Theories of Liability In most jurisdictions, a plaintiff’s product liability cause of action may be based on one or more of four different theories: NEGLIGENCE, breach of WARRANTY, MISRE
Trang 1the early release from prison Probation is reserved for persons convicted of less serious offenses; parole is given to persons convicted of serious offenses
The concept of probation in the CRIMINAL LAWwas inspired in the mid-nineteenth century
by JOHN AUGUSTUS, a resident of Boston
Augustus encountered a man about to be sentenced in a Boston court and believed him
to be capable of reform Augustus posted bail for the man and succeeded in getting his sentence reduced From 1841 to 1859 Massa-chusetts judges released approximately 2000 offenders into Augustus’s custody instead of ordering incarceration
In 1878 Massachusetts enacted the first probation statute, and Boston hired its first probation officer In 1880 the Massachusetts legislature approved the first statewide hiring of probation officers By 1925 all states had laws governing probation for juveniles, and by 1939 approximately 39 states were maintaining laws
on probation for adults By 1967 adult proba-tion was allowed by statute in all states
Probation statutes generally identify the crimes available for a sentence of probation,
or, conversely, they identify crimes for which probation may not be ordered In Alaska, for example, a court may not order probation if the person has been convicted of sexual assault or if the person’s conviction is his second assault or
ROBBERY offense within the previous ten years (Alaska Stat § 12.55.085[1965])
Statutes may also identify conditions of probation These are actions that a probationer must do or refrain from doing during probation
Though conditions may be spelled out in statutes, a sentencing judge retains wide discre-tion to fashion condidiscre-tions according to the best interests of both the public and the defendant In most states a probationer must not possess a firearm, commit another offense, or possess illegal drugs during the probation period
Probationers must also report regularly to a probation officer
A judge may place additional conditions on
a probationer For example, if a defendant pleads guilty to assault, the court may order him
to stay a specified distance away from the victim
of the assault In a conviction for a small amount of marijuana a judge may order the defendant to complete treatment for drug use
If a probationer violates any condition of
probation, the court may order additional conditions or impose a prison sentence that does not exceed the maximum term of impris-onment that could have been imposed for the crime
Judges in state court generally have wide discretion in sentencing In determining whether
to sentence a defendant to probation, the court may consider a variety of factors, including the nature and circumstances of the offense and the defendant’s criminal history
Probation became a sentencing option for federal judges with the 1925 passage of the Federal Probation Act (18 U.S.C.A § 3651) This act authorized federal courts to suspend imposition of a sentence, or the execution of a sentence, in favor of probation A defendant could be placed on up to five years’ probation
“upon such terms and conditions as the court deemed best” when the court was satisfied that
“the ends of justice and the best interest of the public as well as the defendant [would] be served thereby.”
Probation as a criminal sentence was the product of a reform movement in the criminal justice system in the early twentieth century Part
of this movement was devoted to ABOLITION of determinate sentencing or the legislative impo-sition of specific sentences for specific crimes The reform movement fought for indeterminate sentencing, a method that left sentencing to the discretion of the judge and allowed the judge to fashion a sentence according to the rehabilitative needs of the criminal defendant
Congress reversed indeterminate sentencing
in federal court with the Sentencing Reform Act
of 1984 (18 U.S.C.A §§ 3551–3556) The act replaced the Federal Probation Act and estab-lished sentencing guidelines for federal judges, allowing a judge to order probation only if the offense calls for a term of imprisonment of six months or less The act lists offenses for which revocation of probation and imposition
of imprisonment are mandatory
The Sentencing Act also changed the role of federal probation officers in the federal criminal justice system Under the act, probation officers must gather and present evidence on facts relevant to the sentencing guidelines This is a shift in the focus of probation officers’ work Probation officers once worked to ensure that the sentence fit the individual offender, but subsequently they endeavored to ensure that the
138 PROBATION
Trang 2defendant’s sentence fits the offenses charged.
In other words, the probation officer became
less like a social worker intent on the
rehabili-tation of the probationer and more like an
informant for the court against the probationer
Revocation of probation in federal court in
conjunction with the federal sentencing
guide-lines has led to confusion over the application of
probation In United States v Granderson, 511
U.S 39, 114 S Ct 1259, 127 L Ed 2d 611
(1994), Ralph Stuart Granderson Jr was
con-victed of destruction of mail and sentenced to
five years’ probation and a fine While on
probation, Granderson tested positive for
co-caine Under 18 U.S.C.A § 3565(a) (1984), the
court was required to revoke Granderson’s
probation “and sentence [him] to not less than
one-third of the original sentence.”
