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Defective Instructions and Warnings

1. Duty, when: knows or has reason to know (Sheckells) orshould realize (Gray) that the chattel is or is likely to bedangerous for the use for which it is supplied, (R 2d(comment j): knows or should know of the presence of the

ingredient or the danger; R 3d:foreseeable risk of harm posed by the product) and

2. Obvious danger? has no reason to believe that those forwhose use the chattel is supplied will realize its dangerouscondition (R 2d: danger or ingredient is not generally

known; R 3d: §2 could have been reduced or avoidedcomment j) and

3. Adequacy: fails to exercise reasonable care to informthem of its dangerous condition or of the facts which

make it likely to be more dangerous. (R 2d comment j): seller is required to give warning against the danger; 3d §2(c) by the provision of reasonable instruction or warningscomment i:)



Adequacy of a warning/instruction

E.g. Gray:

A. Attract attention to harmB. Explain the mechanism and mode of harmC. Provide instructions on ways to avoid harm

R 3d § 2, comment i: focus on:

A. Content and comprehensibility,

B. Intensity of expression, andC. Characteristics of expected user groups



1. Instruction or warning? Warranty a warning? Must say“danger or warning?” 2. Location of words: On the product or pkg insert? (e.g. tag on

dryer)3. Symbols? Poison skull and crossbones?4. Language? Spanish in California? French in Canada?5. Content: Specific re this risk?



WARNING: Causes substantial but temporary eye injury and can irritate skin. Fsensitive skin or prolonged use, wear gloves. Do not get in eyes or on clothing.Vapors may irritate. Use only in well ventilated areas. Avoid prolonged breathinvapors. Not recommended for use by persons with heart conditions or chronic

respiratory problems such as asthma, emphysema or obstructive lung disease. Duirritating nature, may be harmful if swallowed. STATEMENT OF PRACTICA

TREATMENT: IF IN EYES, hold eyelids open and flush with a steady gentle

stream of water for 15 minutes. Get medical attention. IF SWALLOWED, drin

large amounts of water . DO NOT induce vomiting. Call a physician or poisoncontrol center immediately.

IF BREATHING IS AFFECTED, get fresh air

immediately. IF ON SKIN, wash thoroughly with water.

Remove contaminated clothing and wash before use. Getmedical attention if irritation persists. Physical and

Chemical Hazards: This product contains bleach. Do notuse or mix this product with other household chemicals suchas products containing ammonia, toilet bowl cleaners, rustremovers, vinegar or acid. To do so will release hazardousgases.

STORAGE AND DISPOSAL: store this product in a

cool, dry area, away from direct sunlight and heat to avoiddeterioration. Do not reuse empty container but place intrash collection. Or rinse and offer for recycling. Do notcontaminate water, food, of feed by storage, disposal or useof this product.



HYPO: Liebeck v. McDonald’s Restaurants

79 year old P ordered a 49cent cup of MacsCoffee in drive thru. Her grandson parked the car so she could add creamand sugar to the coffee. She placed thecup between her knees and pulled the farside of the lid toward her to remove it.

The coffee spilled on her legs causing 3ddegree burns. She was in the hospitalfor 8 days while she underwent skingrafting, and lost 20 pounds, nearly 20%of her body weight (83 pounds whenreleased from the hospital). Two year ofmedical treatment followed.

Coffee was 180 degrees, 20 degrees hotter thanother fast food coffee. 3d degree burnstake 3 sec at 190 d, 12 sec at 180d, 20sec at 160d.

http://www.hbo.com/documentaries/hot-coffee/index.html#/documentaries/hot-coffee/index.html/









Defect? 1. Is all M coffee 180d? If yes, no mfgdefect. If no, then mfg flaw

2. Duty to warn?Duty, when: knows or has reason to know that thechattel is or is likely to be dangerous for the use forwhich it is supplied: Here, M had previous cases of 3dd burns. But, b. Obvious danger? has no reason to believe that those for whose use the chattel is suppliedwill realize its dangerous condition: Here, what is thedanger? Hot coffee or 20 d hotter coffee? and c.

Adequacy: fails to exercise reasonable care to informthem of its dangerous condition or of the facts whichmake it likely to be more dangerous. Here, nowarning. Would “ Danger: Hot” be enough?

“Danger, Very hot coffee can cause severe burns”??

3. Design.

Inherently unreas. Product? NoRisk/utility: 3d d burns v. taste and smellTech feasible alt. Less hot/ Consumer acceptance?Jury ?



Preemption and State Tort Law

Express Preemption: Is there a clear statutory directiveE.g., Cigarette Labeling Act 1965, Federal Insecticide,Fungicide and Rodenticide Act, Poultry ProductsInspection Act., Food, Drug and Cosmetic Act, AirlineDeregulation and DVT, (duty to warn)

Implied Preemption:

A. Conflict Preemption: Is compliance with bothfederal and state law impossible?E.g., Airline Deregulation and DVT (fewer seats, morelegroom).

B. Field Preemption: Has Congress occupiedthe field? (measured by the pervasiveness offederal regulation and need for federaluniformity). E.g., Federal Airbag regulations in

cars in 1980s.



