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¡PROF.  CRAIG CHARLES BELES
¡Seattle, Washington, USA

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TRADITIONAL THEORIES IN SUPPORT OF PRODUCTS LIABILITY
1.NEGLIGENCE
2.STRICT LIABILITY
3.BREACH OF WARRANTY
4.MISREPRESENTATION
THREE KINDS OF PRODUCT DEFECTS
1.MANUFACTURING (ONE-OFF)
2.DESIGN
3. WARNING (INSTRUCTIONS)
1.

A product seller “who sells a product in a defective condition unreasonably dangerous to the user
or consumer or his property is strictly liable.”
“Defective Condition” – Manufacturing, (Design or Warning)
“Unreasonably Dangerous” – Whether the article sold 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.”
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Slightly Different Test Than For Manufacturing Defect:
More Like Negligence But With Focus on Product Instead of D’s Conduct
“RISK/UTILITY” TEST:  A Product is Defective Only Where the Magnitude of the Hazards Outweigh the
Utility of the Product as Sold or the Broader Benefits of the Product.
Factors to Consider In Balancing Risks Against Utility and Cost:
1.Utility of the Product to Public & User
2.Nature of Product, i.e., Likelihood It Will Cause Injury
3.**Availability of Safer Design or Adequate Warning**
4.Whether Safer Design or Warning Would Permit Product to Remain Functional & Affordable
5.Ability of Pl to Avoid Injury By Careful Use
6.Obviousness of Danger
7.Seller’s Ability to Spread the Cost of Making the Product Safer

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MANUFACTURING DEFECT - When the product departs from its intended design even though all possible
care was exercised in the preparation and marketing of the product.
DESIGN DEFECT - When the foreseeable risks of harm posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative design by the seller . . . and the omission of
the reasonable alternative design renders the product not reasonably safe.
WARNING DEFECT - When the foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the seller . . . and the
omission of the instructions or warnings renders the product not reasonably safe.

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Comment d to [section] 2 of the Third Restatement defines reasonable alternative product design in
terms of the "risk-utility balancing test." The test is "whether a reasonable alternative design
would, at a reasonable cost, have reduced the foreseeable risk of harm posed by the product and, if
so, whether the omission of the alternative design by the seller ... rendered the product not
reasonably safe."

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Factors include:
1.Magnitude and probability of the foreseeable risks of harm;
2.Instructions and warnings accompanying the product;
3.Consumer expectations regarding the product and
4. Relative advantages of the alternative design, including:
•production costs,
•effect on product longevity,
•maintenance,
•repair, and
•aesthetics; and
•the range of consumer choice among products.

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Goods to be Merchantable must be at least such as
(a)pass without objection in the trade under the contract description;
(b)in the case of fungible goods, are of fair average quality within the description;
(c)are fit for the ordinary purposes for which such goods are used;
(d)run, within the variations permitted by the agreement, of even kind, quality and quantity within
each unit and among all units involved;
(e)are adequately contained, packaged, and labeled as the agreement may require;
(f)conform to the promise or affirmations of fact made on the container or label if any.

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Where the seller at the time of contracting has reason to know any particular purpose for which the
goods are required and that the buyer is relying on the seller's skill or judgment to select or
furnish suitable goods, there is, unless excluded or modified under the next section, an implied
warranty that the goods shall be fit for such purpose.

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THREE ALTERNATIVES OFFERED IN UCC § 2-318
MOST RESTRICTIVE & ENACTED IN 28 STATES:
ALTERNATIVE A
A seller's warranty whether express or implied extends to any natural person who is in the family
or household of his buyer or who is a guest in his home if it is reasonable to expect that such
person may use, consume or be affected by the goods and who is injured in person by breach of the
warranty. A seller may not exclude or limit the operation of this section.

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One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to
the public a misrepresentation of a material fact concerning the character or quality of a chattel
sold by him is subject to liability for physical harm to a consumer of the chattel caused by
justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or
negligently, and (b) the consumer has not bought the chattel from or entered into any contractual
relation with the seller.

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ELEMENTS OF TORT:
1.DEFAMATORY STATEMENT
Holds PL up to Scorn, Ridicule or Contempt (Immoral or Criminal)
Interpreted by a Substantial Respectable Minority
May Use Extra Facts “Inducement” or Explanation “Innuendo”
2.ABOUT THE PLAINTIFF
Intent is Irrelevant
May Use Extra Facts to Connect to Pl “Colloquim”
Can be Group Defamation
1.
3.PUBLISHED TO THIRD PARTY
Need Intent or Negligence

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SLANDER = ORAL
LIBEL = WRITTEN (OR MORE PERMANENT FORM)
LIBEL = DAMAGES PRESUMED
SLANDER = REQUIRED PROOF OF DAMAGES, UNLESS
SLANDER PER SE
1.COMPETENCE TO PERFORM TRADE OR PROFESSION
2.CURRENT LOATHSOME DISEASE
3.SERIOUS CRIMINAL BEHAVIOR
4.SERIOUS SEXUAL MISCONDUCT