At the revocation hearing the government
argued that this requirement meant a term of
imprisonment not less than one-third the
probationary period originally ordered by the
court The court agreed and resentenced
Grand-erson to 60 months in prison Under the federal
sentencing guidelines, Granderson could have
been initially sentenced to a term of
imprison-ment between zero and six months
Granderson appealed, arguing that“original
sentence” did not mean a term of imprisonment
equal to the length of the probationary sentence
imposed but instead referred to the prison
sentence that the judge initially could have
ordered The U.S Court of Appeals for the
Eleventh Circuit agreed and vacated
Grand-erson’s sentence and ordered his release from
prison According to the court of appeals, it was
“legal alchemy” to convert a long-term sentence
of conditional liberty into an equally long term
of imprisonment (United States v Granderson,
969 F.2d 980 [11th Cir 1992]) The federal
government appealed to the U.S Supreme
Court, which affirmed the ruling
FURTHER READINGS
Abadinsky, Howard 2008 Probation and Parole: Theory and
Practice 10th ed Upper Saddle River, N.J.: Prentice
Hall.
Bieluch, Brian G 2002 “Probation.” Georgetown Law
Journal 90.
Bunzel, Sharon M 1995 “The Probation Officer and the
Federal Sentencing Guidelines: Strange Philosophical
Bedfellows ” Yale Law Journal 104.
Morris, Norval, and Michael H Tonry 1990 Between Prison
and Probation: Intermediate Punishment in a Rational
Sentencing System New York: Oxford Univ Press.
Petersilia, Joan 2002 Reforming Probation and Parole in the 21st Century Lanham, Md.: American Correctional Association
Rosenberg, Nancy Taylor 1995 First Offense New York:
Signet.
Smith, Michael George 1995 “The Propriety and Useful-ness of Geographical Restrictions Imposed as Condi-tions of Probation ” Baylor Law Review 47.
Taxman, Faye S 2002 “Supervision—Exploring the Dimen-sions of Effectiveness ” Federal Probation 66.
CROSS REFERENCES Parole; Presentence Investigation.
PROBATIONER
A convict who is released from prison provided he maintains good behavior One who is on PROBA-TIONwhereby she is given some freedom to reenter society subject to the condition that for a specified period the individual conduct herself in a manner approved by a special officer to whom the probationer must report
PROBATIVE Having the effect of proof, tending to prove, or actually proving
When a legal controversy goes to trial, the parties seek to prove their cases by the introduction of evidence All courts are governed
by rules of evidence that describe what types of evidence are admissible One key element for the admission of evidence is whether it proves or helps to prove a fact or issue If so, the evidence is deemed probative Probative evidence estab-lishes or contributes to proof
Probative facts are data that have the effect of proving an issue or other information Probative facts establish the existence of other facts They are matters of evidence that make the existence
of something more probable or less probable than it would be without them They are admissible as evidence and aid the court in the final resolution of a disputed issue For example,
in the case of a motor vehicle accident, a witness’s testimony that she saw one automobile enter the intersection on a red light is a probative fact about whether the driver was at fault
Evidence has probative value if it tends to prove an issue However, probative value may refer to whether the evidence is admissible For example, Federal Rule of Evidence 403 states that relevant evidence, which tends to prove or disprove an alleged fact, may be excluded if its probative value is substantially outweighed by the
PROBATIVE 139
Trang 3danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considera-tions of undue delay, waste of time, or needless presentation ofCUMULATIVE EVIDENCE A trial court must use a balancing test to make this determination, but rules of evidence generally require that relevant evidence with probative value be excluded only if it is substantially outweighed by one of the dangers described in the rule
PROCEDURAL LAW The body of law that prescribes formal steps to be taken in enforcing legal rights
Legal rights themselves are created and defined by SUBSTANTIVE LAW Different rules generally govern CIVIL PROCEDURE and CRIMINAL PROCEDURE, or the procedure followed in trials and in appeals Federal Rules of Civil Procedure regulate actions in federal courts Procedural law
is made up of state or federal statutes, rules promulgated by individual courts, and standards established by CONSTITUTIONAL LAW, particularly provisions ensuring the DUE PROCESS OF LAW Procedural law is often called adjective law by legal writers
CROSS REFERENCE Civil Procedure.
PROCEDURE The methods by which legal rights are enforced; the specific machinery for carrying on a lawsuit, including process, the pleadings,RULES OF EVIDENCE, and rules ofCIVIL PROCEDUREorCRIMINAL PROCEDURE The form, manner, and order of steps taken
in conducting a lawsuit are all regulated by procedural law, which regulates how the law will be administered SUBSTANTIVE LAW creates and defines rights that exist under the law
CROSS REFERENCE Civil Procedure.
PROCEEDING
A lawsuit; a hearing; all or some part of a cause of action heard and determined by a court, an
ADMINISTRATIVE AGENCY, or other judicial authority
Any legal step or action taken at the direction of, or
by the authority of, a court or agency; any measures necessary to prosecute or defend an action
The word proceeding may be used for all actions, or it may be used for something other than the usual type of lawsuit For example, a
special proceeding may be a particular procedure for handling a certain type of dispute Special proceedings may be commenced by a petition or motion even when no full-fledged lawsuit is pending They usually are confined to disputes that were not recognized under theCOMMON LAW
or in EQUITY For example, a proceeding to challenge decisions made by administrative agencies may be a special proceeding
A summary proceeding is governed by accelerated methods that produce a quick decision This is done by elimination of a jury,
a presentment, orINDICTMENT, or other elements that are allowed in regular proceedings.SUMMARY PROCEEDINGSare available only for certain types of cases, such as small claims, or in certain courts, such as a conciliation orSMALL CLAIMS COURT The term“proceeding” can also refer to one part of a larger legal action For example, courts will frequently order a hearing to be held on disputes that arise before trial, during trial, after trial, and on appeal Examples include adjudi-catory hearings, administrative hearings, com-petency hearings, EX PARTE hearings,IN CAMERA
hearings, pretrial hearings, post-trial hearings, hearings IN REM, hearings quasi in rem, and summary hearings, just to name a few For each
of these examples, the word“proceeding” could
be substituted for the word“hearing.”
SUPPLEMENTARY PROCEEDINGSare separate from the original action They help a successful party collect what is owed on a judgment by summoning the defendant-debtor, requiring that individual to disclose what he or she owns, and ordering that it be delivered in order to satisfy the judgment
PROCEEDS The yield, income, money, or anything of value produced from a sale of property or a particular transaction
Proceeds refers to whatever is received when
an item is sold or to that which results or accrues from some possession or transaction Proceeds are classified into cash and noncash categories
PROCESS
A series of actions, motions, or occurrences; a method, mode, or operation, whereby a result or effect is produced; normal or actual course of procedure; regular proceeding, as, the process of vegetation or decomposition; a chemical process; processes of nature
140 PROCEDURAL LAW
Trang 4In patent law, an art or method by which any
particular result is produced A definite
combina-tion of new or old elements, ingredients,
opera-tions, ways, or means to produce a new, improved,
or old result, and any substantial change therein
by omission, to the same or better result, or by
modification or substitution, with different
func-tion, to the same or better result, is a new and
patentable process
In civil and criminal proceedings, any means
used by a court to acquire or exercise its
jurisdiction over a person or over specific property
A summons or summons and complaint;
some-times, a writ
CROSS REFERENCE
Service of Process.
PROCESS SERVER
A person authorized by law to deliver papers,
typically the complaint, to the defendant
CROSS REFERENCE
Service of Process.
PROCHEIN AMI
See NEXT FRIEND
PROCLAMATION
An act that formally declares to the general public
that the government has acted in a particular way
A written or printed document issued by a superior
government executive, such as the president or
governor, which sets out such a declaration by the
government
PROCTOR
A person appointed to manage the affairs of
another or to represent another in a judgment
In English law, the name formerly given to
practitioners in ecclesiastical and admiralty courts
who performed duties similar to those of solicitors
in ordinary courts
In old ENGLISH LAW, a proctor was an
attorney who practiced in the ecclesiastical and
admiralty courts Proctors, also known as
procurators, served a similar function as
solici-tors in the ordinary courts of England The title
of proctor was merged with that of solicitor in
1873, but it is sometimes used in the United
States to designate practitioners in probate and
admiralty courts
The use of proctors and procurators was an important step in English law because it signified the acceptance ofLEGAL REPRESENTATION Procuration allowed one person to give power
to another to act in his behalf The proctor became the agent of the client, legally entitled to perform all actions that the client could have performed
A procuracy was the writing or instrument that authorized a proctor or procurator to act
The document called a POWER OF ATTORNEY, which authorizes an attorney or agent to represent a person’s interests, is based on this relationship A power of attorney may be general, giving the agent blanket authority to perform all necessary acts for the person, or specific, limiting the agent to certain actions
The term procuracy was shortened toPROXY, which has gained a more specific meaning A proxy is a person who is substituted or designated by another to represent him or her, usually in a meeting or before a public body
Shareholders in a corporation commonly use a written proxy to give someone else the right to vote their shares at a shareholders’ meeting
PROCURE
To cause something to happen; to find and obtain something or someone
Procure refers to commencing a proceeding;
bringing about a result; persuading, inducing,
or causing a person to do a particular act;
obtaining possession or control over an item; or making a person available for sexual intercourse
