Description
Guidelines to use when answering the questions:
– Include mini cases as examples when answering question 1 and relate them to the Pedal to the Settle case.
– strict liability and the 6 elements can be found under ll. Applicable Law on pg 9.
– absolutely no Ai use
Questions:
1. Assume that neither Kara Viviana Footwear nor the outlet shoe store provided any instructions or warnings as to wearing flip-flops. Is Kara Viviana Footwear strictly liable to Nolan for failure to warn of the danger involved in driving while wearing flip-flops?
2. Discuss what is Strict Product Liability
3. Discuss all Prima Facie Case discussed in Section 402A of the Restatement (Second) of Torts
4. Discuss all 6 elements
Unformatted Attachment Preview
PEDAL TO THE SETTLE
It was one of those “dog days” of the summer of 2019 in the Blue View Valley. Temperatures had
been in the low 100 degrees Fahrenheit for the last two weeks. Vivian Hope was at the end of
her rope coping with the heat. Over the hill at the local State Beaches, the daily temperatures for
the last two weeks had been at least 20 degrees cooler than in the Valley. Hope decided to
spend the day at Bright Beach to enjoy the cooler weather and impress other beachgoers with
her new slim figure. For the last several months, Hope had been eating healthy and exercising
daily. In addition, she was eager to show off a stunning yellow polka dot bikini by Federico Dario
and a new pair of Kara Viviana designer flip-flops that she had just purchased from the Kara
Viviana Store during a recent visit to the local mall.
The weather at the beach was just as expected. The skies were a fantastic shade of periwinkle
blue. There was not a trace of pollution in the air; the beach was free of debris; and the coliform
content of the ocean water was within acceptable levels. As she lay on the sand, absorbing the
warmth of the sun, she could smell the wonderful aromas of freshly made buttered popcorn and
cotton candy wafting from the nearby concessions on Bright Pier. Hope could not help but think
that life was good here in paradise.
At day’s end, Hope was on an emotional high. She was feeling as good as she had felt in
months. She decided to head home. Hope had driven to the beach in her new 2019 BMW 4
Series Convertible sports car. Now, with the top down, Hope drove along the coast highway on
her way to the canyon road that would take her over the hills and back into the Valley. While
waiting at a stoplight, Hope was conscious of the stares from occupants of the other vehicles also
waiting at the stoplight. Flattered by the stares and hoping to impress all who could see, she
stepped on the accelerator and started to drive through the intersection at normal speed.
However, as she stepped on the gas pedal, one of the flip-flops Hope was wearing slipped off her
foot and became lodged under the pedal. The automobile continued to accelerate but at a very
rapid rate. Within moments, Hope lost control of the vehicle. In the process, her car crossed the
double yellow line and into oncoming traffic colliding head-on with a car driven by Jacob Nolan.
As a consequence of the accident, Nolan suffered a spinal cord injury resulting in his becoming a
quadriplegic. Nolan’s medical condition is such that he is unable to ever work again. At the time
of his injury: Nolan was 53 years of age; his life expectancy was 77 years of age; he would have
been expected to retire at the age of 65; he was an employee of the United States Postal Service
covered by a union contract projecting his wages to rise by 3.3% per year in real terms plus an
annual Cost of Living Adjustment (COLA) equal to the rate of inflation; and his then current
annual gross salary was $68,000.
Nolan and Hope have each retained legal counsel to represent them in resolving liability issues
that have arisen as a result of the unfortunate circumstances in this case. Nolan has retained Ms.
Emma Summer and Hope has retained Mr. Paxton Rafael.
Required
In preparing for a meeting with Nolan, Ms. Spring has asked your group to evaluate Nolan’s case.
She is particularly interested in the strengths and weaknesses that exist in any lawsuit(s) that
might be filed on behalf of Nolan. Ms. Spring is also interested in the relevance of the information
contained in Table 1 and Table 2 below.
Also, in preparing for the meeting with Nolan and Ms. Summer, your team may want to review the
following: the Friendly Notes article and the Fogel, Wayans and O’Hare cases contained in the
“Pedal to the Settle – Case Library;” business law LDC concepts 2, 4, and 9; financial accounting
LDC concept 7, macroeconomics LDC concept 1; statistics LDC concepts 1, 4, and 7.
