LEARNING OBJECTIVES:
After studying this module, you should be able to:
- Apply tort theories of negligence and fraud to a product liability action
- Identify and explain the elements of an express warranty, the implied warranty of merchantability and the implied warranty of fitness for a particular purpose as defined by the Uniform Commercial Code (UCC)
- Apply these contract warranties theories to a product liability action
- Explain the doctrine of strict product liability under §402A of the Restatement of Torts, the policy objectives served by imposing strict liability (liability without fault) upon manufacturers, and why they may be exonerated from liability for “unavoidably unsafe products”
- Identify and describe the defects recognized by §402A that can give rise to strict liability: manufacturing defects, design defects (e.g., poor engineering that results in a design flaw that appears in each unit made), failure to warn users of hidden defects or adverse effects from use that are not readily apparent, failure to provide adequate instructions on use that results in an injury, and inadequate packaging.
- List and describe defenses to product liability lawsuits and damages recoverable in such a suit
General Resources, Including Chapters from Open Educational Resources Textbooks
Reading: Product Liability Chapter 20 from Business Law and the Legal Environment textbook, by Warner, etal.
Reading: An Easy Guide to Strict Liability
Reading & Video: Strict Product Liability from the Torts module in Prof. Jason Gordon’s The Business Professor textbook.
Video: What is Product Liability? (6:56) This video explains design, manufacturing, and warning defects through narration over whiteboard drawings to illustrate these defects.
Video: What is a Product Liability Negligence Claim? (0:53)
Reading: Legal Basis for Liability in Product Cases This short article by FindLaw discusses tort and contract theories, defenses, and some common product defects.
Reading: The Small Business Owner and Product Liability (provides an overview of product defects that can cause injuries, available defenses, etc.)
Product Liability: Contract Theories (UCC warranties)
Video: Express and Implied Warranties explained (2:56) by Prof Jason Gordon
Reading: UCC Contract and Sales Warranties (Nolo explains theories and how they can be disclaimed)
Reading: Express and Implied Warranties under the UCC
Reading: What are express and implied warranties?
Video: What is a breach of warranty? (1:15)
Video: Express Warranties (2:01) (an animated illustration of express warranties)
Video: What is the difference between an express warranty and an implied warranty of merchantability? (2:22)
Strict Product Liability
Reading: What is Strict Product Liability? Definition and Examples. This 2023 article in Forbes explains what strict product liability is, what a plaintiff needs to prove, possible defenses, who can be sued, alternatives to strict liability, and other topics.
Reading: Proving Fault in a Product Liability Case This Findlaw post discusses both the proof needed in a product liability case, as well as available defenses such as buyer’s awareness of the defect or substantial changes to the product made by the buyer after purchase.
Video: Strict Product Liability in Tort explained by Prof Jason Gordon (4:36)
Video: What is a Defective Product? (0:53) This very short video by LawInfo. com provides an overview of what can make a product defective.
Video: What are common product defects (0:47) This video, also by LawInfo.com, describes the most common types of product defects.
Video: Manufacturing defects (1:55) The attorney in this short video provides examples of manufacturing defects that may be alleged in a product liability lawsuit.
Video: Distinguishing between design, manufacturing, and marketing defects? (1:05) Students often struggle with the distinction between design and manufacturing defects. This short video by a Florida attorney may help.
Video: Design and Manufacturing Defects (14:53). This is another video produced by LawShelf, that goes much deeper into the distinction between design and manufacturing defects in more depth.
Reading: Product Liability Claims for Failure to Warn and for Design Defects (Justicia)
Reading: Failure to Warn in Defective Products cases (NOLO) discusses inadequate warnings in both strict product liability and negligence product liability cases. It also discusses the intended uses of products and predictable misuses of those products that manufacturers must take into account in providing conspicuous warnings.
Reading: Four Ways Packaging May Result in Product Defect Injuries (2020) The article notes that misprints on the package, poor visuals, and improper warnings, and inadequate instructions can also be considered defective packaging.
