Torts I

18 November

• Defective products-- that would be a whole class in itself.
• If we bring non-perishable foods next Tuesday, we don't have to talk. :)
• Lincoln logs. Actually, sort of extraordinarily uncreative, because the things you build are constrained by the dimensions of the logs, and also so wobbly. Should you be able to sue if your child gets hurt by using them? The maker has a duty to make safe toys. But we don't want this whenever a product causes harm: not all toys have to be 100% kid-proof. Legos, for example, have small parts, and that's OK. So we have an interesting thing: we find some failures acceptable, and others not. How does this fit into the rest of our laws on negligence?
• It's really hard to apply standard negligence rules to this area. Whom do you sue, for example? The seller, because of the purchase contract? The manufacturer? The makers of components? There might be intermediate dealers as well. We used to do everything on the basis of privity of contract. Over time, additional causes of action arose. In a way, this is kind of a happy area: it grows in a mostly orderly manner, generally introducing new kinds of liability over time that complement the other areas.
• Major eras in products liability law:
  1. Contract privity: bits of this persist well into the 20th century. So here, depending on what the contract provided, there might still be no liability: caveat emptor, after all. The leading case was Winterbottom v. Wright (plaintiff injured by employer's defective stagecoach; suit against maker fails for lack of privity; 1840s English case). So this is a bit unfair: negligent manufacturers are insulated from liability to the very people for whom their product is intended, and dealers will never discover the defects before the products are passed along. There could be indirect liability, of course (I sue toy store, toy store sues distributor, distributor sues manufacturer), but this fails to protect bystanders (pedestrian injured by defective auto). So people began to spot exceptions to the contract privity rule almost as soon as it was set down. Thomas v. Winchester (cited in MacPherson): no privity required if the product is imminently or inherently dangerous-- you can pursue a manufacturer in negligence..
  2. Negligence: In the beginning, the number of inherently dangerous products was small (poison, explosive, etc.). Over time, coffee urns, fuzzy water, etc., all got lumped in there. So the exceptions soon have swallowed the contract privity rule. Basically the sheer fact of the injury suggests negligence. Privity didn't totally go away until 1916 in MacPherson.
  3. Warranty. So now we have the right to sue negligent manufacturers, and even bystanders can sue. Why isn't this enough? Plaintiffs are going to have a hard time proving negligence. So this is a new standard, but probably not one that many plaintiffs would be able to avail themselves of. So we begin to see a series of food cases (p. 555, note 9, esp. Ryan v. Progressive Grocery: recovery allowed for injury sustained from a pin embedded in a loaf of bread). Implied warranty of merchantability. This isn't really a torts concept, after all.
  4. Strict liability.
• MacPherson v. Buick Motor Co.
  The defendant didn't make the defective wheel, but reasonable inspection could have found it.

  Interesting: this case maybe gives the right law for the wrong reasons. (It's Cardozo, after all.) Turns out MacPherson was on his way to Saratoga Springs to take a friend with an injured hand to the hospital. How fast was he going? The car is capable of 50MPH. Probably, he's only going 30MPH, which was still pretty zippy in those days (normal speed on paved roads those days was 15-20MPH). But there was some loose gravel, and it looks like he slid off the road, hit a phone pole, fell into a ditch, the pole hits MacPherson, and other passengers are thrown out. Bad on him: he apologizes profusely for going so fast.

  All wheels in those days had 12 hickory spokes (by Imperial Wheel). Even if several spokes had inferior wood, this would be unlikely to compromise its safety. And, after all, each spoke had been inspected at the wheel factory. So the chances of it failing in normal use are quite slim. So Buick gets the wheel in, the wheelmaker has a great track-record for safe wheels, and Buick doesn't inspect it because doing so is probably costly and useless. They do road-test all vehicles, though, and surely defects such as the one alleged would have become apparent. And indeed, not 1 in 80K wheels delivered to Buick from Imperial had ever failed.

  So how do we come to the point where Buick is liable? Well, for one thing, MacPherson seems to have believed his wheel-failure story. And he had a good local attorney, whereas Buick shows up with engineers from Detroit and big strong attorneys. So he gets some credibility points, just that way. But really, it couldn't have happened the way he said (he claimed 8 MPH, and his car would have stalled when he hit the gravel, not flipped). Maybe he rounded down, because he felt the accident wasn't his fault. :) And in those days, contributory negligence was a total bar to recovery.

