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SPRING 2003
Products Liability: Must the Buyer Beware?
Imagine you have graduated from Brandeis. You practice law in a small city with two other lawyers who also went to Brandeis and took Philosophy of Law. One morning, you have just settled down with a cup of Starbuck's coffee (yes, they have a franchise in your small town, too) and the McCormacks walk in and proceed to tell you the following story: About a year ago, they bought an electric steam vaporizer from a neighborhood druggist for use in the bedroom of their two children, Andrea, three years old, and Alison, almost two. They had used the vaporizer for several months without mishap until one night, Andrea knocked it over on her way to the bathroom. Scalding water spilled out, severely burning her. Since the accident, Andrea has undergone three skin-graft operations and has been hospitalized for eighty-seven days. Her head movements are restricted and will be so for the rest of her life. Her face is permanently scarred. The McCormacks then ask you whether they can recover from the maunfactuer of the vaporizer for Andrea's medical expenses and for the injuries she suffered. They don't want to sue the druggist, who is an old family friend with limited resources. What do you tell them?
Who Can Sue Whom? - Privity of Contract
i.) A man was thrown from his car when one its wheels collapsed because of a defect. He then (this was in 1916) sued the maufacturer of the car, the Buick Motor Company. But there was a dealer between the car purchaser and Buick. The "privity of contract" rule at the time stated that except in cases involving "inherently dangerous" products such as explosives, posions, drugs, and guns, an intervening resale by a retailer "insulated" the maufacturer from direct liability. An injured buyer could only recover from the one who had sold him the goods. Should the injured driver be allowed to recover from Buick, even though he was not in privity of contract with the Company?
Negligent Design
i.) Is a bulldozer that is designed to travel backwards as well as forwards, negligently designed if it is impossible for the operator to see a person standing anywhere from one to twenty-four feet behind him in the direct path of the machine?
ii.) A barge, laden with cargo and pulled by a tugboat, sank during a storm off the New Jersey coast. The cargo owner sued the tug-boat company on the ground that, had the tug been equipped with a radio, the crew would have known about the impending storm and would have been able to avert the disaster by seeking shelter. The cargo owner also knew that at the time of his suit - 1932 - radios were still rather new-fangled devices and not yet commonly used by coastal vessels. Is the tug-boat owner liable?
Negligent Failure to Warn
i.) Alice bought a can of weed killer, a major ingredient of which was arsenic, a compound that is long lasting and can enter the blood stream by absorption through the skin, inhalation, or injestion. The container bore a skull and cross-bones on the front and back, as well as directions for the prevention of personal injury. It described an antidote for internal injestion, but gave no warning about the long lasting quality of the poison. There were no instructions about how to dispose of the product safely, save for directions to wash the container and to destroy it when empty. After reading the labels, Alice donned protective clothing - a scarf, gloves, and a long-sleeved shirt - and proceeded to spray the cracks in her driveway. When finished, she rinsed out the container and dumped the residue on a spot in her backyard. Five days later, Alice, in her new bathing suit, lay stomach down for a sun-bathing episode on the grassy area where she had dumped out the rinse water from the weed killer. Shortly thereafter, she became critically ill from skin absorption and inhalation of the weed killer. Is the manufacturer liable?
ii.) Research by the Comsumer Products Safety Commission has shown that adults who slide headfirst down swimming pool slides into shallow water face a million to one chance of hitting the bottom of the pool and becoming paralyzed. Taking into account that the risk of getting hit by lightning is even greater than this, is it negligent not to warn?
Breach of Warranty
i.) Alice was prompted to try a new brand of chicken by the following ad: FATTED FOWL BONED CHICKEN - All luscious white and dark meat. No bones - No waste. Fatted Fowl's the finest chicken in the land. Chosen by poultry experts. Specially bred and fed. Fatted Fowl cooked to juicy perfection! While enjoying her "Fatted Fowl," watching an episode of Roseanne one night, a bone stuck in Alice's throat. She ended up having to go to the hospital and having to pay substantial medical expenses. Is the Fatted Fowl Company liable for Alice's injury?
Implied Warranties and Disclaimers of Liability
i.) Alice buys a cast-iron frying pan that is marked "Factory Second." The very first time she uses it, the handle breaks off as she picks it up from the stove. The pan and the sizzling bacon in it fall to the floor, hot grease spatters on her legs, and causes third-degree burns. Is the manufacturer liable for Alice's injuries?
"Defective" and "Unreasonably Dangerous"
i.) Are strawberries that may cause an allergic reaction in some people "defective" and "unreasonably dangerous?"
ii.) What about a bottle of whiskey, which may cause delirium tremens in an alcoholic who drinks too much of it?
iii.) John slips and falls and is stabbed by a pencil he is carrying in a shirt pocket. Will John be able to recover from the pencil manufacturer?
Defendant's answer contains the following defenses:
1. Plaintiff is barred from recovery because any defect caused by defendant's failure to secure the top of the jar is obvious;
2. Plaintiff is barred from recovery because the vaporizer was unforeseeably misued by virtue of its placement in a spot where a child could tip it over;
3. Plaintiff is barred from recovery because the injury was caused by the intervening conduct of plaintiff's mother in setting up the vaporizer in an unsafe spot, not by defendant's negligence or breach of warranty or by the defectiveness of its product.
"Patent" Danger
A factory-worker puts his hand into a glass-breaking machine to free a piece of glass and his hand is crushed. The machine had no safety guards or emergency cutoff switches. Was the manufacturer negligent for failure to warn of the danger?
Reasonable Foreseeability of Risk?
Case # 1: A four-year old boy who wanted to see what was cooking on top of the stove opened the oven door and stood on it. His weight tipped over the stove, spilling simmering spaghetti sauce over him.
Case # 2: A teen-age girl poured cologne on a lighted candle in order to make it scented. The candle burst into flames and burned her friend who was watching.
Intervening Cause
John drops his still burning cigarette in a wastebasket filled with paper. The paper catches fire, then the drapes. Smoke billows up, the sprinkler system fails to go on, and the whole building burns down.
"Within the Risk"
i.) Alce buys a pair of boots that the shoe salesman represents are "fit" for mountain-climbing. While she is climbing, the ones he recommended cause her to slip and fall down the mountain.
ii.) Alice buys a pair of boots that the shoe salesman represents are "fit" for mountain-climbing. While she is climbing with her new boots on, her shoes begin to hurt. She turns back and on the way down the mountain she is hit by a meteorite.
- from Arthur R. Miller , Miller's Court, 1982
Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003
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