Design Defects under Restatement of Torts (Third)
Reading: The Restatement (Third) of Torts Products Liability: The Tension Between Product Design and Product Warnings. Though published in 2001, the first part of this article in the Florida Bar Journal explains the difference between how design defects are treated under Section 402A of The Restatement of Torts (Second) and (Third), and what the latter means by a “reasonable alternative design.”
Reading: The 3rd Restatement of Torts-Shaping the Future of Products Liability Law This post b Findlaw (last reviewed in 2016) explains why replacing the “consumer expectations test” with the “reasonable alternative design” is viewed by some as controversial, and why the author believes that requiring plaintiffs to prove that a better design actually exists is a fairer standard.
Reading: What is a Reasonable Alternative Design? The Georgia law firm of Tucker and Tucker posted this brief article in 2019 to explore what a reasonable alternative design is and whether a court should use a cost-benefit analysis before deciding that an alternative design is reasonable.
Reading: Design Defects Supporting Products Liability Legal Claims. This October 2022 post on Justia discusses what a plaintiff needs to prove in a design defect, the alternative reasonable design test, and the consumer expectations test. It also briefly discusses design defect claims brought under a negligence theory.
Defenses to a Product Liability Claims
Video: Defenses to Product Liability Actions (15:18) This LawShelf video explains what defenses manufacturers and sellers can raise if sued for injuries caused by their products.
Reading: Defenses in a Product Liability Lawsuit (discusses contributory negligence, assumption of risk, statute of limitations and other defenses)
Reading: Defenses in a Product Liability Claim (a 4-page paper explaining defenses)
Reading: Understanding Georgia’s Statute of Repose (2017).
Reading: Kids got sick eating detergent long before the Tide Pod Challenge (PBS News Hour for January 26, 2018)
Product Defect: Failure to Warn and the McDonald’s Hot Coffee Case
Reading: Not Just a Hot Cup (New York Times 2013)
Video: McDonald’s Hot Coffee (2:28) HBO documentary trailer
Video: Scalded by Coffee, Then the News Media (12:14) a New York Times Retrospective
Want to learn more? Dig deeper to learn more?
Video: Historical Evolution of Product Liability Law (4:52) (a brief look at product liability law over the past 4000 years)
Reading: What does caveat emptor mean and is it applied today?
Reading: Six Questions to Ask Before Creating a Warranty (General advice of why to offer a warranty and what should or should not be covered in it)
Video: Design Defects and a Risk Benefit Test (2:39)
Reading: The American Museum of Exploding Cars and Toys That Kill You. This article provides a brief explanation of tort law and describes many of the exhibits in the museum, including the McDonald’s hot coffee case, Ford Pinto, Dalkon Shield, and other famous tort cases.
Reading: Ralph Nader Wants You to Wear a Seat Belt. Nader, consumer advocate for decades and the creator of the American Museum of Tort Law that opened in 2018, discusses the museum with NPR (audio of interview also included).
Video: Why Secrecy is Dangerous in Product Defect Cases (4:03) A guide for Injured Victims
Updates of Recent Product Liability Litigation or Recalls
Reading: What is the Defect Causing the Takata Air Bag Recall?
Reading: Takata Airbag Products Liability Litigation — the Settlement with Honda
Reading: California’s top court refuses to hear Bayer’s appeal of $20.4M Roundup verdict (October 2020)
Reading: Bayer Fails to Settle U.S. Roundup Lawsuits, Risking Restart of Federal Trials (Nov 2020)
Reading: Johnson and Johnson Settles 1,000 Talc Lawsuits for $100M (October 2020)
Reading: Peloton Treadmill owners told to stop using the treadmill in ‘urgent warning’ (April 2021). In announcing its warning, the Consumer Product Safety Commission released a video (included in the article) and indicated that it knew of nearly 40 incidents involving the $4295 Peloton Treadmill of kids becoming “entrapped, pinned, and pulled under” the treadmills.