Causation (in Texas)

Negligence Strict Liability

Actual Cause (causein fact):

Actual Cause (causein fact): Substantialfactor = but for

Proximate Cause:Foreseeability

Producing Cause:efficient cause which

produced injuries in anatural sequence(direct result)



Strict Liability and Plaintiff’s Conduct

Abnormally Dangerous Activities

R 2d: § 523-524, p. 477Contributory Negligence not a defense, but P’s voluntary and

unreasonable encounter of a known danger is =R 3d Torts § 25, (Comparative Responsibility) p.R 3d Apportionment § 8 (Factors for Assigning Responsibility)(Text p. 523)

Products LiabilityR 2d § 402A comment n p. 516: Contributory Negligence not adefense but P’s conduct which consists in voluntarily and

unreasonably proceeding to encounter a known danger is.

R 3d § 17: p. 332: P’s conduct may reduce P’s recovery if P’s

conduct fails to conform to generally applicable rules

establishing appropriate standards of care. =

R 3d Torts § 25, (Comparative Responsibility) p.R 3d Apportionment § 8 (Factors for Assigning Responsibility)text p. 523



Comparative Responsibility

a. the nature of P’s risk -creating conduct b. the strength of the causal connection between the person’s

risk-creating conduct and the harm.

Which conduct counts?1. knowing and voluntary encounter with product defect2. unsafe use of the product apart from the defect or unsafeconduct that caused the accident apart from the product

But see, e.g., Ohio Revised Code sec. 2307.711



Worker’s Compensation

Complete Replacement of common law torts system; depends oninsurance

Recovery despite fault for each injury if it:

In the course of employment = but for causation, workplace risk

Did employer bring employee into contact withthe risk that in fact or actually caused the injury?

Arises in the course of employment= in furtherance ofemployer’s interests

Circumstances, time and place of injury

Exceptions: Intentional Torts, EE coverage or exemption



Alternatives To The Traditional Tort System

Primary Costs(Victim Relief:reduce numberand severity ofaccidentsDeterrence and

Fairness)

Secondary

Costs(Social Costs:Compensation)

Tertiary

Costs(AdministrativeCosts:Efficiency)

WorkplaceInjury preworker’s

compensation

statutes

Unholy trinity ofdefenses (c neg.A/R, fellowservant rule) make

deterrence non-existent

Unpredictable;Few highlycompensated,most not at all

Lost WorkerProduction andFamily Welfare

Delay caused bycourts andlawyers

After Worker’s

Comp. StatutesDeterrenceaccomplishedthrough insurance

premiums.

Predictable; Allcompensatedsome (med. andrehab expensesand some wagereplacement) aslong as arisingout of and in thecourse ofemployment

Administrativesystemstreamlines

procedures andcuts down ontime betweeninjury andcompensation



AutoAccidents —

Traditional TortLaw

Small accidentsover-deterred,Large accidentsunder-deterred

Unpredictable:Who’s insured?

Hindersrehabilitation

.56= trans costincluding: .33 toinsurance co. and.23 to lawyers

Only .36 tovictims

No Fault Auto Sm=all coveredmed claims &

property damageonly

Lg= Reg. Tortsystem

Predictable:Certain for slightinjury, insurancerequired.

Depends onfault, comp. fault

Same??= Morerecovery but lessadmin cost due tocertain quick

payment

Med. Mal. Small claims

under-deterred,Large claimsover-deterred

Unpredictable;

only 1/6 of thoseneg. injured sueand only half ofthose who suerecover; createsdefensive

practice

High costs due to

ET, means thatsmallclaims(<$50,000)rarely pursued,lengthy, complexand delayed

procedures

OtherAlternatives

(asbestos injury,all injury)

What should bedeterred?

Causation?

Compensableevent? (injury or

illness?)Recovery for:Med. Costs,Rehab, LostWork?

Who administersthe system?

9-11 Fund Blend ofscheduled andindividualized

benefits for physical harm or

death

97% opted in:1. Exclusive stat.remedy based ontort2. NY law

3. Overall cap onliability4. Fund damagesadequate

Claimsdetermined w/in120 days offiling, paymentsmade w/in 20

days ofdeterminationsand no judicialreview



Preparing for an exam question, using IRAC:

A. Identify Issues:

1. Read the question

2. Identify the parties

3. Identify the causes of action of each party against another

4. Identify each affirmative defense

B. Rules:

1. State the elements of the prima facie case for each cause of action/ affirmative defense ( e.g., battery requires an intention to cause a H or O contact, H or O contact results; Negligencerequires duty to a foreseeable P, RPP, breach, actual and proximate cause and damages)

2. State the rule for each element of the prima facie case (e.g., 1. intent requires subjective desireor knowledge to a subs. certainty 2. To cause =Actual cause/ but for the touching, would the Phave been hurt? 3. H or O touching. H = injury, illness or impairment of bodily function/ O =offends a reasonable sense of personal dignity, or contrary to social usages of time and place/damages include compensatory or nominal/ punitive if implied malice; foreseeable P must be inthe zone of danger, owed P x G vs. B, breach = facts, actual cause = but for, prox. cause =foreseeable consequences and/or direct result, damages must be compensatory = medicalexpenses, lost work, p & s, past and future).

C. Application:

Taking each element of each prima facie case, look for facts in the problem that will tend to prove/ disprove/ fall short of/ the legal requirement. (e.g., in this case X fact shows D’s

knowledge, Y fact shows D’s subjective desire/ In this case, A fact shows cause/ B facts shows

contact/ C fact shows harm, D fact shows offense.

D. Conclusion:

For each prima facie case, state whether each element is met (12 (b)(6)), or a reasonable jurorcould so find (D. V. or Judgment as a matter of law), or a material issue of fact exists (S. J.), etc.

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