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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
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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.

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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.