PRODUCE
As a noun, the product of natural growth, labor,
or capital Articles produced or grown from or on the soil, or found in the soil
As a verb, to bring forward; to show or exhibit;
to bring into view or notice; as, to present a play, including its presentation in motion pictures To produce witnesses or documents at trial in obedience to a subpoena or to be compelled to produce materials subject to discovery rules
To make, originate, or yield, as gasoline To bring to the surface, as oil To yield, as revenue
Thus, funds are produced by taxation, not when the tax is levied, but when the sums are collected
PRODUCING CAUSE See PROXIMATE CAUSE
PRODUCING CAUSE 141
Trang 5PRODUCT LIABILITY Product liability is the responsibility of a manu-facturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for sale
When individuals are harmed by an unsafe product, they may have a CAUSE OF ACTION
against the persons who designed, manufac-tured, sold, or furnished that product In the United States, some consumers have hailed the rapid growth of product liability litigation as an effective tool forCONSUMER PROTECTION The law has changed from caveat emptor (let the buyer beware) to STRICT LIABILITY for manufacturing defects that make a product unreasonably dangerous Manufacturers and others who distribute and sell goods argue that product liability verdicts have enriched plaintiffs’ attor-neys and added to the cost of goods sold
Businesses have sought TORTreform from state legislatures and Congress in hopes of reducing damage awards that sometimes reach millions
of dollars
Theories of Liability
In most jurisdictions, a plaintiff’s product liability cause of action may be based on one
or more of four different theories: NEGLIGENCE, breach of WARRANTY, MISREPRESENTATION, and strict tort liability
Negligence refers to the absence of, or failure
to exercise, proper or ordinary care It means that
an individual who had a legal obligation either omitted to do what should have been done or did something that should not have been done
A manufacturer can be held liable for negligence if lack of reasonable care in the production, design, or assembly of the manu-facturer’s product caused harm For example, a manufacturing company might be found negli-gent if its employees did not perform their work properly or if management sanctioned improper procedures and an unsafe product was made
Breach of warranty refers to the failure of a seller to fulfill the terms of a promise, claim, or representation made concerning the quality or type of the product The law assumes that a seller gives certain warranties concerning goods that are sold and that he or she must stand behind these assertions
Misrepresentation in the advertising and sales promotion of a product refers to the process of giving consumers false security about the safety of a particular product, ordinarily by drawing attention away from the hazards of its
use An action lies in the intentional conceal-ment of potential hazards or in negligent misrepresentation The key to recovery on the basis of misrepresentation is the plaintiff’s ability
to prove that he relied upon the representations that were made Misrepresentation can be argued under a theory of breach of express warranty or a theory of strict tort liability Strict liability involves extending the re-sponsibility of the vendor or manufacturer to all individuals who might be injured by the product, even in the absence of fault Injured guests, bystanders, or others with no direct relationship to the product may sue for damages caused by the product An injured party must prove that the item was defective, the defect proximately caused the injury, and the defect rendered the product unreasonably dangerous
Historical Development
The history of the law of product liability is largely a history of the erosion of the doctrine of privity, which provides that an injured person can sue the negligent person only if the negligent person was a party to the transaction with the injured person In other words, a defendant’s duty of reasonable care arose only from the contract, and only a party to that contract could sue for its breach A negligent manufacturer could sell a product to a retailer, who in turn would sell the product to the
PLAINTIFF Because the plaintiff did not purchase the product directly from the manufacturer, the plaintiff could not recover from the manufac-turer And in such an instance, the plaintiff was usually without a remedy in tort because it was the manufacturer and not the retailer whose negligence caused the harm
The privity doctrine dominated nineteenth-century law, yet courts created exceptions to avoid denying an injured plaintiff a remedy Soon privity of contract was not required where the seller fraudulently concealed the defect or where the products were inherently or immi-nently dangerous to human life or health, such
as poisons or guns The decisions then began to expand these exceptions Some courts dropped the FRAUD requirement A concealed defect coupled with some sort of “invitation” by the
DEFENDANTto use the product was enough In a few cases, the term imminently dangerous was construed to mean especially dangerous by reason of the defect itself and not necessarily dangerous per se For example, products
142 PRODUCT LIABILITY
Trang 6intended for human consumption, a defective
scaffold, and a coffee urn that exploded would
be considered imminently dangerous
The seminal case of MACPHERSON V BUICK
MOTOR CO., 217 N.Y 382, 111 N.E 1050 (N.Y
1916), broadened the category of “inherently”
or “imminently” dangerous products so as to
effectively abolish the privity requirement in
negligence cases It held that lack of privity is
