Add. Case: Santiago v. Sherwin-Williams (1st Cir., 1993)–Santiago sued several paint makers,
claiming their production of lead pigment for use in lead paint caused her injury from exposure
as a child. She was born in 1972 and raised in a house built in 1917 that was painted numerous
times. She also claimed a concert in action theory, based on producers’ ad campaigns
encouraging the use of lead house paint. District court granted summary judgment for
defendants.
Decision: Affirmed. Massachusetts, like many states, does not recognize market share liability or
enterprise liability. Plaintiff must be able to identify at least one defendant as the cause-in-fact of
Add Case: Hamilton v. Beretta U.S.A. (Ct. App., N.Y., 2001)—The relatives of people killed by
handguns sued handgun makers, contending their products were marketed negligently so as to
create an underground market in handguns that leads to use in crimes resulting in the deaths.
The jury found that a number of the gun makers’ business practices were the proximate cause of
some death and apportioned damages among the makers based on market share. The gun
makers appealed to the federal appeals court, which certified two questions to the high court of
New York.
Decision: 1) Did the defendants owe the plaintiffs a duty to exercise reasonable care in the
marketing and distribution of the handguns they manufacture? “Analysis of this State’s
longstanding precedents demonstrates that defendants-given the evidence presented here-did not
owe plaintiffs the duty they claim.” Liability here will not arise from the fact of foreseeability of
Joint and Several Liability—The most common tort rule when there are multiple wrongdoers is
for liability to be joint and several; which allows each defendant to be possibly liable for the
entire bill. Note that some states have abolished joint and several liability, holding that
defendants will only pay the share of the damages for which they can be held accountable.
Add. Case: Collins v. Eli Lilly (S. Ct., Wisc., 1984)–Collins’ mother took DES (prescription
drug) while she was pregnant with her. As with several thousand other women, it was discovered
during the 1970s and 1980s that the drug caused cancer in the adult daughters of women who
took the drug during pregnancy. The drug was discontinued in 1971 when the danger became
known. Collins could not identify the particular maker of the drug her mother took. The matter
was thrown to the high court of Wisconsin.
Decision: The Supreme Court of Wisconsin held that since the drug was generic, Collins could
sue any or all of the DES makers at the time her mother was pregnant. Strict liability was
Add. Info: Market share liability requires three elements: 1) the manufacturer cannot be
identified; 2) the plaintiff is not at fault in failing to provide evidence of causation; and 3) the
products are identical in design and defect. Besides asbestos and DES, the use of this notion has
been limited. The Santiago case is one of several that have tried to impose lead poisoning on
paint producers. One reason such cases have failed is that lead is in many products besides
paint, so causation is difficult to establish.
Issue Spotter: Cheaper Can Be More Expensive
In several instances, U.S. companies have ordered goods from low-cost countries and specified
quality. But they had no idea what was going on behind the scenes. One toy car maker
subcontracted the paint work to a small local company (in China, but can happen in many places)
that used lead-based paint. The U.S. company faced a public relations disaster and the cost of a
recall. The subcontractor was a small shop essentially judgment proof due to lack of assets. The
primary contractor can be yelled at and sued, but unless it has significant assets in the U.S. that
can be seized (unlikely), you are relegated to suit in their home court—good luck. Even if
arbitration is agreed to in a reputable place, enforcement of an award is very difficult in some
foreign courts.
Intl. Perspective: Asbestos Litigation in the U.S. and the UK
Asbestos litigation is massively costly in the U.S. The theory adopted by U.S. courts has been
rejected by the courts in the UK so there is no asbestos litigation there and suits brought against
UK producers in the U.S. have been rejected by UK courts when there are efforts to collect.
Defenses in Product Liability Suits—Major defenses include product abuse by consumer;
assumption of the risk, especially in cases of unavoidably dangerous goods like cigarettes; and,
in general, comparative negligence is employed to distribute the causation.
Add Case: Price v. Purdue Pharma Co. (Sup. Ct., Miss., 2006)–Price sued parties involved in
the production, distribution, and sale of OxyContin, a narcotic prescription drug. He alleged
that the nature of the drug caused his addiction. Before trial, it was learned that Price was
seeing ten doctors and used seven pharmacies in three cities to get multiple prescriptions to the
drug. When his insurer learned of this, it notified the doctors, who then refused to prescribe more
medicine for him. The trial court dismissed the suit under the wrongful conduct rule. Price
appealed.
