Accompanying claims to defective product under 402A

Under 402A, a plaintiff would allege a variety of claims along with a claim for defective product. Restatement (Third) seeks to encourage plaintiffs to making a unified claim. Below is a brief description and critique of the claims that typically accompany a defective product claim under 402A.

Negligence

  • Allows recovery if the defendant failed to exercise reasonable care in the manufacturing or distribution of its product and the plaintiff was injured by this failure

Problems:

  • Often difficult to prove that a manufacturer’s negligence led to the defect that injured the plaintiff; although a plaintiff can invoke res ipsa loquitur, the jury may deny negligence recovery, accepting the defendant’s argument that although it used due care such defects may still occur
  • Will frequently provide no remedy against the available defendant (personal j-d issues; i.e. Asahi)

Breach of express warranty (UCC 2-313)

  • Allows recovery if a seller makes specific representations about the qualities of a product, and the buyer is injured due to the failure of the goods to fulfill those representations

Problems:

  • Only applies when specific representations were made to the buyer about the product feature that caused the injury
  • Statutory notice provisions
  • The claim can only arise if the feature that was the subject of the warranty causes the injury

Breach of Implied Warranty of Merchantability

  • A plaintiff may recover by showing that the defendant was a dealer in goods of that kind, sold the goods, that they were not fit for the ordinary purposes for which they were sold, and that she suffered personal injury as a result of their unfitness for that purpose
  • Allows recovery without any showing of negligence or misrepresentation by the seller

Problems

  • It can be disclaimed, if it is done clearly
  • UCC has alternative limits to who can recover
  • Requires timely notice of the breach to the seller

Misrepresentation

  • The defendant made a public misrepresentation (intentionally, recklessly, negligently, or innocently) about a material fact, the plaintiff acted in reliance, and suffered injury because the product was not as represented by the seller
  • The plaintiff may recover even if the product is not defective, as long as failure to live up to the representations led to the plaintiff’s injury

Problems

  • Must have been an inaccurate representation by the seller about the particular characteristic of the product that led to the plaintiff’s injury
  • May not support recovery by third parties such as bystanders

402A vs. Restatement (Third) Analysis of Products Liability

Some of the analysis recommended in Restatement (Third) for products liability differs from the analysis which was recommended in 402A. Although a vast majority of jurisdictions still adhere to 402A, it is important to know the distinctions between the two approaches.

1. Different test for design defect claims

402A has endorsed the consumer expectations test for most design defect claims. Here, the plaintiff alleges that the product was unreasonably dangerous for its intended use and is in a condition not reasonably contemplated by the ultimate consumer.

Restatement (Third) primarily adopts the Risk/Utility Test and also requires a plaintiff to prove a reasonable alternative design which would have reduced or eliminated the risk that injured the plaintiff. Here, the trier of fact will weigh various factors including: the likelihood the the product design will cause injury, the gravity of the danger posed, the mechanical and economic feasibility of an improved design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.

2. Reduction/Unification of Claims

Under 402A most strict liability claims are accompanied by claims for negligence, breach of express warranty, breach of implied warranty of merchantability, and misrepresentation. Restatement (Third) advocates that a plaintiff should just make one unified claim of product defect. See Accompanying Claims to Defective Product under 402A for more information.

3. Categorization

Restatement (Third) creates three categories of product defects (manufacturing, design, and inadequate instructions or warnings). 402A does not have these categories and just has one long definition of when a product is defective.

Products Liability

The Restatement (Third) creates three categories of product defects:

1. Manufacturing Defects

2. Design Defects

3. Inadequate Instructions or Warning

Manufacturing Defects

A manufacturing defect exists when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

Design Defects

A design defect exists 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 distributor, and the omission of the alternative design renders the product not reasonably safe.

Inadequate Instructions or Warning

An inadequate instruction or warning exists 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 distributor and the omission of the instructions or warnings renders the product not reasonably safe.

