This document summarizes products liability issues in Florida. It discusses the historical development of products liability law from the Restatement of Torts to its adoption in Florida. There are three types of product defects - design defects, manufacturing defects, and warning/instruction defects. A plaintiff must prove the product was defective and caused injury to bring a valid products liability claim under theories of negligence or strict liability. Recoverable damages include compensation for physical and economic harms, as well as pain and suffering. Florida law on design defect standards remains uncertain as courts consider adopting elements of the Restatement Third.
Chapter Twelve Product and Service Liability LawWhen consumers ent.docxmccormicknadine86
Chapter Twelve Product and Service Liability Law
When consumers enter a store to purchase a product, they assume that the product will do the job the manufacturer claims it will do without injuring anyone, and the consumer may not be aware that each year more than 33.4 million injuries and around 28,200 deaths result from the use of products purchased in the United States.1 Deaths, injuries, and property damage from consumer products incidents cost the nation more than $700 billion annually.2 Estimates of the number of resultant product liability cases range as high as 1 million a year. Also, the verdicts for defective-product or product liability cases are increasing from year to year. The total of the five largest awards for product defect cases in 2009 was 52 percent larger than the total in 2008. In fact, the largest award from a 2009 product defect case amounted to around $300 million, from the Philip Morris tobacco case. Also, in 2008, only 1 of the 50 largest awards were the result of a verdict in a product defect case, but in 2009, 5 of the 50 largest judgments were awarded in product defect cases.3
1 U.S. Department of Safety, http://www.yourlegalguide.com/defective-product-deaths/.
2 U.S. Consumer Product Safety Commission, www.cpsc.gov/about/about.html (accessed July 27, 2007).
3 John Cord, Product Liability Statistics & Trends, 2010. http://www.drugrecalllawyerblog.com /2010/01/product_liability_statistics_t.html.
Consequently, today’s businessperson is likely to become involved in some aspect of product liability litigation. This chapter discusses the most significant aspects of this area of law, known as product liability, to help the student function as a prudent consumer and businessperson.
Product liability law developed out of tort law, discussed in Chapter 10. This chapter begins by introducing the three primary theories of recovery in product liability cases and the defenses raised in such cases. These sections are followed by an introduction to enterprise liability, a concept that has slightly broadened the potential reach of product liability cases. Closely related to product liability is service liability, discussed in the next-to-last section. The final section discusses global implications of product liability law.Critical Thinking About The Law
Manufacturers owe a certain responsibility to consumers. Consumers should be able to reasonably use a product without its causing harm to them or others. After you read the following scenario, answer the critical thinking questions that will enhance your thinking about product liability law.
Katherine purchased a can of hair spray from her local drugstore. When she removed the cap from the hair spray can, the can exploded in her hands. She suffered third-degree burns on her hands and face and was unable to work for three months.
Katherine sued the hair spray manufacturer after she discovered that another woman had suffered an identical accident when using the same brand of hai ...
Chapter Twelve Product and Service Liability LawWhen consumers ent.docxbissacr
Chapter Twelve Product and Service Liability Law
When consumers enter a store to purchase a product, they assume that the product will do the job the manufacturer claims it will do without injuring anyone, and the consumer may not be aware that each year more than 33.4 million injuries and around 28,200 deaths result from the use of products purchased in the United States.1 Deaths, injuries, and property damage from consumer products incidents cost the nation more than $700 billion annually.2 Estimates of the number of resultant product liability cases range as high as 1 million a year. Also, the verdicts for defective-product or product liability cases are increasing from year to year. The total of the five largest awards for product defect cases in 2009 was 52 percent larger than the total in 2008. In fact, the largest award from a 2009 product defect case amounted to around $300 million, from the Philip Morris tobacco case. Also, in 2008, only 1 of the 50 largest awards were the result of a verdict in a product defect case, but in 2009, 5 of the 50 largest judgments were awarded in product defect cases.3
1 U.S. Department of Safety, http://www.yourlegalguide.com/defective-product-deaths/.
2 U.S. Consumer Product Safety Commission, www.cpsc.gov/about/about.html (accessed July 27, 2007).
3 John Cord, Product Liability Statistics & Trends, 2010. http://www.drugrecalllawyerblog.com /2010/01/product_liability_statistics_t.html.
Consequently, today’s businessperson is likely to become involved in some aspect of product liability litigation. This chapter discusses the most significant aspects of this area of law, known as product liability, to help the student function as a prudent consumer and businessperson.
Product liability law developed out of tort law, discussed in Chapter 10. This chapter begins by introducing the three primary theories of recovery in product liability cases and the defenses raised in such cases. These sections are followed by an introduction to enterprise liability, a concept that has slightly broadened the potential reach of product liability cases. Closely related to product liability is service liability, discussed in the next-to-last section. The final section discusses global implications of product liability law.Critical Thinking About The Law
Manufacturers owe a certain responsibility to consumers. Consumers should be able to reasonably use a product without its causing harm to them or others. After you read the following scenario, answer the critical thinking questions that will enhance your thinking about product liability law.
Katherine purchased a can of hair spray from her local drugstore. When she removed the cap from the hair spray can, the can exploded in her hands. She suffered third-degree burns on her hands and face and was unable to work for three months.
Katherine sued the hair spray manufacturer after she discovered that another woman had suffered an identical accident when using the same brand of hai.
LS311 Business LawWeek 3 - Strict Liability, Product Liabilit.docxsmile790243
LS311: Business Law
Week 3 - Strict Liability, Product Liability and ALTERNATIVE DISPUTE RESOLUTION
Torts & Cybertorts
Negligence
A person injured by a defective product may sue by alleging and proving:
The defendant breached a duty of due care to the plaintiff that caused the plaintiff’s injuries.
In a negligence lawsuit, only a party who was actually negligent is liable to the plaintiff.
Negligence
Consumers can recover damages from the manufacturer of the product even though (s)he was only in privity of contract with the retailer
Tort Liability - Misrepresentation
Failure to exercise due care includes:
Failing to assemble the product carefully.
Negligent product design.
Negligent inspection or testing of the product.
Negligent packaging.
Failure to warn of the dangerous propensities of the product.
Seller or lessor fraudulently misrepresents the quality of a product, or conceals a defect in it
Recovery limited to persons injured because they relied on the misrepresentation.
Strict Liability
Defendant’s liability is without regard to:
Fault.
Foreseeability.
Standard of Care.
Causation.
Liability is based on creation of extraordinary risk.
Defendants will be held strictly liable for an “abnormally dangerous activity” if:
Activity involves serious potential harm;
Activity involves high degree of risk that cannot be made safe; and
Activity is not commonly performed in the community or area.
Abnormally Dangerous Activities
6
Wild Animals
Persons who keep wild animals are strictly liable for injuries caused by the creatures.
Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous.
7
Product Liability
Product Liability is not a new tort.
Liability can be based on:
Negligence;
Misrepresentation; or
Strict Liability;
Warranty Theory.
8
Product Liability (Negligence)
Negligence-based product liability is based on a manufacturer’s breach of the reasonable standard of care and failing to make a product safe.
9
Product Liability (Negligence)
Manufacturer must exercise “due care” in:
Designing products;
Manufacturing and Assembling Products;
Inspecting and Testing Products; and
Placing adequate warning labels.
10
Product Liability (Negligence)
Manufacturers who violate state or federal law in the manufacture or labeling of a product, may be negligent per se.
No privity of contract required between Plaintiff and Manufacturer.
Liability extends to any person’s injuries caused by a negligently made (defective) product.
11
Product Liability (Misrepresentation)
Occurs when fraud committed against consumer or user of product.
Fraud must have been made knowingly or with reckless disregard for safety.
Plaintiff does not have to show product was defective.
12
Strict Product Liability
Manufacturers liable without regard to fault based on public policy:
Consumers must be protected from unsafe products;
Manuf ...
Week 1 ContentSaylor Advanced Business Law and the Legal .docxcelenarouzie
Week 1 Content
Saylor: Advanced Business Law and the Legal Environment
· Introduction to Law and the Legal System
· Courts and the Legal Process
· Constitutional Law and Commerce
Saylor: The Legal and Ethical Environment of Business
· The Rule of Law
· Importance of Rule of Law to Business
Alternative Dispute Resolution (ADR)
The U.S. Constitution
State Court Listings by Jurisdiction
Week 2 Content
Saylor: Advanced Business Law and the Legal Environment
· Tort Law
Civil and Criminal Law Comparison
Elements of Negligence Summary
Premises liability
Introduction to Torts (video - 15 mins)
Week 3 Content
Review assigned materials in Week 2
Products Liability
Case Examples: Liriano v. Hobart Corp.; Daniell v Ford Motor Company; Klein v Pyrodyne Corp. (Links located below.)
Case Examples
Warranties and Products Liability
Liriano v. Hobart Corp. 92 N.Y.2d 232 (1998) Court of Appeals of the State of New York (failure to adequately warn, defective and negligent design)
Facts:
In 1961, Liriano, a 17 year-old employee in the meat department at Super Associated grocery store (Super), was injured on the job while feeding meat into a commercial meat grinder whose safety guard had been removed. His right hand and lower forearm were amputated.
The meat grinder was manufactured and sold by Hobart Corporation (Hobart) with an affixed safety guard that prevented the user's hands from coming into contact with the grinder. No warnings were on the machine or otherwise provided to state it was dangerous to operate the machine without the safety guard in place. Subsequently, Hobart became aware that a significant number of purchasers of its meat grinders had removed the safety guards; in 1962, Hobart began issuing warnings on its meat grinders concerning removal of the safety guard.
At trial, Super conceded the safety guard was intact at the time it acquired the grinder and that the guard was removed while in its possession. It is further conceded that Hobart actually knew, before the accident, that removals of this sort were occurring and that use of the machine without the safety guard was highly dangerous.
Liriano sued Hobart for negligence and strict product liability for defective product design and failure to warn. The case was removed to the United States District Court for the Southern District of New York, and Super was impleaded as a third-party defendant, seeking indemnification and/or contribution.
The District Court dismissed all of Liriano's claims except those based on failure to warn. The trial court ruled failure to warn was the proximate cause of Liriano's injuries and apportioned liability 5% to Hobart and 95% to Super. On partial retrial, Liriano was assigned 33 1/3% of the responsibility.
Hobart and Super appealed, arguing that they had no duty to warn, as a matter of law, and that the case should have been decided in their favor.
Opinion:
The appellate court agreed, essentially, with the rationale of the lower courts on the .
Embs v. Pepsi-Cola Bottling Co. of Lexington KentuckyJukowsky, J. .pdfalstradecentreerode
Embs v. Pepsi-Cola Bottling Co. of Lexington Kentucky
Jukowsky, J. On the afternoon of July 25, 1970 plaintiff-appellant entered the self-service retail
store operated by the defendant-appellee, Stampers Cash Market, Inc., for the purpose of buying
soft drinks for the kids. She went to an upright soft drink cooler, removed five bottles and placed
them in a carton. Unnoticed by her, a carton of Seven-Up was sitting on the floor at the edge of
the produce counter about one foot from where she was standing. As she turned away from the
cooler she heard an explosion that sounded like a shotgun. When she looked down she saw a
gash in her leg, pop on her leg, green pieces of a bottle on the floor and the Seven-Up carton in
the midst of the debris. She did not kick or otherwise come into contact with the carton of Seven-
Up prior to the explosion. Her son, who was with her, recognized the green pieces of glass as
part of a Seven-Up bottle.
She was immediately taken to the hospital by Mrs. Stamper, a managing agent of the store. Mrs.
Stamper told her that a Seven-Up bottle had exploded and that several bottles had exploded that
week. Before leaving the store Mrs. Stamper instructed one of her children to clean up the mess.
Apparently, all of the physical evidence went out with the trash. The location of the Seven-Up
carton immediately before the explosion was not a place where such items were ordinarily kept.
* * *
When she rested her case, the defendants-appellees moved for a directed verdict in their favor.
The trial court granted the motion on the grounds that the doctrine of strict product liability in
tort does not extend beyond users and consumers and that the evidence was insufficient to permit
an inference by a reasonably prudent man that the bottle was defective or if it was, when it
became so.
In [Citation] we adopted the view of strict product liability in tort expressed in Section 402 A of
the American Law Institutes Restatement of Torts 2d.
[The court sets out Section 402A of the Restatement, Second, of Torts, as presented in the text
above One who sells any product in a defective condition. . . , etc.]
Comment f on that section makes it abundantly clear that this rule applies to any person engaged
in the business of supplying products for use or consumption, including any manufacturer of
such a product and any wholesale or retail dealer or distributor.
