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Chapter 12
Product and Service Liability Law
Introduction
Chapter Twelve addresses these questions:
• What theories of recovery do plaintiffs assert in product liability cases?
• What is market share liability, and how does this theory help plaintiffs?
• What is service liability, and who should care about the evolution of this kind of liability?
• What are the global dimensions of product liability law?
Chapter Twelve is significant because it helps the student function better as a consumer, and
Achieving Teaching Excellence
How Is the Course Going So Far?
By the time instructors and their students start working on Chapter Twelve, they will be so
far enough into the term that it would be a good idea to figure out how things are going, and
what changes they might want to make to achieve Teaching Excellence. Instructors will want to
evaluate their work, see how students are progressing, and see what students think of what’s
happening in class so far.
Instructors could start by taking stock of how they think things are going. Most instructors
are good at determining how one course is going compared to one they taught last term, or last
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• What kinds of questions are my students asking me?
• Are students interacting with their peers in productive ways?
• Am I encouraging students to engage in critical thinking in class?
• Do my assignments promote critical thinking?
• Are my students learning the legal content in the course?
Next, the instructor should try to assess how well students are doing in terms of learning
critical thinking skills and course content. Instructors should review students’ papers, exams, or
whatever assignments that they are given. If instructors are not sure how their students are doing
Finally, instructors need to know how students think the course is going. Instructors can ask
them in more than one way, depending upon why they want to know. If instructors are concerned
about the evaluations students will give them at the end of the semester, they should ask students
the same questions the school’s course evaluations will ask them at the end of the semester. Then
After instructors assess how they think they are doing, how their students are doing in terms
of learning both critical thinking and course content, and how students think the course is going,
they should develop an action plan for necessary changes. Instructors should keep in mind that
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desirable to engender both short-run applause and long-run gratitude from students.”
References
Chapter Overview, Topic Outline, and Discussion Questions
Chapter Overview
If students enjoyed the material Chapter Eleven presented, they will probably enjoy Chapter
Twelve even more. This chapter presents interesting cases and legal theories that are important
Topic Outline
I. Theories of Recovery in Product Liability Cases
A. Negligence
2. Negligent Failure to Warn
4. Negligence Per Se
5. Defenses to a Negligence-Based Product Liability Action
a. Mutual Pharmaceutical Company, Inc. v. Bartlett
B. Strict Liability in Contract for Breach of Warranty
2. Implied Warranty of Fitness for a Particular Purpose
4. Defenses to Breach-of-Warranty Actions
C. Strict Liability in Tort
2. Impact of the Restatement (Third) of Torts
4. Defenses to a Strict Product Liability Action
D. Liability to Bystanders
II. Market Share Liability
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III. Service Liability
IV. Global Dimensions of Product Liability Law
V. Summary
Discussion Questions for Chapter Twelve
1. Explain relationships among negligence, breach of warranty, and strict product liability.
The most significant relationship among negligence, breach of warranty, and strict product
2. Explain why someone might say this statement is true: Eradication of the privity
requirement has benefited plaintiffs.
3. Explain relationships between negligent failure to warn and negligent design.
Both negligent failure to warn and negligent design are theories a plaintiff can assert in a
4. Explain why someone might think this statement is true: Manufacturers benefit from the
many defenses they can assert in negligence cases.
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5. Explain relationships between the implied warranty of merchantability and the implied
warranty of fitness for a particular purpose.
The implied warranty of merchantability goes with every product sold, unless expressly and
6. Explain relationships between implied and express warranties.
One relationship between the two is that both are defined by the UCC. The implied warranty
of merchantability goes with almost every product, whereas the implied warranty of fitness
7. How does the strict liability theory explained in Chapter Eleven relate to the strict liability
theory in this chapter?
8. How are the defenses available to manufacturers in strict liability cases different from the
defenses available to manufacturers in negligence cases?
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9. How is the strict liability theory good for plaintiffs?
10. Why might someone say this statement is true: In strict liability cases, the part of the test that
focuses on the “defect” is the most difficult part of the case for plaintiffs to prove.
A defect in manufacture or marketing generally involves a specific product’s not meeting
11. The text lists reasons the evolution of the concept of strict product liability is positive. Have
your students identify two major reasons the evolution is negative.
