II. STRICT LIABILITY IN TORT
Section 402A of the Restatement, Second, of Torts imposes strict liability in
tort on merchant sellers for both personal injuries and property damage that
result from selling a product in a defective condition, which makes the
product unreasonably dangerous to the user or consumer. Strict liability
actions focus on the product, not on the conduct of the manufacturer, and do
not require the plainti# to prove that the defect resulted from negligence of
the seller.
*** Chapter Outcome ***
Describe the elements of an action based on strict liability in tort.
A. REQUIREMENTS OF STRICT LIABILITY IN TORT
Section 402A imposes strict liability in tort if:
(1) the defendant was engaged in the business of selling;
(2) the defendant sold the product in a defective condition;
(3) the defect made the product unreasonably dangerous;
(4) the defect existed at the time it left the defendant’s hands;
(5) the plainti# sustained physical harm or property damage by use or
consumption of the product; and
(6) the defect was the proximate cause of the injury or damage.
This liability:
Merchant Sellers
The Restatement 2nd of Torts imposes liability only on one who is in the
business of selling the product involved. Some jurisdictions are including
merchant-sellers of used goods, but not the occasional seller.
Defective Condition
The plainti# must prove that the product was defective when purchased and
that she did not substantially alter the product subsequent to purchasing it
from the seller.
Manufacturing Defect — Manufacturing defects result from failure to
follow the manufacturing speci1cations.
Design Defect — A design defect is created by inadequate plans or
speci1cations, such as de1cient engineering or selection of materials.
CASE 24-4
O’NEIL v. CRANE CO.
Supreme Court of California, 2012
Corrigan, J.
Defendants Crane Co. (Crane) and Warren Pumps LLC (Warren) made valves and pumps
used in Navy warships. They were sued here for a wrongful death allegedly caused by
asbestos released from external insulation and internal gaskets and packing, all of which
were made by third parties and added to the pumps and valves postsale. It is undisputed that
defendants never manufactured or sold any of the asbestos-containing materials to which
plaintiffs’ decedent was exposed. Nevertheless, plaintiffs claim defendants should be held
strictly liable *** because it was foreseeable workers would be exposed to and harmed by
the asbestos in replacement parts and products used in conjunction with their pumps and
valves.
* * *
* * *
We granted review and now reverse.
* * *
Strict liability has been imposed for three types of product defects: manufacturing
defects, design defects, and “‘warning defects.'” [Citation.] The third category describes
“products that are dangerous because they lack adequate warnings or instructions.”
A. No Liability Outside a Defective Product’s Chain of Distribution
From the outset, strict products liability in California has always been premised on harm
caused by deficiencies in the defendant’s own product. We first announced the rule in
Greenman v. Yuba Power Products, Inc. (1963) ( Greenman ) [citation]: “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 defects, proves to have a defect that causes injury to a human being.”
(Italics [in original].) We explained that “[t]he purpose of such liability is to insure that the
Strict liability encompasses all injuries caused by a defective product, even those
traceable to a defective component part that was supplied by another. [Citation.] However,
the reach of strict liability is not limitless. We have never held that strict liability extends to
harm from entirely distinct products that the consumer can be expected to use with, or in, the
defendant’s nondefective product. Instead, we have consistently adhered to the Greenman
formulation requiring proof that the plaintiff suffered injury caused by a defect in the
defendant’s own product. [Citation.] Regardless of a defendant’s position in the chain of
distribution, “the basis for his liability remains that he has marketed or distributed a
defective product” [citation], and that product caused the plaintiff’s injury.
* * *
In this case, it is undisputed that O’Neil was exposed to no asbestos from a product
made by defendants. Although he was exposed to potentially high levels of asbestos dust
Nor does the record support plaintiffs’ claim that defendants’ products were defective
because they were “designed to be used” with asbestos-containing components. The
products were designed to meet the Navy’s specifications. Moreover, there was no evidence
that defendants’ products required asbestos-containing gaskets or packing in order to
* * *
B. No Duty to Warn of Defects in Another Manufacturer’s Product
Plaintiffs also argue that defendants had a duty to warn O’Neil about the hazards of asbestos
because the release of asbestos dust from surrounding products was a foreseeable
consequence of maintenance work on defendants’ pumps and valves.
“Generally speaking, manufacturers have a duty to warn consumers about the
hazards inherent in their products. [Citation.] The requirement’s purpose is to inform
consumers about a product’s hazards and faults of which they are unaware, so that they can
refrain from using the product altogether or evade the danger by careful use. [Citation.]
