Products Liability Outline-Torts

II.
NEGLIGENCE
C. CAUSATION
CAUSE IN FACT:
1. But-for test: but for the breach of duty, the harm wouldn’t have occurred. For a single cause.
NY RR v Grimstad (1935)
● Held: RR company was not liable to D for negligence for not having a life-preserver on board
because there was nothing to show that if there had been a life-buoy on board it would have saved
D.
● D didn’t know how to swim, nothing was introduced to show that this wasn’t the reason that he
drowned.
● Nothing introduced to show that D’s wife would have been able to throw a life preserver
overboard and save D.
RTT 26: factual cause

Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of
harm when the harm would not have occurred absent the conduct.
 Necessary condition (because there could be multiple factual causes)
 Only needs to be A cause rather than THE cause
 In marginal cases like Grimstad, RTT puts burden on P to show that under the hypothetical (if
there were a life preserver) the harm wouldn’t have happened.
Rationale  in marginal cases, D’s deviation from standard of care is slight, so it is difficult to
show that they were the cause; heavier burden on P to establish this.
Fork: in some cases, but for causation can be found even when accident might have otherwise happened
when the defendant’s negligence greatly multiplies the chances of an accident to the plaintiff and was of a
character naturally leading to its occurrence.
 Consider not just could it have happened without negligence, but look at whether negligence
increased the chances.
Reynolds (1885)
 Slip and fall case where a woman slipped on unlighted stairs.
Held: Even though court acknowledged that this might have also happened during the daytime, they held
that the mere possibility that it could have happened without negligence was not enough to break the
chain between the negligence and the injury. The court found that the whole tendency of the evidence
pointed to negligence.
SUPPLEMENTS TO BUT-FOR
1. Strong causal link theory: allows for finding of but-for causation in cases where establishing
causation with certainty is basically impossible.
Strong causal link test:
1. Did negligence increase the risk of a specific harm?
2. Did that specific harm occur?
 Use when act was deemed wrongful because it increases chances of certain type of accident and
that accident did happen.
 Can bring in expert testimony.
 Burden shifted to defendant to disprove causation
Zuchowicz (1998)
Held: when a negative side effect is demonstrated to be a result of the drug and the drug was wrongly
prescribed at an excessive dosage, this establishes a strong causal link and the fact finder could conclude
that excessive dosage was a substantial factor in producing the harm.
 Guidelines designed to prevent harm were violated
 Harm that guidelines intended to prevent occurred
Like
Martin v Herzog
Lights were mandated to prevent this kind of injury, and because this kind of injury did occur,
burden is on D to bring in extra evidence to disprove that they were the but-for cause
Rationales: burden on risk on those who create it. Fairness.
What Zuchowicz leaves open:

 What does strong causal link require?
o Regulatory body like FDA?
o Dosage way too much (2x?)
o Timing and symptoms?
2. Evidential loss and burden shifting
3. Recurring miss/probabilistic theory
4. Loss of chance
COLLECTIVE LIABILITY
1. Concert of action/joint causation
2. Alternative liability
3. Market share liability
4. Joint and several liability
a. With no contribution
b. With contribution
1. Pro-rata
2. Proportionate share
5. Several liability
IV. PRODUCTS LIABILITY
A.
B. PRODUCT DEFECTS
1. Manufacturing Defect: deviation from norm or blueprint

Show by consumer expectation test
2. Design Defect: product made according to blueprint
Show defect by:

 consumer expectations test: risk beyond what ordinary user would expect.
 risk/utility test
o reasonable alternative design: burden on P to show a reasonable alternative
design that would preserve benefits of the product but negate the risks
3. Failure to warn
PRODUCT DEFECTS-FORKS AND ISSUES
RST v RTT
 RST: consumer expectations, SL
 RTT: manufacturing defect, design defect, failure to warn
RST §402A. Special Liability of Seller of Product for Physical Harm to User or Consumer:
 (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject
to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
 (a) the seller is engaged in the business of selling such a product, and
 (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule
stated in Subsection (1) applies although
 (a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
RTT:
1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for
harm to persons or property caused by the defect.
§2 Categories of Product Defects: manufacturing, design, failure to warn
Consumer expectations test vs risk/utility test

 Consumer expectations test not always more expansive. If product is overly technical or new and
consumers don’t have expectations than risk/utility test would be more expansive.
Risk/utility test vs. reasonable alternative design:
 RAD puts a burden on the consumer that is likely better to put on manufacturer, who has more
information and access to information. One reason for applying SL to products cases is to lower
burden on P and RAD doesn’t seem to do that.
Defense for design defect: modification/alteration. Doesn’t necessarily preclude warnings claim.
 Hood:
 Liriano:
Negligence vs SL
Justifications: economic vs corrective justice
JW Hampton (1928)
● Held: Court upheld federal statute that allowed president to increase taxes on a certain type of
good when he determined that this was necessary to equalize production costs between US and
foreign country.
● Takeaway: delegation is constitutional as long as there is a standard that the executive can apply
to particular situations.
● Possible factors helping court make this decision:
○ Might be hard for Congress to determine the correct tariff rate [AS: not strongest
argument, because courts could just expand congress rather than delegating to agency]
○ Procedure build into tariff act: president had to wait for report from tariff commission.
Panama Refining Co (1935)

● Held: Court invalidated provision in NIRA that allowed president to ban interstate shipments of
oil produced in violation of state law, because there was no intelligible principle for president to
follow when deciding whether to ban shipments.
Schechter Poultry (1935) *cite for nondelegation issues/potential of nondelegation

doctrine being revived*
● Held: delegation of authority to create “codes of fair competition” too vague to constitute
intelligible principle.
● Added new factors to find delegation unconstitutional:
○ Vagueness

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II.

RTT 26: factual cause

What Zuchowicz leaves open:

2. Evidential loss and burden shifting

3. Recurring miss/probabilistic theory

IV. PRODUCTS LIABILITY

1. Manufacturing Defect: deviation from norm or blueprint

2. Design Defect: product made according to blueprint

Show defect by:

1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products

§2 Categories of Product Defects: manufacturing, design, failure to warn

Consumer expectations test vs risk/utility test

Panama Refining Co (1935)

Schechter Poultry (1935) *cite for nondelegation issues/potential of nondelegation

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