not a defense if it is foreseeable that the product,
if negligently made, is likely to cause injury to a
class of persons that includes the plaintiff
Because this is essentially the test for negligence,
the exception swallowed the rule The
Mac-Pherson case quickly became a leading authority,
and the privity rule in negligence cases soon was
ignored Increasing public sympathy for victims
of industrial negligence also contributed to the
demise of the rule
In warranty, a similar privity limitation was
imposed, in part because warranties were
thought to be an integral part of the sales
contract Beginning in the early twentieth
century, an exception to the privity rule
devel-oped for cases involving products intended for
human consumption (food, beverages, drugs)
and eventually also for products intended for
“intimate bodily use” (e.g., cosmetics) so that the
warranty in these cases extended to the ultimate
consumer In the case of express warranties,
which could be said to be made to the public
generally, the privity requirement was
aban-doned during the 1930s For example, a
manufacturer’s statement in literature
distrib-uted with an automobile that the windshield was
“shatterproof” constituted an express warranty
to the purchaser that the windshield would not
break (Baxter v Ford Motor Co., 168 Wash 456,
12 P.2d 409[Wash 1932])
But with respect to implied warranties,
exception to the privity rule did not extend
beyond food, drink, and similar products until
Henningsen v Bloomfield Motors, Inc., 32 N.J 358,
161 A.2d 69 (1960) In this case, the New Jersey
Supreme Court abolished the privity limitation
generally and held that the implied warranties run
to the foreseeable ultimate user or consumer of
the product The Henningsen decision, which also
invalidated the manufacturer’s attempted
dis-claimer of IMPLIED WARRANTY liability, has been
followed in almost all jurisdictions
From 1930 to 1960, various legal writers and
a few judges discussed the creation of strict
liability in tort for defective products The
best-known judicial exposition of this view was California Supreme Court Justice Roger John Traynor’s concurring opinion in Escola v Coca Cola Bottling Co of Fresno, 24 Cal 2d 453, 150 P.2d 436 (1944) A number of justifications have been advanced for strict liability: negli-gence is often too difficult to prove; strict liability can be accomplished through a series of actions for breach of warranty; strict liability provides needed safety incentives; the manufac-turer is in the best position to either prevent the harm or insure or spread the cost of the risk;
and the manufacturer of a product induces consumer reliance on the expectation of the product’s safety and should be made to stand behind the product
Finally, in 1963, in Greenman v Yuba Power Products, Inc., 59 Cal 2d 57, 377 P.2d 897, the California Supreme Court adopted strict tort liability for defective products Within a short time, strict liability swept the country and eventually became law in most states
Negligence
The duty to guard against negligence and supply
a safe product applies to everyone in the chain
of distribution Parties in this chain include a manufacturer who carelessly makes a defective product, the company that uses the product to assemble something else without discovering an obvious defect, and the vendor who should exercise greater care in offering products for sale These individuals owe a duty of care to anyone who is likely to be injured by such a product if it is defective, including the initial buyer, that person’s family members, any bystanders, and persons who lease the item or hold it for the purchaser
Additionally, the duty to exercise care involves all phases of getting a product to the consumers or users The product must be designed in such a way that it is safe for its intended use It must be inspected and tested at different stages, made from the appropriate materials, and assembled carefully The pro-duct’s container or packaging must be adequate
The manufacturer must also furnish adequate warnings and directions for use with the product The seller is proscribed from mis-representing the safety or character of the product and must disclose all defects
Breach of Warranty
Warranties are certain kinds of express or implied representations of fact that the law will
PRODUCT LIABILITY 143
Trang 7enforce against the warrantor Product liability law is concerned with three types of warranties involving the product’s quality or fitness for use:
express warranty, implied warranty of mer-chantability, and implied warranty of fitness for
a particular purpose These and other warran-ties are codified in theUNIFORM COMMERCIAL CODE
(UCC), which every state has adopted, at least
in part
An express warranty can be created in one of three ways: through an affirmation of fact made
by the vendor of the goods to the purchaser relating to the goods, which becomes part of the bargain; by way of a description of the goods, which is made part of the basis of the bargain;
and through a sample or model, which is made part of the basis of the bargain (U.C.C § 2-313)
An express warranty can be words spoken during negotiations or written into a sales contract, a sample, an earlier purchase of the same kind of product, or claims made in publicity or on tags attached to the product
An express warranty is created when a salesper-son states that the product is guaranteed to be free from defects for one year from the date of the purchase
Implied warranties are those created and imposed by law and accompany the transfer of title to goods, unless the warranty is expressly and clearly limited or excluded by the contract