Decision: Affirmed. Under the wrongful conduct rule, Price was precluded from bringing claims
of negligence, products liability, malpractice and other claims for injuries he allegedly sustained
Add. Case: Mitchell v. Friday’s (Ct. App., Ohio, 2000)–Mitchell was eating fried clams at
Friday’s restaurant when she bit into a piece of clam shell and damaged a tooth. She sued
Friday’s and the clam supplier for injury due to defective product. The trial court dismissed.
Mitchell appealed.
Decision: Affirmed. “The test should be what is ‘reasonably expected’ by the consumer in the
good as served…. The defendant is not an insurer but has the duty of ordinary care to eliminate
or remove in the preparation of the food he serves such harmful substances and the consumer of
Product Misuse. When a consumer misuses a product such that the misuse is the primary cause
of the injury, the producer may not be responsible, or liability may be lessened. Similarly, if
someone modifies a product to create the risk that causes the injury, liability may not hold.
Assumption of Risk. Especially concerns products that are unavoidably dangerous. One
category are products that, given the current state of science, cannot be made safer, and have
potentially harmful effects, such as pharmaceuticals. Another category are products such as
tobacco and alcohol, which are known to be dangerous in their side effects. When the injury is
suffered by an informed consumer, the producer is normally relieved of liability.
Add. Case: Glittenberg v. Doughboy Rec. (S.Ct., Mich., 1992)–In separate incidents, three
plaintiffs suffered major injuries by diving into shallow above-ground pools. All knew the water
was shallow and that diving was dangerous. They sued based on failure to warn adequately of
dangers. Defendants claimed that the risks were obvious.
Decision: Michigan high court held that a producer has no duty to warn of product’s potentially
Add. Case: Cotita v. Pharma-Plast (5th Cir., 1992)–Cotita, a RN, was providing nursing
services to an AIDS patient. A syringe made by Pharma-Plast was in its sterile packaging, but
was missing the protective cap that covers the needle. The improper packaging allowed the
needle to pierce the packaging and the protective gloves Cotita was wearing, which had the
patient’s blood on them. Cotita feared that he was exposed to AIDS, but tests showed him not
HIV- positive. He sued for mental anguish for fear of contracting AIDS. Jury awarded him
$150,000. That amount was reduced by 30 percent, the figure which the jury found reflected
Cotita’s negligence.
Decision: The Court of Appeals affirmed the lower court. Manufacturer was liable due to
Bulk-Supplier Doctrine and Sophisticated User Defense Applies to business purchasers of a
product. They are held to a higher level of knowledge about the dangers of a product than are
ordinary consumers, i.e., when a company routinely uses toxic chemicals in production, they are
expected to know the hazards of the chemicals and not be told at each sale. The supplier must
provide the buyer with information about the dangers, but is not responsible for what happens in
use in production once out of its control.
Add. Case: Haase v. Badger Mining (Sup. Ct., Wisc., 2004)–From 1980 to 1996, Badger
Mining supplied 99% pure silica sand to Neenah Foundry, which mixed the sand with other
materials to create molds for iron castings, such as manhole covers. The castings are usually
broken, reground, and the materials reused. Haase worked for years at Neenah, where he was
often in a dusty environment. In retirement, he was diagnosed with silicosis, a lung disease
caused by prolonged inhaling of silica particles. He sued Badger for products liability. The
lower courts dismissed Haase’s strict liability claim. He appealed.
Decision: Affirmed. Expert testimony showed that when Badger delivered the sand it was too
large to be inhaled. It was the processes at Neenah that crushed the sand into dust that caused
Add. Case: Baker v. Monsanto Co. (S.D. Ind., 1997)–Baker, who worked for an electronics
company, sued Monsanto, maker of fluids containing PCBs used by his employer, claiming injury
due to exposure.
Decision: Summary judgment for Monsanto. The employer was a knowledgeable, sophisticated
Add. Case: Gautreaux v. Tex-Steam (E.D. La., 1989)–Gautreaux worked on an offshore oil
platform. He attempted to open a valve made by Tex-Steam using an 18 inch long wrench. He
hurt his back doing so. The valve needed a 5 foot long wrench to open it. The valve was not
defective; a long wrench was the proper way to open it. Jury awarded Gautreaux $592,500.