  From the outset, Buick argues that it owes no duty to MacPherson because there was no contract, and this is the issue they raise on appeal. Maybe they could have won on the implausibility of the evidence, but they wanted to settle once and for all whether they owed any duty to end-user consumers of their products. Oops.

  OK, but where is the negligence? Should Buick supersede Imperial's inspections? Basically, Cardozo just says the privity rule is arbitrary. And pressure to get rid of the rule had been building throughout the 19th century.

  Because of the wording here, people thought you could be liable without privity if the plaintiff was injured by an inherently dangerous product. So it seemed like there was only accountability for manufacturers of inherently dangerous products. So, it was taken as a possible extension of Thomas v. Winchester at least for a while. But what products wouldn't be subject to the rule that Cardozo laid down? None, it turns out. The probability of an injury means there was danger. So there might be no recovery (because injury is not foreseeable or something), but there's no bar to recovery on the basis of lack of privity any more.

  Yay! Tort triumphs over contract yet again!

• Escola
  Another nice holding for the plaintiff.

  Gladys Escola is working at Tiny's Waffle Shop. She's so badly injured by the bottle that she requires surgery, and loses some use of her hand. She gets $42.60 in worker's comp.

  $2,900 in jury awarded damages on a res ipsa theory. And Coca-Cola appeals this all the way to CA SC.

  So tort law frees the implied warranty idea from contractual restrictions, and makes it a source of strict products liability.

  For more such fun, see Greenman in note 5 on p. 561. This really lays down the law on the strict liability. Neither of the parties even mentioned strict liability. This is 1963, though. This is the same Traynor who wrote the concurring opinion (quite visionary) in Escola.

  But back with Escola. Pretty much every policy rationale is laid out here.

• Strict liability vs. absolute liability. Strict doesn't mean that we have total liability at all times for all defective products. Recovery is not a given. Absolute liability means that it's enough to demonstrate injury, and then you get recovery. With strict, you don't have to show negligence, but you do have to show causation, proximate cause, and then there are the various defenses. With absolute liability, no can defend. So, note 8, p.566: Stahlecker: no proximate cause, no recovery.
• And now we've got the restatements as well. R2T talks about strict liability (p. 566): no privity, no negligence required. But it doesn't talk about design vs. manufacturing, it doesn't cover warnings, etc. Case law has to start addressing these matters, of course. On p. 567, we get three categories from R3T. Causation is required, but there's liability if:
  1. Manufacturing defects are present. A manufacturing defect is when the product departs from its intended design.
  2. Design defects are present. An alternative design would have reduced or avoided the foreseeable harm from use of the product.
  3. Warnings or instructions are insufficient. A warning could have reduced the foreseeable risk of harm.
  Which section imposes strict liability? Manufacturing defects are the only one where there's no mention of foreseeability or reasonableness. Strict liability for manufacturing defects only, in other words. We don't have any problem placing liability on manufacturers when they mess up.
• Design defects, on the other hand, are more complex. The cases make the distinction seem really easy, but many manufacturing defects could easily be said to derive from design defects. Great designs, in other words, don't require extra testing and inspection, and the products are less likely to diverge from their intended manufactured state.
• The test for design defects is proposed in Barker, a landmark 1978 CA decision (p. 570-1):
  1. Does the product fail to meet consumer expecatations of safety?
  2. Does the product create excessive preventable dangers?
  These are the factors to consider. Do the risks inherent in the design outweigh the benefits? Both of these prongs have their strengths and shortcomings.

20 November

• The exam will be an issue-spotter, but these get a bad rap. 2 pages. Both sides.
• Back to product liability. We left off taling about strict liability for manufacturing defects. This comes from common law and the restatements. R3T is where we start differentiating between manufacturing (strict) and design defects. So, in Barker as you will recall... There's the two-prong test.
• Soule v. General Motors
  This is, after all, a pretty convoluted case. Maybe circular, even. Whence "consumer expectations" here? It's too complex a defect for consumers to have expectations about: the risk-utility analysis is more suitable. But maybe the plaintiff is just trying to cover her bases-- can't blame her for that.