However, with respect to damages forPERSONAL INJURY, the UCC states that any such contractual limitations or exclusions are “prima facie unconscionable” and cannot be enforced (U.C.C
§ 2-719[3])
The implied warranty of merchantability requires that the product and its container meet certain minimum standards of quality, chiefly that the product be fit for the ordinary purposes for which such goods are sold (U.C.C § 2-314)
This requirement includes a standard of rea-sonable safety
The implied warranty of fitness for a particular purpose imposes a similar require-ment in cases in which the seller knows or has reason to know of a particular purpose for which the goods are required and in which the buyer is relying on the seller to select or furnish suitable goods The seller then warrants that the goods are fit for that particular purpose (U.C.C
§ 2-315) For example, assume that the buyer tells the seller, a computer supplier, that he needs a high-speed computer to manage inventory and payroll functions for his business
Once the seller recommends a particular computer to handle these requirements, the seller is making an implied warranty of fitness
If the computer cannot adequately process the inventory and payroll, the buyer may file suit The action for breach of one of these warranties has aspects of both tort and contract law Its greatest value to the injured product user lies in the fact that liability for breach is strict No negligence or other fault need be shown However, in addition to the privity limitation, certain contract-related defenses have impaired the remedy’s usefulness These include the requirement that the seller receive reasonably prompt notice of the breach as a condition to his or her liability, the requirement that the buyer has relied upon the warranty, and the ability of the seller to limit or disclaim entirely the implied warranties These defenses are most appropriate in cases in which a product’s failure causes economic loss The trend has been away from strict enforcement of these defenses in personal injury cases in which the action is closer to a tort action
Strict Liability
The rule of strict liability applied in product liability suits makes a seller responsible for all defective items that unreasonably threaten the personal safety of a consumer or the consumer’s property The vendor is liable if he or she regularly engaged in the business of selling such products, which reach the consumer without any substantial changes having been made in their condition The vendor is liable even if he
or she exercised care in handling the product and if the consumer bought the product somewhere else and had no direct dealings with the vendor
Defects
A critical issue in a product liability lawsuit is whether the product contains a defect, which is
an imperfection that renders a product unsafe for its intended use Design defects exist when a whole class of products is inadequately planned
in such a way as to pose unreasonable hazards
to consumers For example, an automobile manufacturer’s design of a vehicle with the fuel tank placed in such a position that it will explode upon low-speed impact can be classi-fied as defective In that case, products manu-factured in conformity with the intended design would be defective A production defect arises when a product is improperly assembled For
144 PRODUCT LIABILITY
Trang 8example, frames of automobiles that are
improperly welded to the body at the assembly
plant would be classified as a production defect
In addition, something other than the
product itself can cause it to be defective For
example, caustic chemicals should be packaged
in appropriate containers Improper labeling,
instructions, or warnings on a product or its
container also make a product defective
Dangerous products should carry warning labels
that explain how they should be used, under
what circumstances they are likely to cause
harm, and what steps can be taken in an
emergency involving the product
The principle of proper labeling includes
claims made in sales brochures, product
dis-plays, and public advertising It extends beyond
warranty or negligence law, because a seller is
strictly liable to users or purchasers of the
product who are not in privity with the seller
A manufacturer who creates the demand for
goods through print and broadcast media has
the responsibility to determine that the product
has the qualities represented to the general
public Some courts allow injured consumers to
sue even if they have not read a certain label
or advertisement The standard is that if the
advertisement is directed toward the public at
large and makes claims that a normal consumer
would take into consideration when deciding
to make a purchase, then the manufacturer must
stand behind that claim for every member of
the public
Cause of Injuries
The issue of causation of injuries can be
complicated, particularly if the product
in-volved is only an indirect or remote cause or
one of a number of causes Regardless of the
theory of liability, the plaintiff must prove that
the product was defective when it left the hands
of the defendant and that the defect was the
cause of injury These issues are ordinarily
QUESTIONS OF FACT to be decided by the jury
When the evidence indicates that an injury
might have been precipitated by several causes,
the question becomes whether the cause for
which the defendant is liable was a substantial
factor in bringing about the injury A defendant
is not necessarily liable if he is responsible for
the last cause or the immediate cause of the
injury For example, a person who was injured
by a cooking pot that fell apart when the person
removed it from the stove might not have to
show that a defect in the pot handle was the
