Strict Liability Based on Express Warranty. Liability based on representations made by a
producer about its product; such express statements are a part of the contract. In Baxter v. Ford
Motor, Baxter’s new 1930 Model A Ford was advertised as having a “Triple Shatter-Proof Glass”
windshield. But Baxter’s shattered when hit by a rock flipped up from a passing truck, glass
shards put out Baxter’s eye. Ford said there was no written warranty on windshield, so it was not
responsible for the fact that the windshield was not shatter-proof. The supreme court of
Washington held that Baxter won based on expressed warranty due to Ford’s ads about the glass.
If a safety feature is promised, it must be delivered or injuries that result due to lack of safety are
covered by strict liability due to contractual promises. Ford promised that shatterproof
windshields were on the new cars they produced, so purchasers of the car had the right to believe
that the statement was true, and that they were purchasing the protection offered by a
shatterproof windshield.
Note: There are also statutory express warranties in the UCC; § 2-313 holds that promises the
seller makes about a product are a part of the bargain, creating an express warranty. The word
warranty need not be used. This rule arose in the Cipollone case.
Add. Case: Cipollone v. Liggett Group (S. Ct., 1992)–Cipollone began smoking in 1942. She
died of lung cancer after 1965 and 1969 laws required the health warning to be put on cigarette
packages. Her heirs sued, claiming liability based on express warranty. Liggett claimed it was
not liable because of the federal labeling requirement.
Decision: The federal act did not preempt state law damage actions that arose before 1969, such
as this one. The acts did not preempt claims based on fraud, express warranty, or
Strict Liability in Tort— Under strict liability, a plaintiff must show 1) defective product, 2)
defect created unreasonable risk to user, and 3) defect was proximate cause or substantial factor
in bringing about injury. This holds even if the producer used reasonable care; if the factors are
established, liability is imposed. Strict liability by contract created assorted fictions about
contracts and still left some injuries not covered, so the move to strict liability in tort greatly
simplified consumer suits. First major adoption was Greenman in 1963 in California. By going
to tort, problems of determining privity of contract or other contractual bases were eliminated.
CASE: Greenman v. Yuba Power Products—Greenman’s power tool, bought for him as a gift,
was defective, causing an injury to him. He sued the producer and the tool dealer.
Decision: The California supreme court used this case as the vehicle to adopt strict liability in
tort as the rule covering defective products, for which primary manufacturer is held responsible.
Questions: 1. The court adopted a rule of strict liability in tort. What is the advantage of this
compared to strict liability imposed on the basis of implied warranty in contract?
Three years before this case the New Jersey high court had imposed strict liability based on
implied warranty in contract. That was a landmark case in moving to strict liability, but it still
2. Would strict liability be imposed on the manufacturer if a friend of Greenman’s had come over
to use the machine and was hurt while using it?
Under the rule imposed in this case, any user of the product would receive protection under the
rule of strict liability in tort. Not only could a friend using the product be protected, but if an
Section 402A. §402A of Restatement of Tort is the definition adopted in most states: Strict
liability imposed if a producer sells any product in defective condition, unreasonably dangerous
Restatement (Third) of Torts on Products Liability—Section 2 of this is gradually being adopted
by states to replace Section 402(A) from the Restatement (Second). It is not a great change,
Add. Case: Buonanno v. Colmar Belting (Sup. Ct., R.I., 1999)–Buonanno’s arm was crushed
at work by a conveyor belt made by Colmar. The belt contained parts made by EPT that were
involved in the accident. Buonanno alleged strict liability and negligence with respect to the
design of the conveyor belt and for failure to warn of its dangerous nature. The trial court
granted EPT summary judgment, holding that as the maker of a component part, it had no duty
to insure the proper design of the final product. Buonanno appealed.
Decision: Reversed. Rhode Island hereby adopts the Restatement (Third) of Torts §§ 5, which
states: “One engaged in the business of selling or otherwise distributing product components
who sells or distributes a component is subject to liability for harm to persons or property
Primary Areas of Product Liability Law—As the law has developed over the years, major
areas include: manufacturing defect, failure to warn of dangers involved in use of the product,
design defect, and unknown hazards.
