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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Friday, May 28, 2010

3 – Strict Liability in Torts (Strict Liability for Defective Products - Defects)

3 – Strict Liability in Torts (Strict Liability for Defective Products - Defects)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

One of the most critical parts -- and the most difficult – of Strict Product Liability is the issue of defects. This area was discussed briefly, in a previous post.

Defective Product:

What tests do courts use to determine if product is defective?

1) Consumer expectation test – Is product more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner?
2) Risk/Utility test – Does the product’s risk of harm outweigh its utility? (If “. . . the benefits of the challenged design do not outweigh the risk inherent in such design . . .” then the product design is defective.)

What types of defects are there?

1) Manufacturer Defect
2) Design Defect
3) Information Defect (Failure to Warn)

Here is part of a teaching summary that I often share with my students.

Strict Liability for Defective Products
Teaching Summary

INTRODUCTION
Torts and Compensation, 5th ed., Dobbs and Hayden, American Casebook Series

Manufacturing Defects: Teacher’s Manual, Torts and Compensation, 5th ed., Dobbs and Hayden

One of the most difficult and confusing areas for students for strict liability for defective products is that of determining when a product is deemed “Defective.” Remember that it is necessary to focus on the condition of the product when contemplating the issue of defect. There are three types of defects:

     1. A manufacturer’s defect,
     2. A design defect and
     3. A warning (or informational) defect.

So far this is not too complicated, but the water begins to muddy when we look at the tests to determine if there is a defect. In general, there are three tests. The first is the “consumer expectation” test (CET), the second is the “risk-benefit” test (or the risk-benefit balancing test (RBT) and the third is the “presumed seller" test (PST). The PST is much like the CET, but the new Restatement has done away with it. Keep in mind that we will eventually end with the CET used for manufacturer’s defects and the RBT used for design defects in most cases. This is really too simplistic, but nonetheless, it may help to form the basis of our understanding.

The CET is this: is the product more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner? Another way of saying it is: is the product dangerous beyond the contemplation of the consumer?

The RBT balances the gravity and probability of the risk against the benefit and utility of the actual design versus the benefit and feasibility of a reasonably alternative design (RAD) that would have prevented the injury.

The PST is this: a product will be defective if a manufacturer would be negligent in placing the product on the market, presuming that such manufacturer had full knowledge of the product’s harmful or dangerous propensity.

Added into the mix as well, is that Strict Liability for Defective Products initially was codified in the Restatement (Second) of Torts, Section 402A. To increase the misery, the Restatement (Third) of Torts, sometimes referred to as the Restatement Third or the Products Liability Restatement (PLR). The PLR supersedes 402A. The PLR 2(a) states:

     "There is 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. PLR 2(a)."

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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