Products Liability

1. Products Liability Dr. E. Hansen, CIE, CHCM Department of Technology NIU-DeKalb, IL

2. Definition and Scope What is a Product? Usually thought of as tangible personal property-as a good, or chattel Synonymous with �goods� Law of Products Liability has origins in the sales articles of the Uniform Sales Act (now Uniform Commercial Code), as well as common law torts It has extended beyond tangible goods to include intangibles i.e. electricity (Houston Lighting & Power Co. v. Reynolds � 1988)

3. What is a Product (Continued) Bradley v. American Smelting & refining Co. (1985), where court found trespass and nuisance resulting from the invasion of microscopic particle from defendant�s copper smelting plant onto plaintiff�s land, court said, �the now famous equation of E=MC2 has taught us that mass and energy are equivalents.�

4. What is A Product (Continued) Products law has been applied to natural products, i.e. pet skunk. Sease v. Taylor�s Pets (1985) pet shop strictly liable for injuries resulting from sale of rabid skunk. Applied to writings such as a mass-produced aircraft navigational chart, Saloomey v. Jeppesen & Co. (1983). Applied to real estate fixtures such as a house, Blagg v. Fed Hunt Co. Inc. (1981).

5. What is A Product (Continued) In writings, there may be constitutional limitations on the imposition of liability. Alm v. Van Nostrand Reinhold Co. Inc. (1985) court refused to impose liabilities for injuries resulting from negligent misrepresentation against publisher of a �how-to� tool-making because, the burden of liability would be too great even if it were constitutionality permissible under the 1st amendment of U. S. Constitution. Also Birmingham v. Fodor�s Travel Publications, Inc. (1992). Real estate construction (developer not strictly liable for building a dangerous street) Milam v. Midland Corp.

6. What is A Product (Continued) Thibos v. Pacific Gas and Electric Co. (1986) where street lighting furnished by defendant utility was a �service� rather than a �product�. Snyder v. ISC Alloys, Inc. (1991) held that supplier of plans for the design of a zinc dust plant could not be found strictly liable since the plans were not a product, but could be liable in negligence for foreseeable risks associated with the design. Latham v. Wal-Mart Stores, Inc. (1991) shows a reluctance to impose liability because of the difficulty of proving causation (psittacosis from diseased parrot).

7. What Is A Defect? Generally the reason for imposing liability against a product supplier for injuries resulting from a product is the product is supplied in a defective condition. This statement may be too broad, since there are situations in which there is nothing wrong with the product yet the law of product liability applies. So, a supplier may be liable for the negligent entrustment of a sound product, Moning v. Alfonso (1977) � negligent supply of a slingshot to a minor).

8. What Is A Defect? (Continued) Misstatements regarding a product�s capabilities, Baxter v. Ford Motor Co. (1934) windshield alleged to be shatterproof; or for the supply of a product that constitutes an abnormally dangerous activity, Siegler v. Kuhlman (1972) a tank truck transport of gasoline. For the most part, however, proof that the product was defective when it left the defendant�s hands is a sine qua non to recovery (Gann v. International Harvester Co. 1991. Absent showing a defective, unreasonably dangerous product, plaintiff could not establish a case of negligence in any event

9. Types of Defective and Their Interrelation There are three types of product liability: Manufacturing or Production flaws Design defects Defective warnings or instructions In addition a fourth category maybe added - Misrepresentation Some argue that misrepresentation is not a defect since there is nothing wrong with the product itself. This is debatable, since there may be nothing physically wrong with a product lacking adequate warnings. Mislabeled (I.e. misrepresented) may be just as dangerous as one containing an inadequate warning.

10. Types of Defective and Their Interrelation (Continued) The rational for treating warning defects as a type of design defect is at least twofold. A warning inadequacy, like a design inadequacy, is usually characteristic of a whole line of products, while a production or manufacturing flaw is usually random and atypical of the product. Many (possibly a majority) courts say that strict liability is no different from (or the same as) negligence in the case of both design and warning defects, while fault is generally irrelevant in determining production flaws.

11. Types of Defective and Their Interrelation (Continued) The distinction between production and design defects is likewise not clear on close scrutiny. It cannot be based on intention (intentional design, versus inadvertent production defect), as many design deficiencies are unintentional, while many production and testing standards that result in occasional errors are consciously selected to keep costs down. While production flaws tend to be random, and design characteristics generic, this distinction also does not consistently hold true. Different types of use will cause the same kinds of metal not to withstand stresses, resulting in random failures. Also, raw pork occasionally contains trichinae, but this is because of design decision not to precook or freeze the meat or to test for trichinae.