  Still, when do you use which prong of the Barker test? See the bottom of p. 574 ("GM suggests..."). The court tries to spell our circumstances where the consumer expectation test is inappropriate. The consumer expectation test is easier to get a favorable result-- it's in language that the jury can easily understand. See footnote 3 on p. 573: what kind of expectations consumers might have of design defects.

  But if the consumer expectation test isn't workable, then you have to go to this risk-benefit analysis. But there are times when there's tension. Consider the case of injuries caused by airbags. Consumers expect that airbags will keep them safe, but maybe making airbags that never caused injuries would be ludicrously expensive, and the benefits of airbags make these injuries (though unexpected) relatively inconsequential.

  Likewise, note 11 on p. 580: the VW microbus design issue. Was the design defective because it provided less protection? Price is a factor, also the intended use of the vehicle. If liability were present just because a design feature caused injury, there would be tremendous cost pressure to design only ultra-safe tanks.

  After all, there are a variety of cars on the road, and they're not all equally safe. There are other things to balance besides just expectations of safety.

  RAD Requirement = "Reasonable Alternative Design."

• Camacho v. Honda Motor Co, Ltd.
  This was before Soule, but there's a logical progression nevertheless. :)

  If the risks of a product (like a motorcycle) are open and obvious, maybe arguments about consumer expectations of safety don't work. For example, alcohol, cigarettes, and so on. Not just motorcycles. Essentially, you shouldn't be allowed to sue for known risks (hence the "unreasonably dangerous" language). So now the consumer expectation test is rejected for the opposite reason: it would be unfair to consumers to bar recovery entirely just because a reasonable consumer would know that there was a risk.

  And so we're back to this notion of RAD. The factors are on p. 588. Design defect becomes a question as to whether there is a reasonable alternative design.

• Safety and warnings: there are risks that are apparent, and ones that are not. Are there products that don't need warnings? Well, knives. P. 596 (Maneely): you don't have to warn people that riding in the back of a pickup is dangerous. On the other hand, Emery: marshmallows might be more dangerous than people realize, and the case should go to trial to decide.
• We're going to look at cases where warnings are believed to be appropriate and necessary. These are instructional warnings: not admonitions NOT to do something, but instructions on how to do/use something safely.
• Hood
  Removing the guard from your miter saw is dangerous, mmm-kay? The warnings never said the blade could come off. There's a cost to putting too many warnings. The cost of overwarning comes from several sources: people stop reading them, for one thing.

  Compare, though with p. 600, note 2a. Flames from cologne on candle. I guess there should have been a warning. Note 2b. The warning on the perm chemicals is not clear enough.

  Note 5. A bit on the costs of overwarning: the readers of warnings, who are apparently a bit thick, are overwhelmed by them. So there is a balance between enough warning and too much. Sort of an exclusio argument: if you warn against something specific, people will assume it's not dangerous in general. On the other hand, a general warning will encourage people to wonder if some specific act might not be dangerous. A warning's silence on some topic, for example, might be seen as encouragement...

• Basically warnings are required if there is a foreseeable risk, the risk isn't completely apparent, and placing the warning isn't an undue burden on the manufacturer.
• Edwards v. Basel Pharmaceuticals
  Insufficient warnings on nicotine patch. And the guy is wearing a couple of patches, and then he has a smoke. There was no warning of this particular harm: heart attack. There was a warning, in other words, but not an adequate warning.

  Of course, this was an unlikely consequence. And a big bold warning of it might make people not want the product.

  So we get the "learned intermediary" doctrine: manufacturers are immune from liability because the prescribing doctor is supposed to warn. Patients are constructively warned, in other words, if their doctors are aware of the risk. There are exceptions to this risk for cases where patients would ordinarily make their own judgments about a particular medication, rather than relying on a physician's advice. There's also an immunization exception: flu shots, for example. Also p. 610, note 3: where the defendant advertises prescription drugs directly to the consumer, there's no learned intermediary defense.

  But that defense fails: the FDA requires that users of the patches be fully informed about the risk. If the FDA requires a direct warning, learned intermediary won't save you. So, then, did this warning satisfy FDA's requirements? It was in compliance with the requirements. But alas, it was a defective warning: it failed to make clear what the actual risks were.

  So the court rejects the regulatory compliance defense. Again, compliance itself is not a sufficient showing to avoid liability. State common law, not FDA, decides if the duty to warn is satisfied.