Comment c points out that on whatever theory, the justification for the rule has been said to be
that the seller, by marketing his product for use and consumption, has undertaken and assumed a
special responsibility toward any member of the consuming public who may be injured by it; that
the public has the right to, and does expect, that reputable sellers will stand behind their goods;
that public policy demands that the burden of accidental injuries caused by products intended for
consumption be placed upon those who market them, and be treated as a cost of production
against which liabil.
Chapter Twelve Product and Service Liability LawWhen consumers ent.docxmccormicknadine86
Chapter Twelve Product and Service Liability Law
When consumers enter a store to purchase a product, they assume that the product will do the job the manufacturer claims it will do without injuring anyone, and the consumer may not be aware that each year more than 33.4 million injuries and around 28,200 deaths result from the use of products purchased in the United States.1 Deaths, injuries, and property damage from consumer products incidents cost the nation more than $700 billion annually.2 Estimates of the number of resultant product liability cases range as high as 1 million a year. Also, the verdicts for defective-product or product liability cases are increasing from year to year. The total of the five largest awards for product defect cases in 2009 was 52 percent larger than the total in 2008. In fact, the largest award from a 2009 product defect case amounted to around $300 million, from the Philip Morris tobacco case. Also, in 2008, only 1 of the 50 largest awards were the result of a verdict in a product defect case, but in 2009, 5 of the 50 largest judgments were awarded in product defect cases.3
1 U.S. Department of Safety, http://www.yourlegalguide.com/defective-product-deaths/.
2 U.S. Consumer Product Safety Commission, www.cpsc.gov/about/about.html (accessed July 27, 2007).
3 John Cord, Product Liability Statistics & Trends, 2010. http://www.drugrecalllawyerblog.com /2010/01/product_liability_statistics_t.html.
Consequently, today’s businessperson is likely to become involved in some aspect of product liability litigation. This chapter discusses the most significant aspects of this area of law, known as product liability, to help the student function as a prudent consumer and businessperson.
Product liability law developed out of tort law, discussed in Chapter 10. This chapter begins by introducing the three primary theories of recovery in product liability cases and the defenses raised in such cases. These sections are followed by an introduction to enterprise liability, a concept that has slightly broadened the potential reach of product liability cases. Closely related to product liability is service liability, discussed in the next-to-last section. The final section discusses global implications of product liability law.Critical Thinking About The Law
Manufacturers owe a certain responsibility to consumers. Consumers should be able to reasonably use a product without its causing harm to them or others. After you read the following scenario, answer the critical thinking questions that will enhance your thinking about product liability law.
Katherine purchased a can of hair spray from her local drugstore. When she removed the cap from the hair spray can, the can exploded in her hands. She suffered third-degree burns on her hands and face and was unable to work for three months.
Katherine sued the hair spray manufacturer after she discovered that another woman had suffered an identical accident when using the same brand of hai ...
Chapter Twelve Product and Service Liability LawWhen consumers ent.docxbissacr
Chapter Twelve Product and Service Liability Law
When consumers enter a store to purchase a product, they assume that the product will do the job the manufacturer claims it will do without injuring anyone, and the consumer may not be aware that each year more than 33.4 million injuries and around 28,200 deaths result from the use of products purchased in the United States.1 Deaths, injuries, and property damage from consumer products incidents cost the nation more than $700 billion annually.2 Estimates of the number of resultant product liability cases range as high as 1 million a year. Also, the verdicts for defective-product or product liability cases are increasing from year to year. The total of the five largest awards for product defect cases in 2009 was 52 percent larger than the total in 2008. In fact, the largest award from a 2009 product defect case amounted to around $300 million, from the Philip Morris tobacco case. Also, in 2008, only 1 of the 50 largest awards were the result of a verdict in a product defect case, but in 2009, 5 of the 50 largest judgments were awarded in product defect cases.3
1 U.S. Department of Safety, http://www.yourlegalguide.com/defective-product-deaths/.
2 U.S. Consumer Product Safety Commission, www.cpsc.gov/about/about.html (accessed July 27, 2007).
3 John Cord, Product Liability Statistics & Trends, 2010. http://www.drugrecalllawyerblog.com /2010/01/product_liability_statistics_t.html.
Consequently, today’s businessperson is likely to become involved in some aspect of product liability litigation. This chapter discusses the most significant aspects of this area of law, known as product liability, to help the student function as a prudent consumer and businessperson.
Product liability law developed out of tort law, discussed in Chapter 10. This chapter begins by introducing the three primary theories of recovery in product liability cases and the defenses raised in such cases. These sections are followed by an introduction to enterprise liability, a concept that has slightly broadened the potential reach of product liability cases. Closely related to product liability is service liability, discussed in the next-to-last section. The final section discusses global implications of product liability law.Critical Thinking About The Law
Manufacturers owe a certain responsibility to consumers. Consumers should be able to reasonably use a product without its causing harm to them or others. After you read the following scenario, answer the critical thinking questions that will enhance your thinking about product liability law.
Katherine purchased a can of hair spray from her local drugstore. When she removed the cap from the hair spray can, the can exploded in her hands. She suffered third-degree burns on her hands and face and was unable to work for three months.
Katherine sued the hair spray manufacturer after she discovered that another woman had suffered an identical accident when using the same brand of hai.
LS311 Business LawWeek 3 - Strict Liability, Product Liabilit.docxsmile790243
LS311: Business Law
Week 3 - Strict Liability, Product Liability and ALTERNATIVE DISPUTE RESOLUTION
Torts & Cybertorts
Negligence
A person injured by a defective product may sue by alleging and proving:
The defendant breached a duty of due care to the plaintiff that caused the plaintiff’s injuries.
In a negligence lawsuit, only a party who was actually negligent is liable to the plaintiff.
Negligence
Consumers can recover damages from the manufacturer of the product even though (s)he was only in privity of contract with the retailer
Tort Liability - Misrepresentation
Failure to exercise due care includes:
Failing to assemble the product carefully.
Negligent product design.
Negligent inspection or testing of the product.
Negligent packaging.
Failure to warn of the dangerous propensities of the product.
Seller or lessor fraudulently misrepresents the quality of a product, or conceals a defect in it
Recovery limited to persons injured because they relied on the misrepresentation.
Strict Liability
Defendant’s liability is without regard to:
Fault.
Foreseeability.
Standard of Care.
Causation.
Liability is based on creation of extraordinary risk.
Defendants will be held strictly liable for an “abnormally dangerous activity” if:
Activity involves serious potential harm;
Activity involves high degree of risk that cannot be made safe; and
Activity is not commonly performed in the community or area.
Abnormally Dangerous Activities
6
Wild Animals
Persons who keep wild animals are strictly liable for injuries caused by the creatures.
Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous.
7
Product Liability
Product Liability is not a new tort.
Liability can be based on:
Negligence;
Misrepresentation; or
Strict Liability;
Warranty Theory.
8
Product Liability (Negligence)
Negligence-based product liability is based on a manufacturer’s breach of the reasonable standard of care and failing to make a product safe.
9
Product Liability (Negligence)
Manufacturer must exercise “due care” in:
Designing products;
Manufacturing and Assembling Products;
Inspecting and Testing Products; and
Placing adequate warning labels.
10
Product Liability (Negligence)
Manufacturers who violate state or federal law in the manufacture or labeling of a product, may be negligent per se.
No privity of contract required between Plaintiff and Manufacturer.
Liability extends to any person’s injuries caused by a negligently made (defective) product.
11
Product Liability (Misrepresentation)
Occurs when fraud committed against consumer or user of product.
Fraud must have been made knowingly or with reckless disregard for safety.
Plaintiff does not have to show product was defective.
12
Strict Product Liability
Manufacturers liable without regard to fault based on public policy:
Consumers must be protected from unsafe products;
Manuf ...
Week 1 ContentSaylor Advanced Business Law and the Legal .docxcelenarouzie
Week 1 Content
Saylor: Advanced Business Law and the Legal Environment
· Introduction to Law and the Legal System
· Courts and the Legal Process
· Constitutional Law and Commerce
Saylor: The Legal and Ethical Environment of Business
· The Rule of Law
· Importance of Rule of Law to Business
Alternative Dispute Resolution (ADR)
The U.S. Constitution
State Court Listings by Jurisdiction
Week 2 Content
Saylor: Advanced Business Law and the Legal Environment
· Tort Law
Civil and Criminal Law Comparison
Elements of Negligence Summary
Premises liability
Introduction to Torts (video - 15 mins)
Week 3 Content
Review assigned materials in Week 2
Products Liability
Case Examples: Liriano v. Hobart Corp.; Daniell v Ford Motor Company; Klein v Pyrodyne Corp. (Links located below.)
Case Examples
Warranties and Products Liability
Liriano v. Hobart Corp. 92 N.Y.2d 232 (1998) Court of Appeals of the State of New York (failure to adequately warn, defective and negligent design)
Facts:
In 1961, Liriano, a 17 year-old employee in the meat department at Super Associated grocery store (Super), was injured on the job while feeding meat into a commercial meat grinder whose safety guard had been removed. His right hand and lower forearm were amputated.
The meat grinder was manufactured and sold by Hobart Corporation (Hobart) with an affixed safety guard that prevented the user's hands from coming into contact with the grinder. No warnings were on the machine or otherwise provided to state it was dangerous to operate the machine without the safety guard in place. Subsequently, Hobart became aware that a significant number of purchasers of its meat grinders had removed the safety guards; in 1962, Hobart began issuing warnings on its meat grinders concerning removal of the safety guard.
At trial, Super conceded the safety guard was intact at the time it acquired the grinder and that the guard was removed while in its possession. It is further conceded that Hobart actually knew, before the accident, that removals of this sort were occurring and that use of the machine without the safety guard was highly dangerous.
Liriano sued Hobart for negligence and strict product liability for defective product design and failure to warn. The case was removed to the United States District Court for the Southern District of New York, and Super was impleaded as a third-party defendant, seeking indemnification and/or contribution.
The District Court dismissed all of Liriano's claims except those based on failure to warn. The trial court ruled failure to warn was the proximate cause of Liriano's injuries and apportioned liability 5% to Hobart and 95% to Super. On partial retrial, Liriano was assigned 33 1/3% of the responsibility.
Hobart and Super appealed, arguing that they had no duty to warn, as a matter of law, and that the case should have been decided in their favor.
Opinion:
The appellate court agreed, essentially, with the rationale of the lower courts on the .
Embs v. Pepsi-Cola Bottling Co. of Lexington KentuckyJukowsky, J. .pdfalstradecentreerode
Embs v. Pepsi-Cola Bottling Co. of Lexington Kentucky
Jukowsky, J. On the afternoon of July 25, 1970 plaintiff-appellant entered the self-service retail
store operated by the defendant-appellee, Stampers Cash Market, Inc., for the purpose of buying
soft drinks for the kids. She went to an upright soft drink cooler, removed five bottles and placed
them in a carton. Unnoticed by her, a carton of Seven-Up was sitting on the floor at the edge of
the produce counter about one foot from where she was standing. As she turned away from the
cooler she heard an explosion that sounded like a shotgun. When she looked down she saw a
gash in her leg, pop on her leg, green pieces of a bottle on the floor and the Seven-Up carton in
the midst of the debris. She did not kick or otherwise come into contact with the carton of Seven-
Up prior to the explosion. Her son, who was with her, recognized the green pieces of glass as
part of a Seven-Up bottle.
She was immediately taken to the hospital by Mrs. Stamper, a managing agent of the store. Mrs.
Stamper told her that a Seven-Up bottle had exploded and that several bottles had exploded that
week. Before leaving the store Mrs. Stamper instructed one of her children to clean up the mess.
Apparently, all of the physical evidence went out with the trash. The location of the Seven-Up
carton immediately before the explosion was not a place where such items were ordinarily kept.
* * *
When she rested her case, the defendants-appellees moved for a directed verdict in their favor.
The trial court granted the motion on the grounds that the doctrine of strict product liability in
tort does not extend beyond users and consumers and that the evidence was insufficient to permit
an inference by a reasonably prudent man that the bottle was defective or if it was, when it
became so.
In [Citation] we adopted the view of strict product liability in tort expressed in Section 402 A of
the American Law Institutes Restatement of Torts 2d.
[The court sets out Section 402A of the Restatement, Second, of Torts, as presented in the text
above One who sells any product in a defective condition. . . , etc.]
Comment f on that section makes it abundantly clear that this rule applies to any person engaged
in the business of supplying products for use or consumption, including any manufacturer of
such a product and any wholesale or retail dealer or distributor.
Comment c points out that on whatever theory, the justification for the rule has been said to be
that the seller, by marketing his product for use and consumption, has undertaken and assumed a
special responsibility toward any member of the consuming public who may be injured by it; that
the public has the right to, and does expect, that reputable sellers will stand behind their goods;
that public policy demands that the burden of accidental injuries caused by products intended for
consumption be placed upon those who market them, and be treated as a cost of production
against which liabil.
