Manufacturing Defect

Design Defect

Warning Defect

Must also show harm

and

That defect was proximate cause of harm

Variation from specification - what was built is different than what was supposed to be built

Mostly single item was defective

Strict liability for manufacturer defect

Proved by showing

Risk/Utility or

Consumer Expectations or

Combination XXXXXXXXXXXX

Failure to appropriately warn or instruct about the risk of product or how to avoid them

Failure to appropriately warn or instruct about the risk of product or how to avoid them

Can be substantive defective (not suffient)

Or Procedurally defective (poorly presented)

Tracks negligence theory in evaluating the risk and benfits of a particular design feature (not as the product as a whole)

Evaluates what risks an ordinary consumer would expect from the product

product is dangerous to an extent beyond that which would be contemplated by the ordinary person with ordinary knowledge

Can be influence by advertising

Moving toward negligence ideas

Often difficult for plantiff to prove causation- that the harm would not have occurred but for the warning label

Courts will assume that the plantiff read the warnings, and if adequate, would not have incurred harm

Is it a product - pets maybe, electricty no, book maybe

is the defect proximate cause of harm

Did actual injuries occur?

privity between Manufacterer and end user not required - seller can also be liable

Defective condition to product making it 

Unreasonably dangerous to consumer or his property

Is Subject to STRICT liability harm person or property

If a) seller is engaged in the business of selling such a product and b) product reaches consumer without substantial change

1. Consumer expectation test
2. Food cases - foreign material or consumer expectations
3. Risk / Utility Test - modern, majority rule
4. Restatement of 3rd - look at claim to see if there was a more feasible or safer design

Different jurisdictions have different standards, sometimes allow two theories concurrently (but not often) - may be based on issue - if technical, then R/U - experts

1. negligence risk utility (strongly influenced by negligence)m- weighted factors
2. keaton risk utility
3. Consumer expectations
4. Combo of risk utility and CE

Does risk of harm outweigh usefulness of product

1. usefulness and desirability of product to user
2. Likelihood of serious risk or harm
3. Availability of safer alternatives
4. Ability to eliminate unsafe characteristics (technology or customs?)
5. User ability to avoid danger when properly used
6. Consumer expectations of danger and risk of harm
7. Feasibility of manufacturer to adj price or buy liability insurance

May be considered for some elements of RU test

Just like negligence - customs can be wrong, not determinative, considerr ORPP for implementing technology

Decisions and materials available at time of manufacturing - not at time of trial - Use foresight test, not hindsight test

1) Safety Benefits from plaintiffs alterations (centerpiece in argument) > 2)  foreseeability x 3) expected costs of design alternations

Do not need to be disclosed unless

there are foreseeable members of the class that uses the product where it may not be open and obvious - meat grinder for immigrant kid - tide pods.  

Exception to general rule for manufacturers to warn of risks

Manufacturers duty is to adequately warn the physician of known risks

Question is: was reasonable warning by a manufacturer to a learned intermediary