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Chapter 07 – Business Torts and Product Liability

Marilyn Merrill v. Navegar Inc. 28 P.3d 116 (Cal. S.Ct. 2001) (p. 299)

Syllabus

In 1993, an individual went into a law firm in San Francisco with three weapons, two of which

were manufactured by the defendant. He killed eight people, wounded six others, and then

killed himself. Survivors and representatives of the deceased sued Navegar under a common

law negligence theory. Specifically, they alleged that Navegar was negligent in marketing this

particular gun to the general civilian public, rather than restricting its sales to police and

military units, given that this gun served “no legitimate sporting or self-defense purpose.” The

trial court granted summary judgment to Navegar based on a California statute that provided,

in a product liability action, no firearm shall be deemed defective in design on the basis that

the benefits do not outweigh the risk of injury posed. The appellate court agreed, finding that

“this is a products liability action based on negligence.” A strong dissent was filed in the case,

pointing out that plaintiffs did not plead their case under product liability for defective design.

Rather, plaintiffs’ claim was that under general negligence law Navegar had negligently

marketed this particular gun to an inappropriate group and that it was the marketing, not the

design of the product, to which they were objecting.

Answers to ‘Marilyn Merrill v. Navegar Inc.’ Questions (p. 302)

a. It determined that the plaintiffs’ claim of negligent distribution and marketing was actually a

products liability action barred by a California statute that prohibits suits in which the plaintiff

b. The plaintiffs’ claim was that under general negligence law Navegar had negligently

c. The dissent pointed out that plaintiffs’ claim rested on imprudent marketing choices, that not

all claims that involve a product’s features are defect claims. The plaintiffs could prevail

d. The plaintiffs focused not on the firearm’s ability to cause harm, but on the way that

2. This is a discussion based question. Gun control advocates might argue that gun manufacturers

who intentionally bring dangerous weapons into the market and advertise them to criminals (e.g.,

3. One can ask questions about what industry would be next: “Automobile companies that made

getaway cars used by stickup artists? Sports equipment firms whose baseball bats are used in

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Chapter 07 – Business Torts and Product Liability

4. In order to win her defective design claim she will have to prove that a reasonable alternative

White v. Victor Automotive Products 2010 Mich. App. LEXIS 914 (unpublished)

(p. 303)

Syllabus

Craig White purchased a muffler repair kit manufactured and marketed by defendants. The kit

included a metal patch to be placed over the hole in the muffler, a strip of “bandage” to be wrapped

around the patch and the muffler to hold the patch in place, and mechanic’s wire to wrap around

and secure the bandage. The packaging described the product as a “Muffler and Tail Pipe Repair

Kit” and stated, “Just wrap it on for instant repair.” The instructions included with the kit, however,

directed the user to “start the engine and run at idle for at least 10 minutes” after applying the

“bandage.” The warning label directly below the instructions did not advise of the danger of carbon

monoxide poisoning. White attempted to perform the muffler repair on April 29, 2005, and was found

dead in his garage several hours later the car up on a floor jack with tools underneath, the bandage

wrapped around the muffler, the motor running and the garage door closed Tools were under the car

and the bandage was found wrapped around the muffler. An autopsy confirmed that White died of

asphyxiation from carbon monoxide. White’s estate alleged defendants had breached their duty of

care by failing to warn of the dangers of carbon monoxide poisoning and for failing to include an

instruction that vehicles should not be run in an enclosed space, or should be moved outside before

starting the engine as directed. The trial court granted defendants’ motion for summary judgment,

which was reversed by the appellate court as the record did not support a conclusion as a matter of

law on the issues of whether a reasonably prudent user knows the dangers of running an engine

inside a closed space while repairing a muffler, or whether such a danger is a matter of common

knowledge to those in White’s position.