Introduction to Legal Risk Management and product liability. To read more about Legal Risk Management and product liability, visit http://seoullegalriskmgmt.com
Part III Business and SocietyChapter 6 Consumers.docxdanhaley45372
Part III: Business and Society
Chapter 6: Consumers
Chapter 7: The Environment
*
This multimedia product and its contents are protected under copyright law. The following are prohibited by law:
• any public performance or display, including transmission of any image over a network;
• preparation of any derivative work, including the extraction, in whole or in part, of any images;
• any rental, lease, or lending of the program.
Chapter Six:
Consumers
*
*
OverviewChapter Six examines the following topics:Product safety, legal liability, and regulationResponsibilities of business to consumers concerning product quality, prices, labeling, and packagingDeceptive advertising and the FTC“Reasonable” vs. “ignorant” consumer standardsThe social desirability of advertising, free speech, and consumer needs
Moral Issues in Business
Chapter 6
*
IntroductionWith the sale of goods to the public comes responsibility on the part of the manufacturer and advertiser. Government has some responsibility to protect the public from hazardous or mislabeled goods. What responsibilities do companies have toward their consumers? How can goods be promoted while respecting the choices of individuals?
Moral Issues in Business
Chapter 6
*
“Wigand revealed in a 60 Minutes interview that his employer knew nicotine was addictive and intentionally manipulated the tobacco content of its cigarettes to increase the amount of nicotine they delivered.”
*
Product SafetyBusiness’s general responsibility for product safety: The complexity of an advanced economy and the necessary dependence of consumers on business to satisfy their many wants increase business’s responsibility for product safety.
Moral Issues in Business
Chapter 6
*
Product SafetyThe legal liability of manufacturers: The 1916 MacPherson vs. Buick Motor Car case expanded the liability of manufacturers for injuries caused by defective products. Prior to that case, consumers could recover damages only from the retailer of the defective product. The MacPherson case replaced the older caveat emptor (“let the buyer beware”) doctrine of consumer-seller relationship with a due care one.
Moral Issues in Business
Chapter 6
*
Product SafetyStrict product liability: The MacPherson case still left the injured consumer with the burden of proving that the manufacturer had been negligent.Negligence is difficult to prove.A product might be unsafe despite the manufacturer’s having tried to exercise caution.
Moral Issues in Business
Chapter 6
*
Product SafetyStrict product liability: In the 1960s, legal thinking became dominated by the doctrine of strict product liability, based on:Henningsen vs. Bloomfield Motors (1960)Greenman vs. Yuba Power Products (1963) This holds the manufacturer responsible for injuries suffered as a result of defects in the product, regardless of whether the manufacturer was negligent.
Moral Issues in Business
Chapter 6
*
.
Common Law Strict Liability Introduction Strict liabilit.docxdrandy1
Common Law Strict Liability
Introduction: Strict liability, or liability without fault, is a category of unintentional torts
in which the wrongdoer may be held liable for harm to others even when exercising
utmost care and being as careful as possible. Strict liability applies to (1) abnormally
dangerous activities. Abnormally dangerous activities are those that involve a high risk
of serious harm to persons or property that cannot be completely eliminated even with
reasonable care, such as using and storing explosives, stunt flying, keeping wild
animals, and trespassing livestock.
Product Liability**
Introduction: Product liability, sometimes called strict product liability refers to cases in
which a person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Please also see Instructor Notes link in week 2 for further details and explanation of
product liability.
**Strict product liability is often confused with the separate common law tort of strict
liability, sometimes referred to as “liability without fault”. Strict liability applies only to a
small category of abnormally dangerous activities, such as use of explosives, fireworks,
and stunt flying. Please see section above.
Warranties and Product Liability
Introduction: A warranty is a promise, or guarantee, by a seller or lessor that certain
facts are true of the goods being sold or leased. Types of warranties include (1)
warranties of title guaranteeing that the goods have clear and valid title, (2) express
warranties promising specific facts about the goods, and (3) implied warranties of
merchantability, or fitness for a particular purpose. A warranty creates a legal duty for
the seller or lessor; a non-breaching party can recover damages for breach of
warranty(ies). Because warranties are associated with the sale or lease of products,
breach of warranty claims are a part of product liability claims and manufacturers and
sellers of goods can be held liable for breach of warranty for defective products.
Warranties are subject to regulation under the UCC, product liability tort law, contract
law, and the Magnuson-Moss Warranty Act.
Product Liability**
Product liability, sometimes called strict product liability refers to cases in which a
person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Definitions of a Defective Product in Product Liability
Products may become defective because of:
1) defective manufacture (so the product is "broken", not perfectly made, i.e., a product
is manufactured so that the electric wiring is improperly made/attached, etc. and may
cause a fire or cause elect.
Common Law Strict Liability Introduction Strict liabilit.docxcargillfilberto
Common Law Strict Liability
Introduction: Strict liability, or liability without fault, is a category of unintentional torts
in which the wrongdoer may be held liable for harm to others even when exercising
utmost care and being as careful as possible. Strict liability applies to (1) abnormally
dangerous activities. Abnormally dangerous activities are those that involve a high risk
of serious harm to persons or property that cannot be completely eliminated even with
reasonable care, such as using and storing explosives, stunt flying, keeping wild
animals, and trespassing livestock.
Product Liability**
Introduction: Product liability, sometimes called strict product liability refers to cases in
which a person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Please also see Instructor Notes link in week 2 for further details and explanation of
product liability.
**Strict product liability is often confused with the separate common law tort of strict
liability, sometimes referred to as “liability without fault”. Strict liability applies only to a
small category of abnormally dangerous activities, such as use of explosives, fireworks,
and stunt flying. Please see section above.
Warranties and Product Liability
Introduction: A warranty is a promise, or guarantee, by a seller or lessor that certain
facts are true of the goods being sold or leased. Types of warranties include (1)
warranties of title guaranteeing that the goods have clear and valid title, (2) express
warranties promising specific facts about the goods, and (3) implied warranties of
merchantability, or fitness for a particular purpose. A warranty creates a legal duty for
the seller or lessor; a non-breaching party can recover damages for breach of
warranty(ies). Because warranties are associated with the sale or lease of products,
breach of warranty claims are a part of product liability claims and manufacturers and
sellers of goods can be held liable for breach of warranty for defective products.
Warranties are subject to regulation under the UCC, product liability tort law, contract
law, and the Magnuson-Moss Warranty Act.
Product Liability**
Product liability, sometimes called strict product liability refers to cases in which a
person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Definitions of a Defective Product in Product Liability
Products may become defective because of:
1) defective manufacture (so the product is "broken", not perfectly made, i.e., a product
is manufactured so that the electric wiring is improperly made/attached, etc. and may
cause a fire or cause elect.
Introduction to Legal Risk Management and product liability. To read more about Legal Risk Management and product liability, visit http://seoullegalriskmgmt.com
Part III Business and SocietyChapter 6 Consumers.docxdanhaley45372
Part III: Business and Society
Chapter 6: Consumers
Chapter 7: The Environment
*
This multimedia product and its contents are protected under copyright law. The following are prohibited by law:
• any public performance or display, including transmission of any image over a network;
• preparation of any derivative work, including the extraction, in whole or in part, of any images;
• any rental, lease, or lending of the program.
Chapter Six:
Consumers
*
*
OverviewChapter Six examines the following topics:Product safety, legal liability, and regulationResponsibilities of business to consumers concerning product quality, prices, labeling, and packagingDeceptive advertising and the FTC“Reasonable” vs. “ignorant” consumer standardsThe social desirability of advertising, free speech, and consumer needs
Moral Issues in Business
Chapter 6
*
IntroductionWith the sale of goods to the public comes responsibility on the part of the manufacturer and advertiser. Government has some responsibility to protect the public from hazardous or mislabeled goods. What responsibilities do companies have toward their consumers? How can goods be promoted while respecting the choices of individuals?
Moral Issues in Business
Chapter 6
*
“Wigand revealed in a 60 Minutes interview that his employer knew nicotine was addictive and intentionally manipulated the tobacco content of its cigarettes to increase the amount of nicotine they delivered.”
*
Product SafetyBusiness’s general responsibility for product safety: The complexity of an advanced economy and the necessary dependence of consumers on business to satisfy their many wants increase business’s responsibility for product safety.
Moral Issues in Business
Chapter 6
*
Product SafetyThe legal liability of manufacturers: The 1916 MacPherson vs. Buick Motor Car case expanded the liability of manufacturers for injuries caused by defective products. Prior to that case, consumers could recover damages only from the retailer of the defective product. The MacPherson case replaced the older caveat emptor (“let the buyer beware”) doctrine of consumer-seller relationship with a due care one.
Moral Issues in Business
Chapter 6
*
Product SafetyStrict product liability: The MacPherson case still left the injured consumer with the burden of proving that the manufacturer had been negligent.Negligence is difficult to prove.A product might be unsafe despite the manufacturer’s having tried to exercise caution.
Moral Issues in Business
Chapter 6
*
Product SafetyStrict product liability: In the 1960s, legal thinking became dominated by the doctrine of strict product liability, based on:Henningsen vs. Bloomfield Motors (1960)Greenman vs. Yuba Power Products (1963) This holds the manufacturer responsible for injuries suffered as a result of defects in the product, regardless of whether the manufacturer was negligent.
Moral Issues in Business
Chapter 6
*
.
Common Law Strict Liability Introduction Strict liabilit.docxdrandy1
Common Law Strict Liability
Introduction: Strict liability, or liability without fault, is a category of unintentional torts
in which the wrongdoer may be held liable for harm to others even when exercising
utmost care and being as careful as possible. Strict liability applies to (1) abnormally
dangerous activities. Abnormally dangerous activities are those that involve a high risk
of serious harm to persons or property that cannot be completely eliminated even with
reasonable care, such as using and storing explosives, stunt flying, keeping wild
animals, and trespassing livestock.
Product Liability**
Introduction: Product liability, sometimes called strict product liability refers to cases in
which a person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Please also see Instructor Notes link in week 2 for further details and explanation of
product liability.
**Strict product liability is often confused with the separate common law tort of strict
liability, sometimes referred to as “liability without fault”. Strict liability applies only to a
small category of abnormally dangerous activities, such as use of explosives, fireworks,
and stunt flying. Please see section above.
Warranties and Product Liability
Introduction: A warranty is a promise, or guarantee, by a seller or lessor that certain
facts are true of the goods being sold or leased. Types of warranties include (1)
warranties of title guaranteeing that the goods have clear and valid title, (2) express
warranties promising specific facts about the goods, and (3) implied warranties of
merchantability, or fitness for a particular purpose. A warranty creates a legal duty for
the seller or lessor; a non-breaching party can recover damages for breach of
warranty(ies). Because warranties are associated with the sale or lease of products,
breach of warranty claims are a part of product liability claims and manufacturers and
sellers of goods can be held liable for breach of warranty for defective products.
Warranties are subject to regulation under the UCC, product liability tort law, contract
law, and the Magnuson-Moss Warranty Act.
Product Liability**
Product liability, sometimes called strict product liability refers to cases in which a
person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Definitions of a Defective Product in Product Liability
Products may become defective because of:
1) defective manufacture (so the product is "broken", not perfectly made, i.e., a product
is manufactured so that the electric wiring is improperly made/attached, etc. and may
cause a fire or cause elect.
Common Law Strict Liability Introduction Strict liabilit.docxcargillfilberto
Common Law Strict Liability
Introduction: Strict liability, or liability without fault, is a category of unintentional torts
in which the wrongdoer may be held liable for harm to others even when exercising
utmost care and being as careful as possible. Strict liability applies to (1) abnormally
dangerous activities. Abnormally dangerous activities are those that involve a high risk
of serious harm to persons or property that cannot be completely eliminated even with
reasonable care, such as using and storing explosives, stunt flying, keeping wild
animals, and trespassing livestock.
Product Liability**
Introduction: Product liability, sometimes called strict product liability refers to cases in
which a person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Please also see Instructor Notes link in week 2 for further details and explanation of
product liability.
**Strict product liability is often confused with the separate common law tort of strict
liability, sometimes referred to as “liability without fault”. Strict liability applies only to a
small category of abnormally dangerous activities, such as use of explosives, fireworks,
and stunt flying. Please see section above.