Manufacturing Defect—The most obvious and oldest area of liability. A product comes from the
factory with a defect in production that makes it dangerous to use. Plug in an appliance and get
shocked. These cases are easy; the other areas are more tricky.
Add. Case: SSP Partners v. Gladstrong Investments (USA) Corp. (Sup. Ct., Tx., 2008)– A
five-year old boy was playing with a WAX-brand disposable lighter. He started a fire and was
killed. His parents contended that the child-resistant mechanism on the lighter was defective.
The lighter was designed and manufactured by Gladstrong which sold the lighter to Metro
Novelties, which sold it to SSP, which sold it to the boy’s parents. For the litigation, Metro and
SSP are treated as the same party (SSP). Gladstrong and SSP settled the case before trial and
paid the parents $1.6 million. SSP then sued Gladstrong to recover payment. The matter was
appealed to the Texas high court.
Decision: The company that imported the defective lighter was not a manufacturer for purposes
of the requirement that makers indemnify innocent sellers against losses arising out of a product
liability action. Neither SSP nor Metro had anything to do with making the lighter. While the
Add. Case: Schafer v. JLC Food Systems (Sup. Ct., Minn., 2005)–Schafer ordered a pumpkin
muffin at Perkins Restaurant. When she swallowed a bite, she felt a sharp pain in her throat and
went to the emergency room. The doctor said she had a cut on her throat, but he could not see
what caused it. She developed an infection that required a three day hospital stay. She sued
Perkins for selling a muffin in a defective condition unreasonably dangerous to consumers.
Perkins asserted a third-party claim against Foxtail, the company that sold the muffin mix to
Perkins. The trial court granted summary judgment for defendants and the court of appeals
affirmed. Schafer appealed.
Decision: Reversed and remanded. Under the foreign-natural test for assessing whether a food
product is defective, if an object or substance in a food product is natural to any of the
1) the injury-causing event was of a kind that would ordinarily only occur as a result of a
3) the event was not caused by anything other than a food product defect existing at the time of
Failure to Warn—This concerns dangers involved in the use of a product that the producer knew
or should have known; producers must think about the many things that can happen to their
products, even when not intended uses, such as exposure to children.
CASE: Parish v. ICON (Sup. Ct. Iowa, 2006)—Parish was on a backyard trampoline made by
Jumpking that was surrounded by a safety net (ring) made by ICON. He landed wrong and was
rendered quadriplegic. He sued both companies for failure to warn of the dangers involved in
using the product. District court held for manufacturers; Parish appealed.
Decision: Affirmed. The trampoline and safety net had multiple clear warnings placed
permanently on them and had symbols that illustrate dangerous activities. The warnings exceed
Questions: 1. The Iowa high court held that there was no failure to warn of the dangers of a
trampoline, so the maker was not liable for injuries suffered by a user. Could it be that the
dangers of such a product are such that it should simply be banned because it is too dangerous
and simply cannot be made safe?
The court discussed that and noted that under the Restatement it is held most likely the province
of the legislator or administrators to ban products that are too dangerous to be on the market. The
2. The plaintiff here was an adult; would it be different if a small child, who would be less likely
to pay attention to the warnings, had been injured?
Juries are certainly more sympathetic to injuries to small children. The rule should not be
Add. Case: Mills v. Giant of Maryland (D.C. Cir., 2007)--A group of lactose-intolerant
individuals sued nine sellers of milk in a class action suit. They contended that they consumed
milk before they were aware of their lactose intolerance and, as a result, suffered stomach
discomfort. The plaintiffs claimed the sellers failed to warn of the dangers of lactose intolerance
by putting warning labels on milk containers. They sued for damages and for an injunction
requiring milk sellers to put this warning label on all milk packaging: “Warning—If you
experience diarrhea or stomach cramps after consuming milk, you may be lactose intolerant.
Check with your physician.” The district court dismissed the suit. Plaintiffs appealed.
Decision: Affirmed. Millions of Americans suffer from lactose intolerance. Plaintiffs contend
they were unaware of their intolerance when they purchased milk which caused them to suffer
“flatulence, bloating, cramps, and diarrhea” as a result of drinking milk. They contend that milk
Add. Case: Morales v. American Honda Motor (6th Cir., 1995)–Gary Thompson, 9 years old,
was hit by a pickup when driving his Honda Z50R motorcycle, which is designed for children.
