Before 1900 there was little or no protection for a consumer from defective products. You had to show a direct contractual relationship - privity of contract. Also, there was a rule of caveat emptor.
After industrialization, it was impossible to determine if something was defective when you took possession of it. McPherson v Buick Motors eliminated the direct contract requirement. It established the concept of Negligence in Tort. I.e. if you can show that the manufacturer owed a duty of care, that there was a breach of that duty, that the damage was directly caused ("but for") and that the damage was foreseeable, you could sue the mftr even without a direct contract.
It was ruled that you could also go after the producer for defects due to breach of contract. There is implicit contract that the product is Fit For Use. Strict liability for breach of implied liability. This was especially important in food cases. Must be in original container. Still had to show a defect in the product - not just that you got sick or were otherwise injured.
There is also Strict liability for breach of an express warranty. Specific words in the contract or in advertisements, brochures, billboards, etc. Express warranties are statements of fact, not opinions or sales techniques ("puffing"). Something factual used to induce you to buy the product. Ex: Baxter v Ford Motors. Sales brochures said that the glass was shatter-proof. They claimed it was only a brochure, but it was ruled to constitute a warranty.
See Oldsmobile case where they had Chevy engines. That was a breach of an express warranty.
No negligence required.
See Greenman v Yuba Power Products pg 161. Greenman recovered due to the principle of strict liability in tort, not negligence. He was using it as intended, the product was defective. In such a case, the injured party can recover, even without negligence.
Section 402 - Restatement of the law of torts. Every major area of law has a "restatement". Judges collect major cases periodically. Here, they added a section - 402a - with the strict liability concept. It applies to merchants. It applies even if the merchant exercised all possible care. It applies even though there is no direct contract with the user.
You don't even need to be the purchaser. You could even be just a user. The manufacturer is liable even many years later, if the defect existed when the item was first sold/delivered.
402a - read it!
Primary areas of product liability law:
- defect in the product
- design defect
- failure to warn
See Parish v ICON. Trampoline user breaks his neck. Trial court granted summary judgement for the manufacturer. affirmed by appeals and supreme courts.
Morales v American Honda. Warnings were given to the parents, but since it was a child's product, the warnings were considered inadequate. Warnings must be directed toward the user.
See examples of failure to warn on pg 165.
Rhys Syndrome - do not give aspirin to flu-like symptoms. Warnings were not written in Spanish and the manufacturer was held liable.
Design Defects
Product could have been made safer with a different design. See examples on pg 166.
See http://www.altlaw.org/v1/cases/414780 for the fryer/object falling from shirt pocket.
Next, we will cover:
Property, landlord tenant law
Trademarks
No class next Thursday, 11/12.
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