Warranties and Product Liability
Introduction: A warranty is a promise, or guarantee, by a seller or lessor that certain
facts are true of the goods being sold or leased. Types of warranties include (1)
warranties of title guaranteeing that the goods have clear and valid title, (2) express
warranties promising specific facts about the goods, and (3) implied warranties of
merchantability, or fitness for a particular purpose. A warranty creates a legal duty for
the seller or lessor; a non-breaching party can recover damages for breach of
warranty(ies). Because warranties are associated with the sale or lease of products,
breach of warranty claims are a part of product liability claims and manufacturers and
sellers of goods can be held liable for breach of warranty for defective products.
Warranties are subject to regulation under the UCC, product liability tort law, contract
law, and the Magnuson-Moss Warranty Act.
Product Liability**
Product liability, sometimes called strict product liability refers to cases in which a
person is injured by a product, or use of a product because the product is
defective in some way. When a product is defective it may become abnormally
dangerous although the product, when not defective, may be safe.
Definitions of a Defective Product in Product Liability
Products may become defective because of:
1) defective manufacture (so the product is "broken", not perfectly made, i.e., a product
is manufactured so that the electric wiring is improperly made/attached, etc. and may
cause a fire or cause elect.
1. PRODUCTS LIABILITY ISSUES IN FLORIDA
By: Krista Fowler Acuña, Esq., Senior Partner, Chartwell Law Offices
1. What is Products Liability?
a. Historical Context & Development of Restatement of Torts 402A
In 1964, the American Law Institute (“ALI”) adopted §402A as part of the
Restatement Second of Torts. Section 402A was entitled “Special Liability of Seller
of Product for Physical Harm to User or Consumer.” It marked the first recognition
of privity-free strict liability for sellers of defective products. The major thrust of
§402A was to eliminate privity so that a user or consumer could, without having to
establish negligence, bring an action against a manufacturer, as well as against any
other member of a distributive chain that had sold a product containing a
manufacturing defect. It had little to say about design defects or warnings defects,
which were not much litigated areas. In 1998, the ALI adopted the Restatement
Third of Torts, which almost completely overhauled the Restatement Second as it
concerns the liability of commercial sellers of products.
For the Restatement of Torts to be the law of a jurisdiction, it must be adopted by the
Legislature or the courts. Florida has adopted the Restatement Second.
b. West v. Caterpillar
In 1976, the Florida Supreme Court adopted the strict liability doctrine of the
Restatement Second of Torts Section 402A when it decided the case of West v.
Caterpillar Tractor Company, Inc. 336 So. 2d 80 (Fla. 1976). There, it was
alleged the tractor was defective for the lack of audible warning while backing the
grader, lack of rear mirrors, and a blind spot.
The court held that a manufacturer may be strictly liable in tort when an article he
places on the market, knowing that it is to be used without inspection for defects,
proves to have a defect that causes injury to a human being. Furthermore, it stated
that “contributory or comparative negligence is a defense in a strict liability action if
based upon grounds other than the failure of the user to discover the defect in the
product or the failure of the user to guard against the possibility of its existence.” The
court also found that the strict liability claim can apply to a foreseeable bystander who
comes within range of the danger. Finally, the Florida Supreme Court held that the
adoption of strict liability does not lead to the end of an action in implied warranty.
c. Restatement Second vs. Restatement Third
2. Products Liability
HOUCK ANDERSON, P.A.
2
There are four (4) notable differences between the Restatement Second and Third in
regard to determining the existence of a design defect. Under the Restatement Second,
a defective design is one that is unreasonably dangerous for its intended use, or
foreseeable misuse, for a user or foreseeable bystander. The Restatement Third
discusses products claims in four different contexts: (1) proof of a reasonable
alternative design; (2) inferences may be drawn in circumstances in which common
experience teaches that an inference of defect may be warranted under the specific facts,
including the failure of the product to perform its manifestly intended function; (3)
courts may, even absent an alternative design, find that some products are not
reasonably safe because they present an extremely high degree of danger and provide
negligible social utility; and (4) a product design which violates an applicable
governmental safety standard is defective without regard to the availability of a
reasonable alternative.
d. Shifting Landscape? Pending Changes to Standard Civil Jury Instructions
The Restatement Second continues to be followed in Florida. Florida’s current
Standard Civil Jury Instruction for Products Liability claims provides that a product
may be defective in design by virtue of the “consumer-expectations” test or the “risk-
utility” test. Either test can be used, or both, to be decided by the trial court as
appropriate. It states:
A product is unreasonably dangerous because of its design if [the
product fails to perform as safely as an ordinary consumer would
expect when used as intended or in a manner reasonably foreseeable by
the manufacturer] [or] [the risk of danger in the design outweighs the
benefits].
The “consumer-expectations” test, as reflected in the first part of the jury instruction,
provides that a defectively designed product is one that is dangerous beyond that which
would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics. In contrast, the risk-
utility test provides that a defectively designed product is one where the benefits of the
challenged design outweigh the risk of danger inherent in such designs.
The Restatement Third differs from the Restatement Second because it rejects the
“consumer expectations” test entirely as an independent basis for finding a design
defect. Instead, it requires a plaintiff to demonstrate the existence of a reasonable
alternative product design, and it defines reasonable alternative product design in terms
of the “risk-utility” balancing test only.
3. Products Liability
HOUCK ANDERSON, P.A.
3
Florida may be on the brink of adopting the Restatement Third. Recently, the 3d
DCA reversed a lower court’s decision which, in its jury instructions, permitted the
jury to make a finding that a product was defective under the “consumer expectations”
test. The 3d DCA applied the Restatement Third, noting that it rejects the
“consumer expectations” test as an independent basis for finding a design defect of the
particular product at issue there (pesticide) because the product at issue was not
capable of understanding by an ordinary consumer. This case is currently pending
before the Florida Supreme Court, which has not yet accepted jurisdiction.
However, the Committee on Standard Jury Instructions in Civil Cases has submitted
a report proposing both new and revised civil jury instructions to be used in product
liability actions. These proposed amendments retain the “consumer expectations” test
and the “risk-utility” test for product defect. Thus, until these proposed amendments
are adopted, or the Supreme Court accepts jurisdiction and rules on recent 3d DCA
decision applying the Restatement Third, Florida law on this issue will remain in a
state of uncertainty.
e. “It’s all about defects”
The threshold element of every products liability claim is defect. Regardless of the type
of product, the alleged defect, the damages being sought, or the jurisdiction where the
accident occurs, one thing remains the same- it’s all about the defect.
There are three types of defects: (1) Design Defects; (2) Manufacturing Defects; and
(3) Inadequate Warnings.
i. Design Defect
Under the Restatement Second, a defective design is one which renders the
product unreasonably dangerous for its intended purpose or use, or foreseeable
misuse, by a user or foreseeable bystander. This is often referred to as the
consumer-expectation theory. The Restatement Third rejects the consumer
expectations test as an independent basis for finding a design defect. Instead, it
requires a plaintiff to demonstrate the existence of a reasonable alternative
product design.
ii. Manufacturing Defect
4. Products Liability
HOUCK ANDERSON, P.A.
4
A manufacturing defect is a departure from the product’s intended design
which renders the product defective, even though all care may have been
exercised in the preparation of the product.
iii. Warning/Instruction Defect
A product may also be defective because of the lack of adequate warning or
instruction when the foreseeable risks of harm posed by the product could have
been avoided by a reasonable warning or instruction provided with the product
at the time it left the hands of the manufacturer. This category of defects arises
from the concept that a warning or instruction is an integral part of the
product itself.
Notably, a warning and an instruction are legally distinctive. An instruction
advises a user how to use or operate a product, but does not necessarily provide
a warning. A warning, on the other hand, directs the user to the dangers
arising from the product use or the failure to appropriately use it, such as the
risk of serious injury or death. An alleged defect can arise from the use, lack
of use, or inadequacy of an instruction or a warning, or a combination of the
two.
The mere existence of a warning or instruction is not necessarily dispositive of
the adequacy of same for several reasons. It may be deemed defective by virtue
of inadequate:
1. Placement
A warning or instruction can be defective because it is not permanently
affixed to the product, but was only included in an instruction or
operational manual.
2. Word choice
A warning or instruction can be defective because the language or
wording used does not adequately apprise a user of the serious risk of
injury or death resulting from a particular use, or its appropriate
operation.
3. Language
5. Products Liability
HOUCK ANDERSON, P.A.
5
A recent development in the warnings and instructions defect category
is whether a product’s instructions or warnings should be stated in
languages other than English, if marketed in the U.S. This issue
may arise in areas of the U.S. where product manufacturers or sellers
market their products in other languages, such as Spanish. Where
marketing campaigns in cities such as Miami, New York and Los
Angeles, have specifically targeted Latino communities and have been
done in Spanish, manufacturers have been found liable for failing to
provide Spanish warnings and instructions.
4. Pictoral descriptions, colors and lettering
Liability may be premised upon the manner in which a warning or
instruction is conveyed. The primary test is whether words alone,
including coloring, font size and shape, shapes and pictoral
descriptions, are necessary to communicate to the typical user of average
intelligence the information necessary to permit the user to avoid the
risk and to use the product safely. There are numerous detailed
American National Standard Institute (“ANSI”) standards for
such details.
5. To warn or not to warn?
A warning may be deemed unnecessary if the danger which arises from
the product use or misuse is so obvious that a warning is unnecessary.
f. What is a:
i. Product
Under the Restatement Second, there was no clear-cut statutory definition for
a product, manufacturer, and seller. These terms were defined differently from
state to state under a common law scheme. However, under the new
Restatement Third, these terms have been concisely delineated. Under the
Restatement Third, a product is defined as follows:
i. A product is tangible personal property distributed commercially
for use or consumption. Other items, such as real property and
electricity, are products when the context of their distribution and
use is sufficiently analogous to the distribution or use of tangible
6. Products Liability
HOUCK ANDERSON, P.A.
6
personal property that it is appropriate to apply the rules in this
Restatement.
ii. Services, even when provided commercially, are not products.
iii. Human blood and human tissue, even when provided
commercially, are not subject to the rules of this Restatement.
In Florida, courts have been better at explaining what a product is not than
they have at defining what it is. The court has not defined “product” but has
discussed the “nature of the item,” stating that it is purchased on the open
market, manufactured for profit at the expense of the consuming public, and
offered in the stream of commerce.
ii. Manufacturer
One who by labor, art, or skill transforms raw material into some kind of
finished product or article of trade. See potential issues Section 8(b) below.
iii. Seller
As defined in Restatement of the Law Third:
(a) One sells a product when, in a commercial context, one transfers ownership
thereto either for use or consumption or for resale leading to ultimate use or
consumption. Commercial product sellers include, but are not limited to,
manufacturers, wholesalers, and retailers.
(b) One otherwise distributes a product when, in a commercial transaction other
than a sale, one provides the product to another either for use or consumption or
as a preliminary step leading to ultimate use or consumption. Commercial
nonsale product distributors include, but are not limited to, lessors, bailors, and
those who provide products to others as a means of promoting either the use or
consumption of such products or some other commercial activity.
(c) One also sells or otherwise distributes a product when, in a commercial
transaction, one provides a combination of products and services and either the
transaction taken as a whole, or the product component thereof, satisfies the
criteria in Subsection (a) or (b).
iv. Where do lessors fit in?
7. Products Liability
HOUCK ANDERSON, P.A.
7
A commercial lessor of new and like-new products is generally subject to the
rules governing new product sellers.
v. Successor Manufacturers or Sellers
A successor corporation or other business entity that acquires assets of a
predecessor corporation or other business entity is subject to liability for harm
to persons or property caused by a defective product sold or otherwise
distributed commercially by the predecessor if the acquisition (a) is
accompanied by an agreement for the successor to assume such liability; or (b)
results from a fraudulent conveyance to escape liability for the debts or
liabilities of the predecessor; or (c) constitutes a consolidation or merger with
the predecessor; or (d) results in the successor becoming a continuation of the
predecessor.
2. Theories of Liability- Legal Causes of Action & Elements
a. Negligence
An action for negligence is predicated upon a legal duty owed by the defendant to
protect the plaintiff from an unreasonable risk of harm. The extent of the defendant’s
duty is defined by the scope of the anticipated risks to which the defendant exposes
others. In order to prevail, the plaintiff must demonstrate that he is within the zone of
risks that are reasonably foreseeable by others.
In a products liability case based on negligence, the plaintiff must prove that the
product was defective, that the defect caused the plaintiff's injury, and that the
manufacturer or seller failed to exercise due care. In the context of a products liability
case, negligence is the doing of something that a person of ordinary prudence would not
have done in the same or similar circumstances or a failure to do something that a
person of ordinary prudence would have done in the same or similar circumstances.
b. Strict Liability, or “liability without fault”
Strict liability is liability that does not depend on actual negligence or intent to harm,
but that is based on the breach of an absolute duty to make something safe. The
doctrine of strict liability applies to a plaintiff who is a consumer, user or foreseeable
bystander who has been harmed by the defective product. A manufacturer is strictly
liable in tort when an article he places on the market, knowing that it is to be used
without inspection for defect, proves to have a defect that causes injury to a human
being.