Answers to ‘White v. Victor Automotive Products’ Questions (p. 305)

1. This is an opinion based question and therefore students’ answers will vary.

2. The plaintiff won on appeal because the defendants offered little or no evidence to support their

3. This is an opinion based question. The majority felt the evidence of previous experience was

4. Yes, the vehicle can be considered defective because of the absence of a warning. A product may

be considered defective because of inadequate warnings when reasonable warnings would have

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Chapter 07 – Business Torts and Product Liability

reduced or avoided the foreseeable risks and the failure to warn resulted in a product that was not

5. This product can be considered defective because plaintiff can show that a better design was

Hodges v. Johnson 199 P.3d 1251 (Kansas S.Ct. 2009) (p. 310)

Syllabus

Car dealer Jim Johnson sold Dr. Merle Hodges and Melissa Hodges a 1995 Mercedes S320 with

135,945 miles for $ 17,020. Johnson had been driving the Mercedes as his personal vehicle for

roughly 2 years before the sale. Johnson told the Hodgeses when they purchased the Mercedes

that it was a nice car in good condition. At the time the Hodgeses bought the Mercedes from

Johnson, there was no discussion about the operation of the air conditioning, heating, or other

components of the vehicle. Approximately one month after he had bought the car from Johnson,

Dr. Hodges noticed that the vent in the Mercedes did not circulate cool air. After attempting several

failed repairs, the Hodges’ mechanic advised that the air conditioning system would have to be

replaced at a cost of approximately three to four thousand dollars. Johnson refused the Hodges’

request to repair the air conditioning resulting in a small claims court judgment against Johnson,

which Johnson unsuccessfully appealed. The Hodgeses were awarded damages, but not attorney

fees as Johnson’s actions did not rise to misrepresentation. The Hodgeses appealed this denial,

and Johnson cross-appealed. The appellate court reversed, holding that as a matter of law the

implied warranty of merchantability extends only to major components of a vehicle such as engine

and transmission, not air conditioning. The Supreme Court of Kansas reversed, holding that the

extent of the dealer’s obligation under the implied warranty of merchantability was a question of

fact.

Answers to ‘Hodges v. Johnson’ Questions (p. 312)

a. The Court of Appeals ruled that the implied warranty of merchantability on a used vehicle in

Kansas extended only to the “major components” of the car, such as the engine and the

b. The Supreme Court ruled that Kansas case and statutory law did not support the Court of

Appeals’ judgment that an air conditioner, as a matter of law, was not covered by the implied

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Chapter 07 – Business Torts and Product Liability

c. The test for breach of the implied warranty of merchantability: A. Goods were defective, B.

d. The Court says that merchantability questions about cars on the two ends of the spectrum

(older, well-used cars and newer, lightly used cars) are to be resolved by operation of law.

a. According to Leavitt Monaco an implied warranty of fitness for a particular purpose had been

breached.

b. According to UCC 2–315.The seller at the time of contracting has a reason to know any

particular purpose for which the goods are required and that the buyer is relying on the

3. According to the court the service contract cannot be treated as a warrant of merchantability and

hence there cannot be a breach of warranty. Also the fact that Priebe could not show that

a. The legal claims that could be expected from the plaintiff include:

Strict Liability

b. The defendants were retail sellers of the olives. The defendants also claimed that they were

Calles v. Scripto-Tokai, 832 N.E.2d 409 (Ill. S.Ct. 2007) (p. 314)

Syllabus

The Aim N Flame product creates a flame via a pulled trigger with no child-resistant mechanism. The

plaintiff’s child found the product, even though the parent had placed it in an inaccessible place. The

child started a fire that led to the death of her 3-year-old sister. The parent brought a defective design

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Chapter 07 – Business Torts and Product Liability

and failure to warn suit against the designer, manufacturer, and distributor. Summary judgment was

entered for the sellers on all claims. The parent appealed. The court found the evidence posed a

factual question on whether the design of the product was defective. The utility of the design did not so

obviously outweigh the risk of child-created fire that no genuine issue of fact remained. An inexpensive

modification would have substantially reduced the risk of children accidentally starting fires. The

risk-utility test was satisfied for strict liability.