Table 1: Government Survey Data
Year
Difference in Accident Rates =
Flip Flops – Other Footwear
1
4%
2
5%
3
3%
4
4%
5
6%
6
5%
7
7%
8
8%
9
7%
10
9%
Table 2: Year-End Consumer Price Index (CPI) for the Years 2009 to 2018
Year
Year-End
CPI Value
2009
214.5
2010
218.1
2011
224.9
2012
229.6
2013
233
2014
236.7
2015
237
2016
240
2017
245.1
2018
PEDAL TO THE SETTLE LIBRARY
MAGAZINE ARTICLE
FASHION
The Flip-Flop Craze
Friendly Notes
January 2009
251.1
Today, it seems that everyone is wearing
flip-flops. Once consigned to the beach or
the locker room, in the last few years flipflops seem to have become the footwear of
choice for an entire generation. Flip-flops
have moved from merely being comfortable
footwear for the beach during the summer
months to everyday wear.
They have
evolved from simple $5 dime and drugstore
apparel to $500 designer “knock-ups;” from
no-name to big name designers, including:
Havaianas, Beverly Feldman, Prada, Bianca
Claudio, Ferragamo, and Fontz de Leon;
and from strictly apparel for play to being
acceptable at work and formal social
settings. “There’s a real craze for flip-flops
right now,” says Ron Walko, vice president
of marketing at Bianca Claudio Footwear,
“our sales have tripled in the last two years.”
Despite the increased popularity and
apparent widespread acceptance of this foot
fashion, some are expressing health and
safety concerns stemming from wearing this
type of footwear. From a health perspective,
podiatrists are concerned because of the
lack of support to the bottom of the feet
when wearing flip-flops. Because of the
absence of support the foot lacks stability,
leading to sprains, breaks and falls.
In
addition, the thin soles provide no shockabsorbing qualities to feet and legs placing
strain on the arch, ankle, hips and lower
back.
Podiatrists suggest that flip-flops
should be worn only for short periods of time
and not as primary footwear.
In a recent study presented at the annual
meeting of the American College of Sports
Medicine, researchers at Auburn University
found that flip-flops actually alter the way
wearers walk.
That change in gait can
cause persistent foot and ankle pain.
Researchers also found that flip-flop
wearers take shorter steps, resulting in more
stress on the body because you have to
move more to go the same distance as
people wearing other kinds of shoes.
According to Dr. Anthony Sanchez of the
University of Texas, “that leads to a higher
risk of muscle and joint pain in the legs,
along with tenderness in your toes due to
the constant pressure due to “scrunching”
your toes tightly to keep the flip-flop on your
foot.”
Flip-flops may also not be the best choice
for safety reasons. Regular wearers of flipflops often find that they are awkward
footwear for climbing steps, running, or
doing anything else in which the use of
one’s feet are involved. Last summer, a
woman wearing flip-flops while shopping at
the Mall of America in Minneapolis singlehandedly shut down an escalator when one
of her flip-flops became lodged in a moving
step.
A man in Atlanta crashed into a
storefront window when he lost control of his
bicycle while wearing flip-flops. One of the
flip-flops he was wearing had slipped off his
foot and jammed up the bike chain.
Automobile safety experts warn that driving
in loose-fitting footwear is dangerous
because the sole can easily get caught
under the brake, clutch or accelerator pedal
resulting in a fatal accident. A poll by the
insurer Eastwich Union appears to confirm
these warnings. A survey of 1,000 drivers
found that a quarter of the drivers indicated
that they regularly drive wearing flip-flops.
In addition, nearly three-quarters of the
motorists surveyed admitted that they found
it difficult to drive when wearing flip-flops.
“Being in control of your car when driving is
essential. However, many of us are ignoring
safety advice when it comes to the shoes we
wear when driving,” said Richard Ponce,
motor marketing manager at Eastwich
Union. He added that “footwear such as flipflops are dangerous as the sole can get
caught under a pedal during a simple gear
change, when applying the brake or
accelerator, or even when simply moving the
foot from a pedal to another. The absence
of ankle support can lead to the foot slipping
off the pedal altogether.” Wearing shoes
suitable for driving, without question, is an
important part of safe driving.
Flip-flops may be the signature statement of
a new generation, but they may not be
sensible shoes for all occasions.
Dr.