Types of Strict Liability

Strict liability has three major categories:

1. Animals

2. Abnormally Dangerous Activities; and

3. Products Liability

Animals – Owned or Possessed

Under the Restatement (Third) there are three categories of animals in strict liability:

1. Livestock – the owner or possessor of livestock is subject to strict liability if the livestock intrudes upon the land of another and physical harm is caused by the intrusion

2. Abnormally Dangerous Animals

3. Wild Animals – A possessor of a wild animal is subject to strict liability to another for harm done by the animal to the other person’s body, land or chattels, even if the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm

  • Note: Wild animals are animals that have not been generally domesticated

Abnormally Dangerous Activities

One who carries on an abnormally dangerous activitiy is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

Examples of Abnormally Dangerous Activities are:

  1. Impoundments (noxious substances or liquids)
  2. Hazardous wastes
  3. The Superfund Act
  4. Lateral support
  5. Blasting and explosives
  6. Nuclear energy
  7. Other high-energy activities
  8. Utilities
  9. Fireworks
  10. Poisons
  • Note: For a plaintiff to recover, he must show that the defendant was carrying on in an abnormally dangerous activity that proximately caused harm to his person or property.

Products Liability

The Restatement (Third) states that a product is defective when, at the time of sale or distribution, the product contained a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.

  • Note: A plaintiff must prove that the product was defective, the defect existed when it left the defendant’s control, and that the defect actually and proximately caused his injury.

Invasion of Privacy

There are four types of invasion of privacy:

1. Intrusion upon Seclusion

2. Appropriation of Name or Likeness

3. Publicity Given to Private Life

4. Publicity Placing Person in False Light

The Restatement (2nd) of Torts defines these types of invasion of privacy as follows:

Intrusion upon seclusion – one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability for invasion of privacy, if the intrusion would be highly offensive to a reasonable person

  • Note: This is the only form of invasion of privacy that does not require some form of publication

Appropriation of Name or Likeness – one who, without authorization or consent, appropriates to his own use or benefit the name or likeness of another is subject to liability for invasion of privacy

  • Note: Usually it is alleged that the defendant used the plaintiff’s name or likeness for commercial or business purposes (i.e. put a picture of the plaintiff in an advertisement without plaintiff’s permission)

Publicity Given to Private Life – one who gives publicity to a matter concerning the private life of another not already in the public domain is subject to liability for invasion of his privacy, if the matter publicized is of a kind that:

  1. would be highly offensive to a reasonable person, and
  2. is not of legitimate concern to the public
  • Note: Truth is not a defense

Publicity Placing Person in False Light – one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if:

  1. the false light in which the other was placed would be highly offensive to a reasonable person, and
  2. defendant knew the false light in which the plaintiff would be placed, or was reckless with regard to it
  • Note: Similar to defamation but plaintiff only has to prove that the material is highly offensive to a reasonable person as opposed to proving that the material was injurious to plaintiff’s reputation

Deed Recording Acts

Before recording acts were instituted, the common law rule for recording deeds was “first in time, first in right.” This means that if a subsequent purchaser did not have notice of a prior conveyance and records his interest, he will prevail over any prior unrecorded interest.

However, most states have recording acts which create rules for situations such as these. It is important to recognize that recording acts do not require that a deed be recorded for a conveyance to be legally valid. The deed is valid against the grantor upon delivery with or without recording.

There are three type recording acts:

  1. Race statutes – The person who records first prevails
  2. Notice statutes – A subsequent purchaser prevails over an earlier purchaser only if the subsequent purchaser did not have notice of the earlier conveyance. Further, the notice statute protects any purchaser without notice against unrecorded interests even if the purchaser does not record first.
  3. Race-Notice statutes – A subsequent purchaser prevails over prior unrecorded interests only if she:
  • Had no notice of the prior conveyance at the time she acquired her interest and
  • Records before the prior instrument is recorded

Race-notice is the majority rule which is in effect in 25 states and the District of Columbia.

Takings Ad Hoc Test

A regulatory taking is different from eminent domain because title to the property is not taken. Instead, the government regulation impacts the land so much that it eliminates all economically beneficial use or restricts use of the land to the extent that the landowner should receive compensation under the Fifth Amendment. If a landowner can show that all economically beneficial use has been eliminated*, then he is entitled to just compensation. This will be hard for a landowner to prove so a court is more likely to balance the government interest against the burden on the landowner to determine if the landowner is entitled to just compensation.