Answers to ‘Calles v. Scripto-Tokai’ Questions (p. 316)

a. The plaintiff, Calle, alleged that the Aim N Flame was a defective and unreasonably

b. The Aim N Flame performed as an ordinary consumer would expect, producing a flame in a

reasonably foreseeable manner. Therefore, no fact finder could reasonably concluded that

2. The jury must use a risk-utility balancing test to determine whether the product is defective and

3. The manufacturer may still be liable. The obviousness of the danger must be balanced against

the reasonableness of the steps necessary to reduce the danger. The manufacturer also has a

a. This is a discussion based question. The court ruled that the foreseeable risk might be

unreasonable and was a question for the jury. The court held that “if a manufacturer of

b. This is a discussion based question. The court employed risk/utility analysis: “The standard

c. This is a discussion based question. The court ruled that the parents’ responsibility in the

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Chapter 07 – Business Torts and Product Liability

5. The Court of Appeals upheld the jury’s verdict concluding that Faberge’s warning was inadequate.

Answers to Chapter Questions (p. 321)

a. Assumption of the risk would be Cotillo’s cause of action.

b. Cotillo had knowledge of the risk, appreciated the risk, and voluntarily confronted the danger.

c. Sports cases often are not measured by ordinary negligence standards, but by willfulness

and recklessness standards. In such cases, the plaintiff must show that the willful or reckless

2. The court held that the property owner had no duty to supervise a social guest and that the open

and obvious danger doctrine applied, also precluding liability. Stopczynski was aware of the depth

3. The court found that the possessor of a place open to the public is under a duty to the public

entering by invitation to protect them against unreasonable risk of physical harm. There was

4. Washington Platform won. The court ruled that warnings are not legally required for common risks

and allergies. Sellers are not required to warn of every possible risk. The oysters were not

a. The plaintiffs argued defective design (for not making a screen that could prevent such a fall)

b. The Courts decisions was in favor of the screen maker. The court held that that screen

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Chapter 07 – Business Torts and Product Liability

6. Sandage lost on the strict liability claim because the modification of the trailer did not create an

unreasonable risk of danger to the user of the trailer. Any danger created because of the post

7. The trial court held for the filmmaker and studio on the ground that there was no evidence to

prove that defendants “had intended to incite violence with the film.” One difficulty was linking the

8. Deputy Bylsma discovered the spittle before consuming the burger. For this, the responsible

Burger King employee was charged and pleaded guilty to felony assault and was sentenced to 90

9. The lower court ruled for the plaintiffs finding that the disclaimer was ineffective. The disclaimer

was not prominently displayed. Parke-Bernet had not sufficiently drawn the conditions of sale to

10. The Supreme Court denied third-party defendant’s motion for summary judgment dismissing the

third-party complaint, and partially granted defendant’s motion for summary judgment by

11.

a. The railroad argued that its employees were not guilty of negligence and it argued that, in

b. On appeal, the court found for the railroad on the grounds that its negligence was not the

12.

a. Strict liability protection should not be extended to mere bystanders.

b. The Court found in favor of the plaintiff. The Kentucky court extended strict liability protection

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Chapter 07 – Business Torts and Product Liability

13. No. The Tylenol packaging was not defective in design. The manufacturer employed three tamper

resistant features listed as alternatives in FDA regulations and, thus, met FDA requirements that

14. Entercom Sacramento LLC was found to be 100% at fault for Strange’s death while Entercom

Communications was found to be 0% at fault. Since Strange did not contribute in any way to her

15. The warnings provided by Apple, Inc. regarding the hearing loss should have helped the plaintiff in

16.

a. The defense that could be raised in this case would be the assumption of risk doctrine.

b. The defense might not be successful. According to the Court of Appeal the assumption of risk

doctrine is limited in its application, where it applicable only to traditional spots such as baseball

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