8. Products Liability
HOUCK ANDERSON, P.A.
8
c. Damages
i. Applicable Substantive Law
There is no special category of “products liability damages.” Rather, the
nature of recoverable damages will depend upon the applicable substantive law.
In a products liability action based on negligence or strict liability, the damages
available are similar to those recoverable in any action in tort. Persons injured
by the commission of a tort may be entitled to compensatory damages for any
actual injuries sustained, and, except where the circumstances warrant the
allowance of punitive or exemplary damages, damages are limited to
compensation for such actual injuries. Plaintiffs in products liability actions
should be awarded damages that will restore them, as nearly as possible, to the
position they would have been in had they not been injured by the defective
product.
ii. Physical Harm
In products liability personal injury actions, damages recoverable include all
the natural and proximate consequences of the defendant's wrongful act.
Plaintiffs may therefore be able to recover damages for both their past and
future losses. Those damages referred to as future damages are economic and
noneconomic losses that are incurred after a determination of liability by the
trier of fact, or after a judgment or verdict.
Economic damages are objectively verifiable monetary losses which include, but
are not limited to, loss of earnings, lost services, loss or impairment of future
earning capacity, and medical expenses, including expenses already incurred
and those likely to be incurred in the future.
Noneconomic damages are compensation for losses that are not easily
expressed in dollars and cents. A recovery for noneconomic loss is not really
compensation to make an injured party whole, but is rather compensation to
the injured party for loss of the quality of life. Noneconomic damages include,
but are not limited to, pain and suffering, future pain and discomfort,
disfigurement, loss of enjoyment of life, mental anguish, and loss of consortium.
There is no fixed standard for ascertaining the damages recoverable for
physical pain and mental suffering; the amount of a recovery is left to the
9. Products Liability
HOUCK ANDERSON, P.A.
9
sound discretion of the jury, subject only to correction by the court for clear
abuse or passionate exercise of that discretion.
iii. Property Damage
Damages for injury to property other than to the defective product itself are
recoverable in a products liability action. Commercial plaintiffs, like ordinary
consumers, can recover in strict liability or negligence for property damage.
Where there is property damage other than to the defective product itself, the
cost of repairs and of cleanup is considered an integral part of the damage and
is recoverable in strict liability. However, in order for damages to a plaintiff's
property to be recoverable in strict liability, it is not enough that the value of
the property be decreased as a result of the product defect, if the product was
not unreasonably dangerous to human life or health. See Affirmative
Defenses, Economic Loss Rule.
iv. Punitive Damages
Punitive or exemplary damages may be awarded in products liability cases for
conduct that is outrageous, because of the defendant's evil motive or reckless
indifference to the rights of others; for conduct that is willful and wanton; for
oppressive actions; or for tortious acts which involve circumstances or
ingredients of malice, fraud, or insult, or a wanton and reckless disregard of
the rights of another. The key to the right to punitive damages is the
wrongfulness of the tortfeasor's intentional act. However, the test for punitive
damages is a strict one. A legal basis for punitive damages is established in
products liability cases where the manufacturer is shown to have knowledge
that its product is inherently dangerous to persons or property and that its
continued use is likely to cause injury or death, but nevertheless acts with gross
indifference to the danger.
3. Elemental Defenses
a. No defect.
The common element in all theories of products liability is the existence of a defect in
the particular product involved. If there is no defect in the product that was a legal
cause of the plaintiff’s injury, there simply is no liability on the part of the
manufacturer or seller of that product. A product does not have to be accident free or
accident proof.
10. Products Liability
HOUCK ANDERSON, P.A.
10
i. Used for its intended purpose or use
The product must be safe for its intended purpose or use. In a design defect
case applying the safe or fit for intended or foreseeable purpose test, the
plaintiff must show that the product design is not reasonably fit, suitable, and
safe for its intended or reasonably foreseeable purposes. On the issue of the
product's safety or fitness for its intended purpose, the parties should
demonstrate, where relevant: (1) the conformity or nonconformity of the
defendant's design to the practices of other manufacturers in the industry at the
time of manufacture; (2) the open and obvious nature of the alleged danger;
(3) the extent of the claimant's use of the product alleged to have caused the
injury and the period of time involved in such use by the claimant and others
prior to the injury without any harmful incident; (4) the ability of the
manufacturer to eliminate the danger without impairing the product's
usefulness or making it unduly expensive; and (5) the relative likelihood of
injury resulting from the product's present design.
ii. Foreseeable v. unforeseeable misuse
The defendant may be liable for foreseeable misuse. However, unintended or
unforeseeable misuse of a product may constitute a superseding cause, and not
a defect. The misuse must be unforeseeable and must also be the proximate
cause of the injury. In determining whether the seller should have reasonably
anticipated the use to which the product was put, the factfinder may take into
account the reasonable use or uses of the product, the ordinary user's awareness
that the use of the product in a certain way is dangerous, the likelihood and
probable nature of use of the product by persons of limited knowledge, and the
normal environment for the use of the product and the foreseeable risk in such
environment, as well as any other evidence that may or may not cause the seller
to reasonably anticipate such use.
iii. User and foreseeable bystander
The Restatement of Torts Second makes no decision regarding the expansion
of the doctrine of strict products liability to permit recovery by casual
bystanders and others who may come into contact with a product. However,
Florida follows the prevailing view as to bystander recovery which is that the
theory of strict liability in tort may be applied to a mere bystander, as
distinguished from a user or consumer.
iv. Role of alternative design under Restatement Third
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The Restatement Third, unlike the Restatement Second, includes the
requirement that the plaintiff demonstrate a reasonable alternative design to
the product in question. Under the Restatement Third, plaintiffs will be
required to propose a reasonable alternative design to the product in question
at the time of manufacture. Such a requirement will force plaintiffs to prove
that a better product design exists other than in the unproven and untested
domain of their experts' imaginations. Comment d to Section 2 of the
Restatement Third defines reasonable alternative product design in terms of
the "risk-utility balancing test." The test is "whether a reasonable alternative
design would, at a reasonable cost, have reduced the foreseeable risk of harm
posed by the product and, if so, whether the omission of the alternative design
by the seller ... rendered the product not reasonably safe."
b. No Duty by Manufacturer or Seller
i. Manufacturer is not to be considered an insurer against all
physical injury caused by its product.
The duty of care that binds a manufacturer is essentially similar to a duty of
due, ordinary, and reasonable care to see that the product is free from any
potentially dangerous defect; that is, to see that there is no unreasonable risk of
personal injury or property damage to persons using the products for purposes
that the manufacturer may reasonably expect they will be employed, and also
to those whom the manufacturer may reasonably expect to be endangered by
such probable use.
This duty includes a duty to use ordinary care to test, analyze, and inspect the
manufacturer's products, and to keep abreast of scientific knowledge, advances,
and research in the product field. Thus, where a product presents a hazard to
human safety if negligently designed, and where after such a product has been
sold, dangerous defects in design come to the manufacturer's attention, the
manufacturer has a duty either to remedy the defects or, if a complete remedy is
not feasible, at least to give users adequate warnings and instructions
concerning methods for minimizing the danger. This general duty is tempered
by a fine line. Most jurisdictions recognize that a manufacturer is not an
insurer against all failures and does not have to create an accident-free or fool-
proof product.
ii. Wear and tear
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In a products liability action, where the product has been used for a
considerable amount of time following its manufacture and sale, and an
injury-causing accident then takes place connected with the use of such product,
it is logical to infer that the defective condition did not exist at the time the
product was sold. It is not expected that a manufacturer or seller will produce
or sell a product that will never wear out, and a manufacturer or seller may
not be liable for a product-connected accident that results from ordinary wear
and tear. On the other hand, the fact that a product has had a long period of
use will not necessarily preclude a claim against the manufacturer or seller,
where it can be shown that a defect existed at the time of sale or where the
manufacture expects a certain amount of wear and tear or degradation. The
focus is on the time of sale, not the time of the accident, and is fact specific.
c. No Causation
i. Every theory of products liability requires that a direct causative
link be shown between the alleged defective condition in the
product and the injuries or damage to the plaintiff
A core element in products liability, as with any legal cause of action, is
causation. The alleged defect must be the proximate cause of the injury or
damage for a plaintiff to recover. This seems like a foregone conclusion, but in
products liability can often be a key issue in the litigation. Areas where
causation issues can arise is where a product is misused, and the misuse is the
proximate cause of the damages; or where a defective warning claim is made
but the consumer never read it.
Causation issues may arise in design and manufacturing defect claims where
plaintiff cannot definitively prove how the accident occurred because of lack of
witnesses. Typically, plaintiffs will be permitted to demonstrate causation
through circumstantial evidence, which is typically expert testimony.
ii. The causative link cannot be based on mere speculation and
conjecture
A verdict with respect to proximate causation may not be based on mere
theory, conjecture, speculation, or surmise. Thus, where the evidence reveals
several possible causes of the accident, it is improper to allow the jury to guess
which cause might have been the proximate cause. Where a finding of
proximate causation could only be reached by indulging in speculation and the
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stacking of one inference upon another, such finding is against the great weight
and preponderance of the evidence.
Special care should be taken when assessing the sufficiency of causation
evidence where the evidence is wholly circumstantial. It is particularly
important to be assured that an inference of causation is based upon at least a
reasonable probability of causation, in an effort to remove purely conjectural
and speculative questions from the jury.
iii. Role with defect
A defect must be a cause of the injury, not merely the product which causes the
injury. Thus, a defect is always threshold element.
iv. Warnings/Instructions – Did the insured read the instructions?
Causation often arises in warnings and instruction defect cases. A
manufacturer may be liable for failure to provide an adequate warning or
instruction, but not if an inadequate warning was not the proximate cause of
the injury. A plaintiff must show that had the manufacturer supplied an
adequate warning or instruction, the plaintiff would have changed his behavior
so as to avoid the injury. If the warning or instruction did not alter the course
of a plaintiff’s particular conduct, there will be no liability.
As a matter of law, if a plaintiff fails to read the warning labels
accompanying the product, he will not be able to satisfy his burden of proof
that the failure to warn was the proximate cause of his injuries, even if the
warnings were inadequate. Thus, evidence to support a lack of causation may
be as simple as the plaintiff’s admission that he did not read any of the
warnings or instructions, regardless of the adequacy of same. It may also be
evidence that plaintiff acted contrary to the instructions or warnings which were
read (which merges with the misuse argument).
d. Comparative Negligence and Fabre Defendants
Florida is a comparative negligence state; therefore, a plaintiff’s contributory negligence
is not a complete bar to recovery. Rather, the trier of fact weighs plaintiff’s negligence
and reduced damages accordingly (e.g., if plaintiff is 20% at fault, her damages are
reduced by 20%). Comparative fault of either the plaintiff or a non-party, misuse or
change of the product’s condition are defenses to a strict liability action. Comparative
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fault in the sense of a failure to discover a defect, or to guard against the possibility of
its existence, however, is not a defense.
Comparative negligence is quite similar to the defense of a Fabre defendant. A Fabre
defendant is a nonparty that a defendant alleges to be at least partially at fault and
that the defendant contends should be placed on the verdict form in order for a jury to
apportion a percentage of fault against them. This may apply in an auto accident
case, for example, where there is more than person responsible for the accident but the
plaintiff has only sued one of the defendants. This defendant may include a Fabre
defendant in order to reduce that defendant’s actual liability in the case at hand. This
is similar to the comparative negligence statute of Florida in that the fault of all those
responsible is being apportioned in order to attribute the appropriate amount of
liability for each defendant. In order to include a nonparty defendant on the verdict
form, the defendant must plead that nonparty’s fault as an affirmative defense. When
doing so, the defendant must identify the non-party, if known, or describe the nonparty
as specifically as practicable. At trial, the named defendant must prove by a
preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s
injuries.
Since the abolition of joint and several liability in Florida (i.e., the date of loss is on
or after April 26, 2006), if a successful argument can be made that a Fabre
defendant is responsible, at least in part, for the accident, any percentage of fault
allocated by a jury against that defendant is a percentage that the named defendant is
not responsible for paying. (Please see section 3.d. of this document for further
discussion of the comparative negligence statute of Florida and the crashworthiness
doctrine).
