lexinter.net                                                                                                                        

 

PRODUCTS LIABILITY

CONSTITUTION OF THE UNITED STATES | DROIT FEDERAL | LIENS THEMATIQUES | DROIT DES ETATS | INTELLECTUAL PROPERTY LAW | BOURSE US | GESTION PATRIMONIALE-USA | JURISPRUDENCE ETATIQUE | DROIT DES SOCIETES - USA | DROIT DE LA CONSOMMATION-USA | RESPONSABILITE US | PRIVACY LAW | ELECTRONIC COMMUNICATION | USA PATRIOT ACT | CONFLICT OF LAWS

LEGAL DICTIONARY


RECHERCHE INTERNATIONALE ] Remonter ]

RECHERCHE        

--

 

 L'ATLAS

UNION EUROPENNE

EUROPE CENTRALE

RUSSIE

EUROPE DU NORD

AMERIQUE DU NORD

AMERIQUE DU SUD

MEDITERRANEE

AFRIQUE

ASIE

MOYEN ORIENT

  

DROIT FRANCAIS

 DROIT EUROPEEN

 DROIT USA

Accueil LexInter.net

 

 

Summary of the Restatement

The Restatement contains twenty-one sections of law divided into 4 chapters:

  • Chapter 1 (Sections 1-8) deals with liability for product defects at the time of sale

  • Chapter 2 (Sections 9-11) deals with liability for defects not existing at the time of sale

  • Chapter 3 (Sections 12-14) covers liability of successors and apparent manufacturers; and Chapter 4 (Sections 15-21) deals with causation, affirmative defenses and definitions.

Chapter 1

Section 1 states the basic premise that a commercial seller or distributor is liable for harm to persons or property caused by defects in its products.

Section 2 provides definitions and commentary for determining whether there are defects in manufacturing, design, and warnings and instructions.

Section 2(a) provides that a manufacturer is subject to liability for manufacturing defects if ". . . the product departs from its intended design ...." It contains no requirement that the plaintiff prove the departure rendered the product "unreasonably dangerous."

Section  2(b) states that a product is defectively designed if the foreseeable risks ". . . could have been reduced or avoided by the adoption of a reasonable alternative design . . . and the omission of the alternative design renders the product not reasonably safe." The plaintiff may not recover simply by criticizing the design of the subject product;  he  must also prove that a feasible alternative design would have prevented the accident.

IComment d to 2, which addresses 2(b) liability for defective design, the Reporters adopt a risk-utility balancing test that requires a comparison between a proposed alternative design and the product design that caused the injury, undertaken from the viewpoint of a reasonable person.

Comment f to 2 makes it clear that this alternative design must be practical and technologically feasible, although the plaintiffs need not present a prototype to the jury. The alternative design must also be evaluated with respect to overall safety, not only its safety in the circumstances of the plaintiff's accident. The comments further provide that the alternative design does not necessarily have to be commercially available so long as there is expert testimony that it could reasonably have been adopted at the time the subject product was sold.

Comment e to 2, which provides that a court may permit liability even in the absence of an alternative where a product has such extreme danger and such negligible utility that no reasonable person who understood the risks would use the product.

The Reporters have stated that the black letter law and comments which adopt the risk-utility approach are supported by "very substantial authority." Thus, they have sought in this section not to create new law but to enunciate a clearer description of what they believe is occurring in most courts.

Comment g to 2 makes it clear that "consumer expectations" are no longer an independent standard for judging the defectiveness of product designs, although they remain an important factor to consider in determining whether an alternative design should have been adopted. In addition, the Reporters list a number of factors in Comment f that are relevant in determining whether the omission of a reasonable alternative design renders a product not reasonably safe, including the magnitude of foreseeable risks of harm, the effects of the alternative design on cost and product function, marketability and product longevity.

Section 2(c) deals with warnings and instructions, and runs essentially parallel to 2(b). It states that there is a defect in warnings and instructions if the foreseeable risks ". . . could have been reduced or avoided by the provision of reasonable instructions or warnings . . . and the omission of the instructions or warnings renders the product not reasonably safe."

Comment i to 2 points out some of the factors that should be considered in determining whether an alternative warning should have been used, including the likelihood of the risk and the importance of not providing so many warnings that the consumer will ignore them. In addition, Comment j states that a seller will not be liable for failure to warn of an "obvious" risk of harm. On the other hand, the "obviousness" of a design or manufacturing defect will not shield the manufacturer from liability for that defect.

