The Restatement (Third) creates three categories of product defects:
1. Manufacturing Defects
2. Design Defects
3. Inadequate Instructions or Warning
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.
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.
Strict liability has three major categories:
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:
- Impoundments (noxious substances or liquids)
- Hazardous wastes
- The Superfund Act
- Lateral support
- Blasting and explosives
- Nuclear energy
- Other high-energy activities
- 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.
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.
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:
- would be highly offensive to a reasonable person, and
- 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:
- the false light in which the other was placed would be highly offensive to a reasonable person, and
- 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
The tort of negligence is simply defined as “the failure to exercise reasonable care.” However, for a plaintiff to prevail under a negligence claim he must allege and prove facts establishing ALL five of the legal elements of negligence:
- The defendant owed the plaintiff a legal duty
- The defendant, by behaving negligently, breached that duty
- The plaintiff suffered actual damage;
- The defendant’s negligence was an actual cause of this damage and
- The defendant’s negligence was a “proximate cause” of this damage
Even if a plaintiff does prove all of the elements, the plaintiff may still not fully recover. Once the plaintiff has proved the elements, the defendant is only subject to liability; not liable (at least not yet). The defendant may still have an adequate affirmative defense which may allow him to escape liability.
In analyzing whether the defendant owed the plaintiff a legal duty it is important to remember that courts have recognized that a duty is owed by all people to “exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others.”
This duty is known as the standard of care. “The standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act and is proportionate to it. The greater the danger, the greater the care which must be exercised.” Stewart v. Motts, 539 Pa. 596 (1995).