xi. Woman died of cancer
xii. Tobacco co argued if you want me to warn in diff words about other risks, than my warning won't
comply with federal law (statute mandated specific warning)
xiii. Court: theory based on inadequate warning is preempted but a theory based on fraudulent warning is not
preempted
xiv. PKG warning claims pre-empted
xv. State false advertising claims based on fraud were okay
xvi. Classic example of straightforward application of conflict preemption
xvii. But not all preempted bc classic misrepresentation claim from beg of semester (golf ball game that
whipped back to hit him
 
ooo.Bates
i. Court rejects an "effects" test
1. Effects test: if a state is going to hold you liable for tort and result is you will likely respond by
changing your label, the effect is making a label change
2. Under an effects test, if merchants would act this way, then in effect state judgment is making this
happen
3. Court rejects that test^
4. Is the effect of the state tort judgment is have to change label and already in compliance with
FIFRA - that's not enough to create federal express preemption
5. *Not enough that tort judgment might "induce" a label change
6. Tort judgment would have to mandate that change
ppp.Occupy the Field Pre-Emption
i. An "implied" pre-emption
ii. Congress intended to occupy a field in a way which leaves no room for any supplemental regulation by states
1. Federal regulatory scheme is pervasive
2. Federal interest in the subject is dominant (e.g., immigration or foreign affairs, aviation)
3. Reasonable to infer that Congress "left no room" for States to supplement the regulatory scheme
qqq.Conflict Pre-emption
i. An implied pre-emption
ii. State law conflicts with a federal law bc it is impossible to comply with both at the same time; or
iii. State law conflicts with a federal law because it interferes with the objectives fo the federal law or "Stands as an
obstacle to the accomplishment" of the federal purpose
rrr. Justice Thomas Dissent
 
sss. McCown v. International Harvester - traditional approach = contributory & comp negligence
i. Facts
1. Driving tractor trailer - front part of semi
2. Problem w steering - hit guardrail
ii. Contrib negl unrelated to discovering defect
iii. HELD contrib negl also disregarded under a "traditional" approach
1. This is not mandated by lang in comment n
2. This was contrib negl unrelated to anything doing with truck, nonetheless court says factor falling on contrib
negl side of ledger

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 iv. ***Not imp anymore - no longer law
v. Concurrence - this is imp
1. *Ptf's negligence might be relevant to other issues
i. Indep of aff defense q - if ptf's neg may have caused defect to occur - which means product not defective
when left manuf's control
 This is relevant to defect
ii. So if ptf commits act of negl that somehow causes defect, answer is product had no defect except for
defect you caused
2. *Existence of defect in the first place
i. P's own acts may have caused the defect
ii. P's peculiar mode of use may negate claims that product was unsafe for "normal" use
3. *Proximate cause
i. P's unforeseeable mode of use may not be with the scope of risk created by initial defect
 
ttt. Daly v. General Motors - takes us into modern age = comparative fault/responsibility
i. Very well known, Cites Greenman v Yuba
ii. Ptf is deceased - his fam members litigate
1. Drunk driving, minor mishap - hit guardrail - car ricocheted and door opened, he was ejected from vehicle and
suffered fatal head injury
iii. Defect: failure of door to stay closed in collision
iv. Defect obviously didn't cause action
v. Second collision case ^
vi. Defense: we equipped the car w seatbelts and you didn't have it on
1. Moreover door ha ddoor locks - if you had pressed button down, door probably wouldn't have popped oopen
either
2. Also had warnings in instruction manual - wear seatbelts, danger of being ejected, don't drive w/o seatbelt and
harness on
vii. But bythis point CA had judicially adopted comparative negl
viii. Contrib negl of Daly would have been disregarded under traditional approach
1. Wasn't assumption of risk
2. Would have been negl and his fam would have gotten 100% of $
ix. But now that comparative negl state - cnduct should be treated as something tha reduces damages
x. Daly rule has not been adopted pretty much universally except in states that don't have comp negl (VA, MD)
xi. In litigating a case like this - what kind of guidance do we give jury?
1. How much percentage assigning to Daly, how much to GM?
xii. "we do not perimt ptf's own conduct relatiev to the product to escape unexamined ,and as to that share of ptf's
daamages which flows fro his own fault we discern no rason of policy why it should be borne by others
xiii. After Daly: Traditional Affirm defs dead (unless VA / MD/NC / AL)
 
