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Products Liability

Punctuated Equilibrium The


402A Era
1960 1985
George W. Conk
Adjunct Professor of Law
Senior Fellow, Stein Center for Law & Ethics
Member, American Law Institute
Room 8-122
212-636-7446

gconk@law.fordham.edu

8/25/15

Why Section 402A (1964)


Flourished
and the
Third Restatement (1998)
Languished

Strict Liability to the Consumer


the Prosser/Traynor tag team

The consumer economy and the


Citadel of Privity
Contracts of adhesion implied
warranty
In a defective condition
unreasonably dangerous to the
consumer
The element of surprise
Strict liability all possible care
Punctuated Equilibrium

Early Landmarks

MacPherson v. Buick Motor Co. (1916)

Escola v. Coca Cola Bottling Co.


(1944)

Henningsen v. Bloomfield Motors


(1960)

Greenman v. Yuba Power Products


Punctuated Equilibrium

Escola v. Coca Cola Bottling Co.


(1944)

Punctuated Equilibrium

Roger Traynor - A Prophetic


Voice

MacPherson v. Buick Motor Co.


established the principle that
irrespective of privity of
contract, the (negligent)
manufacturer is responsible for
an injury caused to any person
who comes in lawful contact with
it.
Punctuated Equilibrium

Roger Traynor - A Prophetic Voice

I concur in the judgment, but I


believe the manufacturer's
negligence should no longer be
singled out as the basis of a
plaintiff's right to recover in
cases like the present one.

Punctuated Equilibrium

Roger Traynor - A Prophetic Voice

In my opinion it should now be


recognized that a manufacturer
incurs an absolute liability when
an article that he has placed on
the market, knowing that it is to
be used without inspection,
proves to have a defect that
causes injury to human beings.
Punctuated Equilibrium

The development of the concept of


defect

unreasonably dangerous to the


consumer

Not reasonably safe

Consumer expectations

Risk-utility analysis

Manufacture, Design, Warning


Punctuated Equilibrium

402A.Special Liability of One Who


Sells a Defective Product

(1) One who sells any product in a


defective condition unreasonably
dangerous to the user or
consumer or to his property is
subject to liability for physical harm
thereby caused to the ultimate user
or consumer, or to his property, if
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10

402A.Special Liability of One


Who Sells a Defective Product

(a) the seller is engaged in the


business of selling such a
product, and

(b) it is expected to and does


reach the user or consumer
without substantial change in
the condition in which it is sold.
Punctuated Equilibrium

11

402A.Special Liability of One


Who Sells a Defective Product

(2) The rule stated.. applies although


(a) the seller has exercised all
possible care in the preparation
and sale of his product, and
(b) the user or consumer has not
bought the product from or entered
into any contractual relation with the
seller.
Punctuated Equilibrium

12

4 Functions of Tort Law Calabresis


The Costs of Accidents (1961, 1970)

(1) the reduction of the sum of


accident costs and of safety
costs;
(2) distributional equity
(3) achieving most effectively
the desired degree of
interpersonal and intertemporal
spreading
(4) the minimization of the
administrative costs of achieving
(1), (2), and (3)
Punctuated Equilibrium

13

The appeal of strict liability

Eases burden on injured party

Incentive to manufacturer to
make safer products

Administrative efficiency

Punctuated Equilibrium

14

Problems with strict liability

Forseeability of harm not reqd

Lacks the moral appeal of


fault/corrective justice

Difficulty in predicting liability


costs

May so burden producers they


avoid liability by giving up
socially desirable production
Punctuated Equilibrium

15

Comment i. Unreasonably
dangerous

The rule stated in this Section


applies only where the defective
condition of the product makes it
unreasonably dangerous to the
user or consumer.

Punctuated Equilibrium

16

Comment i. Unreasonably
dangerous

Ordinary sugar is a deadly


poison to diabetics, and castor
oil found use under Mussolini as
an instrument of torture. That is
not what is meant by
"unreasonably dangerous" in this
Section.

Punctuated Equilibrium

17

Comment i. Unreasonably
dangerous

The article sold must be


dangerous to an extent beyond
that which would be
contemplated by the ordinary
consumer who purchases it, with
the ordinary knowledge common
to the community as to its
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18

Comment i. Unreasonably
dangerous

Good whiskey is not


unreasonably dangerous merely
because it will make some
people drunk, and is especially
dangerous to alcoholics; but bad
whiskey, containing a dangerous
amount of fuel oil, is
unreasonably dangerous.
Punctuated Equilibrium

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Comment i. Unreasonably
dangerous

Good tobacco is not


unreasonably dangerous merely
because the effects of smoking
may be harmful but tobacco
containing something like
marijuana may be unreasonably
dangerous
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The concept of defect

Manufacturing defect

Design Defect

Warning Defect

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Post-402A Landmarks

Bexiga v. Havir Mfg. (1972) [unguarded


machine]
Wade `Strict Liability in Tort (1973)
[risk-utility]
Borel v. Fibreboard (1974) [asbestos]
Barker v. Lull Engg (1978) [Wade
embraced]
Beshada v. JM (1982) (culpability
irrelevant)
Feldman v. Lederle (Beshada limited)
Brown v. Abbott Labs (1988) (rejects
Feldman)
Punctuated Equilibrium

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Machine Guarding and Safety

Punch Press

Punctuated Equilibrium

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Machine Guarding and Safety

Cut-off die point of operation

Punctuated Equilibrium

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Risk utility factors Wade (1973)

(1) The usefulness and desirability of


the product - its utility to the user

and to the public as a whole.