Sanchez summed it up best when he added:
“Just because something’s fashionable
doesn’t mean it’s practical or safe for that
matter.
FERN A. FOGEL, Appellee-Plaintiff, vs. GET ‘N GO MARKETS, INC., Appellant-Defendant
COURT OF APPEALS OF GOULD, FIRST DISTRICT70 Gou.App.3d 1048, 23 P.3d 1480
July 4, 2006, Decided
PRIOR HISTORY: APPEAL FROM THE VANDENBURGH SUPERIOR COURT. The Honorable
Minerva McGonagal, Judge.
DISPOSITION: Affirmed.
JUDGES: RAVENCLAW, Judge. HUFFLEPUFF, J., and SLYTHERIN, J., concur.
OPINION BY: RAVENCLAW
OPINION:
Get ‘n Go Markets, Inc. appeals the trial court judge’s denial of its motion for a directed verdict
and motion for judgment n.o.v. We affirm.
Issues
The dispositive issue to our review of this appeal is whether Get ‘n Go Markets, Inc. owed a duty
to Fogel and if so, whether that duty was breached.
Facts
On the morning of April 1, 2000, Fern A. Fogel received extensive lacerations as the result of
walking into and through a large glass panel which formed the front of the building in which Get ‘n
Go Markets, Inc., operated a supermarket. Fogel sued Get ‘n Go Markets for damages in the
Gould state court where the cause was tried and a jury verdict rendered in favor of plaintiff.
Defendant filed a motion for a directed verdict at the close of all the evidence, and also filed a
motion for judgment n.o.v.
At this point and before proceeding to consideration of the issues presented by this appeal, we
indulge in a resume of the pertinent facts. Get ‘n Go Market is a self-service grocery store in
Johnson County, Gould. The building faces east, and the front or east portion thereof is
constructed of four transparent plate glass panels, each about ten feet square. The two center
panels were in fact sliding doors but were no different in appearance from the two stationary
panels. The sliding doors were closed on the morning in question. The only other front entrance
to the store was through a door located in the north portion of the front of the building. This door
was perpendicular to the glass front and was behind a brick wall which ran parallel to the front of
the store and extended out in front of the door approximately one foot. A soft drink vending
machine was also in front of the north door, and the wall and vending machine caused the north
door to be hidden from the view of a person approaching the front of the building, until the person
was approximately six feet from the glass front. There were no signs or markings of any kind on
the glass panels on the morning of the litigated occurrence and the glass was spotlessly clean.
Plaintiff stopped her automobile with the front facing the vending machine. She got out of the
automobile eighteen or twenty feet from the front of the store and proceeded toward the building
intending to enter the store not to make a purchase but to use its restroom facilities. From the
testimony, the jury was warranted in finding that as plaintiff approached the store she was walking
at a normal gait and with her head up; that although she was looking ahead, she did not see the
glass or its bordering metal frame and saw no reflections from lights or identifying marks of any
kind on the glass. She did not realize until she crashed through the glass, that what she thought
was the entrance to the store was in fact a solid plate glass panel. Defendant assets that plaintiff
failed to make a submissible case and that the court erred in failing to grant its motion for a
directed verdict and motion for judgment n.o.v.
In order to prevail in a claim for negligence,
the plaintiff must establish several points,
referred to in the law as a prima facie case.
The prima facie case for negligence requires
that the plaintiff prove: (1) that a duty was
owed to the plaintiff; (2) that defendant
breached that duty; (3) that the breach
actually (in fact) and legally (proximately)
caused; (4) plaintiff to suffer damage.
Defendant contends that under all of the
evidence favorable to plaintiff and giving to
plaintiff the benefit of all reasonable
inferences, it conclusively appears that
defendant did not owe a duty to plaintiff
since the evidence is clear that the plaintiff
was merely on the premises for the sole
purpose of using the defendant’s restroom
facilities and not to purchase any item(s)
from the store.
In addition, defendant
contends that a sign was posted on the door
of both the men’s and women’s restroom
conspicuously stating “RESTROOM
FACILITIES RESTRICTED TO USE BY
PATRONS ONLY.” The defendant further
contends that if a duty was owed, defendant
did not breach that duty; that defendant was
not guilty of any actionable negligence, and
the issue of liability should not have been
presented to the jury.