Decision: The judge granted Tex-Steam’s motion for judgment notwithstanding the verdict.
Gautreaux had worked full-time for years watching oil well gauges and opening and closing
Add. Case: Washington v. Dept. of Transportation (5th Cir., 1993)–A worker was injured in an
explosion when the acetone he was using to clean a tank in a ship was ignited by the electric
motor in a Shop Vac wet-dry vacuum cleaner. The worker contended that the label on the Shop
Vac should have warned of such dangers. District court dismissed the case.
Decision: Affirmed. In a case like this, where a worker is using tools supplied by his employer,
“the product manufacturer owes no duty to the employee of a purchaser if the manufacturer
provides an adequate warning of any dangers and the duty to warn its employees thereof.” The
Add. Disc.: In commercial transactions, economic losses are generally not recoverable under
tort law. For instance, in a Minnesota Supreme Court case concerned damage done to an office
building by a fire caused by defective wiring in a dental chair. The UCC covered the matter since
it was a commercial sale. Damage to the property was covered by strict liability, but loss of
business due to offices being closed from fire damage was not covered.
Statutory Limits on Liability—Various statutes limit liability in particular areas, such as
workers compensation as a substitute for most tort liability on the job. Certain products, such as
pesticides, that follow government labeling requirements, may not be held liable for failure to
warn. Statutes limit the amount of compensatory and punitive damages in a number of states.
Ultrahazardous Activity—The imposition of strict liability for injuries resulting from
ultrahazardous activities goes back to the 1868 British case, Rylands v. Fletcher. As the
Restatement notes, such activity is one that “necessarily involves a risk of serious harm to the
person, and or chattels of another which cannot be eliminated by the exercise of the utmost care.”
That is, such things as blasting, spraying chemicals, and such are ultrahazardous because of what
could happen to innocent bystanders. Negligence is not the issue, as the 1992 Florida case
discusses involving fumigation of a condominium building that was done carefully but still
exposed some people to chemicals.
Add. Case: Hynes v. Energy West (10th Cir., 2000)–The Hynes were injured due to a natural
gas explosion at their apartment. They sued Energy West, the gas supplier, for negligence. The
jury awarded the couple $5.3 million in damages. Energy West appealed, contending that the
judge improperly instructed the jury on the ordinary care standard, which was stated to be a
high degree of care because natural gas is ultrahazardous.
Decision: Affirmed. The negligence of the company was established. The issue is if the jury was
misled. “Under Wyoming law, a defendant engaged in an ultrahazardous activity must exercise a
degree of care commensurate with the danger to meet the ordinary care standard.” For the
Add. Case: Great Lakes Dredging v. Sea Gull Operating (Ct. App., Fla., 1984)–Hotel owner
sued the owner of a rock-crushing machine for damages in strict liability for ultrahazardous
activity, claiming financial losses due to guest cancellations caused by noise from the operation
on South Miami Beach. Trial court entered summary judgment on issue of liability in favor of
hotel owner; machine owner appealed.
Decision: Appeals court reversed the lower court. There is no strict liability to the hotel owner
for financial losses because the machine posed no physical danger of harm to persons or
Add. Case: Fitzpatrick v. US West (Sup.Ct., Neb., 1994)–Plaintiff was injured by an explosion
when working in an underground vault to reconnect electricity to a building. She sued, claiming
the situation was ultrahazardous so strict liability should be imposed.
Decision: The utility company had exclusive control over the vault and its operations, so the
Does Product Liability Need Reform? Producers continue to lobby Congress for federal limits
on liability, but, after many years not much of substance has emerged. Those lobby efforts are
somewhat offset by lobbying by lawyers and other groups that stand on the other side of the
issue.
Discussion Question
The Restatement (Second) of Torts, §402A, states “the seller is engaged in the business of selling
such a product.” This section means that the product seller is a commercial dealer. Essentially it
excludes people who sell products at a garage sale and other such informal or infrequent
occasions.
“It is expected to and does reach the user or consumer without substantial change in the
condition in which it is sold” means that if the product is modified in such a way as to possibly
cause a defect or eliminate safety measures built into the product by the producer, then the
producer will no longer be liable for injuries resulting. E.g.., if someone jacks up the rear end of
their car by a foot, and that exposes the gas tank in a dangerous manner, that would be a
substantial change in the condition in which the car was sold. The producer of the automobile
made a safe gas tank when the car was left as intended.