(2) The safety aspects of the product
- the likelihood that it will cause
injury and the probable seriousness
of the injury

Punctuated Equilibrium

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Risk utility factors Wade (1973)

(3) The availability of a substitute


product which would meet the same
need and not be as unsafe.

(4) The manufacturer's ability to


eliminate the unsafe character of the
product without impairing its
usefulness or making it too
expensive to maintain its utility.
Punctuated Equilibrium

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Risk utility analysis Wade (1973)

(5) The user's ability to avoid danger


by the exercise of care in the use of
the product.
(6) The user's anticipated awareness
of the dangers inherent in the
product and their avoidability
because of general public knowledge
of the obvious condition of the
product, or of the existence of
suitable warnings or instructions.
Punctuated Equilibrium

27

Risk utility analysis

(7) The feasibility, on the part of


the manufacturer, of spreading
the loss by setting the price of
the product or carrying liability
insurance.
Punctuated Equilibrium

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Toxic torts
Minerals and Medicines
Informed choice

The
miracle
mineral

Punctuated Equilibrium

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DES

Punctuated Equilibrium

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cmt. k Unavoidably unsafe


products (1965)

There are some products which,


in the present state of human
knowledge, are quite incapable
of being made safe for their
intended and ordinary use.
These are especially common in
the field of drugs.

Punctuated Equilibrium

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Comment k

An outstanding example is the


vaccine for the Pasteur treatment of
rabies, which not uncommonly leads
to very serious and damaging
consequences when it is injected.
Since the disease itself invariably
leads to a dreadful death, both the
marketing and the use of the vaccine
are fully justified, notwithstanding
the unavoidable high degree of risk
which they involve.
Punctuated Equilibrium

33

Comment k

Such a product, properly prepared,


and accompanied by proper
directions and warning, is not
defective, nor is it unreasonably
dangerous.
The same is true of many other
drugs, vaccines, and the like, many
of which for this very reason cannot
legally be sold except to physicians,
or under the prescription of a
physician.
Punctuated Equilibrium

34

Comment k

It is also true in particular of many


new or experimental drugs as to
which, because of lack of time and
opportunity for sufficient medical
experience, there can be no
assurance of safety, or perhaps even
of purity of ingredients, but such
experience as there is justifies the
marketing and use of the drug
notwithstanding a medically
Punctuated Equilibrium

35

Comment k

The seller of such products, again with the


qualification that they are properly
prepared and marketed, and proper
warning is given, where the situation calls
for it, is not to be held to strict liability for
unfortunate consequences attending their
use, merely because he has undertaken to
supply the public with an apparently useful
and desirable product, attended with a
known but apparently reasonable risk.
Punctuated Equilibrium

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Comment k
Unavoidably unsafe products
Negligence

Categories of Product
Defect Codified
Products Liability Restatement
1998

3 Circumstantial Evidence Supporting


Inference of Product Defect

It may be inferred that the harm


sustained by the plaintiff was
caused by a product defect
existing at the time of sale or
distribution, without proof of a
specific defect, when the
incident that harmed the
plaintiff:
(a) was of a kind that
ordinarily occurs as a result of
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3 Circumstantial Evidence Supporting


Inference of Product Defect

(b) was not, in the particular


case, solely the result of causes
other than product defect
existing at the time of sale or
distribution.

Punctuated Equilibrium

40

4 Noncompliance and Compliance with Product


Safety Statutes or Regulations

(a) a product's noncompliance with an


applicable product safety statute or
administrative regulation renders the
product defective with respect to the risks
sought to be reduced by the statute or
regulation; and
Punctuated Equilibrium

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4 Noncompliance and Compliance with Product


Safety Statutes or Regulations

(b) a product's compliance with an


applicable product safety statute or
administrative regulation is properly
considered in determining whether the
product is defective with respect to the
risks sought to be reduced by the statute
or regulation, but such compliance does
not preclude as a matter of law a finding of
product defect.
Punctuated Equilibrium

42

Manufacturing Defects

2 Categories of Product Defect

A product is defective when, at the time of


sale or distribution, it contains a
manufacturing defect, is defective in
design, or is defective because of
inadequate instructions or warnings. A
product:

(a) contains a manufacturing defect when


the product departs from its intended
design even though all possible care was
exercised in the preparation and marketing
of the product
Punctuated Equilibrium

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Design Defects

(b) is defective in design when


the foreseeable risks of harm
posed by the product could have
been reduced or avoided by the
adoption of a reasonable
alternative design by the seller
or other distributor, or a
predecessor in the commercial
chain of distribution, and the
omission of the alternative
design renders the product not
Punctuated Equilibrium

44

Warning Defects

(c) is defective because of


inadequate instructions or warnings
when the foreseeable risks of harm
posed by the product could have been
reduced or avoided by the provision
of reasonable instructions or
warnings by the seller or other
distributor, or a predecessor in the
commercial chain of distribution, and
the omission of the instructions or
warnings renders the product not
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reasonably Punctuated
safe.Equilibrium

6 Liability for Harm Caused by Defective


Prescription Drugs and Medical Devices

(c) A prescription drug or medical device


is not reasonably safe due to defective
design if the foreseeable risks of harm
posed by the drug or medical device are
sufficiently great in relation to its
foreseeable therapeutic benefits that
reasonable health-care providers,
knowing of such foreseeable risks and
therapeutic benefits, would not prescribe
the drug or medical device for any class
of patients.
Punctuated Equilibrium

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