Punctuated Equilibrium

Products Liability
Punctuated Equilibrium The

402A Era
1960 1985
George W. Conk
Adjunct Professor of Law
Senior Fellow, Stein Center for Law & Ethics
Member, American Law Institute
Room 8-122
212-636-7446
gconk@law.fordham.edu
8/25/15
Why Section 402A (1964)

Flourished
and the
Third Restatement (1998)
Languished
Strict Liability to the Consumer

the Prosser/Traynor tag team
The consumer economy and the

Citadel of Privity
Contracts of adhesion implied
warranty
In a defective condition
unreasonably dangerous to the
consumer
The element of surprise
Strict liability all possible care
Punctuated Equilibrium
Early Landmarks
MacPherson v. Buick Motor Co. (1916)
Escola v. Coca Cola Bottling Co.

(1944)
Henningsen v. Bloomfield Motors

(1960)
Greenman v. Yuba Power Products

Escola v. Coca Cola Bottling Co.

(1944)
Roger Traynor - A Prophetic

Voice
MacPherson v. Buick Motor Co.

established the principle that
irrespective of privity of
contract, the (negligent)
manufacturer is responsible for
an injury caused to any person
who comes in lawful contact with
it.
Roger Traynor - A Prophetic Voice
I concur in the judgment, but I

believe the manufacturer's
negligence should no longer be
singled out as the basis of a
plaintiff's right to recover in
cases like the present one.
Roger Traynor - A Prophetic Voice
In my opinion it should now be

recognized that a manufacturer
incurs an absolute liability when
an article that he has placed on
the market, knowing that it is to
be used without inspection,
proves to have a defect that
causes injury to human beings.
The development of the concept of

defect

consumer
Not reasonably safe
Consumer expectations
Risk-utility analysis
Manufacture, Design, Warning

402A.Special Liability of One Who

Sells a Defective Product
(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
10
402A.Special Liability of One

Who Sells a Defective Product
(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.
11
402A.Special Liability of One

Who Sells a Defective Product
(2) The rule stated.. 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.
12
4 Functions of Tort Law Calabresis

The Costs of Accidents (1961, 1970)
(1) the reduction of the sum of

accident costs and of safety
costs;
(2) distributional equity
(3) achieving most effectively
the desired degree of
interpersonal and intertemporal
spreading
(4) the minimization of the
administrative costs of achieving
(1), (2), and (3)
13
The appeal of strict liability
Eases burden on injured party
Incentive to manufacturer to
make safer products
Administrative efficiency
14
Problems with strict liability
Forseeability of harm not reqd
Lacks the moral appeal of

fault/corrective justice
Difficulty in predicting liability

costs
May so burden producers they

avoid liability by giving up
socially desirable production
15
Comment i. Unreasonably
dangerous
The rule stated in this Section

applies only where the defective
condition of the product makes it
user or consumer.
16
dangerous
Ordinary sugar is a deadly

poison to diabetics, and castor
oil found use under Mussolini as
an instrument of torture. That is
not what is meant by
"unreasonably dangerous" in this
Section.
17
dangerous
The article sold must be

dangerous to an extent beyond
that which would be
contemplated by the ordinary
consumer who purchases it, with
the ordinary knowledge common
to the community as to its
18
dangerous
Good whiskey is not

unreasonably dangerous merely
because it will make some
people drunk, and is especially
dangerous to alcoholics; but bad
whiskey, containing a dangerous
amount of fuel oil, is
unreasonably dangerous.
19
dangerous
Good tobacco is not

unreasonably dangerous merely
because the effects of smoking
may be harmful but tobacco
containing something like
marijuana may be unreasonably
dangerous
20
The concept of defect
Manufacturing defect
Design Defect
Warning Defect
21
Post-402A Landmarks
Bexiga v. Havir Mfg. (1972) [unguarded

machine]
Wade `Strict Liability in Tort (1973)
[risk-utility]
Borel v. Fibreboard (1974) [asbestos]
Barker v. Lull Engg (1978) [Wade
embraced]
Beshada v. JM (1982) (culpability
irrelevant)
Feldman v. Lederle (Beshada limited)
Brown v. Abbott Labs (1988) (rejects
Feldman)
22
Machine Guarding and Safety
Punch Press
23
Machine Guarding and Safety
Cut-off die point of operation
24
Risk utility factors Wade (1973)
(1) The usefulness and desirability of

the product - its utility to the user
and to the public as a whole.

(2) The safety aspects of the product
- the likelihood that it will cause
injury and the probable seriousness
of the injury
25
Risk utility factors Wade (1973)
(3) The availability of a substitute

product which would meet the same
need and not be as unsafe.
(4) The manufacturer's ability to

eliminate the unsafe character of the
product without impairing its
usefulness or making it too
expensive to maintain its utility.
26
Risk utility analysis Wade (1973)
(5) The user's ability to avoid danger

by the exercise of care in the use of
the product.
(6) The user's anticipated awareness
of the dangers inherent in the
product and their avoidability
because of general public knowledge
of the obvious condition of the
product, or of the existence of
suitable warnings or instructions.
27
Risk utility analysis
(7) The feasibility, on the part of

the manufacturer, of spreading
the loss by setting the price of
the product or carrying liability
insurance.
28
Toxic torts
Minerals and Medicines
Informed choice
The
miracle
mineral
30
DES
31
cmt. k Unavoidably unsafe

products (1965)
There are some products which,

in the present state of human
knowledge, are quite incapable
of being made safe for their
intended and ordinary use.
These are especially common in
the field of drugs.
32
Comment k
An outstanding example is the