uuu. Krajewski v. Enderes Tool = assumption of the risk
i. Facts
1. K used a rolling head pry bar - variation on a crow bar - basically a lever
2. Trying to loosen sprockets on farm machinery
3. Bang on pry bar with sprocket
4. Lighting conditions poor - removes safety glasses
5. Pry bar chips, fragments of metal shoot into his eyes
ii. Involves affirmative defense of assumption of the risk
1. Many states have adopted to do away w sep label of assumption of risk and treat any form of ptf
silliness/arrogance/cockiness/ any form of ptf misconduct assimilated into generic category of comparative
negligence --> would be signed % of
2. But Nebraska didn't follow this rule ^ at least at time of lawsuit (decade old)
i. Still held that assumption of the risk is an absolute bar
 Elements: know risk & voluntarily assume it
 End of day - submitted to jury and decide one way or another
iii. Contest issue in the case: over Nebraska statute which involves definition of specific risk
1. General rule of courts that adhere to assumption of risk: not enough general knowledge of some danger, must
have knowledge of the specific risk
2. Here K testified in depo that knew metal could chip if hit w hammer
3. K's arg: I didn't know it could chip literally the first time you struck it
i. But knew it could chip after multiple bangs

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 ii. Lame arg
4. *In jur where asump of risk remains absolute bar, large part ab the litigation is going to turn on how we choose
to define the risk w ptf trying to advocate for extraordinarily narrow _ of risk
5. Is there some way to define the risk?
i. Saying chip first time hit - too specific, but saying could get hurt is too general
ii. We already have a lot of case law saying how specific warning should be
 Don't have to warn about things that are common knowledge
 Specificity of risk may be influenced by feasibility of warning
 If a merchant wouldn't ghink to warn this can chip v first time can hit it, then that suggests risk
definition too narow
 *Prof risk defitnition should be influenced by range of def feasibly out there
iv. *Implied Assup of the Risk
1. Elements of Im A R
i. Ptf knew and understood the SPECIFIC risk in q
ii. Ptf voluntarily exposed himself to the danger
iii. Injury occurred as a result of exposure to the danger
2. What risk and how specifically must it be defined?
i. Ptf argued risk was pry bar's PROPENSITY to chip - not just might chip but highly likely to
ii. Warning was only that it MIGHT chip, so he didn't "Assume" the relevant risk
iii. Court (2-1) disagreed: "When K deliberately removed his goggles, he assumed the risk of eye injury."
iv. Dissent fel this should have been submitted to jury and not arg for court
3. *this is only law where courts have not incorporated assmp of risk to generalized comparative negl
i. Those states are that t ever adopted comp fault in general
 MD VA AL
ii. Some states treat assump of risk as an absolute bar (affirm defense)
 MD, MI, OH, GA, RI, Neb, etc
 ^minority doctrine, but not exotic
 *all problems on exam set in fictional jur
 
vvv.Fields v. Klatt Hardware = Retailer Liability
i. Facts
1. Involves product analogous to draino
ii. Lawsuit against hardware store and master jack
iii. Master Jack
iv. Fields sued Klatt and served Master Jack but Master Jack didn't respond/answer
1. MJ not generally present in TX
2. Seem to have sufficient contacts such that PJ constitutional
i. Minimum contacts
ii. Agents sent to Klatt specifically to sell
iii. Fields bought MJ products at a store in TX*
 Isn't that enough? Well could have randomly meandered into state
 But evidence that there were more systematic contacts
3. So MJ didn't appear
4. Assuming service proper and sufficient contacts to satisfy const and assuming section of long arm stat in TX
that applies to this context --> default judgment entered
i. Then go to state where they are and have that court enforce it
ii. It gets full faith and credit
iii. CO would honor TX default judgment assuming minmimum contacts and they could in effect seize its
bank account and order to appear risk of holding office in contempt
iv. What if co was international co?
 Subject to laws of US
 But hard to enforce --> have to take judgment to China, which aren't obligated to give TX
judgment full faith and credit
 Comity doctrine = optional decision to honor a foreign nation's judgments if they're regular
on its face and norm
 ^this explains why lawsuits against retailers attractive
 Not as deep pockets, but tend to have insurance
v. *TX statute - Retailers are immune UNLESS Ptf can't get juris over the manufacturer
1. Basically an immunity and then a caveat/exception to the immunity
2. BUT retailer can get PJ and then immune
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 i. So what does it mean for retailer to get PJ --> civ pro issue
ii. Court says service isn't sufficient for PJ --- service + showing of sufficient min contacts
iii. Tx specific issue here
vi. *"Innocent Seller" Statutes
1. Non-manufacturing sellers (typically retailers) immunized from liability
2. Typically (nut not always) the immunity is unavailable if
i. Manuf is insolvent
 Variations on this - no longer exists/gone out of business
ii. Manuf is beyon court's jur (at issue in fields)
3. About half the states have such laws (immunizing downstream sellers)
vii. *The Sealed Container Defense (in notes)
1. A variation on the theme
2. Designed to immunize retailers from strict liability if they merely resell in unaltered form a product that's in a
sealed container
i. Not limited to food products
3. There aren't many people on other side of issue saying not to do that, taking away potential source of recovery
from people who got hurt
 