12. Explain relationships between market share liability and service liability.
Both are relatively new areas of law. Market share liability splits liability among
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Answers to Critical Thinking about the Law Questions, Case Summaries,
Answers to Review Questions, Review Problems, and Case Problems
Suggested Answers to Critical Thinking about the Law Questions
1. There are two primary differences between the cases. First, in Katherine’s case, Katherine
interacted with the product. She bought the product and removed the cap, whereas the other
2. The idea of security is shaping the judge’s thought. The definition of security should be
revised and made consistent with thoughts of safety. Consumers should be confident that
3. It would be helpful to have the date because the exact cause of the problem can be explored.
Knowing the date might help one see whether the manufacturer has a design defect (are all
cans defective no matter when they were manufactured?) or are only some defective (which
Case Summary—Mutual Pharmaceutical Company, Inc. v. Bartlett
This case involved the Food and Drug Administration’s approval of the nonsteroidal anti-
inflammatory pain reliever sulindac, sold under the brand name of Clinoril. The FDA also approved
its labeling, which included warnings of potential side effects. After the drug patent expired, Mutual
Pharmaceutical Company produced generic versions of the drug. Karen Bartlett used Mutual’s
generic version of the drug and developed toxic epidermal necrolysis, becoming severely disfigured
and blind as a result. The drug label had not warned of the potential for the disease. Subsequently,
the FDA recommended changing all NSAID labeling to contain a more explicit toxic epidermal
necrolysis warning. Bartlett sued Mutual and won, with the jury awarding her over $21 million in
damages. The First Circuit Court of Appeals affirmed the decision. Mutual appealed.
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The United States Supreme Court reversed in favor of Mutual. The court noted that because
Case Summary—Williams v. Braum Ice Cream Stores, Inc.
In this case, the court set forth the two tests used in various jurisdictions to decide whether a
breach of warranty of merchantability exists. The court explained both the foreign-natural test and
reasonable expectations test, then decided to adopt the reasonable expectations test. The case arose
after the plaintiff broke a tooth on a cherry pit that was in cherry-pecan ice cream.
Suggested Answers to Critical Thinking about the Law Questions
1. Under the foreign-natural test, a plaintiff may recover only if the object is foreign to the food
served. The rationale behind this test is that it is difficult to separate ingredients in the course of
2. The reasonable expectations test is more ambiguous. It will be hard to define precisely whether
Case Summary—Welge v. Planters Lifesavers Co.
This case is in the book to show how a court will analyze a situation in which a glass jar
shatters, and no one is quite sure why. The jar in question was a jar of peanuts. The court considers
Answers to Review Questions
12-1. Originally, courts said a plaintiff could not establish a duty of care and could not recover
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12-2. Plaintiffs have to prove duty, breach of duty, cause (both actual and proximate), and
damages in negligence cases. Common negligence actions that lead to product liability
cases are:
• Negligent failure to warn
12-3. Defenses plaintiffs can assert in negligence cases are:
• Contributory, modified comparative, or pure comparative negligence
12-4. The three kinds of warranties are the express warranty, implied warranty of
12-5. The foreign-natural test is different from the consumer expectations test because it
accepts the difficulty of separating ingredients in the course of food preparation. It
12-6. Defenses available in breach of warranty cases include:
• That the purchaser failed to give the seller notice within a reasonable time after he
Answers to Review Problems
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12-7. The primary factor will be whether Clark is in a state that adopted the foreign-natural test
or the consumer expectations test. If his state adopted the foreign-natural test, Clark
12-8. Yes, the decedents’ estates do have a product liability action. The manufacturer needed to
12-9. Contributory negligence is a valid defense when the plaintiff failed to act reasonably.
This defense would be relevant if the plaintiff failed to act reasonably in using the
12-10. Mattie can sue under strict liability breach of warranty and recover damages. A court
12-11. Bob will be allowed to bring a strict product liability action against the manufacturer of
the engine. Bystanders are allowed to sue in this kind of case. The focus of the case will
12-12. This situation involves service liability. Have the students review the First Florida Bank
case. The answer depends on which test the state has adopted in service liability cases.
Answers to Case Problems
12-13. The court affirmed the decision. The warning was adequate. Just because he did not read
12-14. The United States Court of Appeals for the Fifth Circuit reversed the district court’s grant
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A.K.W. testified that the helmet he wore had a Riddell sticker on it, and the appellees
admitted that all four models of Riddell helmets used by A.K.W.’s high school had
12-15. The trial court judge limited discovery to the subject tire and substantially similar tires.
On appeal, the District Court of Appeal of Florida upheld the trial court judge’s decision
regarding discovery, concluding that it could not find that the trial court abused its
discretion. The court noted that the Florida Rules of Civil Procedure permit discovery of
12-16. The product-liability actions brought against Genentech were dismissed. Marsh claimed
12-17. The Supreme Court of Montana affirmed the trial court’s verdict and denied the
defendant’s request for a new trial. The court concluded that the district court properly
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12-18. The United States Court of Appeals for the Fifth Circuit held that the district court
properly granted summary judgment on Gomez’s negligence claims that were based on
Thinking Critically about Relevant Legal Issues
1. The issue here is that businesses are not equipped to handle problems that arise from goods
2. The author uses statistics about how much we import from other countries. He talks about the
3. An implementation strategy is missing. The author makes a very valid and intelligent point
4. One could argue that if the companies want to maximize profits by sending all the work
overseas where it is done in much less regulated facilities, then it should be their job to inspect