4. Specific Affirmative Defenses
a. User Related Defenses
i. Comparative Negligence
1. Affirmative misuse of product in question
The key to a successful claim of misuse is whether the misuse, from the
seller's perspective, was not reasonably foreseeable; any inquiry into the
user's ability to discover or foresee the risks is foreclosed. The usual
situation in which the defense is asserted is where the product is being used
in a way other than that which was intended and which could not
reasonably have been anticipated.
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Under Florida law, product misuse is a form of comparative negligence; it
is not an absolute bar to a products liability claim, but rather it merges
into the defense of comparative negligence. A plaintiff's knowing misuse of
a product in a manner neither intended nor foreseeable by the defendant
manufacturer does not bar recovery, as a matter of law, on a products
liability claim.
2. Open and obvious
The open and obvious danger doctrine prohibits recovery whenever the
injury would have been avoided if an open and obvious danger had been
observed, regardless of the alleged theories of liability. Where the risk of
injury is open and obvious as a matter of common knowledge and
perception, the product cannot be deemed unreasonably dangerous or
defective in the first instance so as to establish a breach of duty against
which any liability could attach. The open and obvious rule imposes on a
plaintiff the burden of proving that the peril-causing injury is latent or not
patent. An objective standard, which concerns an ordinary user, not the
person actually using or injured by the product, is used for the open and
obvious defense.
ii. Assumption of Risk
Assumption of risk is the act or an instance of a prospective plaintiff’s taking
on the risk of loss, injury, or damage. Under Florida law, the assumption of
risk defense, as an absolute bar to recovery, has been eliminated. Instead, the
plaintiff's degree of fault arising from the assumption of risk is determined by
the jury, and the total award damage is then diminished accordingly.
b. Product Related Defenses
i. Modification or alteration after product leaves hands of
manufacturer or seller
It is a defense in a products liability action that an alteration or modification
of the product was a proximate or substantial cause of the accident or
occurrence giving rise to the plaintiff's injury. This is so because the question of
a defect is one that exists at the time the product leaves the manufacturer’s or
seller’s hands. A post-sale modification can be such that the modification
creates the defect and becomes the proximate cause of the accident.
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c. Statutory & Common Law Defenses
Plaintiffs must comply with the Florida’s statute of limitations and statute of repose in
order to maintain their action. Actions that fail to comply with either of these statutes
will be barred.
i. Statute of Limitations
The Florida statute of limitations for a products liability action based on strict
liability or negligence is four years.
ii. Statute of Repose & Tolling Provisions
Florida’s statute of repose generally bars product liability claims brought more
than 12 years after delivery of the product to the original purchaser. The
tolling exceptions are few. The Statute may be tolled if the manufacturer knew
of, and concealed, a defect. The Statute may also be tolled if an injury was
caused by the defect within the 12 year period but the injury was not
discovered (and would not reasonably have been discovered) until the repose
period has expired.
1. Difference from Statute of Limitations
Statutes of limitation are an amount of time by which a lawsuit must
be filed after the date damages are accrued. Statutes of repose, such as
Florida’s, bar action, otherwise in compliance with the applicable
statute of limitation that are not brought within 12 years from the
date the product was delivered to its original purchaser.
d. Economic Loss Rule
The economic loss rule provides that a plaintiff in a contractual relationship with the
defendant may not recover in tort for purely economic damages absent any personal
injury or other property damage.
i. Exception- post-sale failure to warn
A tort based theory of recovery remains against a manufacturer with
knowledge that a defective product is on the market as a post-sale duty to
warn its customers will arise. Failure to warn claims are not barred by the
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economic loss rule because these claims are distinct from claims relating to the
manufacturing process which are in fact barred.
ii. Exception- conduct unrelated to sale/purchase of product
Along the same lines, claims alleging negligent conduct which is separate and
distinct from the manufacturing process such as negligent service, repair, or
inspection post-sale which ultimately cause or contribute to the loss are not
barred by the economic loss rule.
iii. Exception - “other property”
The economic loss rule does not bar total recovery in regards to other property
which was not a component part of the yacht such as personal property. Thus,
additions to a product which are separate from the product that the
manufacturer had originally sold constitute “other property.” If an item was
not part of the contract under which the product was sold, it can be recovered
in tort. An unresolved issue as to “other property” is where the damages
sought in a subrogation action are third party damages such as towing or
salvage damages which are technically separate from the product, but may be
seen as consequential damages to the product failure.
5. Evidentiary Considerations- Presumptions and Inferences
a. Rear-End Collisions
In Florida, there is a rebuttable presumption that the negligence of the rear driver in a
rear-end collision is the proximate cause of the accident. Clampet v. D. J. Spencer
Sales, 786 So.2d 570, 572-73 (Fla. 2001). This presumption may be rebutted
“when the Defendant produces evidence which fairly and reasonably tends to show that
the rear-end collision was not the result of the rear driver’s negligence. Gulle v. Boggs,
174 So.2d 26, 29 (Fla. 1965). The Courts, however, have recognized only three
specific fact patterns which may rebut the presumption of the rear-end driver negligence.
(A) Affirmative testimony regarding a mechanical failure. See e.g. Gulle,
174 So.2d at 29 (holding that affirmative testimony by the Defendant
that his brakes failed was sufficient to overcome the negligence
presumption).
(B) Affirmative testimony of a sudden and unexpected stop or unexpected lane
change by the car in the front. See e.g. Conda v. Plain, 222 So.2d 417,
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417-18 (Fla. 1969) (holding that testimony by the Defendant that the
Plaintiff suddenly switched into Defendant’s lane while Defendant was
passing the Plaintiff was sufficient to rebut the presumption).
(C)When a vehicle has been illegally and, therefore, unexpectedly stopped.
See e.g. Ry. Express Agency, Inc. v. Garland, 269 So.2d 708, 710
(Fla. 1st
DCA 1972) (presumption rebutted where Defendant who was
driving a bus, improperly stopped on an expressway to pick up falling
debris), cert. denied, 275 So.2d 14 (Fla. 1973); Bend’s Selzer, Inc. v.
Markey, 254 So.2d 377, 378 (Fla. 3rd
DCA 1971) (presumption
rebutted where Plaintiff presented evidence that Defendant was improperly
stopped on a bridge), cert. denied. 261 So.2d 176 (Fla. 1972).
b. Cassisi Inference
Through what has become known as the “Cassisi Inference,” a plaintiff may bring a
products liability action even if he cannot pinpoint a particular defect in the product. If
the plaintiff can show that a product malfunctioned during its normal operation, an
inference arises that the product was defective at both the time of the injury and at the
time of sale, even if the product is lost, destroyed, or damaged as a result of the
malfunction. The injured plaintiff thereby establishes a prima facie products liability
case for jury consideration.
A defendant may negate this inference of product defectiveness by showing the product’s
malfunction was caused by the product’s age, the length of the product’s use, the
severity of its use, the state of its repair, the product’s expected useful life, and whether
the product was subject to any abnormal operations.
c. Recalls, Service Bulletins, and Advisory Notices
Evidence of recalls in a products liability case is discoverable when the recall campaign
involved the particular product or part that is involved in the action. Product recall
letters are inadmissible to demonstrate that the plaintiff’s product was defective.
However, product recall letters are admissible to show that a defective product was
defective when in the hands of the defendant. While there is no self-critical analysis
privilege for product recall letters, some courts recognize a qualified privilege for the
analysis generated during routine accident investigation performed in the normal course
of business.
d. Res Ipsa Loquitur
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Res ipsa loquitur, which translates to “the thing speaks for itself”, is a doctrine of
limited applicability in Florida. If an injured plaintiff establishes that an
instrumentality causing his injury was under the exclusive control of the defendant,
and that the accident is one that would not, in the ordinary course of events, have
occurred without negligence on the part of the one in control, an inference of negligence
arises on the part of the defendant. The most important element to prove in order to
establish res ipsa loquitur is that the defendant was under the exclusive control over
the instrumentality that caused the injury.
Plaintiff must also show that negligence was the cause of the act. If some sort of
negligence cannot be proven, then res ipsa loquitur may not be relied upon by the
plaintiff. This doctrine is used most often in situations where evidence of negligence is
very obvious. It is not applicable in strict liability cases.
e. Effect of Government Safety Standards
There is a rebuttable presumption that the product is not defective or unreasonably
dangerous and the manufacturer of seller is not liable if, at the time the specific unit of
the product was sold or delivered to the initial purchaser or user, the aspect of the
product that allegedly cause the harm:
(i) Complied with federal or state codes, statutes, rules, regulations, or standards
relevant to the event causing the death or injury;
(ii) The codes or standards were designed to prevent the type of harm that allegedly
occurred; and
(iii) Compliance with the codes or standards is required as a condition for selling or
distributing the product.
Conversely, there is a rebuttable presumption that the product is defective or
unreasonably dangerous if the manufacturer or seller did not comply with the relevant
codes or standards.
6. Crashworthiness Doctrine – Vehicle Specific Legal Issue
a. Context
The crashworthiness doctrine applies in cases often described as “second collision” or
“enhanced injury” cases. These are incidents where there is one collision, such as when
Driver A hits Driver B, followed by a second “collision” which causes an “enhanced
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injury” to the plaintiff. For example, a second collision may occur when, upon impact
with Driver B, Driver A hits the interior of the car or the steering wheel because the
airbag failed to deploy (or any other type of defect to the car). This is the second
“collision.” Essentially, Driver A can then sue the automobile manufacturer for the
injuries caused from the second collision.
b. The Doctrine
The crashworthiness doctrine provides that automobile manufacturers have to design
and construct their automobiles so that they are crashworthy. Liability may be
imposed on a vehicle manufacturer if a design defect causes additional damage in an
accident, apart from the direct damage caused by the collision. In other words, the
doctrine rejects the argument that an automobile does not have to be crashworthy
because its intended use does not include crashes. Liability of the auto manufacturer,
however, is limited only to the injuries sustained from the defective product.
c. The Majority and Minority Views
There are two views that are followed with regard to the crashworthiness doctrine.
Courts that apply the majority view hold that, in cases involving a “second collision,”
the court may look at the accident as a whole and apportion the fault of the auto
manufacturer with a third party tortfeasor who is also responsible for the accident.
The third party tortfeasor may in fact be the plaintiff who is suing the auto
manufacturer, but whose negligent act or driving was also responsible for the accident.
The majority view essentially states the courts can assert comparative fault when
determining the amount of liability that should be attributed to the auto manufacturer
for the injuries sustained in the second collision.
From 2001 until June 23, 2011, the minority view has been followed by Florida
courts resulting from the Supreme Courts decision in D’Mario v. Ford Motor Co.,
806 So. 2d 424 (Fla. 2001). There, a minor who was drunk crashed his vehicle into
a tree causing injuries to the passenger due to the car catching on fire. The plaintiff
claimed that the fire was caused due to a defect with a relay switch in the fuel system of
the car. Ford Motor Co. claimed that the fire was caused due to the collision of the
car with the tree and the forces involved with that collision. Ford also asserted that the
cause of the plaintiff’s injuries were due to the fault of the driver of the car and sought
to introduce evidence of the driver’s intoxication level and excessive speed. The Florida
Supreme Court held that the aspect of comparative fault will not apply in
crashworthiness cases and thus the court did allow for the discussions regarding the
initial tortfeasor in this case. The court reasoned that since the auto manufacturer
would be held liable only for the injuries sustained in the “second collision” that it
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would not be fair to hold the driver liable for the injuries sustained due to that “second
collision.” The Court further noted that admitting evidence involving the driver and
his drunkenness would confuse the jury and have them focusing more “on the conduct
giving rise to the accident instead of the issues of the existence of a defect and its role in
causing the enhanced injuries.” In essence, the court was saying that it did not want
emphasis to be taken away from the defect in the vehicle with the introduction of
evidence that was not relevant to whether the automobile manufacturer designed a
defective product.
d. Current Status of the Law in Florida
The Florida legislature recently overruled the minority view holding in D’Mario
regarding automobile cases and the crashworthiness doctrine. The additions came as a
result of Senate Bill 142 which was approved by the Florida House of
Representatives earlier this year and approved by the Governor on June 23, 2011.
This new legislation has been added into Florida’s Comparative Fault statute,
F.S.A. §768.81, which now states that it is the legislation’s intent to overrule
D’Mario which had adopted a minority view that in the opinion of the legislature was
inconsistent with the comparative fault statute of Florida and created unfair and
inequitable results. In essence, this new legislation allows for judges and juries to hear
evidence regarding the initial accident or collision and the fault that was associated
with it in order to properly apportion the liability for the injuries in these types of cases
which were caused by the “second collision.” The statute is retroactively applied.