www. Boyle v. United Technologies – SCOTUS = Government Contractor Defense
i. The "military contractor" defense
ii. Facts
1. Helicopter goes down in water
2. Designed so that doors open outward, which is impossible underwater
iii. He could sue US but - sovereign immunity
1. Federal Tort Claims Act - waiver of sovereign immunity
i. FTCA waiver isn't complete - reserved pockets of immunity, including discretionary decisions of fed govt
ii. So Boyle might have difficulties against US in suit
iii. So he sued indep private firm that made the helicopters under contract with govt
iv. To what degree should they be liable in this particular case which alleges a design defect?
v. Court sketches set of reqs
iv. *Requirements for Govt Contractor "Defense"
1. (1) US approved reasonably precise specifications
2. (2) The equipment conformed to those specifications; and
3. (3) the supplier warned the US about the dangers in the use of the equipment that were known to the supplier but
not to the US
4. QUESTION: Should this defense be limited to military contractors?
i. Uncertain if it extends beyond
ii. Prof thinks it isn't limited to the military
 Scalia opinion said this flows from discretionary function exception, which isn't limited to the
military
 Opinion mostly about analogy to discretionary function, which seems to be just as tenable outside
of military function
xxx.Savage Arms v. Western Auto = Successor Corporation Liability
i. Facts
1. Involves handgun/rifle. Rifle malfunctions. Young teenager injured
2. Accident in alaska
i. Choice of law q - court decides alaska law governs
ii. Issue: whether intermediary party trying to push liability up chain can recover from a successor in interest
iii. Initial co/predecessor co (savage industries) named similarly to successor
iv. *Successor Corporation Liability
1. [Here we're talking about an asset sale - co sells all or most of its property]
2. *In an asset sale, buyer usually does not assume seller's liabilities unless
i. Buyer agrees to do so (express or implied)
ii. Asset purchase is effectively a merger OR
iii. Buyer is a "mere continuation" of seller
v. *Additional "Modern" Exceptions
1. Continuity of Enterprise
i. ^may have different directors or officers, but the underlying business is the same
2. Product Line
i. Sale of a particular product line

33
 ii. Sell plant where make product - successor who buys that may be subject to
3. Duty to Warn
i. May be imposed on successor if become aware of problem after fact and a reasonable person in their
position would have issued a warning
4. Rejected by the RSPL and by most courts
5. Policy objections reviewed and critiqued in Savage Arms
i. SA - minority
 
yyy.Martin v. Ryder Truck Rental Lessors & Bailors
i. Bailments
ii. Liability of someone who rented truck --> lessor aka renter
1. Lessors and renters are subgroups of bailors
2. Bailor - any scenario where take piece of personal property, give possession of that object temporarily to
someone else
iii. Preliminary Q: What's a Bailment?
1. A gives B goods for a limited time and specified purpose w expectation tha they will be returned
2. Property owner is "bailor" - giving up possession temporarily
iv. Classification of Bailments
1. Based on who benefits
i. For sole benefit of bailor (hold my phone while I go swimming)
ii. For sole benefit of bailee (can I borrow your phone to make a call)
iii. For mutual benefit (often involves scenario where $ exchanges hands, e.g., coat check)
2. Common law
i. If benefit for bailor - reasonable care
ii. If benefit for bailee - have to exercise GREAT care
iii. Mutual benefit - rule was reasonable prudence
iv. ^most jurisdictions have abolished this 3 prong and just say reasonable care for bailments
v. Commercial Lessors
1. *has to be someone in routine basis of selling goods
2. Should they be subject to strict liability if bailed object has defect as was true with Martin case
i. Martin: brakes failed on truck --> collision --> third car in sequence - driver injured
3. Classic example is car or truck rental business
i. Short term (Hertz vacation rental)
ii. Long term (3-yr lease instead of purchase)
iii. This is just a commercial, mutual benefit bailment
4. A commercial lessor is considered a merchant who routinely deals in the goods
5. Hence lessor is usually subject to PL claims if product proves defective
 
