PRODUCT LIABILITY SIMPLIFIED Gardner Duvall How does the - - PowerPoint PPT Presentation

PRODUCT LIABILITY SIMPLIFIED

Gardner Duvall

How does the independent lab fit into product safety and product liability?

The Pinto and the Coffee Cup

Two types of suits for money

Contract

• Mutual promises
• Breach of promise
• Resulting loss
• Money damages

Tort

• Relationship of parties

creates a non- contractual duty of care

• Breach of duty of care
• Resulting loss
• Money damages

Product Liability is a Tort

• Product liability is imposed when a

product is not reasonably safe for its intended use and for foreseeable misuse.

• A seller of products is liable to consumers

for products which are not reasonably safe, and which therefore cause bodily injury.

2 questions for independent labs?

• Has anyone ever approached you to

test something and tell them that the thing was “reasonably safe,” without regard to benchmarks or parameters?

• Do you do business with

“consumers”?

The Ford Pinto

Cute car with a problem

• Early model years of the Pinto had a nasty

habit of going up in flames when rear-ended.

• Is it unreasonably unsafe to have a car that

explodes when crashed, since the intended purpose of the car is to drive, not crash?

• Accidents are foreseeable use or misuse for

cars, so cars have to be designed to reasonably survive a crash.

Which is safer? Which is reasonably safe?

Turbo 911 M1 Abrams

Pinto: real car, real problem

Fire hazard alone would be enough to create product liability, but there was more

• Car rushed into production with known risk of

explosion in low-speed rear end collisions

• Company tested 4 effective fixes, all with

prices less than $12 per car

• Company calculated that liability payments

were less expensive than making the running change

Pinto recap

• Car which burns as a result of low-

speed collision is not reasonably safe

• Additionally, what lawyers call “bad

facts” make for a liability disaster

Hot coffee to go

One renowned lawsuit

Facts in Liebeck v. McDonald’s lawsuit

• Coffee served at drive-up window at 180° F
• Caused third-degree burns in a matter of

seconds

• Liebeck wanted to settle for $10,000 in

medical bills for skin grafts

• Many prior complaints about coffee

temperature

Is it reasonably safe?

• It is as reasonably foreseeable that beverages

will spill on skin as that cars will get run into

• 180° coffee will cause third-degree or other

severe burns

• Is there some functional reason to serve

coffee that hot?

• McDonald’s offered some commercial

reasons, but coffee cannot be drunk at 180°

Personal responsibility

• Each state has a rule about how the plaintiff’s

fault affects recovery

• Most states reduce the recovery in proportion

to the plaintiff’s fault

• A few states deny recovery if the plaintiff has

any fault at all

• No knowledge about how this affected

McDonald’s liability

3 phases of product liability

• Design – is the design reasonably safe?

A car that explodes in low-impact collision Coffee too hot to drink and hot enough to cause third-degree burns

• Manufacture – is the product made to spec?
• Warning – Is there information about safe

use?

Ineffective warning

Design and warning

• Warning does not take

care of poor design: CAUTION CONTENTS HOT

• Design creates a

reasonably safe product, warning then provides information

• n safe use

Points for the independent lab

• Products liability is a type of tort, which

applies special considerations to the general standard of due care and reasonable safety

• General considerations of due care and

reasonable safety govern non-contractual liability whether or not products are involved

• Clients of an independent lab may use your

testing to design products or for quality control

Points for the independent lab

• Your clients may need benchmarked

performance data, but “reasonable safety” is usually not a matter of benchmarking

• Labs should not have product liability

because you have no relationship with the product user, and you are not designing or making products

Risk for independent labs

• Contractual liability to the client if

testing is deficient, and that results in product liability for the client.

• Contractual terms may control

liability in this instance.