What products liability claims might Reuben the bear assert against the manufacturer of his pants?

We all have an intuition that Reuben should lose his case,
but for what reason?

Because of Reuben role in the harm

• Causal
• Responsibility

Expectations

Fluke aberration / not foreseaable by pant manufacturer

What were our defenses for negligence?

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What were our defenses for negligence?

Contributory / Comparative Negligence Assumption of Risk

Do these apply with strict liability?

General Motors Corp. v. Sanchez

Restatement (Second) of Torts

Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.

State Statute on Comparative Responsibility

Statute expressly includes suits based on strict tort liability and defines “[p]ercentage of responsibility” as the percentage that a party “cause[d] or contribute[d] to cause [the harm] in any way, whether by negligent act or omission, . . . [or] by other conduct or activity violative of the applicable legal standard.”

Tension between Restatements

Restatement Second

Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability.

Restatement Third

[W]hen the defendant claims that the plaintiff failed to discover a defect, there must be evidence that the plaintiff’s conduct in failing to discover a defect did, in fact, fail to meet a standard of reasonable care. In general, a plaintiff has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it.

Comparative Responsibility is Hard

Disclaimers and Waivers

Products Liability Exercise Part 1

You are a junior associate at a plaintiff-side firm. A partner at the firm has brought you in to work on an interesting new case. The potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.

The partner at your firm doesn’t typically litigate products liability cases, so she wants you to catch her up to speed. She’d like you to sketch out arguments supporting a failure to warn claim, a design defect claim, and a manufacturing defect claim. For each claim, provide an example of a piece of evidence that would help our client win. And let her know which claims have the best chance of success. On the failure to warn claim, you should know that Oscar Mayer Weiner will seek protection from the “learned intermediary” doctrine as the company does inform elementary schools that hot dogs are a choking hazard.

Products Liability Exercise Part 2

You are a junior associate at a firm representing Oscar Mayer Weiner.

Same set of facts. A potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.

A partner at your firm would like you to sketch out arguments defending Oscar Mayer Weiner the plaintiff’s potential failure to warn claim, design defect claim, and manufacturing defect claim.