only possible explanation for the accident The jury could still properly consider whether a defect was a concurring cause of the accident, even if they found that the plaintiff misused the pot by handling it too roughly
Risks
A manufacturer has the duty to make the product as safe as possible If the manufacturer cannot do so, he has the obligation to adequately warn users and buyers of the dangers that exist The concept of a reasonably safe product extends to all dangers likely to arise when the product is being used normally or in a way that can be anticipated, even if it is not the purpose for which it was sold For example, a manufacturer might foresee that someone is likely to stand on a table and might be required either to make it sufficiently strong and stable for people to do so without sustaining injury or
to warn customers not to stand on it
No liability is extended to a manufacturer if
a plaintiff was disappointed because he or she had unreasonable hopes for a particular prod-uct Frequently, however, a consumer’s expec-tations are clearly reasonable but are not met
For example, no one expects to find defective brakes in a new automobile
In some instances, a defect might not be inherent in the product, but a consumer should
be aware that care is needed An average adult need not be warned that knives cut, that dynamite explodes, or that electrical appliances should not be used in the shower A consumer who ignores hazards will not succeed in an action alleging product liability However, many man-ufacturers print warnings about commonsense hazards to provide added protection from a lawsuit
Traditionally, an individual must be at least
as careful as a reasonably careful person
Increasing recognition has been given, however,
to a more realistic standard: the occasionally careless consumer Courts are now less inter-ested in how obvious a danger is and more concerned with discovering how serious the risk
is and how readily it could have been avoided
A consumer who clearly misuses a product cannot recover if an injury results For example,
a person who disregards a printed warning that nail polish remover is for external use only cannot blame the manufacturer for making an imperfect product if he or she ingests it In addition, the consumer is precluded from recovery if he or she continues to use a product
PRODUCT LIABILITY 145
Trang 9that is obviously dangerous The theory is that the consumer has assumed the risk This rule applies, however, only to obvious defects and does not establish a duty for consumers to scrutinize every product they purchase
Whether a consumer has assumed responsi-bility for using an obviously dangerous product
or misused a relatively safe product depends on who the user is likely to be The classic example
is children’s clothing, which generally must
be at least somewhat flame-resistant, because children are less able to appreciate the danger of accidental fires
During the 1990s and early 2000s, several lawsuits brought against cigarette manufacturers were based on the general theory that these manufacturers withheld information about the dangers of smoking Several appellate courts have upheld jury awards in favor of plaintiffs in these suits For instance, in Liggett Group, Inc v
Davis, 973 So 2d 467 (Fla App 2007), a Florida appellate court upheld a jury award in favor of
a plaintiff who argued that she did not know the extent of the dangers of smoking prior to placement of warning labels in 1968
Unavoidable Dangers
Although manufacturers and sellers have a duty
to take precautions and provide adequate warnings and instructions, the public can still obtain products that are unavoidably unsafe
A seller is not held strictly liable for providing the public with a product that is needed and wanted in spite of the potential risk of danger
Prescription drugs illustrate this principle because all of them have the potential to cause serious harm if used unreasonably
The duty to warn consumers of unavoidable dangers presents special problems if certain individuals are likely to suffer allergic reactions
The law considers an allergy to be a reaction suffered by a minority of people that is triggered
by exposure to some substance Courts used to reject claims based on allergic reactions, reason-ing that the product was reasonably safe and that the injury was caused by a defect peculiar to the individual That approach has been abandoned, with manufacturers providing careful instruc-tions on use and clear warnings about possible symptoms that suggest an allergic reaction
Multiparty Litigation
Since the 1970s, groups of plaintiffs have filed consolidated lawsuits against the manufacturers
of certain products The makers of
contraceptive devices, silicone breast implants, asbestos, and tobacco products have encoun-tered this type of multiparty litigation In many states, one judge is appointed to handle all cases involving claims against such a manufacturer The litigation process can prove costly for defendants because they may have to defend themselves in many different states The result-ing verdicts or negotiated settlements can also
be very expensive to companies
Product Liability Reform
Businesses have sought relief from state legis-latures and Congress regarding product liability, contending that the shifting legal standards make them vulnerable to even the most suspect claim Some states have passed laws that provide manufacturers with the right to defend them-selves by showing that their product met generally acceptable safety standards when made This assertion is known as the state-of-the-art defense, which relieves manufacturers of the task of attempting to make a perfect product