A. DUTY
We first address the argument that no duty
was owed to the plaintiff. In our state the
question of the existence of a duty is one for
the court to determine.
In making that
determination Gould courts analyze three
factors in determining whether to impose a
duty at common law: (1) the relationship
between the parties, (2) the reasonable
foreseeability of harm to the person injured,
and (3) public policy concerns.
The
existence of any one of these factors is
sufficient for a court to impose a duty.
Northern Gould Public Service Co. v. Patil, 1
Gou.3d 462, 466 (Gou. 2000). We consider
each of these factors in turn.
1.
T HE R ELATIONSHIP B ETWEEN
PLAINTIFF AND DEFENDANT
THE
The defendant contends that there was no
relationship between it and the plaintiff in as
much as the plaintiff was not a customer nor
prospective customer but was a trespasser.
The evidence is undisputed that the sole
purpose for plaintiff’s intent to enter upon
defendant’s premises was to use the
restroom facilities.
A duty of reasonable care is “not, of course,
owed to the world at large,” but generally
arises out of a relationship between the
parties.” Seamus v. Lavender, 104 Gou.2d
929, 931 (Gou. 1991). Fogel was not a
customer of Get ‘n Go and there is no direct
contractual relationship between Fogel and
Get ‘n Go. However, the absence of a direct
contractual relationship does not mean that
no duty exists.
2.
THE REASONABLE FORESEEABILITY OF
HARM TO THE PLAINTIFF
The most important of these considerations
in establishing duty is foreseeability of harm
to the plaintiff. As a general principal, a
“defendant owes a duty of care to all
persons who are foreseeably endangered by
his conduct, with respect to all risks which
make the conduct unreasonably dangerous.”
(citation omitted).
In the instant case
patrons of the store are clearly foreseeable.
In addition, defendants posting of the sign
on the restroom doors restricting use to
“PATRONS ONLY” clearly demonstrates that
plaintiff’s presence on the property was
foreseeable. Otherwise, what purpose of
the defendant is to be served by the posting
of such a notice?
The designation of an individual as a
business “invitee” or “licensee” or
“trespasser” was abolished by our Supreme
Court in the case of Rowling v. Christianson,
120 Gou. 2d 180 (1998).
Thus, the
existence or non-existence of the duty
imposed on the proprietor of a business
establishment toward individuals who may
come upon his premises is not contingent on
whether the individual is classified as an
invitee, licensee or trespasser. Following
Rowling, a business proprietor is under a
duty to use due care to keep in a reasonably
safe condition the premises where
individuals may be expected to come and
go; if there is a dangerous place on the
premises, the business owner must
safeguard those who come thereon by
warning them of the condition and risk
involved. “The true ground of liability is the
proprietor’s superior knowledge of the
dangerous condition over individuals who
may come upon the property and his failure
to give warning of the risk.” Id. at 187.
3. PUBLIC POLICY CONCERNS
There are numerous points that are
considered in the area of public policy
concerns. Among the points are: the moral
blame attached to the defendant’s conduct;
the extent of the burden to the defendant
and consequences to the community of
imposing a duty to exercise care with
resulting liability for breach, the policy of
preventing future harm; and the availability,
cost and prevalence of insurance for the risk
involved.
Although a business owner is not an insurer
against all accidents that may befall him
upon the premises, in the instant case we
believe that the burden placed upon the
defendant by imposing a duty to exercise
care is slight. In addition, we believe that
the policy of preventing future harm and the
availability of insurance to cover the risk
involved in this case require a finding that
Get ‘n Go owed a duty to Fogel. The trial
court was not in error in instructing the jury
as to that point.
B. BREACH OF DUTY
Defendant argues that even if this court
were to find that defendant owed a duty to
Fogel it nevertheless is not liable for Fogel’s
injuries because it did not breach that duty.
Courts approach the question of breach of
duty in several ways.
However, these
various approaches generally attempt to
measure three things: (1) the probability of
the accident’s occurring; (2) the magnitude
or gravity of the injury suffered by the
plaintiff if an accident occurs; and (3) the
burden placed on the defendant to take
adequate precautions to avert the accident.