The remainder of Chapter 1 comprises a section concerning the use of circumstantial evidence to support an inference of product defect (res ipsa loquitur); a section that says that noncompliance with a product safety statute or regulation can be the basis of a finding of defect if the noncompliance caused the injury or damage; a section dealing with the liability of a manufacturer of components, raw materials and incomplete products; and sections on the liability of manufacturers of prescription drugs and medical devices, food products, and used products. These sections are generally consistent with current law in the US and, in some cases, are clarifications of current law.

Chapter 2

This chapter contains sections concerning defects occurring at some time other than sale - either before or after sale.

Section 9 sets forth the law concerning misrepresentations that occur in connection with the sale of a product.

Sections 10 and 11 deal with liability based on a seller or distributor's liability for harm caused by a post-sale failure to warn or failure to recall a product.

Sections 10 and 11  establish a post-sale duty that has not been accepted or even decided by a majority of states in the US. However, the Reporters and the membership felt that there were enough decisions in various jurisdictions accepting a post-sale duty, and that this duty contributes to product safety and is consistent with government regulations which encourage manufacturers to identify and deal with post-sale problems.

Chapter 3

This chapter deals with liability of business entities that are successors to the manufacturer or that are apparent manufacturers (e.g., a product seller whose name is on the product but whose product is manufactured by someone else). Sections 12 and 13 deal with liability of a successor for the predecessor's products and a successor's liability for failing to issue a post-sale warning concerning hazards that it learns of in the predecessor's product. These sections are generally consistent with existing law or with the new post-sale section in this Restatement.

Section 14 says that an apparent manufacturer is subject to the same liability as though it were the product manufacturer. However, in practice, an apparent manufacturer will not be liable if the actual manufacturer protects the apparent manufacturer from liability through a contractual agreement or insurance coverage.

Chapter 4

This chapter contains sections on causation, affirmative defenses and definitions. Section 15 says that causation, one of the required elements of establishing liability, is to be determined by the applicable law of the place of the litigation. The possible defenses of product misuse, alteration and modification are discussed in the Comments to this section.

Section 16 deals with crashworthiness or enhanced-injury liability. This is liability that arises when an alleged product defect does not cause the initial accident or harm, but is claimed to have made the harm worse than it otherwise would have been. Section 16(a) makes it clear that the plaintiff must prove that a defect was a substantial factor in causing increased harm beyond that which would have been suffered by the plaintiff from non-defect related causes.

Under 16(b), the manufacturer is liable only for the actual increase in harm so long as there is proof from which the jury can make a finding about the extent to which the harm was increased by the defect as compared with the harm that would have been suffered if the product had not been defective. However, 16(c) takes the controversial position that if there is no proof from which the jury can determine the actual amount of the increase in harm, the manufacturer will be liable for the entire harm suffered by the plaintiff so long as the plaintiff meets the burden imposed by 16(a) of proving that a defect was a substantial factor in causing some increased harm.

Sections 17 and 18 discuss the affirmative defenses of apportionment of liability and contractual disclaimers. Section 17 will simply characterize current product liability case law on apportionment but will not take a position on what direction that law should take. This is because the ALI is working on a separate part of the Restatement of Torts, Third which will deal exclusively with apportionment. Section 18 confirms that contractual disclaimers do not bar or otherwise reduce valid products liability claims.

The last three sections are definitions of the terms "product", "one who sells or otherwise distributes", and "harm to persons or property." Section 19 discusses when tangible and intangible personal property and real property are products under this Restatement and how to distinguish between services and products. Section 20 discusses when product giveaways, leases, bailments and other activities related to the distribution of products fall within the Restatement.

Section 21 discusses when economic loss is included in coverage of this Restatement. Pure economic loss is governed by contract law and the remedies set forth in the Uniform Commercial Code. Economic loss such as loss of earnings suffered by the plaintiff and damage to the plaintiff's property other than the product itself are covered by the Restatement. Damage to the defective product is covered under contract law.

lns:st1="urn:www.microsoft.com/smarttags" xmlns:o="urn:www.microsoft.com/office"> Section 21 discusses when economic loss is included in coverage of this Restatement. Pure economic loss is governed by contract law and the remedies set forth in the Uniform Commercial Code. Economic loss such as loss of earnings suffered by the plaintiff and damage to the plaintiff's property other than the product itself are covered by the Restatement. Damage to the defective product is covered under contract law.