Warnings & Defenses
“Reasonable Alternative Design” Challenges
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You are the lawyer for the plaintiff in a case where the plaintiff has smoked cigarettes since she was 16 years old. She’s now in her 50s and she has terminal lung cancer, and she is suing the cigarette manufacturers for products liability under a design-defect theory. What do you propose as a reasonable alternative design?
Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?
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You are the lawyer for the plaintiff in a case where the plaintiff dove into a 3.5 foot, above-ground pool and broke their spine. What do you propose as a reasonable alternative design?
Should the plaintiff succeed on this theory? Should the plaintiff succeed on the merits of the case but for different reasons? Should the plaintiff not prevail at all?
Warnings
Products Liability Claims
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Products Liability Claims
- Manufacturing Defects
- Design Defects
- Failure to Warn
Elements of a Claim
Negligence
- Duty
- Breach
- Causation
- Harm
[.column] Strict Liability
- Defendant was engaged in the kind of activity where strict liability applies
- Causation
- Harm
[.column] Products Liability
- Defect
- Causation
- Harm
What are our concerns with the effectiveness of warnings and warning labels?
- Clarity of labels
- Too much text
- Level of detail related to the possible harm
- Language and legalese / What languages?
- Location of label
- Overwarning
- Color and font, visibility
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Hood v. Ryobi American Corp.
Couple nuances
“Heeding Presumption”
Warnings can’t overcome design defects
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In-Class Performance
Rueben the bear →
Raccoon →
Turtle →
Bigfoot →
Dog →
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?
How can you defend against a strict liability or products liability claim?
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Plaintiff’s failure to discover a defect
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.
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.
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