Defective Instructions and Warnings

1. Duty, when: knows or has reason to know (Sheckells) or should realize (Gray) that the chattel is or is likely to be dangerous for the use for which it is supplied, (R 2d (comment j): knows or should know of the presence of the ingredient or the danger; R 3d:foreseeable risk of harm posed by the product) and 2. Obvious danger? has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition (R 2d: danger or ingredient is not generally known; R 3d: 2 could have been reduced or avoided comment j) and 3. Adequacy: fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be more dangerous. (R 2d comment j): seller is required to give warning against the danger; 3d 2(c) by the provision of reasonable instruction or warnings comment i:)

Adequacy of a warning/instruction E.g. Gray: A. Attract attention to harm B. Explain the mechanism and mode of harm C. Provide instructions on ways to avoid harm R 3d 2, comment i: focus on: A. Content and comprehensibility, B. Intensity of expression, and C. Characteristics of expected user groups

1. Instruction or warning? Warranty a warning? Must say danger or warning? 2. Location of words: On the product or pkg insert? (e.g. tag on dryer) 3. Symbols? Poison skull and crossbones? 4. Language? Spanish in California? French in Canada? 5. Content: Specific re this risk?

WARNING: Causes substantial but temporary eye injury and can irritate skin. For sensitive skin or prolonged use, wear gloves. Do not get in eyes or on clothing. Vapors may irritate. Use only in well ventilated areas. Avoid prolonged breathing of vapors. Not recommended for use by persons with heart conditions or chronic respiratory problems such as asthma, emphysema or obstructive lung disease. Due to irritating nature, may be harmful if swallowed. STATEMENT OF PRACTICAL TREATMENT: IF IN EYES, hold eyelids open and flush with a steady gentle stream of water for 15 minutes. Get medical attention. IF SWALLOWED, drink large amounts of water. DO NOT induce vomiting. Call a physician or poison control center immediately. IF BREATHING IS AFFECTED, get fresh air immediately. IF ON SKIN, wash thoroughly with water. Remove contaminated clothing and wash before use. Get medical attention if irritation persists. Physical and Chemical Hazards: This product contains bleach. Do not use or mix this product with other household chemicals such as products containing ammonia, toilet bowl cleaners, rust removers, vinegar or acid. To do so will release hazardous gases. STORAGE AND DISPOSAL: store this product in a cool, dry area, away from direct sunlight and heat to avoid deterioration. Do not reuse empty container but place in trash collection. Or rinse and offer for recycling. Do not contaminate water, food, of feed by storage, disposal or use of this product.

HYPO: Liebeck v. McDonalds Restaurants 79 year old P ordered a 49cent cup of Macs Coffee in drive thru. Her grandson parked the car so she could add cream and sugar to the coffee. She placed the cup between her knees and pulled the far side of the lid toward her to remove it. The coffee spilled on her legs causing 3d degree burns. She was in the hospital for 8 days while she underwent skin grafting, and lost 20 pounds, nearly 20% of her body weight (83 pounds when released from the hospital). Two year of medical treatment followed. Coffee was 180 degrees, 20 degrees hotter than other fast food coffee. 3d degree burns take 3 sec at 190 d, 12 sec at 180d, 20 sec at 160d. http://www.hbo.com/documentaries/hotcoffee/index.html#/documentaries/hotcoffee/index.html/

Defect? 1. Is all M coffee 180d? If yes, no mfg defect. If no, then mfg flaw 2. Duty to warn? Duty, when: knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied: Here, M had previous cases of 3d d burns. But, b. Obvious danger? has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition: Here, what is the danger? Hot coffee or 20 d hotter coffee? and c. Adequacy: fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be more dangerous. Here, no warning. Would Danger: Hot be enough? Danger, Very hot coffee can cause severe burns?? 3. Design. Inherently unreas. Product? No Risk/utility: 3d d burns v. taste and smell Tech feasible alt. Less hot/ Consumer acceptance? Jury ?

Preemption and State Tort Law Express Preemption: Is there a clear statutory directive? E.g., Cigarette Labeling Act 1965, Federal Insecticide, Fungicide and Rodenticide Act, Poultry Products Inspection Act., Food, Drug and Cosmetic Act, Airline Deregulation and DVT, (duty to warn) Implied Preemption: A. Conflict Preemption: Is compliance with both federal and state law impossible? E.g., Airline Deregulation and DVT (fewer seats, more legroom). B. Field Preemption: Has Congress occupied the field? (measured by the pervasiveness of federal regulation and need for federal uniformity). E.g., Federal Airbag regulations in cars in 1980s.