Typically, under California law, we hold manufacturers strictly liable for injuries caused by
* * *
So too here. Crane and Warren gave no warning about the dangers of asbestos in the
gaskets and packing originally included in their products. However, O’Neil never
encountered these original parts. His exposure to asbestos came from replacement gaskets
and packing and external insulation added to defendants’ products long after their
installation on the [U.S. Navy vessel]. There is no dispute that these external and
*** California law does not impose a duty to warn about dangers arising entirely
from another manufacturer’s product, even if it is foreseeable that the products will be used
together. Were it otherwise, manufacturers of the saws used to cut insulation would become
the next targets of asbestos lawsuits. *** Where the intended use of a product inevitably
creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings.
Conversely, where the hazard arises entirely from another product, and the defendant’s
product does not create or contribute to that hazard, liability is not appropriate. We have not
We reaffirm that a product manufacturer generally may not be held strictly liable for
harm caused by another manufacturer’s product. The only exceptions to this rule arise when
the defendant bears some direct responsibility for the harm, either because the defendant’s
CASE 24-5
KELSO V. BAYER CORPORATION
United States Court of Appeals, Seventh Circuit, 2005
398 F.3d 640
http://scholar.google.com/scholar_case?case=13341242500313047129&q=398+F.3d+640&hl=en&as_sdt=2,22
Manion, J.
Ted Kelso sued Bayer Corporation for strict product liability, alleging that the warning
Bayer provided on its Neo-Synephrine 12 Hour Extra Moisturizing Spray was defective. * *
* Ted Kelso began using Neo-Synephrine 12 Hour Extra Moisturizing Spray in 1990. He
used Neo- Synephrine continuously for more than three years. After learning that his
continued use of the product caused permanent nasal tissue damage requiring multiple sinus
“Stop use and ask a doctor if symptoms persist. Do not use this product for more than 3 days. Use
only as directed. Frequent or prolonged use may cause nasal congestion to recur or worsen.”
The district court agreed and granted Bayer summary judgment. Kelso appeals. * * *
Kelso argues that summary judgment was inappropriate because he presented sufficient
evidence to recover in a product liability action against Bayer. “To recover in a product
liability action, a plaintiff must plead and prove that the injury resulted from a condition of
Kelso claims the Neo-Synephrine was unreasonably dangerous because Bayer’s warning
was confusing as to whether or not the product could be used safely for more than three
days, when such use was effective in relieving his congestion. * * * Kelso * * * interpreted
the warning as meaning not to exceed three days use if the product failed to relieve the
However, Kelso’s personal reaction to the warning is not the test. Whether a warning is
sufficient “is determined using an objective standard, i.e., the awareness of an ordinary
person.” [Citation.] Here, the plain, clear and unambiguous language of the warning states:
“Do not use this product for more than 3 days.” Period. That the Neo- Synephrine
container included doses sufficient to treat multiple users or multiple colds in no way takes
away from the clear impact of the warning. Moreover, the warning clearly informs users to:
“Stop use and ask a physician if symptoms persist.” The warning was clear. Yet Kelso
continued using the product well beyond the three days. It is unreasonable to create an
ambiguity that excuses extended use when the warning against such use is unequivocal.
Kelso also argues that the warning was inadequate because it did not warn users that the
Unreasonably Dangerous
Section 402A covers those products that are unreasonably dangerous
because of the defect, i.e., the danger goes beyond that to be reasonably
assumed by the ordinary buyer.
CASE 24-6
GREENE V. BODDIE-NOELL ENTERPRISES, INC.
United States District Court, W.D. Virginia, 1997
966 F.Supp. 416
http://scholar.google.com/scholar_case?case=14855332202624539345&q=966+F.Supp.
+416&hl=en&as_sdt=2,34
Jones, J.
In this products liability case, the plaintiff contends that she was badly burned by hot coffee
purchased from the drive-through window of a fast food restaurant, when the coffee spilled
on her after it had been handed to her by the driver of the vehicle. The defendant restaurant
operator moves for summary judgment on the ground that the plaintiff cannot show a prima
facie case of liability. I agree, and dismiss the case.
* * *
[Plaintiff, Katherine] Greene was a passenger in a car driven by her boyfriend, Chris
Blevins, on the morning of December 31, 1994, when he purchased food and drink [coffees]
from the drive-through window of the Hardee’s restaurant in Wise, Virginia, operated by the
defendant. * * * He immediately handed the food and beverages to Greene. The food was on
As soon as the coffee burned her, Greene threw the food and drink to the floor of the car,
and in the process stepped on the coffee cup. When the cup was later retrieved from the floor
of the car, the bottom of the cup was damaged, and the lid was at least partially off of the top
of the cup.
After Greene was burned by the coffee, Blevins drove her to the emergency room of a
local hospital, where she was treated. She missed eleven days of work, and suffered
permanent scarring to her thighs.
Both Greene and Blevins testified that they had heard of the “McDonalds’ coffee case”
prior to this incident and Greene testified that while she was not a coffee drinker, she had
been aware that if coffee spilled on her, it would burn her. After the accident, Greene gave a
recorded statement to a representative of the defendant in which she stated, “I know the lid
wasn’t on there good. It came off too easy.”