He drove the Honda on a public road where the driver could not see him. He suffered brain
damage. The instruction book stated that it was illegal to use the cycle on public streets; it was
for off-road use only. On the cycle was a printed bold notice that stated that it was not for use on
public streets and that the driver should use a helmet. Gary’s mother had told him about proper
usage, but he drove it on the road anyway. She sued Honda, contending the warnings were
inadequate. Trial court dismissed the case; Gary’s mother appealed.
Decision: Reversed. It is for a jury to determine whether the warnings given were sufficient. It is
Add. Case: Metzgar v. Playskool (3rd Cir., 1994)–A 15-month-old child choked to death on toy
block 7/8 inch wide and 1 3/4 inch long. Box was marked, “Ages 1 1/2 – 5″ and met Consumer
Products Safety Commission standards and standards of the American Society for Testing
Materials. District court dismissed suit because the danger of choking was so obvious.
Decision: Reversed; a jury could find the manufacturer liable in strict liability and for
negligence; there was no warning that use by a child under age 1 1/2 was dangerous. One in
Add. Case: Johnson v. Johnson Chemical (App. Div., N.Y., 1992)–Julie Kono bought cans of
“La Bomba” and “King Roach Spray” to set off in her roach infested apartment. The stove was
gas, but she did not know it had a pilot light. When she set off several roach bombs the pilot light
lit the spray and she was injured in the explosion. The prominent warning on the can stated:
“Warning: Use only one can per room. Warning. All flames, pilot lights, burners and ovens must
be turned off before using this product.” This was repeated in the detailed instructions for use.
Kono did not reading the warning; Johnson defended that her injuries were due to her misuse.
Decision: The appeals court held that the case should go to trial. It is for the jury to decide if the
warning provided on the product is adequate to avoid consumer misuse of the product and that
Note on defenses: Meeting federal standards and the safety standards of a professional
organization does not eliminate chance of liability, but may relieve it in some instances. For
example, in Busch v. Graphic Color (674 A.2d 782) the Illinois supreme court held that the heirs
of a woman who died from asphyxiation from fumes from a paint stripper she was using could
not claim the warning label was insufficient. The label complied with the Federal Hazardous
Substances Act, which preempted all state common law rules that may differ from the federal
standards.
Add. Case: Brown Forman v. Brune (Ct. Ap., Tex., 1995)–Brinkmeyer was an 18-year-old
college freshman. She drank a whole bottle of tequila produced by Brown Forman. She passed
out and died. Her mother sued Brown Forman, claiming the tequila was “an unreasonably
dangerous product in the absence of a warning and/or instructions for appropriate use.” The
jury found for plaintiff; the damages were apportioned by degree of responsibility. Brown
Forman appealed.
Decision: Reversed. (After this case arose, a federal warning law was passed for alcoholic
beverages. It preempts any other duty to warn, but this case arose before that.) The issue here is
if the warning (or lack of) on a product is inadequate, making the product unreasonably
dangerous. “The common law has long recognized that the alcoholic beverage drinker maintains
Design Defects—The issue is whether a reasonable alternative design that the producer knows
about, or should have known about, would have been safer and prevented the accident in
question. Some states, such as California, have adopted the consumer expectation test—what
level of safe performance would an ordinary consumer expect of a product under the
circumstances? Consumer expectation governs their conduct and producers should conform to
consumer expectations. However, ordinary consumer expectations are not relevant if the product
in question is technical; in such instances the jury should balance the risks and benefits of
alternative designs based on expert testimony.
CASE: Timpte Industries v. Gish (Sup. Ct., Tx., 2009)—Gish, a trucker, arrived at a plant to
pick up a load of fertilizer. His truck had a trailer made by Timpte—an open-top hopper loaded
from above. As the downspout would not go into place, Gish climbed on top of the trailer,
scooted out along a thin rail to where the downspout was and fell to the ground. He sued for
design defect, contending that the rail was not safe to be on. The trial court agreed with Timpte
that the danger was open and obvious. The appeals court reversed. Timpte appealed.