Finally, although the statute states that all the persons who contributed to the cause of
accident will be considered in apportioning liability in these types of cases, the rules of
evidence do still apply. This basically means that although evidence of negligent acts
by the driver or initial tortfeasor are now able to be considered by the court it does not
always mean that they will ultimately be admitted into evidence for a number of
reasons. These reasons stem from the rules of evidence which involve, for example,
relevancy issues as well as whether or not that evidence would be too unfairly
prejudicial if admitted. (Please see 5.d. regarding comparative negligence as a defense
and fabre defendants).
7. Spoliation & Preservation of Evidence
a. What is Spoliation?
Spoliation defined as the intentional destruction, mutilation, alteration or concealment
of evidence. In order to bring a claim of negligent destruction of evidence there must be
(1) existence of a potential civil action, (2) a legal or contractual duty to preserve
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evidence which is relevant to the potential civil action, (3) destruction of that evidence,
(4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship
between the evidence destruction and the inability to prove the lawsuit, and (6)
damages.
b. “Duty” to Preserve
i. Florida Law- the general rule
Florida law remains convoluted regarding what duty an individual or entity
has to preserve relevant evidence prior to the initiation of litigation. The
general rule is that the “duty” to preserve must be shown by contract,
agreement, statute or administrative code prior to litigation (or discovery
request during litigation. This duty is necessary to establish in order to bring
a claim of spoliation. An interesting point regarding this matter is that the
majority of Florida courts have held that there is no common law duty to
preserve evidence before litigation has started absent a contractor statute. If a
person has discarded certain evidence and had no contractual or statutory duty
to preserve evidence or had not received a discovery request for preservation then
Florida courts have held that this does not result in a valid claim for
spoliation of evidence against the person who discarded the evidence.
Examples where a “duty” to preserve can arise:
Worker’s compensation statute- Builders Square, Inc. v. Shaw
“Repeated promises” by a police officer- Brown v. City of Delray Beach
Agreement to preserve- Cont’l Ins. Co. v. Herman
Administrative regulation- Bondu v. Gurvich
ii. Florida’s Gray Areas (Pre-Suit Conduct)
The above general rule should absolutely not be misconstrued to imply that
absent litigation an individual or entity is free to destroy, discard, or alter
relevant evidence without consequence or repercussion. Although the seminal
Florida Supreme Court decision of Martino confirms when a formal “duty”
under common law arises, there are other Florida appellate decisions which
still provide for limited sanctions to be imposed upon a spoliator, even where
the spoliation occurred pre-suit (Of course, where the spoliator is a non-party,
the lack of formal “duty” will be the death knell to an independent claim for
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spoliation of evidence at Florida law. The “gray areas” are limited to
spoliation involving parties).
For example, in the underlying Fourth District opinion of Martino, the trial
court’s denial of plaintiff’s motion for new trial on a negligent shopping cart
maintenance theory was reversed and remanded on the basis that “unlike the
presumption of negligence which may arise under Valcin, the adverse inference
concept is not based on a strict legal “duty” to preserve evidence. Rather, an
adverse inference may arise in any situation where potentially self-damaging
evidence is in the possession of a party and that party either loses or destroys
the evidence.” Although this holding was sharply criticized by the Justice
Wells of the Florida Supreme Court in part on constitutional grounds
(implicating due process concerns) the Florida Supreme Court nor any other
Florida appellate court has spoken on the issue, and therefore (without any
conflicting opinion) this portion of the Fourth District’s opinion in Martino is
binding.
iii. Federal Law
In contrast, the federal courts apply a much more heightened and clearly
delineated standard, particularly as it pertains to electronically stored
information (ESI). The federal standard is generally that there is presuit
duty to preserve if the spoliator was on prior explicit notice that a lawsuit is or
will be filed. This differs from the Florida rule in that the reasonable
anticipation may arise in the form of a pre-suit letter or perhaps even a letter
demanding the preservation of certain evidence that may be used in the future
for a potential claim. Thus, pre-litigation action by a potential party may in
fact cause the duty to preserve to arise due to this reasonable anticipation.
This is frequently seen now particularly due to the increased awareness of the
need to preserve electronic data. Pre-suit notices to preserve are becoming much
more common.
c. Spoliation Sanctions & Remedies:
i. Claims for Spoliation- the Florida Supreme Court’s decision in Martino in
2005 did away with first party claims for spoliation. This means that when
the spoliator is a party to the lawsuit in question (whether plaintiff or
defendant) a separate cause of action for spoliation is not longer appropriate,
and instead it is appropriate for the court to institute appropriate sanctions or
other remedies against the spoliator within the litigation (the various options
available to a court are discussed below). In contrast, third party claims
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remain viable. Where a non-party to a lawsuit has spoliated evidence within
its possession or control, a claim for spoliation can be asserted. The elements
of a third party spoliation claim are: (1) existence of a potential civil action;
(2) a legal or contractual duty to preserve evidence which is relevant to the
potential civil action; (3) destruction of that evidence; (4) significant
impairment in the ability to prove the lawsuit; (5) a causal relationship
between the evidence destruction and the inability to prove the lawsuit; and (6)
damages.
ii. Inferences and presumptions- as to the issue of remedies, the Florida Supreme
Court’s Martino decision is much more clear. There it is reiterated that courts
should follow the prior decision of Valcin, where it held that when the
spoliation is negligent, the rebuttable presumption of negligence is applied.
When evidence is intentionally lost, misplaced, or destroyed by one party, trial
courts are to rely on sanctions found in Rule 1.380 and the adverse inference.
Thus, under this framework, the type of available sanctions correlates directly
with the level of culpability.
iii. Sanctions under Rule 1.380:- YOU NEED TO LIST OUT THE
SANCTIONS AVAILABLE UNDER THE RULE HERE
a. Striking of expert testimony- may be appropriate if the spoliating party’s
expert has inspected the evidence and rendered opinions based upon it, but
the other side has not;
b. Dismissal of claims/Striking of defenses- typically only appropriate where
one party is completely unable to prosecute or defend its case
c.
d. Best Practices
With all of the small nuances and seeming inconsistencies in Florida law, what
lessons can be learned, and what is a reasonable diligent claims adjuster to do (either
as the possessor of evidence, or knowledge of the existence of relevant evidence in
someone else’s possession)? The answer in both circumstances is to create a detailed
written record of everything, because you never know what could be vital to either
defend against, or pursue, sanctions or other remedies for spoliation of evidence.
A claims adjuster will be presented with issues of evidence preservation in two
distinct positions- either as the entity which is in control and possession of the
relevant evidence, such as an automobile; or as the entity which wishes to have a
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third party (whether the insured or other third party) retain evidence for future
inspection or use. In the first situation, ensure that the manner in which you came
into possession of the evidence is documented in writing (whether a confirmation of
receipt, chain of custody form, or settlement of total vehicle loss for example); invite
others who have given notice to inspect same; keep evidence as long as feasible and
possible; and upon discarding any evidence ensure multiple notices are provided and
where possible obtain written confirmation from the insured or others. If you receive
a notice to preserve take it seriously, respond accordingly, and advise those who need
to know (for example, a repair shop, yard, investigator, etc.).
In the second situation, you should issue a notice to preserve evidence to whoever
possesses evidence which may potentially be relevant. Send all notices in writing,
registered mail if possible, and document the claim file with all responses (whether by
phone, email, or mail), remembering that a contractual duty to preserve can arise
from an oral agreement.
e. Preserving Evidence – Considerations
i. Identify potentially relevant evidence
The allegedly defective product may be in the insured’s possession when you
receive an initial notice of a claim. If so, one immediate concern is to identify
all potentially relevant evidence, which may not just be the product itself but
will likely include documents, packaging, manuals, and a peripheral scene.
ii. Evidence in control of insured
In addition to identify potentially relevant evidence that may be in the
insured’s possession, it is also important to ensure everything in your insured’s
possession is secure from theft, alteration, or inadvertent disposal (ex: locked
area, limited supervisory access, notice posted and circulated to employees). It is
also important to protect the evidence from weather exposure, temperature
fluctuations (spoliation claims can arise not only from missing evidence, but
also evidence altered intentionally or unintentionally).
iii. Evidence in Control of Third Party
If the product is not in your insured’s possession, consideration must be given
to obtaining it whether via a purchase, or replacement, or custodial agreement.
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If relevant evidence is not in your possession, immediate written notice whether
to your insured or a third party must be sent to any parties with such evidence
requiring that it be preserved for future examination. A broad net should be
cast. Relevant evidence may not be limited to a distinct product. It may
include the scene of the accident and other affected property such as other
vehicles.
iv. Evidence in Company’s Control
As previously mentioned, the majority of Florida courts hold that there is no
common law duty to preserve evidence before litigation has started. However,
it is wise to preserve the evidence as a precaution. By doing this you will avoid
any potential claims for spoliation of evidence that could arise.
v. Chain of custody
Chain of custody is also a vitally important element in handling, storing and
securing relevant evidence. A failure to thoroughly and appropriately
document the chain of custody can result in a spoliation claim, or at a
minimum, create a potential basis to dispute your experts conclusions.
vi. Spoliation claims against first and third parties
Florida does not allow for independent causes of action for spoliation against
first parties; instead, remedies include discovery sanctions and a rebuttable
presumption of negligence for the underlying tort. In an action against a third
party custodian for the destruction of evidence the plaintiff has the burden to
show that the defendant’s interference cost him or her an opportunity to prove
their lawsuit. It is not necessary for the plaintiff to show that but for the
destruction of the evidence, he or she would have prevailed in the underlying
action.
8. Recovery – Investigating Potential Product Subrogation Claims
a. Investigating Cause of Accident – Is a Product Involved?
i. Role of Counsel
There is no substitute to having counsel involved as soon as possible, including
at the scene of the accident. The benefits are two-fold. Particularly if that
counsel will be involved in defending litigation or prosecuting a recovery action,
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nothing can replace an eyewitness examination or scene inspection first hand.
Photographs and written statements are a poor substitute to eyewitness
examination. Their presence is also key in navigating certain legal issues, and
providing the benefit of an early attachment of the work product and attorney-
client privilege. Legal issues which frequently arise include who is to be given
access to the scene, whose experts get to look at the evidence first, how the
evidence is to be collected and stored, what protocol is to be implemented, and
the various considerations in selecting experts and determining what role they
shall serve.
ii. Use of Experts- Do it Right the First Time
1. Protocol issues, guideline interpretation and the importance
of expert selection
Guidelines can dictate the course and manner of investigation and
discovery. Spoliation issues can arise not only from outright loss or
destruction of evidence, but also subsequent objections to the mode or
manner of inspection made by a later participating party; thus, it is
vitally important that experts are selected from the narrow field of
expertise at issue. Consideration should be given to retaining experts
strictly to opine on the applicability and interpretation of particular
guidelines.
Expert background in a particular guideline/standard can ease
investigation process by lessening objections to protocols. This is
particularly the case in investigations involving numerous parties. A
protocol established by experts who are or were committee members,
who have participated in drafting the protocol, and have extensive
experience in the field, will withstand objections from other parties and
future Daubert challenges.
If the investigation protocol is approved by all possible participating
parties, you will be able to effectively eliminate most grounds for a
future spoliation claim and Daubert challenges of your experts at the
time of the initial investigation.
The best experts in any products liability field will, at some time in
their background, have served on committees within their expertise.
This is a key qualification.
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2. Assist in identifying and narrowing potentially liable parties
There may be hundreds of parts and components which may cause or
contribute to a loss. Experts serve an invaluable role in assisting in
identifying potentially liable parties, and narrowing that list as the
investigation is conducted. Your experts should assist in protecting
against spoliation claims, as discussed above, while at the same time
managing the scope and course of the investigation in conjunction with
the scale of the loss.
3. Applicable standard/guidelines interpretation and
application
In determining potential defects in a product, all potentially applicable
regulations and industry guidelines and standards need to be
identified. Even voluntary guidelines may be admissible as probative
of what the industry standard or custom is for that product. Often
times, particularly with voluntary industry guidelines, there will be
interpretation issues. A committee member’s opinion on the
interpretation and application of a vague guideline will be worth its
weight in gold when pitted against a lesser qualified expert on the
issue.
4. Industry custom or practice
Although guidelines can be probative of industry custom or practice,
that is not always the case. The voluntary nature of guidelines, at
times, indicates an aspirational goal for the industry rather than its
current custom. As such, experts will help you determine what the
industry custom or practice is, and the role of any guidelines.
Considerations should be given to expert backgrounds in the design of
particular parts or systems such as steering systems, or brakes. Often,
such experts have worked for several major manufacturers of the
product and have an intimate and immediate understanding of the
industry’s custom.
5. Interplay/interaction with insured
Experts often serve a secondary role in their interaction and interplay
with the insured. Insured’s quite often they have a misplaced suspicion
that their carrier does not have their insured interests in mind.