* * *
To prove a case of liability in Virginia, a plaintiff must show that a product had a defect
which rendered it unreasonably dangerous for ordinary or foreseeable use. [Citation]. In
order to meet this burden, a plaintiff must offer proof that the product violated a prevailing
safety standard, whether the standard comes from business, government or reasonable
consumer expectation. [Citation.]
Here the plaintiff has offered no such proof. There is no evidence that either the heat of
the coffee or the security of the coffee cup lid violated any applicable standard. Do other fast
food restaurants serve coffee at a lower temperature, or with lids which will prevent spills
even when passing over an obstruction in the road? Do customers expect cooler coffee,
which may be less tasty, or cups which may be more secure, but harder to unfasten?
To be merchantable, a product need not be foolproof, or perfect. As one noted treatise
has expressed, “[i]t is the lawyer’s challenging job to define the term ‘merchantability’ in
[the] case in some objective way so that the court or jury can make a determination whether
that standard has been breached.” [Citation.]
In the present case, there has been no showing that a reasonable seller of coffee would
not conclude that the beverage must be sold hot enough to be palatable to consumers, even
though it is hot enough to burn other parts of the body. A reasonable seller might also
*** Chapter Outcome ***
List and explain the obstacles to an action based on strict liability in tort.
B. OBSTACLES TO RECOVERY
Section 402A was drafted largely to avoid the obstacles commonly found in
warranty actions.
Disclaimers and Notice
Although strict liability law is not subject to the disclaimer and other
contractual limitations provisions in the Code, most courts have permitted
402A disclaimers if they are clear and speci1c and involve commercial
transactions between merchants of equal bargaining power.
Privity
In horizontal privity, strict liability includes injured bystanders. In vertical
privity 402A, liability extends to any seller engaged in the business of selling
the product, including a wholesaler or distributor as well as the manufacturer
and retailer.
Plaintiff’s Conduct
Contributory Negligence — A seller cannot defend a strict liability lawsuit
on the basis of a plainti#’s negligent failure to discover a defect or to guard
against its possibility.
Comparative Negligence — There are two basic types in strict liability
cases: 1) reduce the plainti#’s recovery in proportion to her fault, whatever
that may be; 2) (modi1ed comparative responsibility) allows the plainti# to
recover according to the general principles of comparative responsibility
unless she is more than 50%responsible for her own injuries. If her
responsibility exceeds 50%, she recovers nothing.
Voluntary Assumption of the Risk — Assumption of risk is the plainti#’s
express or implied consent to encounter a known danger, and is a defense to
Subsequent Alteration
Section 402A provides that liability only exists if the product reaches “the
user or consumer without substantial change in the condition in which it is
sold.”
Statute of Repose
Is a type of statute of limitation from date of manufacturing and sale of the
product in which a strict liability cause of action must be commenced. These
enactments limit the period—typically to between six and twelve years—for
which a manufacturer is liable for injury caused by a defective product.
Limitations on Damages
Many states have limited the punitive damages that a plainti# can collect in
a product liability lawsuit by:
Placing caps on the amount of damages that can be awarded —
ranging from $50,000 to $20,000,000;
Providing for the State to receive 35percent to 100 percent of any
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY
The Restatement (Third) of Torts: Products Liability makes some signi1cant
changes in product liability. The adoption of the new Restatement by the
States has been a slow process and the great majority of States continue to
follow Section 402A of the Second Restatement of Torts.
The Restatement Third does not use the term strict liability but instead
de1nes separate liability standards for each type of defect. Its major
Manufacturing Defect
A seller is strictly liable when a manufacturing defect causes the product to
depart from its intended design.
Design Defect
A product is defective when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
alternative design.
Failure to Warn
A product is defective when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the provision of reasonable
instructions or warnings.
*** Chapter Outcome ***
Compare strict liability in tort with the implied warranty of merchantability.
Warranty Of Merchantability* Strict Liability In Tort
(§402A)
Condition of
goods
Not 1t for ordinary purposes Defective condition, unreasonably
dangerous
Type of
transaction
Sales and leases (except finance
leases); some courts apply to bailments
of goods
Sales, leases, and bailments of
goods
Disclaimer Must mention “merchantability”
If in writing, must be conspicuous (lease
must be in writing)
Not possible in consumer
transactions; may be permitted in
commercial transactions
Notice to seller Required within reasonable time None required
Causation Required Required
Who may sue In some States, buyer and the buyer’s
family or guests in home; in other
States, any person who may be
expected to use, consume, or be
affected by goods
Any user or consumer of product;
also, in most States, any bystander
Compensable
harms
Personal injury, property damage,
economic loss
Personal injury, property damage