vaccine for the Pasteur treatment of
rabies, which not uncommonly leads
to very serious and damaging
consequences when it is injected.
Since the disease itself invariably
leads to a dreadful death, both the
marketing and the use of the vaccine
are fully justified, notwithstanding
the unavoidable high degree of risk
which they involve.
33
Comment k
Such a product, properly prepared,

and accompanied by proper
directions and warning, is not
defective, nor is it unreasonably
dangerous.
The same is true of many other
drugs, vaccines, and the like, many
of which for this very reason cannot
legally be sold except to physicians,
or under the prescription of a
physician.
34
Comment k
It is also true in particular of many

new or experimental drugs as to
which, because of lack of time and
opportunity for sufficient medical
experience, there can be no
assurance of safety, or perhaps even
of purity of ingredients, but such
experience as there is justifies the
marketing and use of the drug
notwithstanding a medically
35
Comment k
The seller of such products, again with the

qualification that they are properly
prepared and marketed, and proper
warning is given, where the situation calls
for it, is not to be held to strict liability for
unfortunate consequences attending their
use, merely because he has undertaken to
supply the public with an apparently useful
and desirable product, attended with a
known but apparently reasonable risk.
36
Comment k
Unavoidably unsafe products
Negligence
Categories of Product
Defect Codified
Products Liability Restatement
1998
3 Circumstantial Evidence Supporting

Inference of Product Defect
It may be inferred that the harm

sustained by the plaintiff was
caused by a product defect
existing at the time of sale or
distribution, without proof of a
specific defect, when the
incident that harmed the
plaintiff:
(a) was of a kind that
ordinarily occurs as a result of
39
3 Circumstantial Evidence Supporting

Inference of Product Defect
(b) was not, in the particular

case, solely the result of causes
other than product defect
existing at the time of sale or
distribution.
40
4 Noncompliance and Compliance with Product

Safety Statutes or Regulations
(a) a product's noncompliance with an

applicable product safety statute or
administrative regulation renders the
product defective with respect to the risks
sought to be reduced by the statute or
regulation; and
41
4 Noncompliance and Compliance with Product

Safety Statutes or Regulations
(b) a product's compliance with an

applicable product safety statute or
administrative regulation is properly
considered in determining whether the
product is defective with respect to the
risks sought to be reduced by the statute
or regulation, but such compliance does
not preclude as a matter of law a finding of
product defect.
42
Manufacturing Defects
2 Categories of Product Defect
A product is defective when, at the time of

sale or distribution, it contains a
manufacturing defect, is defective in
design, or is defective because of
inadequate instructions or warnings. A
product:
(a) contains a manufacturing defect when

the product departs from its intended
design even though all possible care was
exercised in the preparation and marketing
of the product
43
Design Defects
(b) is defective in design when

the foreseeable risks of harm
posed by the product could have
been reduced or avoided by the
adoption of a reasonable
alternative design by the seller
or other distributor, or a
predecessor in the commercial
chain of distribution, and the
omission of the alternative
design renders the product not
44
Warning Defects
(c) is defective because of

inadequate instructions or warnings
when the foreseeable risks of harm
posed by the product could have been
reduced or avoided by the provision
of reasonable instructions or
warnings by the seller or other
distributor, or a predecessor in the
commercial chain of distribution, and
the omission of the instructions or
warnings renders the product not
45
reasonably Punctuated
safe.Equilibrium
6 Liability for Harm Caused by Defective

Prescription Drugs and Medical Devices
(c) A prescription drug or medical device

is not reasonably safe due to defective
design if the foreseeable risks of harm
posed by the drug or medical device are
sufficiently great in relation to its
foreseeable therapeutic benefits that
reasonable health-care providers,
knowing of such foreseeable risks and
therapeutic benefits, would not prescribe
the drug or medical device for any class
of patients.
46

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Products Liability

Punctuated Equilibrium The

Why Section 402A (1964)

Strict Liability to the Consumer

The consumer economy and the

MacPherson v. Buick Motor Co. (1916)

Escola v. Coca Cola Bottling Co.

Henningsen v. Bloomfield Motors

Greenman v. Yuba Power Products

Escola v. Coca Cola Bottling Co.

Roger Traynor - A Prophetic

MacPherson v. Buick Motor Co.

Roger Traynor - A Prophetic Voice

I concur in the judgment, but I

Roger Traynor - A Prophetic Voice

In my opinion it should now be

The development of the concept of

unreasonably dangerous to the

Not reasonably safe

Manufacture, Design, Warning

402A.Special Liability of One Who

(1) One who sells any product in a

402A.Special Liability of One

(a) the seller is engaged in the

(b) it is expected to and does

402A.Special Liability of One

(2) The rule stated.. applies although

4 Functions of Tort Law Calabresis

(1) the reduction of the sum of

The appeal of strict liability

Eases burden on injured party

Problems with strict liability

Forseeability of harm not reqd

Lacks the moral appeal of

Difficulty in predicting liability

May so burden producers they

The rule stated in this Section

Ordinary sugar is a deadly

The article sold must be

Good whiskey is not

Good tobacco is not

The concept of defect

Bexiga v. Havir Mfg. (1972) [unguarded

Machine Guarding and Safety

Machine Guarding and Safety

Cut-off die point of operation

Risk utility factors Wade (1973)

(1) The usefulness and desirability of

and to the public as a whole.

Risk utility factors Wade (1973)

(3) The availability of a substitute

(4) The manufacturer's ability to

Risk utility analysis Wade (1973)

(5) The user's ability to avoid danger

Risk utility analysis

(7) The feasibility, on the part of

cmt. k Unavoidably unsafe

There are some products which,

An outstanding example is the