Judge Learned Hand, in the case of United
States v. Carroll Towing Co., 159 F.2d 169
(Second Circuit, 1947), attempted to give
content to a relatively simple concept of
determining whether a defendant had
breach a duty – failed to exercise ordinary
care- owed to the plaintiff. Hand’s attempt
to explain the notion of ordinary care using
these three criteria was stated “in algebraic
terms: if the probability be called P; the
injury, L; and the burden, B; liability depends
upon whether B is less than L multiplied by
P: i.e., whether B < PL.” In economic terms
multiplying the cost of an accident if it occurs
by the probability of its occurrence provides
a measure of the benefit than can be
anticipated from incurring the costs
necessary to prevent the accident (the
benefit of not having to pay out tort damages
outweigh the costs incurred to prevent the
accident from occurring).
The cost of
prevention is what Hand meant by the
“burden of adequate precautions” against
the accident. It may be the cost of making
the activity safer, or the benefit forgone by
curtailing or eliminating the activity. If the
cost of safety measures or curtailment whichever cost is lower - exceeds the
benefit in accident avoidance to be gained
by incurring that cost, an enterprise would
be better off, in economic terms, to forgo
accident prevention.
A rule making the
enterprise liable for the accidents that occur
in such cases cannot be justified on the
ground that it will induce the enterprise to
increase the safety of its operations. When
the cost of accidents is less than the cost of
prevention, a rational profit-maximizing
enterprise will pay tort judgments to the
accident victims rather than incur the larger
cost of avoiding liability. If, on the other
hand, the benefits in accident avoidance
exceed the costs of prevention, the
enterprise is better off if those costs are
incurred and the accident averted, and thus
the enterprise is made liable, in the
expectation that self-interest will lead it to
adopt the precautions in order to avoid a
greater cost in tort judgments.
It is important to note that Hand’s evaluation
of the breach of duty in algebraic terms was
not intended to convey the notion that the
three factors are easily quantifiable and
produce precise results. What can be said
about the process is this: as the probability
for injury and or the severity of the injury
increases, the burden imposed or the cost
that must be incurred by the defendant, to
avoid being deemed as having breached a
duty owed to the plaintiff, also increases.
1.
P ROBABILITY
OCCURRING
OF
THE
A CCIDENT
Apparently, the Gould Supreme Court has
not had occasion to deal with a plate glass
case, but other jurisdictions have. Cases
where plaintiff recovered for injuries
resulting from contact with plate glass walls
or doors are numerous (citations omitted).
In addition, the question of liability for
injuries resulting from contact with plate
glass walls or doors is the subject of an
Annotation in the American Law Reports
(citation omitted).
Here, plaintiff, a citizen of our neighboring
state of Grace returning home from a
vacation, was a complete stranger to the
defendant's premises and had never seen
the market before.
The invisibility of
transparent glass, by its very nature, is likely
to deceive the most prudent person,
particularly where, as here, the construction
was designed to give the market an open
front appearance. Furthermore, as noted
the north entrance door was obscured from
view by the wall and vending machine and
was not readily discernible until one
approaching the glass front was within six
feet thereof. The jury was not required to
speculate as to the dangerous and unsafe
condition created by the glass front. There
was evidence to that effect.
A former
employee of defendant testified that during a
period of eight months he observed four or
five persons come in contact with the glass
front and 'bounce off'. A safety engineer
testified it was a hazardous arrangement,
and detailed the methods that could have
been employed to correct the lack of
visibility of the glass.
2.
THE MAGNITUDE OF INJURY
There is little doubt that one may suffer
injury from accidental contact with a plate
glass wall or door. The extent of that injury
may certainly vary in range from no injury at
all to slight to moderate to severe life
threatening injury and even death. Our prior
reference to cases where plaintiff recovered
for injuries resulting from contact with plate
glass walls or doors cases or recovery and
the American Law Reports on the subject
confirm this belief.
3.
THE BURDEN
OF
A D E Q U AT E
PRECAUTIONS
To be sure, transparent plate glass is
recognized as a suitable and safe material
for use in construction of buildings, indeed, it
is common knowledge that such glass is
used rather extensively in commercial
buildings. However, it seems to us that the
number of reported cases, some of which
are cited infra, involving personal injuries
from bodily contact with transparent glass
doors and walls is some indication that with
the advantages that may be derived from
such construction are concomitant risks
which the proprietor must assume.