Decision: To recover in such a case the plaintiff must show that the design was unreasonably
dangerous and that a safer design existed. Plaintiff’s expert proposed an alternative design. The
courts employ a risk-utility analysis that considers the utility of the product against the likelihood
Questions: 1. What could Gish have done to protect himself better from the risk, given what he
was trying to accomplish?
The warning sign on the ladder said to maintain a three point stance—that is, keep a hand on the
narrow rail, not try to walk along it upright. Gish would have been less likely to fall then. In
2. This is a commercial truck trailer. Would the risk-utility analysis be likely to produce the same
result if this were a consumer product?
No, consumer products are held to higher standards of safety than are products used in
Add. Case: Stalker v. Goodyear Tire and Rubber (App. Div., NY, 2009)–Stalker ran a truck
repair business. One of his trucks had a flat tire and was replaced. Stalker tried to repair the tire.
When he inflated it, a “zipper rupture” occurred, causing an explosion that killed Stalker. The
tire was made in 1993 by Goodyear, it was retreaded in 1996, and the explosion occurred in
2001. Stalker’s widow sued Goodyear for design defect in the tire. The trial court dismissed the
suit; plaintiff appealed.
Decision: Affirmed. A defectively designed product is one which, at the time it leaves the seller’s
hands, is in a condition not reasonably contemplated by the ultimate consumer and is
unreasonably dangerous for its intended use. Goodyear and the company that did the retread
Add. Case: Force v. Ford Motor (Ct. App., Fla., 2004)—Force was driving when hit by another
car. He was wearing his seatbelt and shoulder harness, but still sustained a severe head injury.
He sued Ford and Mazda, producers, for product defect, contending the harness was defective in
design as it should have given more protection. The jury held for producers. Force appealed.
Decision: Reversed. There are two tests that may be used, one is the consumer-expectation test,
the other is the risk-utility test. The first allows a plaintiff to show that the product did not
perform as safely as an ordinary consumer would expect. The judge did not instruct the jury on
Add. Case: Sufix, USA v. Cook (Ct. App., Ky., 2004)–Sufix makes the cutting element for weed
trimmers. It made a new cutter head that used metal blades instead of string to do the cutting.
The first time Cook used the trimmer the head shattered and severely damaged his leg. A jury
awarded $2.8 million compensatory and $3 million punitives. Sufix appealed.
Decision: Affirmed. Expert testimony showed that the plastic cap over the blades was not strong
enough to withstand normal use. Sufix failed to test the product adequately before selling it. The
Add. Case: Calles v. Scripto-Tokai Corp. (Sup. Ct., Ill., 2007)—Calles lived with her four
young daughters. One night, she ran an errand to the store, leaving the girls alone. A three-year
old started a fire using an “Aim-N-Flame” lighter (the kind about a foot long with a handle and
a trigger to start a flame). One child died in the fire. Calles sued Scripto, the distributor of the
lighter for defective design in that it did not contain a child-resistant device to reduce the risk.
Scripto defended that the product is for adults, so it does not have a duty to make it child proof;
the dangers were open and obvious. After complicated proceedings, the matter went to the
Illinois high court.
Decision: Illinois uses both the consumer-expectation test and the risk-utility test in design
defect cases. The consumer-expectation test is from the point of view of the adult mother as a
purchaser, not from the viewpoint of a three-year-old child. Hence, it is not the basis of strict
liability for design defect. There are unresolved questions about the risk-utility test that should
Add. Case: Hollister v. Dayton Hudson Corp. (6th Cir., 2000)–Hollister was seriously burned
when a shirt from a Dayton Hudson store caught fire when she reached over a stove. She was so
drunk when it happened that she did not know she had been burned until she woke up the next
morning. She contended that the shirt was defective because it could have been made of a more
flame retardant material. She also claimed there was also a failure to warn of fire hazard. The
district court held for the store; Hollister appealed.
Decision: Affirmed in part. The plaintiff failed to establish a design defect because expert
testimony failed to show that there was a reasonable alternative fabric (with respect to cost,
Add. Case: Ridgway v. Ford Motor (Ct. App., Tex., 2002)–Ridgway suffered burns when his
1995 Ford pickup burst into flames while he was driving it in 1997. The fuel system had been
repaired three times. Ridgway sued for products liability, contending that the vehicle was
defective. An expert testified that there was an electrical malfunction that caused the fire to start
in the engine block. Ford contended that there was no evidence of a product defect or a safer
design alternative. The trial court dismissed the suit. Ridgway appealed.