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Experts can be seen as “neutral” individuals. The insured may be
more comfortable and open with an expert. In special circumstances, it
may be more appropriate for the claims handler or counsel to take a
back seat to the expert in questioning an insured or asking for
information or documentation.
iii. Cause & Origin Investigations & Accident Reconstruction
No destructive testing should ever be done during the investigation stage until
all possible liable parties are notified and either participate or waive such
right. Remember, even a cause and origin investigation will result in the
alteration of evidence from its original state following an accident. You only get
one chance at a proper cause and origin investigation, thus, selection of the
proper experts at this early stage is critical.
Any accident involving a fire or explosion should involve a cause and origin
expert qualified in NFPA 921: Guide for Fire & Explosion Investigations.
This publication has been and continues to serve as well recognized and
reliable basis that fire investigators base their methodologies and conclusions
upon. It provides comprehensive guidance, beginning with the basic
methodology involved in investigating fires and explosions, and continuing with
basic fire science and concepts, for experts conducting investigations for
insurance and/or litigation purposes. NFPA 921 also specifically addresses
the impact of various collateral issues to fire and explosion investigation such
as building construction, electrical, and building fuel and gas systems.
Enlisting the services an accident reconstruction is often useful where an injury
is claimed as a result of a vehicular collision. Accident investigation and
reconstruction is designed to answer questions about how a traffic crash
occurred. A reconstructionist can develop the “physics” of the collision event,
including crash parameters such as position-time, velocity-time, and
acceleration-time histories. In addition, crash aspects such as impact speed,
restraint usage, perception issues, and reaction times may also be investigated.
iv. Biomechanics vs. Biomedical – Understanding the Difference and
What They Need from Early Investigation
Generally speaking, biomedical engineers integrate traditional engineering
principles with fundamental knowledge of the anatomy and physiology of the
human body. A specific subdiscipline of biomedical engineering is
biomechanical engineering. Their value is being recognized more and more
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lately as experts in vehicle collision cases. With expertise in both engineering
and the medical sciences, they can apply the principles of mechanics to the facts
of a specific accident to provide information about the forces generated in the
accident, explain how the body moves in response to those forces, and thus
determine what type of injuries would result from the forces generated and
opine whether the plaintiff’s injury was or was not caused by the alleged
product defect at issue.
All too often, injury biomechanics experts (and accident reconstructionists for
that matter) are brought into the case well after the actual event occurred.
Inspection of the vehicle(s) may no longer be possible, and parties have a
difficult time accurately recalling what did or did not happen. Therefore,
developing the appropriate information during the investigation and discovery
phase is critical to any subsequent injury biomechanics analysis.
Information most beneficial to a biomechanics expert that may be developed
during the investigation phases includes the following subject areas:
• The nature of the claimed injuries
• The claimant's physical condition (past and present)
• The claimant's occupational and recreational history
• Any pre-collision or post-collision injury events
• Pre-crash conditions such as
o Body positioning
o Seat positioning
o Awareness of the imminent crash
o Use (or lack thereof) of safety features
o Presence of distractions
o Vehicle mechanical issues or modifications
o What generally was occurring at the time
• Body motions as a result of the crash (occupant kinematics)
• Body contacts with interior surfaces
• The presence of bruises, cuts, etc.
• The occurrence of loss of consciousness
• The actions of any first responders
If information is incorrect or incomplete regarding these key aspects, any
developed expert opinions may be vulnerable to challenges by the opposing
party, which ultimately could lead to the expert's testimony being excluded or
stricken. However, when appropriate and detailed investigation has been
conducted, such a situation may be avoided or at least minimized.
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v. Engineering – Electrical, Mechanical, Materials
Electrical engineers deal with everything related to electrical devices, systems,
and the use of electricity. They should be considered as potential experts when
it appears as though an electrical devise caused, or contributed to, the loss.
Mechanical engineers apply the principles of physics and materials science for
design, manufacturing, and maintenance of machines and mechanical systems
such as engines and motors. Thus, they should be considered when it appears
as though an engine or another mechanical instrumentality caused, or
contributed to, the loss.
Materials engineers are involved in the extraction, development, processing,
and testing of the materials used to create products. They work with metals,
ceramics, plastics, semiconductors, and combinations of materials
(“composites”) to create new materials that are supposed to meet mechanical,
electrical, and chemical requirements. They also recommend or select materials
for new applications. They should be considered as potential experts when it
appears as though the quality or design of the materials used to create products
at issue caused, or contributed to, the loss.
vi. Human Factors
9. Claims Handler Checklist of Essential Tasks
An adjuster’s role, from the notice of first loss to the initiation of litigation, can save the
day if key, proactive steps are taken. The approach taken should be one of rapid
response. The approach of “out of sight, out of mind” has no role in the realm of products
liability. This is not only out of sync with today’s products liability litigation, but is
dangerous and more apt to result in litigation than to prevent it.
The purpose of proper pre-litigation investigation and preparation is three-fold: (1)
Determine appropriate coverage-related issues (2) Determine means of recovery- Did third
parties cause the accident? And/or (3) Determine available defenses in third party
claims- Is someone else liable?
a. Identifying potential defendants
All potential entities involved in the design, manufacture, installation, distribution,
and repair of a defective product must be considered a defendant. Additionally, look to
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any facility conducting modification to the product. The search for defendants should
be focused on the chain of distribution and possession of the product, including
previous owners, or any individual who at one point maintained custody and control of
the product which could have brought about a potentially dangerous condition.
b. Notice process
Where a loss occurs which requires investigation as to the source, alerting all
potentially interested parties as soon as possible is mandatory to avoid evidentiary and
prejudicial circumstances. By placing potentially liable manufacturers on notice of a
claim, spoliation issues can be avoided and investigatory findings which produce
evidence as to the cause of loss will more likely be admissible if all parties involved had
equal opportunity to inspect the product at issue in its original or uninterrupted state.
c. Electronic documentation preservation notice to insured and third
parties
At the first sign of potential litigation, an obligation arises when a party has notice
that evidence is relevant or when a party should have known that evidence might be
relevant to future litigation. Once a party is on notice that e-data will be relevant to
pending litigation, the obligation to preserve evidence first runs to counsel. Attorneys
should contact their client and institute an immediate litigation hold and further
adhere to the duty that the hold is actually taking place. Typically, a business will
have a document retention/destruction policy. A litigation hold constitutes (1) all
relevant information is discovered, (2) relevant information is retained on a continuing
basis, and (3) relevant non privileged material is produced to the opposing party.
Attorneys and clients may be sanctioned even if the instruction to hold documents is
given but not properly followed by the party.
When it comes to third parties or opposing counsel, you want to limit their ability to
claim ignorance of processes that result in spoliation. To do so, issue a preservation
letter to opposing counsel early on in the case, clearly state that all automated
destruction of evidence should cease, and make spoliation an agenda item in meet and
confer session. If the situation should arise, set an expedited deposition under FRCP,
the Rule 30(b)(6) regarding retention polices.
d. Obtaining documentation
i. Titles
ii. Bills of Sale
iii. Invoices, work orders
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iv. All internal policies and procedures concerning quality control,
manufacturing process and inspection, consumer complaints and
warranties, etc.
v. All available manuals (owners, maintenance, component)
vi. Warranty Information
vii. Advertising literature
viii. All prior claims, consumer protection notices, and customer
complaints
ix. Public record or FOIAA request documents, where applicable
1. Police Report
2. OSHA Report
3. Consumer Protection Agency
4. NTSB
x. Statements of witnesses
xi. Government Standards
xii. Industry Standards (an expert who has served on the appropriate
standards committee can be very helpful),
e. Obtain exemplar product where appropriate (with complete packaging
as sent to consumer), or, inspection of same or similar products in
stream of commerce
i. Role in identifying or ruling out potentially liable parties
Obtaining or inspecting an exemplar product can assist in ruling out
potentially liable parties, by allowing investigators to see how the product
works under normal circumstances, and its response to abnormal operation.
In vessel losses, an inspection of an exemplar can assist investigators in
narrowing down parts, components or products that could have caused the
vessel loss or damage, or rule out products that may have otherwise been of
interest. Exemplar inspections and tests can help focus and streamline an
investigation, and further support an investigator’s theories.
ii. Role in determining what industry custom is and by extension,
whether there is a defect
A probative element in determining whether a product is defective is
determining what the industry standard or custom is, and whether the product
at issue follows the industry custom. To establish industry custom the same
product, as manufactured by other companies, should be inspected to isolate all
similarities and differences. In jurisdictions which follow the Restatement
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Third, such comparative inspections can also establish all alternative designs
in the industry, and the feasibility of same.
iii. Role in determining available defenses
Exemplar inspections can also assist in identifying possible defenses to a defect
claim, particularly a modification or alteration defense, or that a misuse of the
product was the proximate cause of the accident.
10. Industry guidelines and standards of particular interest
a. NHTSA – www.nhtsa.gov – The National Highway Traffic Safety
Administration, under the U.S. Department of Transportation, sets and enforces
safety performance standards for motor vehicles and motor vehicle equipment.
b. FMCSA – www.fmcsa.dot.gov – The Federal Motor Carrier Safety
Administration, under the Department of Transportation, deals mostly with
commercial motor vehicles and the prevention of accidents and injuries involving these
types of motor vehicles. This administration has created rules and regulations that
deal with a wide range of issues including safety performance, repair, and
maintenance.
c. CFR – www.gpoaccess.gov/CFR/INDEX.HTML - The Code of Federal
Regulations is the codification of the general and permanent rules published in the
Federal Register by the executive departments and agencies of the Federal
Government.
d. CPSC – www.cpsc.gov – The U.S. Consumer Product Safety Commission is
charged with protecting the public from unreasonable risks of injury or death from
thousands of types of consumer products.
e. OSHA - www.osha.gov - The Occupational Safety and Health Administration
prevents work-related injuries, illnesses, and deaths by issuing and enforcing standards
for workplace safety and health.
f. NFPA – www.nfpa.org – The leading authoritative source on public safety, the
National Fire Protection Association develops, publishes, and disseminates more than
300 consensus codes and standards intended to minimize the possibility and effects of
fire and other risks.
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g. NEC – NFPA 70 is also called the National Electrical Code. It is the United
States standard for the safe installation of electrical wiring and equipment. As part of
the National Fire Codes series published by the NFPA, NEC is not itself law but
is commonly mandated by state or local law, as well as in many jurisdictions outside of
the United States. The NEC codifies the requirements for safe electrical installations
into a single, standardized source.
h. IEEE - www.ieee.org - Originally an acronym for the Institute of Electrical and
Electronics Engineers, Inc., the organization's scope of interest has expanded into
leading authority on areas ranging from aerospace systems, computers and
telecommunications to biomedical engineering, electric power and consumer electronics
among others.
i. UL – www.ul.com – Underwriters Laboratories Inc. operates under its own
authority as an independent, not-for-profit, nongovernmental organization and has
developed more than 1000 standards for safety in electric, fire, building, plumbing,
manufacturing, mechanical, public education, and environmental and public health
fields.
j. ANSI - www.ansi.org – The American National Standards Institute
promulgations thousands of norms and guidelines that directly impact
businesses in nearly every sector including construction equipment, dairy and
livestock production, to energy distribution, and many more.
k. ASME – www.asme.org – The American Society of Mechanical Engineers is a
not-for-profit professional organization that promotes the art, science and practice of
mechanical and multidisciplinary engineering and allied sciences throughout the world.
The ASME Standards provide voluntary guidelines that promote safety, reliability,
productivity, and efficiency in almost every industry that relies on engineering
components or equipment.
l. ISO – www.iso.org – The International Organization for Standardization created
specifications and criteria which are applied consistently in the classification of
materials, in the manufacture and supply of products, in testing and analysis, in
terminology and in the provision of services.
11. Demands and Negotiating a Pre-suit Subrogation Claim
Clearly, one of the goals of a successful recovery case is to maximize the amount of money
recovered while minimizing costs to pursue the claim or potential claim. To do this in the
pre-suit stage, the goal should be to make a detailed and substantive demand in order to
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communicate to the potential defendant that there is solid evidence and grounds for the
legal claims to be asserted. This can only be done if the recovery investigation is done
thoroughly. This, of course, depends largely upon the claim amount at issue and cost
considerations. However, as outlined herein, a recovery investigation can be done largely
by a claim adjuster and/or counsel with the assistance of appropriately conducted
investigations, witness statements, and research regarding the subject product. Once the
investigation is exhausted, a detailed and thought out demand should be made and should
include not just the amount demanded but some indication of the theories of liability
available, and evidence gathered. A potential defendant is unlikely to negotiate a pre-suit
settlement, or offer any significant money, in response to brief unsupported demands.
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