Strict Product Liability (Mfg.

) Essay Format

Theories of Liability
P could have a cause of action against D under the theory of strict product liability based upon the Restatement
(Second) of Torts 402, 402A and Restatement (Third) of Torts 19, 2 and 7; under the theory of Breach of
Warranty based upon UCC 2-313, 2-314, and 2-315 or under the theory of negligence.

Rule of Law Strict Product Liability

Restatement (Third) of Torts 19 Definition of Product
Restatement (Third) of Torts 7 Liability of Commercial Seller or Distributor for Harm Caused by Defective
Food Products
Restatement (Third) of Torts 2 Categories of Product Defect

Proper Parties

Proper Plaintiff at common law it was privity or negligence; modernly the Restatement (Second) of
Torts 402A; (supra) the injured P are foreseeable consumers of the defective product and are proper
plaintiffs.

Proper Defendant - at common law it was privity or negligence; modernly the holding from
MacPherson v. Buick Motor Co. became Restatement (Second) of Torts 395; this was later broadened by
Restatement (Second) of Torts 402A to include all in the business of selling: manufacturer of a product,
wholesale, retail dealer or distributor, and to the operator of a restaurant (supra). D, a ________, is a proper
plaintiff.

Defective Product
Restatement (Third) of Torts 19 defines a product (supra). A product for consumption is a product under 19.
This includes______ product.

________ is considered _____ product.

Thus the _____ sold by _______ to ______ is a product subject to Restatement (Third) of Torts 2 (supra).

Manufacturing Defect (supra 2a) To prove a manufacturing defect it is sufficient to prove that: (1)
An expert's testimony of defect based on inspection of the product after the accident; (2) evidence
establishing injury in connection with the use of a product; (3) evidence of the damaging event itself
coupled with expert testimony as to probable cause; (4) the user's testimony that a specific part of the
product malfunctioned, and (5) evidence of the damaging event, probable causes and evidence
negating causes under the plaintiff's control.

(1) An expert's testimony of defect based on inspection of the product after the accident;
Thus this element is met.
(2) evidence establishing injury in connection with the use of a product;
Thus this element is met.
(3) evidence of the damaging event itself coupled with expert testimony as to probable cause;
Thus this element is met.
(4) the user's testimony that a specific part of the product malfunctioned, and
Thus this element is met.
(5) evidence of the damaging event, probable causes and evidence negating causes under the
plaintiff's control.
(Supra)
The plaintiff did not misuse or alter the product before consuming it.
Thus this element is met.

Thus the manufacturing product defect should be brought before the jury.

Design Defect (supra 2b) There are three tests used to determine the foreseeability of harm posed
by product design.

The Consumer Expectation Test - Consumer expectations play a special role in determining food
product defects 7 (supra) and 8 (used products).

The test is to focus on reasonable consumer expectations that distinguish between whether a
harmful food component is an inherent aspect of a product, or whether it constitutes an
adulteration of the product.

Thus product design defect should be brought before the jury under the consumer expectation
test to determine whether these ingredients constitute an adulteration of the product.

The Risk-Utility / Feasible Alternative Design Test Risk-Utility can be summarized as the
risks of injury so outweighed the utility of the product as to constitute a defect.

In the case at bar the foreseeable risk of harm caused by ___________ (supra) is a matter to go
before the jury to determine whether the risks of injury so outweighed the utility of the product
as to constitute a defect.

In some jurisdictions it is not necessary to show another feasible alternative design to show that a
product is defective.

Inadequate Warning (supra 2c) Warning must warn against the foreseeable risk of harm. Show
alternative warnings at little or no cost.

Causation: The injured Ps must show that the ______ products defected by _________ from mfg and from D
were the actual cause and the proximate cause of the Ps damages.
Actual cause - 432 Negligent Conduct as Necessary Antecedent of Harm
But for/ expert/ substantial factor
Thus Ds selling of the defective product is the actual cause of the Ps injuries.
Proximate cause
Using the Foreseeability Test proximate cause is established by (i) if the injury to the plaintiff, (ii) and
the type, extent, (iii) and manner of the plaintiffs injury, (iv) were the foreseeable result of, (v) the
defendants negligent conduct (vi) under the circumstances.
(i), (ii), (iii), (iv), (v) and (vi) in any order.

Intervening Events occur after the negligent act _____________. However, it is not a
superseding event.
Damages
Defenses - Plaintiff Misuse: Alteration of Product: Regulatory Compliance Defense: State of the Art Defense:
- the product design conforms to industry custom, it reflects the safest and most advanced technology developed
and in commercial use, or that it reflects technology at the cutting edge of scientific knowledge.
Comparative Negligence: Assumption of the Risk:
Remedies