An injured consumer cannot recover on the theory that the product would have been safe had the manufacturer incorporated safety features that were developed after the product was made Consumer advocates have opposed such laws because they allow manufacturers to avoid liability The advocates argue that these laws discourage innovation because higher safety standards are set as improvements are made Businesses have also attempted to set maxi-mum amounts that persons can recover for
PUNITIVE DAMAGES Some states have capped awards for punitive damages In 1996 President
BILL CLINTONvetoed a bill that would have limited punitive damage awards to $250,000, or two times the economic and non-economic damages, whichever amount was greater, stating that it would deprive U.S families of the ability to fully recover for injuries caused by defective products
In the same year, the Supreme Court imposed its own version of product liability reform with BMW v Gore, 517 U.S 559, 116
S Ct 1589, 134 L Ed 2d 809 (1996) The case involved an automobile purchaser who brought action against a foreign automobile manufac-turer, American distributor, and dealer based
on the distributor’s failure to disclose that the automobile had been repainted after being damaged prior to delivery An Alabama circuit court entered a judgment in the case of
COMPENSATORY DAMAGES of $4,000 and punitive damages of $2,000,000 The Supreme Court
146 PRODUCT LIABILITY
Trang 10ruled unanimously the punitive damages award
was excessive In this case, the Court devised
three factors to assist trial judges in determining
whether a jury’s punitive damages award were
excessive: (1) the degree of reprehensibility of
the defendant’s conduct; (2) the disparity
between the harm or potential harm suffered
by the plaintiff and the punitive damages award;
and (3) the difference between the punitive
damages award and the civil or criminal
penalties authorized or imposed in comparable
cases The BMW case showed that there were
limits under the Constitution to the amount of
punitive damages that could be imposed
Federal Preemption of State Product
Liability Law
For the most part, product liability law is
governed by state law Occasionally, the federal
government will move to preempt an entire area
of product liability law from state control in
order to protect a certain group of
manufac-turers An example of this is the Federal
Biomaterials Access Assurance Act (21 U.S.C.A
§§ 1601-1606), a 1998 law that protects
suppliers of materials for implantable medical
devices from“unwarranted” suits by laying out
the permissible basis of biomaterials supplier
liability Under the act, a biomaterials supplier
may only be held liable in three situations: (1)
when the supplier is a manufacturer of medical
implants under the act; (2) when the supplier is
a seller of medical implants; or (3) when the
supplier sold materials that did not meet
contractual specifications of the manufacturer
More problematically, a court will have to
decide whether an area of product liability is
affected by a federal law that does not expressly
preempt product liability suits but may indicate
the federal government wished such suits to be
preempted For impliedPREEMPTION, the Supreme
Court has recognized two subcategories: field
pre-emption and conflict pre-pre-emption Under field
pre-emption, a state statute is superceded when a
federal statute wholly occupies a particular field
and takes away state power to supplement it
Conflict pre-emption occurs when compliance
with both the federal and state statute is
impossi-ble, and the state law stands as an obstacle to the
legislative objectives of Congress
An example of conflict preemption is Geier
v American Honda Motor, Inc., 529 U.S 861,
120 S Ct 1913, 146 L Ed 2d 914 (2000), in
which the Court ruled against an injured
motorist who brought a defective design action
against the automobile manufacturer under District of ColumbiaTORT LAW, contending that the manufacturer was negligent in failing to equip the automobile with a driver’s side airbag
The Court ruled the law suit was preempted in that it actually conflicted with theDEPARTMENT OF TRANSPORTATION (DOT) standard, promulgated under National Traffic and Motor Vehicle Safety Act, requiring manufacturers to place driver’s side airbags in some but not all 1987 automobiles The Court noted the rule of state law imposing duty to install airbag would have presented an obstacle to the variety and mix of safety devices and gradual passive restraint phase-in sought by the DOT standard
The pharmaceutical industry during the early 2000s has asserted that drug manufacturers should be shielded from liability based on harm caused by drugs based on a theory that theFOOD AND DRUG ADMINISTRATION (FDA) approved the drugs In 1999, for instance, the FDA approved the painkiller Vioxx, and drug manufacturer Merck & Co., Inc launched the product during the same year Evidence emerged that Vioxx caused heart problems among users, and Merck eventually withdrew the drug from the market
Several thousand plaintiffs brought lawsuits and won jury awards Merck argued in several cases that because the FDA approved the drug, the company should be shielded from liability As of
2009, most courts had rejected this argument
For example, in In re Vioxx Products Liability Litigation, 501 F Supp 2d 776 (E.D La 2007), the U.S District Court for the Eastern District of Louisiana concluded the FDA position regarding the drug did establish a federal law that preempted the state-law claim
Manufacturers of such products as pharma-ceuticals and tobacco products have aggressively
The FDA-approved drug Vioxx was found
to cause heart problems, leading to a slew of lawsuits against the drug’s manufacturer, Merck
& Co., Inc.
AP IMAGES PRODUCT LIABILITY 147