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Dynamic business law 4e kubasek 4e CH10 1

Chapter 10
Product Liability

Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGrawHill Education.

• LO10-1: What are the theories of liability in
product liability cases?
• LO10-2: What is market share liability?


Chapter 10 Hypothetical Case 1
• Halftime in the football game on a Sunday afternoon means time for food at Charlie Masterson's
house, and Masterson is ready for his favorite, a tuna sandwich and potato chips. Particularly
hungry today, Masterson spreads a full can of his preferred brand of tuna, Turkey of the Ocean, on
whole wheat bread. The third quarter is about to start, so Charlie rushes to the living room to
cheer his favorite multi-millionaires in uniform to victory.
Three bites into his tuna sandwich, Masterson experiences a sickening crunch in his mouth. He

spits out remnants of the tuna sandwich, portions of at least one pearly white molar, and a piece
of glass that undoubtedly came from the tuna can.
After recovering from the initial shock, Masterson rushes to the kitchen to retrieve the empty tuna
container. In fine print on the can is the name and location of the tuna manufacturer, Turkey of the
Ocean Tuna Processing Company, Inc., of Seattle, Washington. Just last week, Masterson had
purchased the can of tuna from his local Food Panther grocery store in Portland, Oregon.
• After the pain and emotional shock of the episode, as well as over $2,000 in dental treatment,
Masterson wants to sue both the manufacturer of the tuna, Turkey of the Ocean Tuna Processing
Company, Inc., and the grocery store where he purchased the tuna, Food Panther Grocery Stores,
Incorporated. Assess the likelihood of Masterson recovering from the tuna manufacturer and/or
the grocery store.


Chapter 10 Hypothetical Case 2
• As Chapter 10 indicates, in a strict product liability action, courts may hold a
manufacturer, distributor, or retailer liable for any reasonably foreseeable
injury to a party, including the buyer, the buyer's family, guests, friends, and
foreseeable bystanders. In a strict product liability lawsuit, the actions of the
manufacturer or seller are irrelevant. Duty and breach of duty are also
irrelevant; instead, strict liability focuses on the product. The sole issue
before the court in a strict liability action is whether the product that injured
the plaintiff was in an unreasonably dangerous, defective condition when it
was sold.
• As part of the plaintiff's burden of proof in a strict product liability action,
should not the plaintiff be required to demonstrate fault (for example,
negligence or recklessness) on the part of the defendant in the design,
manufacture and/or sale of the product? Why or why not?

Theories of Liability for Defective
Products: Overview
• Three theories of recovery for product
• Negligence
• Strict liability
• Breach of warranty

• A product may be defective through:
• Manufacturing defect
• Design defect
• Inadequate warnings


Proof of Negligence
• The plaintiff must show:
• Defendant manufacturer/seller owed duty of
care to plaintiff
• Defendant breached duty of care by supplying
defective product
• Defendant's breach of duty caused plaintiff's
• Plaintiff suffered actual injury

Negligence Summary
• Who can sue: Any foreseeable plaintiff
• Who can be liable: Any commercial supplier in
distribution chain
• Defenses available include:

Assumption of the risk
Comparative/contributory/modified comparative negligence
Compliance with federal laws

• Damages recoverable:
• Personal injuries
• Property damages


Proof of Strict Liability
• The plaintiff must show:
• Product defective when sold
• Product was so defective that it was
unreasonably dangerous
• Product caused plaintiff's injury


Strict Liability Summary
• Who can sue: Anyone harmed
• Who can be liable: Any commercial supplier in
distribution chain
• Defenses available include:
• Product misuse
• Assumption of the risk
• Lapse of time

• Damages recoverable:
• Personal injuries
• Property damages


Breach of Warranty Summary
• Warranty: A guarantee or binding promise
regarding a product
• Who can sue: Privity required (injured party
must be buyer, buyer's family, or buyer's guest)
• Who can be liable: Any seller
• Defenses available include:
• Assumption of the risk
• Product misuse
• Disclaimer

• Damages recoverable: Economic only


Proof of Express Warranty
• Plaintiff must show:
• Representation was basis for the bargain
• Breach of representation


Implied Warranty of Merchantability and Implied
Warranty of Fitness for a Particular Purpose
• Warranty of merchantability:
Plaintiff must show:
• Goods are fit for purpose for which they are sold and
used, i.e., goods are fit for ordinary use

• Warranty of fitness for a particular purpose:
Plaintiff must show:
• The seller had knowledge of the customer's specific
• Customer relies upon seller's expertise to select
product that will satisfy customer's particular purpose


Market Share Liability Theory
• When plaintiffs cannot trace product to any particular
manufacturer, and several manufacturers produced same
product, court may use theory to impose portion of fault on
number of manufacturers


Chapter 10 Hypothetical Case 3
• Samantha Abramowitz, a student at Orange Community College, is hungry and late for a 12:00
business law class. She stops at Harry's Hop-In, a local convenience store, in a hurry to find lunch
and determined to arrive at the class no later than 12:15. Abramowitz purchases a pre-packaged
barbeque sandwich, heats it in the microwave, and hurriedly heads for her car.
Upon arriving at the college parking lot, Abramowitz unwraps the cellophane from her sandwich,
bites down, and hears a sickening cracking sound. Looking in her rear-view mirror, she realizes in
horror that her front two teeth are broken.
Upon examining the sandwich, Abramowitz finds the remnants of her front two teeth, barbeque,
and a hard, rounded substance. Closer examination leads her to conclude it is a ½-inch-long
portion of a pig bone. Having learned to preserve evidence in her business law class, Abramowitz
retains the remainder of the sandwich, her broken teeth, the receipt from the convenience store
(documenting that one barbeque sandwich had been purchased from Harry's Hop-In Convenience
Store at 12:05 p.m. on August 28), and the sandwich's cellophane wrapping, depicting the name
of the manufacturer of the sandwich, The Potbellied Pig Barbeque Company.
• Does Abramowitz have a viable cause of action against the convenience store? Does she have a
viable cause of action against the sandwich maker? Is it relevant that bone is a natural part of the
pig? Is it relevant whether the sandwich manufacturer complied with industry standards (including
product safety standards) in the production of the sandwich?


Chapter 10 Hypothetical Case 4
• Quartile Demolition was awarded a contract to demolish
a building on a busy New York City street to make way for
a new skyscraper. During the demolition of the building,
the chain holding the wrecking ball broke loose. The
wrecking ball's momentum sent it into a neighboring
building, where it knocked a large hole in a space that
contained a day care center. One child was killed and
several others were injured by flying debris.
• Is this a case of negligence or strict liability? Explain your
response in detail.


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