Decision: Reversed. Summary judgment was not proper. There is an issue of material fact
regarding whether the fire resulted from a manufacturing defect. If there is no evidence of any
defect, plaintiff may offer evidence of the malfunction as circumstantial proof of a defect. To
Add. Case: Pree v. Brunswick Corp. (8th Cir., 1993)–Pree, who had been drinking, fell off the
back of a friend’s boat while the friend was trying to dock the boat in rough weather. Pree was
injured by the engine propellers. He sued Brunswick, the parent of Mercury engines, claiming
the props had a design defect because they did not have protective guards.
Decision: Appeals court found that the evidence indicated that the prop guards had been tested
by industry safety experts and been rejected as causing problems in boat use and causing safety
Add. Case: Banks v. ICI Americas (Sup. Ct., Ga., 1994)–Nine-year-old Banks died when he
ate rat poison from an unmarked can he found in a cabinet at a boys club. The maker of the
poison was sued. The jury awarded plaintiff compensatory damaged and $1 million punitive
damages, based on a finding that the poison was defectively designed. The appeals court
reversed in favor of ICI; Banks appealed.
Decision: When deciding design defect claims, the risk-utility analysis will be applied. There is a
consensus that this is the most reasonable approach. “The risk-utility analysis incorporates the
concept of ‘reasonableness,’ i.e., whether the manufacturer acted reasonably in choosing a
Add. Case: Moe v. MTD Products (8th Cir., 1995)–Moe had several fingers chopped off when
he reached in a power mower to clear out stuck grass. He had released a safety device called the
blade brake/clutch system (BBC), that leaves the engine running but stops the blade, but did not
know that the cord connecting the lever to the device had frayed and snapped. He sued the
mower maker for failure to warn and design defect. District court dismissed the case; Moe
appealed.
Decision: Reversed in part. The dismissal regarding failure to provide adequate warning was
correct. MTD complied with the Consumer Protection Safety Commission regulation concerning
how mower warning manuals were to be written. That regulation preempts state law on that
issue, so there was no claim based on inadequate failure to warn of dangers. However, there is a
Unknown Hazards—Biggest dollar volume of torts litigation involves a few substances that have
injured thousands of persons: asbestos, DES, Dalkon Shield, and silicon breast implants. The
danger was not known at the time the product was first marketed; only later did the damage
caused become understood. Class action settlements in these cases are in the billions of dollars.
Asbestos is by far the largest, running about $100 billion to date and growing.
Add. Case: Borel v. Fibreboard Paper Products (5th Cir., 1973)–Borel, an industrial insulation
worker, was exposed to asbestos for decades and died of asbestosis, lung cancer caused by
asbestos. He (and then his heirs) sued eleven major asbestos makers. The makers claimed that at
the time he was exposed the danger was not known and the product was unavoidably dangerous.
Jury applied strict liability; the companies appealed.
Decision: Affirmed. Strict liability was applied because the manufacturers “should have known
Add. Case: Meyer v. Flour Corp. (Sup. Ct., Mo., 2007)–The Doe Run lead smelter in Missouri
emits lead into the local environment. It is known that lead can have toxic effects, especially on
children. However, problems may be latent for some years before a medical issue is diagnosed.
Petitioners filed a class action request for children who live around Herculaneum, requesting
that the smelter operators be required to pay for medical monitoring of members of the class,
about 200 children. The trial court refused to certify the class. Plaintiffs appealed.
Decision: Reversed and remanded. Courts should err, in close cases, in favor of certification
because the class can be modified as the case progresses. A medical monitoring claim seeks to
recover the costs of future reasonably necessary diagnostic testing to detect latent injuries or
Add. Info. Market Share Liability—In the 1980s, a number of state courts developed market
share or enterprise liability of various forms, allowing victims of unknown hazards to sue any or
all of the makers of the products that caused their injuries. Usually the producers shared liability
according to the share of the market they had at the time in question.