Causation (in Texas) Negligence Actual Cause (cause in fact): Proximate Cause: Foreseeability Strict Liability Actual Cause (cause in fact): Substantial factor = but for Producing Cause: efficient cause which produced injuries in a natural sequence (direct result)

Strict Liability and Plaintiffs Conduct Abnormally Dangerous Activities R 2d: 523-524, p. 477 Contributory Negligence not a defense, but Ps voluntary and unreasonable encounter of a known danger is = R 3d Torts 25, (Comparative Responsibility) p. R 3d Apportionment 8 (Factors for Assigning Responsibility) (Text p. 523)

Products Liability R 2d 402A comment n p. 516: Contributory Negligence not a defense but Ps conduct which consists in voluntarily and unreasonably proceeding to encounter a known danger is. R 3d 17: p. 332: Ps conduct may reduce Ps recovery if Ps conduct fails to conform to generally applicable rules establishing appropriate standards of care. = R 3d Torts 25, (Comparative Responsibility) p. R 3d Apportionment 8 (Factors for Assigning Responsibility) text p. 523

Comparative Responsibility
a. the nature of Ps risk-creating conduct b. the strength of the causal connection between the persons risk-creating conduct and the harm. Which conduct counts? 1. knowing and voluntary encounter with product defect 2. unsafe use of the product apart from the defect or unsafe conduct that caused the accident apart from the product But see, e.g., Ohio Revised Code sec. 2307.711

Workers Compensation

Complete Replacement of common law torts system; depends on insurance Recovery despite fault for each injury if it: In the course of employment = but for causation, workplace risk Did employer bring employee into contact with the risk that in fact or actually caused the injury?

Arises in the course of employment= in furtherance of employers interests Circumstances, time and place of injury Exceptions: Intentional Torts, EE coverage or exemption

Alternatives To The Traditional Tort System Primary Costs Secondary (Victim Relief: Costs
reduce number and severity of accidents Deterrence and Fairness) Unholy trinity of defenses (c neg. A/R, fellow servant rule) make deterrence nonexistent Deterrence accomplished through insurance premiums. (Social Costs: Compensation)

Tertiary Costs
(Administrative Costs: Efficiency) Delay caused by courts and lawyers

Workplace Injury pre workers compensation statutes After Workers Comp. Statutes

Unpredictable; Few highly compensated, most not at all Lost Worker Production and Family Welfare Predictable; All compensated some (med. and rehab expenses and some wage replacement) as long as arising out of and in the course of employment

Administrative system streamlines procedures and cuts down on time between injury and compensation

Auto Accidents Traditional Tort Law

Small accidents over-deterred, Large accidents under-deterred

Unpredictable: Whos insured? Hinders rehabilitation

No Fault Auto

Sm=all covered med claims & property damage only Lg= Reg. Tort system Small claims under-deterred, Large claims over-deterred

Med. Mal.

Other Alternatives (asbestos injury, all injury)

What should be deterred? Causation?

9-11 Fund

Blend of scheduled and individualized benefits for physical harm or death

.56= trans cost including: .33 to insurance co. and .23 to lawyers Only .36 to victims Predictable: Same??= More Certain for slight recovery but less injury, insurance admin cost due to required. certain quick payment Depends on fault, comp. fault Unpredictable; High costs due to only 1/6 of those ET, means that neg. injured sue small and only half of claims(<$50,000) those who sue rarely pursued, recover; creates lengthy, complex defensive and delayed practice procedures Compensable Who administers event? (injury or the system? illness?) Recovery for: Med. Costs, Rehab, Lost Work? 97% opted in: Claims 1. Exclusive stat. determined w/in remedy based on 120 days of tort filing, payments 2. NY law made w/in 20 3. Overall cap on days of liability determinations 4. Fund damages and no judicial adequate review

Preparing for an exam question, using IRAC: A. Identify Issues: 1. Read the question 2. Identify the parties 3. Identify the causes of action of each party against another 4. Identify each affirmative defense B. Rules: 1. State the elements of the prima facie case for each cause of action/ affirmative defense ( e.g., battery requires an intention to cause a H or O contact, H or O contact results; Negligence requires duty to a foreseeable P, RPP, breach, actual and proximate cause and damages) 2. State the rule for each element of the prima facie case (e.g., 1. intent requires subjective desire or knowledge to a subs. certainty 2. To cause =Actual cause/ but for the touching, would the P have been hurt? 3. H or O touching. H = injury, illness or impairment of bodily function/ O = offends a reasonable sense of personal dignity, or contrary to social usages of time and place/ damages include compensatory or nominal/ punitive if implied malice; foreseeable P must be in the zone of danger, owed P x G vs. B, breach = facts, actual cause = but for, prox. cause = foreseeable consequences and/or direct result, damages must be compensatory = medical expenses, lost work, p & s, past and future). C. Application: Taking each element of each prima facie case, look for facts in the problem that will tend to prove/ disprove/ fall short of/ the legal requirement. (e.g., in this case X fact shows Ds knowledge, Y fact shows Ds subjective desire/ In this case, A fact shows cause/ B facts shows contact/ C fact shows harm, D fact shows offense.

D. Conclusion: For each prima facie case, state whether each element is met (12 (b)(6)), or a reasonable juror could so find (D. V. or Judgment as a matter of law), or a material issue of fact exists (S. J.), etc.