However, in the present case, the danger
incident to the use of transparent plate glass
may be significantly lessened by the
placement of a sticker on the glass that
would alert individuals to the presence of the
glass. Interference with the architectural
aesthetics of construction using transparent
plate glass is so slight that it is outweighed
by the danger to be anticipated from a
failure to use it.
Thus, given the relatively high probability of
injury and the significant severity of that
injury when compared to the nominal cost to
the defendant of adequate precautions to
prevent the injury, we find no error in the
jury’s conclusion that Get ‘n Go breached
the duty it owed to Fogel.
Without further discussion, we conclude and
hold that there was substantial evidence
from which the jury could find: (1) that the
glass front constituted a dangerous and
unsafe condition; (2) that plaintiff was
exercising ordinary care for his own safety;
(3) that there was a duty on the part of
defendant to warn its patrons of the
condition and (4) that defendant breached
its duty.
The judgment is affirmed.
GLENN WAYANS, Plaintiff/Appellee v.
ALBERT LANDON, Defendant, and
BLACK & DECKER CORPORATION,
Defendant/Appellant
Supreme Court of the State of Gould
35 Gou.3d. 1492, 895 P.2d 718 (1995)
May 1, 1995, Decided.
HUNTLEY, Associate Justice.
This is an appeal from the Order of the
Superior Court of Cronkite County of
October 10, 1994 denying the defendant
Black & Decker Corporation’s motions for
judgment notwithstanding the verdict and for
a new trial.
I. Facts
The critical facts are not in dispute. On
March 15, 1994, Albert Landon purchased a
new Lawn Wizard lawn mower from Sears,
Roebuck & Co. Sears, Roebuck is not a
party to this dispute.
The mower was
manufactured by Black & Decker
Corporation, a manufacturer of consumer
power tools, hardware, and home
improvement products. On the morning of
March 21, 1995, Landon was using the
mower to mow the front lawn of his home as
Wayans was walking on the sidewalk
abutting Landon’s front lawn.
Suddenly,
while he was passing approximately 15 feet
from Wayans, Landon heard a “click” sound
and turned to see Wayans cry out and put
his hand over his eye. Landon immediately
called for emergency medical assistance.
Subsequently, Landon and the emergency
personnel discovered that Wayans had been
struck in the eye by a small plastic toy
soldier that belonged to Landon’s son.
Apparently, the toy had been left on the lawn
by Landon’s son and had not been removed
before Landon began mowing the lawn.
When the mower passed over the toy, it was
picked up and ejected it at high velocity,
blinding Wayans’ right eye.
The parties
have stipulated that there was no warning as
to the risk of such an injury included in the
owner’s manual.
Wayans filed suit against Landon and Black
& Decker, asserting a claim for negligence
against Landon and a claim in strict tort
liability against Black & Decker, asserting
that the mower was unreasonably
dangerous on the basis that Black & Decker
failed to provide warnings to purchasers as
to the risk of injury from small objects that
might be ejected from under the mower.
Following trial, the jury returned a verdict in
favor of Wayans and against Landon and
Black & Decker. Defendant Black & Decker
filed motions for judgment notwithstanding
the verdict and for a new trial.
Judge
Edward Murrow issued an order denying
those motion and defendant appealed. The
Court of Appeals affirmed and we granted
review upon defendant’s petition.
As to Black & Decker, at trial plaintiff
asserted that the mower was unreasonably
dangerous on the grounds that defendant
failed to warn that it was capable of
randomly discharging foreign objects. The
defendant responded by presenting
evidence, and arguing, that the conduct of
co-defendant Adam Landon constituted the
sole cause of plaintiff’s injury.
The
defendant also presented expert opinion
evidence that the failure to warn of a readily
observable danger was not unreasonably
dangerous. The jury entered a verdict in
favor the plaintiff in the amount of $1.1
million. Both defendants filed motions for a
judgment notwithstanding the verdict and for
a new trial. Judge Murrow issued orders
denying the motions of both defendants.
Defendant Black & Decker appealed to the
Court of Appeals, which affirmed, and we
granted review upon petition.
II. Applicable Law
Plaintiff’s claim is grounded in strict tort
liability. As distinguished from negligence,
which involves a failure to exercise
reasonable care, strict liability does not
require proof of intent, carelessness,
recklessness, or any other fault.