zzz. Tillman v. Vance Equipment = Used Products
i. Used goods
ii. Unusual example of used goods fact pattern
iii. Facts
1. Crane
2. Vendor of crane didn't have an inventory of cranes
i. Purchased crane and immediately resold to Tillman's employer
ii. Specifically hunted down for buyer - acted kind of like a broker
3. Tillman promptly injured, arguably bc defect in this crane, which is 24 years old
iv. *Seller of Used Goods
1. "Casual" reseller not subject to strict liability bc not a merchant
2. Dealers in used goods also usually not liable
i. No implied representation of quality or safety
ii. Consumer expectation is that goods are inferior
 But is there consumer exp that the goods are less safe? Maybe, unsure
iii. Liability might disrupt market for used goods
3. RSPL S8 has exceptions
i. Seller negligent
 E.g., reconditioned product in some way and made mistake; negl in conducting inspection
ii. Seller implied goods are "as good as new"
 Making affirmative representation
iii. Seller remanufactured

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 iv. Product fails to comply w statute or regulation
v. *Used Goods & the UCC
1. Actually different situation
i. Reminder: diff causes of action similar at core but on margins there are enough differences
2. UCC implied warranty of merchantability IS applicable to ales of used goods
3. However, UCC permits disclaimers
aaaa. Hoffman v. Simplot Repairs & Other Services = Hybrid of Goods & Services
i. Facts
1. Single engine plane
2. Near landing gear - rusty bolts
3. Arguably near enough that anyone working on landing gear would have noticed
4. Bu they didn't notice, simply fixe landing gear and returned
5. Plane crashed, H survived ,& brought lawsuit
ii. Sues on two theories: negligence, warranty
1. Not strict liabilty
2. **So if we're asking can service provides be held strictly liable this case is IRRELEVANT TO THAT
QUESTION*********
iii. Negl Claim
1. Find owner of plane 50% liable
i. Jury decided Hoffman not reasonably prudent in continuing ongoing inspection of his inspection
ii. 50/50 division under Idaho law = no recovery for ptf
 Idaho law - ptf can only win if less negl
iv. Warranty Claim
1. Jury decides he wins
v. Court: standard in warranty is essentially identical to standard in negligence
vi. What ou warrant when you engage in repairs is that the repairs will be done in a workman like fashion --> that they'll
be done reasonably prudent
vii. Bc that's what you're warranting, that's exact same promise as your duty under negligence
viii. Jury instructions were wrong on that point^
ix. Court also holds contributory negligence is defense to warranty claim
1. Represents almost a complete merger of warranty & negl law
2. But without much explanation
bbbb. Hoover v. Montgomery Ward = Hybrid of Goods & Services
cccc. Involves guy who installs tire
dddd. Tire is fine but the installation is done improperly
eeee. Hoffman: pure service transaction
ffff. Hoover: hybrid transaction - sale of product & performance of service
gggg. Court: no strict liability in this kind of context
hhhh. Info in Notes after case: **Essence of the transaction test
i. Massage example
1. SL claim against vendor of table, vendor of oils
2. Do you have added claim against service provider?
i. Most courts say no
ii. In many transactions courts say products incidental to performance of service
iii. But cases go both ways
 Salon - perm --> sale of permanent wave solution
 Other courts say distinction is do you carry product away with you or only use there?
 Massage example
 table incidental
 Oil - carry away w you
 
iiii. Royer
i. Medical sales
ii. Facts
1. Catholic Medical Hospital
2. Prosthetic knee implantation / knee replacement
3. Defective prosthetic
iii. Court says hospital should not be liable for manuf defect
iv. General rule in medical context: the medical industry is a service industry & it is not strictly liable
v. For policy reasons, going down SL road would have negative effects

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