Penn Central Transportation Co. v. New York City (1978) is a seminal case in which the Court created an ad hoc test to determine whether a zoning law constituted a regulatory taking under the Fifth Amendment. The court will look at the particular circumstances of each case, make factual inquiries, and focus of these three major factors:

  1. The character of the government action
  2. The protection of reasonable, investment-backed expectations; and
  3. The economic impact of the regulation on the particular owner

If, after balancing these interests, a regulation is deemed an unconstitutional taking of property, the landowner is entitled to just compensation.

 

*This is deemed a categorical per se taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Government mandated permanent physical invasions are also deemed a per se taking.

Disparate Impact Claims

When a city or town creates a policy or regulation, it has to ensure that the policy does not have a discriminatory result. If a “facially neutral” policy does have a discriminatory result a plaintiff can make a disparate impact claim. A prima facie case for disparate impact is made without a showing of discriminatory intent, instead a plaintiff can show discriminatory treatment or effect.

The plaintiff must show that the policy “actually or predictably results in racial discrimination.”

If a disparate impact is established, the burden is shifted to the defendant to show that it had sufficient justifications for the practice. The two most common justifications for a disparate impact are:

  1. Site specific – Here the court will ask if they made these justifications at the time the decision was made; the court will not allow after-the-fact justifications because the question is was your decision a violation of the FHA; are these justifications legitimate
  2. Plan specific – These justifications generally do not survive because most can be responded to with a less discriminatory alternative (i.e. redesign)

If the defendant establishes a sufficient justification for the disparate impact, the burden then shifts back to the plaintiff to show that these justifications do not negate the violation of Fair Housing Act (FHA).

Note, that if you can show discriminatory intent, you do not have to complete a disparate impact analysis.

Standing and the Justiciability Doctrine

The Justiciability Doctrine is a concept that students must fully understand in order to analyze issues in Constitutional law classes. The purpose of the Justiciability Doctrine is to encourage the separation of powers in our branches of government. The main question under the Justiciability Doctrine is: “What can the federal court hear?” and the answer to this question is not explicitly stated in the Constitution but has been created by the courts.

Article III, Section 2 states that “the judicial Power shall extend to all Cases…[and] to controversies.” The Supreme Court has inferred from this that a federal court will only hear “a case or controversy.” Although this inference may be relatively obvious, it does help accomplish the goal of the separation of powers. For example, the federal court will not do things such as give an advisory opinion to a branch of government because it would not arise out of a case or controversy.

The question of standing is: “Who can take a case to court?” To answer this question, the plaintiff must meet three requirements:

1. An injury in fact

  • The plaintiff has suffered or will immediately suffer an injury. In other words, a plaintiff cannot bring a suit because he fears that sometime in the future he may suffer an injury.

2. Causation

  • The injury alleged is connected to the defendant’s conduct.

3. Redressability

  • That the federal court in which the suit is brought is the likely court to redress the injury. This includes a showing that the federal court has proper jurisdiction for the suit.

 

Federal Question Jurisdiction

In order to establish Federal Subject Matter Jurisdiction, a case must satisfy diversity jurisdiction or federal question jurisdiction.

The Well-Pleaded Complaint

It is extremely important to recognize that the federal question must arise out of the complaint. The seminal case deciding this was Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149 (1908), where the plaintiff did not assert a federal question but the defendant answered with a federal question and both parties agreed that the federal question is the only disputed issue in the case. This means that a case that raises a federal defense but no federal claim cannot be brought in federal district court.

The concept of the well-pleaded complaint was developed which required a court to evaluate whether a federal question exists based solely on examining everything that is necessary for the plaintiff’s claim (but nothing beyond that). The reason for this is that courts want to determine if a federal question exists at the outset so that time is not wasted in the wrong forum.

When is a federal question enough to justify federal question jurisdiction?

In many complaints, a plaintiff will assert that the defendant violated both state and federal law. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986) determined that federal question jurisdiction would exist only if plaintiffs’ right to relief “depended necessarily on a substantial question of federal law.” To help determine this the court will weigh the centrality of the federal question and the importance of the federal question.

When a federal question is embedded in a state-law claim

What if the claim is based on state law but a federal question also exists in the claim? Here, a case can be within federal question jurisdiction if federal law is a “necessary element” of the claim for relief. Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 125 S. Ct. 2363  (2005). The “necessary element” test from Grable should only be applied in cases in which the federal question is embedded in a state-law claim.