Strict liability applies even though “the seller has exercised all possible care in the preparation
and sale of his product.” This can be compared to negligence which uses the standard of “a
reasonable man under the circumstances.” Strict liability says that it does not matter how careful
the producer was in making the product, if there is any defect that causes an injury to occur then
the producer may be liable.
Finally, the provision in §402A that “the user or consumer has not bought the product from or
entered into any contractual relation with the seller” means that this rule will apply unless
someone intends to modify this by use of a contract. Normally, this happens in commercial deals,
where the two parties bargain over the respective rights and liabilities attached to the use of a
certain product.
Case Questions
1. The seller was not liable; the elements of fraud were not proven. Some of the actions of the
real estate agent, such as pointing out the well without making it clear that it was not on the
2. (answer on Internet for students) It is not likely the defense would be valid as the danger was
to the final consumers, not to workers in the manufacturing plant where the popcorn was made.
3. The Affirmed. The pop-up ads were not tortious. The pop-ups were clearly identified as
SmartBargain’s and did not contain false information. To recover for intentional interference
with prospective advantage, a plaintiff must show 1) that the defendant intentionally interfered
4. (answer on Internet for students) The court upheld a restraining order against Azar from
contacting Lehigh customers, directly or indirectly. This was the tort of interference with an
5. No case. A seller or manufacturer is not required to warn of every possible risk that a food
item poses. One need not warn of common risks or allergies. The oysters were not adulterated;
the risk was inherent in the product. The seller had a duty to warn of dangers, and it did on its
6. (answer on Internet for students) In several cases in different states, handgun producers have
been held liable for injuries suffered by victims of crimes in which handguns were used. The
producer was liable for selling a product they knew is often used in committing crimes, so
7. Yes. In Oklahoma, one who intentionally and improperly interferes with performance of a
contract between another and a third party, by preventing the other from performing the contract
8. (answer on Internet for students) The lighter was not unreasonably dangerous under the
Illinois consumer contemplation test, which is viewed from the vantage of an ordinary consumer.
9. No. Because they were professionals working with highly dangerous equipment, there was
assumption of the risk. The nasal fatigue claim could have been a possible basis for liability, but
10. Because fumigation is an ultrahazardous activity, Old Island was liable for injuries
Ethics Question
Lobbying, while unpopular with the public, is largely a right protected by the First Amendment.
Limits can be put on little gifts and the like, but lobbying itself cannot be prevented or
Essay Questions from Cases:
Fourteen “disciples” of yoga guru Amrit Desai worked for Desai at his large “retreat center for
holistic health and education,” some for as long as 20 years. The disciples had given Desai much
of their wealth and worked for him for very low wages as they attempted to follow his teachings
of poverty and chastity. They sued Desai for fraud when they allegedly discovered that Desai had
huge quantities of cash and assorted sexual relations over many years. Could this be the basis for
a fraud action to recover for lost wages and donations? [Dushkin v. Desai, 18 F.Supp.2d 117 D.
Mass. (1998)]
Answer: The court held that the claims were sufficient to go forward on a claim of fraud. Their
claim is that the guru made false statements that they relied upon to their detriment. The guru
A 3-year-old child turned on the hot water in a bathtub. His 11-month-old sister climbed into the
tub and was severely burned before being rescued by her mother. The child died from the burns.
Answer: The appeals court agreed with the district court’s granting the defendants’ motion for
judgment as a matter of law. The heater was not in a defective condition unreasonably dangerous
to the user. A product’s utility against the risk of injury it creates. In strict liability, the factors
considered are:
1) The usefulness and desirability of the product–its utility to the user and to the public as a
whole.
2) The safety aspects of the product–the likelihood that it will cause injury and the probably
seriousness of the injury.
3) The availability of a substitute product which would meet the same need and not be as unsafe.
Internet Assignment
For a general discussion of products liability, see the materials available at the Cornell Law site:
Cornell University Law School, Legal Information Institute, “Products liability,”
http://topics.law.cornell.edu/wex/products_liability
For a discussion of problems with products liability, see a business-funded interest group’s
website: American Tort Reform Association (ATRA), www.atra.org