In the
context of strict liability claims involving
injuries from defective products, we have
adopted section 402A of the Restatement
(Second) of Torts, which states:
(1) One who sells any product in a defective
condition unreasonably dangerous to the
user or consumer or to his property is
subject to liability for physical harm thereby
caused to the ultimate user or consumer, or
to his property, if
(a) the seller is engaged in the business
of selling such a product, and
(b) it is expected to and does reach the
user or consumer without substantial
change in the condition in which it is
sold.
(2) The rule stated in Subsection (1)
applies although
(a) the seller has exercised all possible
care in the preparation and sale of his
product, and
(b)
the user or consumer has not
bought the product from or entered into
any contractual relation with the seller.
The unreasonable dangerous condition must
have caused the plaintiff’s injury or damage.
A seller’s liability for personal injury or
property damage caused by defective
products extends not only to the “ultimate
user or consumer,” but also to bystanders
and others who are injured by the product.
See William L. Prosser, The Fall of the
Citadel, 50 MINN. L. REV. 791 (1966).
Unlike negligence, strict liability does not
require proof of a breach of the duty of care.
Among the justifications for imposing strict
liability without proof of negligence on the
manufacturers and sellers of products is that
consumers are less able to inspect products
and determine their safety. Thus, “public
policy demands that the burden of
accidental injuries caused by products
intended for consumption be placed upon
those who market them, and be treated as a
cost of production against which liability
insurance can be obtained ... .” Restatement
(Second) of Torts § 402A, cmt. c (1965).
The cost of injuries caused by defective
products is imposed on manufacturers and
sellers since they can spread the cost of
insurance on to all consumers in the prices
charged for their products. Therefore, strict
liability for defective products may result
even though the seller has exercised all
possible care in the preparation and sale of
his product ... .” Restatement (Second) of
Torts § 402(A)(2)(a) (1965).
For an injured plaintiff to recover in strict
liability, the injury must result from a
defective condition of the product, the
condition must be unreasonably dangerous,
and the condition must have existed at the
time the product left the manufacturer’s
control. A product is defective if it contains
some flaw or deficiency that renders it
unreasonably dangerous. The defect may
arise from faulty manufacturing or design of
the product, or through a failure to warn of a
potential danger associated with the
product.
A manufacturing defect occurs when a
product is imperfectly built or assembled.
Examples include a bottle of soda pop
containing a shard of glass or an electrical
saw with missing bolts. A design defect
results when an entire product line contains
some harmful imperfection or shortcoming
making those products hazardous in their
normal use. For instance, an automobile
that is prone to catch fire on impact or a
farm tractor that easily tips over on uneven
ground.
Finally, a failure to warn defect arises where
the manufacturer has failed to alert the user
of a risk of potential harm in using the
product where the danger is not reasonably
observable by the user. For example, a
failure to warn of the potential side effects of
a drug or a failure to warn that a cleaning
product might cause severe skin irritation.
The purpose of a warning is to draw a
reasonably prudent person’s attention to a
danger in using a product and how to avoid
it. Strict liability attaches “only where the
product is, at the time it leaves the seller’s
hands, in a condition not contemplated by
the ultimate consumer, which will be
unreasonably dangerous to him.”
Restatement (Second) of Torts § 402A, cmt.
g (1965).
Whether a failure to warn
amounts to an unreasonably dangerous
defect turns on whether the product is
“dangerous to an extent beyond that which
would be contemplated by the ordinary
consumer who purchases it, with the
ordinary knowledge common to the
community as to its characteristics.”
Restatement (Second) of Torts § 402A, cmt.
i (1965). Accordingly, we must consider the
reasonable expectations of the ordinary
consumer as to the danger involved in using
the product in the absence of adequate
warnings for safe use. With these principles
in mind, we turn to the case at hand.
III. Analysis
The defendant contends that it was not
obligated to furnish a warning to the plaintiff
of the hazard to himself or others from
passing the mower over small foreign
objects while in use.
In support of this
assertion, the defendant argues that it
offered for sale an attachable refuse bag to
collect grass cuttings during operation of the
mower, and that this, combined with the
easily observable fact that grass is cut by a
high speed rotary blade and that the cuttings
are discharged from side of the mower was
sufficient to warn of the danger. We note
that the
