() not defective() factor in determining if defective() if defective, possible defense of AR, CN. (See VI below) Keep in mind requirements in AR: actual awareness of nature and severity of risk) Mass immunizations) FDA requirements) Direct advertising4. Causation and the “heeding presumption” (n. 5, p. 605).2. Restatement (3d): Products Liability: Objective CN is defense (See Sanchez at pp. 630–31)c. Lack of crash bars in Camacho (p. 585)PRODLIAB.13TORTS OUTLINE -- HUBBARDTOPIC: PRODUCTS LIABILITYI. Summary OverviewA. Three types of defect1. manufacture2. design3. warning/instructionB. Theories of Liability1 The basic theories of recovery (or causes of action) for product-caused injury are:1. Negligence2. Strict Liability in Torta. Original framework: Restatement (Second) (1965)(1) Unreasonably dangerous product defects: § 402A (p. 568)(2) Misrepresentation: § 402B (n. 8, p. 627)b. Restatement (Third): Products Restatement (1998) (p. 568)(1) Manufacturing defects – “blueprint” test; due care is not relevant (This is same as Restatement (Second).)(2) Design and warning defects – test based on a negligence type approach – for example, plaintiff must show a “reasonable alternative design”NOTE: Liability for manufacturing, design, and warning defects is imposed on all “sellers,” even those who had no role in 1 Remember that plaintiff must show:(1) Legal “wrong” (Duty/Breach)(2) Causation(3) DamagesGenerally, causation and damages are the same for all three theories of liability.1manufacturing, design, or warning.(3) Misrepresentation: basically the same as Restatement (Second) of 402B (n. 8, p. 627)[NOTE: Strict liability in tort is not as “strict” as the name suggests.]3. Warrantya. Express Warranty (UCC § 2-313; common law)b. Implied Warranty(1) merchantability (UCC § 2-314; common law)(2) fitness for a particular purpose (UCC § 2-315; common law)II. Tests of defect under SLT (Because negligence, like SLT, uses AC:SC test, there is considerable overlap in termsof the following topics.)A. Manufacturing (pp. 569–570)1. The Ablueprint@ is the test (Rest. 2d and Products Restatement) (With negligence, must show lack of due care in “quality control” – e.g., by negligence in inspections.)2. Proof problems (See pp. 569–570, 596–597)B. Design (considerable diversity among jurisdictions)1. There are two basic testsa. Cost: Benefit (Cost: Benefit ≡ AC: SC ≡ Risk: Benefit). Issues include:(1) Time of trial/time of conduct for knowledge of risks and possible design options. (See n. 6, p. 619; nn. 4–7, pp. 625–627)(2) Note variety of definitions of “state of the art” (n. 4, p. 625)B for example, the following:(a) Scientifically doable/knowable(b) technologically doable/knowable2(c) economically doable/knowable(d) Available from at least one seller (See Camacho at p. 585)(e) custom(3) Burden of proof: plaintiff or defendant?(a) AC:SC (See Barker at p. 572; n. 8, p. 581)(b) “State of the art” (See (2) above)b. expectation of reasonable consumer. Issues include:(1) How to define “reasonable consumer”(2) How to treat “open and obvious” risk (see Camacho, 585; see “4” below, VII below)() not defective() factor in determining if defective() if defective, possible defense of AR, CN. (See VI below) Keep in mind requirements in AR: actual awareness of nature and severity of risk(3) Whether applicable in cases involving complex technical issues. (Soule, at pp. 575–576; Camacho, pp. 586–587)(4) Application to injury to a third party or to an unintended butforeseeable user like a child (See n. 7, p. 593; n. 6, p. 606; n. 10, p. 608)2. As to both tests (and as to negligence as well as SLT), consider:a. whether apply to(1) intended use(2) forseeable useb. role, if any, of advertising/marketing by seller (n. 6 at p. 581; Lugo, p. 598; n. 11, p. 609; n. 10; Part III below)c. role of instructions/warnings in evaluating design.(See 4-c; C-1-a below)3d. the need for a feasible “reasonable alternative design” (RAD) (See nn. 5–11, pp. 579–585) 3. Will the test in a jurisdiction be:a. C:B (which version?)b. expectation (which version?)c. C:B or expectation. If jurisdiction allows choice, the particular version used will depend on:(1) Facts B i.e., which is “appropriate” (See 1-b-(3) above)(2) Plaintiff’s/jury’s choice B i.e., plaintiff prevails if defective under either test4. Problems of reconciling C:B analysis with consumer choice/autonomy. Compare three-wheel ATV and shallow swimming pool with microbus, motorcycles and convertible. (See nn. 9–11 at pp. 581–585; nn. 6–10, pp. 606–609, Part VII below) If product risks known (obvious [?]) to user, is product defective? Consider:a. What is test: C:B or expectation?b. Is valuation in C:B an individual consumer’s choice? What about injuries to third parties? (See 1-b-(4) above)c. Differences in views exist as to product that is defective under C:B test if no warnings or instructions are given, but which, with adequate warnings/instructions:(1) would have sufficient AC reduction that, if warnings/instructions always followed, not defective under C:B test, but it is foreseeable that this 100% following of warning advice will not occur; or (2) do not result in sufficient AC reduction even if followed 100% of time.[See nn. 8–9, p. 607; “C - 1-a, - 2 below”][In terms of reduction in AC, answer depends upon whether one is concerned with “cheapest cost avoider” (follow instructions/warnings.) or “most effective cost avoider” (the design feature to prevent accidents.) Consider: Would warning on top of Empire State Bldg. eliminate need for fence?]4d. Available options for a product:(1) To what extent does/should consumer know of risks without options from this seller or another seller. See Camacho, fn.8 at p.587(2) What is an “option?” (a) What is a “comparable” product? (p. 580) (See 5 below)e. Prescription drugs. (n. 5, p. 619)f. Relationship to assumption of risk as a defense. (See 1-b-(2) above; fn. 6 and accompanying text at 587).5. What is “comparable” product? a. For example, if product is a passenger conversion van, is comparison:(1) other such conversion vans(2) all vans, including in “mini vans”; or(3) all passengers vehicles?(See nn. 9–10, pp. 581–583); Camacho, p. 585; Maneely at p. 599.b. In determining “custom of industry,” what is the industry?c. How address RAD, without answering the question: