Business Law Report - Product Liability

Product Liability Law 2011
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EXECUTIVE SUMMARY

The following report discusses the laws relating to product liability and manufacturer product
liability. For the purpose of the report, it is broken up into five main categories of product
liability, namely; Manufacturing defects, design defects, negligence, strict tort liability and
breach of warranty (both express and implied). Cases that had an impact on each form of
product liability are discussed with their details and eventual decision.
Further, in order to analyze the differences in product liability law around the world, we have
used two countries, the United States of America and the United Kingdom. For
manufacturing defects, Australia has been used instead of the UK. This will enable a
comparison on how the law varies from the two countries and how it affects businesses
operating in their markets.
Finally, we will discuss the avenues that an organization can take to defend against
allegations of breach of product liability with each possibility explored into detail.


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Table of Contents
EXECUTIVE SUMMARY ............................................................................................................................ 1
1. INTRODUCTION ............................................................................................................................... 4
Product liability ................................................................................................................................... 4
History of product liability .................................................................................................................. 4
2. PRODUCT LIABILITY CLAIMS ............................................................................................................ 5
2.1 Manufacturing defects and Design defects ............................................................................ 5
The Law Governing Defective Products ......................................................................................... 6
Planned or unplanned defects ......................................................................................................... 6
Manufacturing defects (Australia) .................................................................................................. 9
2.2 Design defects ......................................................................................................................... 9
Cases for manufacturing defects .................................................................................................. 10
Design Defects in Automotive Products Liability Cases ................................................................ 11
2.3 Negligence ............................................................................................................................. 12
What is negligence? ...................................................................................................................... 12
Negligence Cases ........................................................................................................................... 12
Product liability negligence: USA .................................................................................................. 12
Product liabilities: ENGLAND ........................................................................................................ 13
Comparison of the Product Liability System: Negligence ............................................................. 13
A Comparative Study of Product Liability of the United States .................................................... 14
How to Prove Negligence .............................................................................................................. 15
U.S.-U.K. CASE LAW COMPARISON ............................................................................................ 16
Manufacturing defects: Negligence .............................................................................................. 16
2.4 Strict tort liability .................................................................................................................. 18
Case of Strict product liability ....................................................................................................... 19
2.5 Breach of warranty ............................................................................................................... 21
Express Warranty .............................................................................................................................. 21
Breach of express warranty .......................................................................................................... 22
Breach of Implied warranty .............................................................................................................. 24
3. VARIOUS DEFENSES TO PRODUCT LIABILITY................................................................................. 28
Statute of limitations ........................................................................................................................ 28
Statutes of repose ............................................................................................................................. 28

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Federal preemption .......................................................................................................................... 28
Unavoidable danger .......................................................................................................................... 29
Contributory negligence ................................................................................................................... 29
Intervening or superseding negligence ............................................................................................. 30
Failure to mitigate ............................................................................................................................. 30
REFERENCES .......................................................................................................................................... 31


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1. INTRODUCTION

Product liability
The product liability provisions of the Trade Practices Act allow persons who suffer injury or
loss as the result of a defective product to sue for compensation against the supplier of that
product. A product is defective if it does not meet the level of safety that the public should
expect. The level of safety will be different from case to case and it is ultimately for the court
to decide whether a product is defective or not.
History of product liability
Prior to the year 1900, American businesses did not need to worry about having product
liability insurance in place in case a consumer sued over a faulty or unsafe product. The
theory of being financially responsible for damages or injury caused by a product and the
need to have a business covered by an insurance plan that catered to liability insurance for
product related claims comes from the industrial revolution.
Before machinery started producing quantities of consumer goods for sale, starting in the
early 1900s, consumers were expected to use their own judgment on if a product was well
made or not. Quality craftsmen existed during this period of time, and they took pride in
making individual products for sale.
As automobiles became popular after World War One, and factory production started
including a labor force interested in running machines, the notion of product liability
insurance started to become a thought that would still take years to develop. During the 1920s
and 1930s early factory machinery did produce flawed items now and then.
Between the early 1900s and the beginning of the 1940s, consumers were buying products
based upon a long-time theory of intelligence. It was assumed that consumers could tell when
a product might be hazardous to buy, own, or operate, and that it was up to each individual
consumer to use common sense while shopping.
World War Two changed how factory productions worked, and added the female population
into the workforce. Factory machinery was streamlined, and more consumer goods entered
into the marketplace. With the widespread use of electricity in new items becoming the norm,

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there were lots of claims entering into the court systems as consumers came in contact with
faulty electrical products.
By the 1960s our current expanded situation in product issues and the resulting liability was
set into stone. Court laws had changed to allow consumer's access to the manufacturers and
distributors of items being sold that were unsafe. While consumers still shopped with the
attitude that it was up to them to judge a products safety, the laws were letting some lawsuit
plaintiffs receive large amounts of money for claims.
Today, product liability insurance is needed by all businesses that make or offer products to
consumers. The consumer is no longer required to use any judgment at all while using a
product for the purpose that it was intended for. If the products instructions do not make it
clear that an electrical appliance should not be used in a bathtub this is a potential claim
problem.
Product liability insurance covers manufacturers, retail suppliers, and store owners if a
product somehow fails to meet the public's standards. Each product sold, including those
from an antique store, must have all hazards announced to the consumer or there is a
possibility that your store will be dealing with a claim.
It is very advisable today, with the product liability situation the way that it is, that all stores,
retail supply sources, and manufacturers have some insurance on hand and available in case a
problem comes up. The courts are known to give consumers suffering damages very large
settlements at times.
2. PRODUCT LIABILITY CLAIMS

2.1 Manufacturing defects and Design defects

When a product injures someone, a court will ask the same sort of questions you would: How
did the injury happen? Was there something wrong with the product? How badly was the
person injured? Although these questions seem simple, the answers can be surprisingly
complex. Courts faced with the question "was there something wrong with the product?" use
two general theories to analyze the facts surrounding the injury: products liability (sometimes
referred to as strict products liability) and negligence. To some extent these theories overlap

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or blend but the basic difference is that products liability focuses primarily on the product
itself while negligence focuses on the manufacturer, seller or distributor's conduct as well as
the product. Both theories look at what was wrong or defective in the product.
The Law Governing Defective Products
Product defects are generally put into three categories: design defects, manufacturing defects
and marketing defects. Marketing defects are defects in the manner in which a product is
sold. This type of defect can include inadequate warnings and/or instructions. Design defects
are in a manner of speaking, intended. This type of defect is inherent in the design of the
product. For example, a chair that is designed with only three legs might be considered
defectively designed because it tips over too easily. Manufacturing defects on the other hand
are defects that were not intended. For example, a chair might be designed to be stable, but if
it is manufactured with one of the legs not bolted on correctly, the chair would be said to
have a manufacturing defect
Planned or unplanned defects
- USA
How do they decide whether the product that injured you was defectively designed or
defectively manufactured? A very simplistic way to look at it is to look at whether the defect
was planned or unplanned. You will find a design defect in every individual product
produced according to the product plan. A manufacturing defect on the other hand is an
unplanned defect. You would generally expect to find only a small percentage of
manufacturing defects in a group of products produced according to a particular plan.
As noted above, manufacturing defects, unlike design defects, are not intended parts of the
product. A manufacturing defect is, in essence, a mistake in the manufacturing process.
Under products liability, even if the manufacturer was extremely careful in manufacturing the
product, it will still be held responsible for any manufacturing defect in the product. It does
not matter, for purposes of product liability, that all possible care was taken in the preparation
and marketing of the product. This is why products liability is sometimes referred to as
liability without fault.
The reason courts impose liability without fault is that it is believed that doing so will
encourage greater investment in product safety than would a fault-based system of liability.
As might be expected, this could raise the price of products. The increase in price is an

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intended consequence because it is believed that, as a matter of social policy, consumers who
benefit from products without suffering harm should share, through increases in the prices
charged for those products, the burden of unavoidable injury costs that result from
manufacturing defects. Courts also believe the increase in the price of products with a high
percentage of faults will discourage people from buying those products.
In a manufacturing defect case, the plaintiff bears the burden of proving that the product in
question had a fault or defect. Often the manufacturer's design or marketing standards can be
used to show that the product was defective. But proving how or why the flaw or defect
occurred can be a difficult if not impossible proposition for the plaintiff. By eliminating the
issue of manufacturer fault from the plaintiff's case, strict liability is thought to reduce the
transaction costs involved in litigating that issue. Additionally, in many cases manufacturing
defects are caused by the manufacturer's negligence even though plaintiffs may have
difficulty proving it. Strict liability in these cases allows deserving plaintiffs to succeed
notwithstanding what would otherwise be difficult or insurmountable problems of proof.
While liability without fault might not seem entirely fair at first glance, it is important to
remember that manufacturers invest in quality control at consciously chosen levels. The
manufacturer's knowledge that a predictable number of flawed products will enter the market
place entails an element of deliberation about the extent of injury that will result from their
activity. Finally, as a matter of social policy, between the innocent victims who suffer harm
because of defective products and the manufacturers, distributors and sellers of products, the
product sellers are in a better position than are individual users and consumers to insure
against such losses.
Design defects are based on a different theory of liability than manufacturing defects. In
some respects, a manufacturing defect case presupposes that if the product had been
flawlessly manufactured according to its design, the injury would not have occurred. For this
reason, the proof in a manufacturing defect case will often consist in part of the
manufacturer's own design or marketing standards. A design defect case on the other hand
attacks those very standards as inadequate. Because those standards are the very ones that
plaintiffs attack as unreasonable, some sort of independent balancing is necessary.
Some products are not defective merely because they are dangerous. Many risks can be
eliminated only by excessively sacrificing product features that make the products useful and

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desirable. For example, an electric knife that is too dull to injure anyone would also be
useless for its intended purpose. It is generally felt that, as to such risks, users and consumers
are the best equipped to minimize risk. The theory is that it is necessary to strike a balance
between increased costs to consumers associated with holding manufacturers liable for their
design choices and having individual consumers bear the risk by not being compensated for
injuries suffered.
In trying to achieve this balance, different courts use different tests to determine whether a
product is defectively designed. To some extent the tests reflect the various states' differing
social policies. Some courts say that a product is defective if it is unreasonably dangerous as
designed. Others say that a product is defective if it is not safe for its intended or reasonably
foreseeable use, as designed. A good example of the difference between these two versions of
design defect is found in the case of cars. Imagine a person injured in an automobile accident
bringing a lawsuit, which alleges that the car he was driving was defective because it was
designed in such a way that it will invariably explode if involved in an impact while going
more than thirty miles per hour. Some courts might argue that the car, as designed, is not
unsafe because it is the action of crashing the car, not the car itself, which causes the injury.
Those courts might say that since the design of the car is not unsafe, it is not defectively
designed. Other courts would say that the car was defective because it was reasonably
foreseeable that a user would crash the car while going more than thirty miles per hour, thus
the manufacturer should design the car with such collisions in mind.
While some courts require that a product be proved both defective in design and
unreasonably dangerous because of the defect, many courts have combined the defect and
danger elements. In those courts a product is defectively designed if it is unreasonably
dangerous because of its design. Courts use various definitions of "unreasonably dangerous"
including a product that is more dangerous than an ordinary consumer would expect, or a
product whose risks are so great that a reasonable seller would not place the product on the
market, or a product design whose risks outweigh its benefits.
- AUSTRALIA
Product liability law in Australia is a rapidly developing area which, in 1992, saw the
introduction of further strict liability legislation modeled on the European Community (EC)
Product Liability Directive of 1985. This legislation supplements other federal strict liability

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legislation enacted in 1978, strict liability provisions in force in some of the Australian states
and territories, and a well-developed body of common law defining liabilities in tort and
contract.
State and federal industry-specific legislation regulates products such as pharmaceuticals,
chemicals and food products. Product standards, bans and recalls are also administered at
both the state and federal levels.
Australian product liability laws target a wide range of potential defendants. These include
importers, producers of the end products, producers of raw materials and component parts,
product distributors, own-branders, retailers and other end suppliers, service providers, and
repairers. Directors and officers of corporations which supply products attract personal
liability in certain circumstances.
Australian product liability laws extend rights of action to a number of categories of potential
claimants. These include product purchasers, title holders, persons who use and consume
products, bystanders, other parties in the chain of production, distribution and supply,
property owners, persons injured in the workplace, consumer groups, competitors, and the
Federal Trade Practices Commission.
Manufacturing defects (Australia)
Under Australian law, defects in manufacture are faults or defects in products which are
inadvertent and unplanned, the result of misadventure in the course of production, transport
or storage. Defects in manufacture are usually characterized as one-off faults, though the
same fault may be present in each unit of one or more production runs. Examples of defects
in manufacture include inadvertent product contaminations, improper machining or assembly
which results in premature failure or failures inconsistent with ordinary wear and tear, and
incorrectly compounded products. A product may be considered to have a defect in
manufacture if it differs in even an insignificant respect from products of the same
description.
2.2 Design defects

Under Australian law, defects in design are faults or defects in products which are advertent
and planned, the result of misjudgment or default in the conception, design or formulation of
a product. Design or formulation defects cannot be characterized as one-off faults, as they

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are faults or defects which are replicated in every unit of one or more production runs.
Examples of products with design or formulation defects include pharmaceutical products
which pose an unreasonable risk of serious side effects, machinery which poses an
unreasonable risk of injury to workers, and product packaging which is unsuitable in
minimizing the risks of injury posed by a dangerous product.
Under Australian law, a product will be considered to be defective in its design or
formulation both in circumstances that the manufacturer is aware of the risk posed by the
particular design or formulation, and in circumstances that the manufacturer could have
discovered the risk with the exercise of reasonable diligence. A product will not necessarily
be considered defective in design or formulation solely because it is incapable of functioning
indefinitely or suffers from wear and tear or ordinary deterioration. Similarly, a product will
not necessarily be considered defective in design or formulation where it causes loss or
damage to abnormally susceptible persons but not to normal persons.

Cases for manufacturing defects
Case Name: White v. Howmedica, Inc.
Court: 8th Circuit Court of Appeals
Date: June 26, 2007
Expert: Medical General Practitioner. Dr. Stephen Noel, M.D.
Issue: Whether the plaintiffs failure to designate an expert by the deadline was fatal in this
manufacturing defect case?
Summary of case: Plaintiff was troubled with his prosthetic knee for 6 years. Dr. Noel
performed exploratory surgery and discovered that the prosthesis had fragmented. Plaintiff
brings product liability suit claiming a manufacturing defect.
Role of the expert: Dr. Stephen Noel was to testify that the malfunctioning prosthetic knee
was caused by a manufacturing defect. He was originally listed as a non-expert witness, but
when the plaintiffs failed to designate an expert in the required amount of time, they offered
Noels affidavit regarding the defect, and argued that this is a case where the defect would be
obvious to a layman.


Challenges to the Expert's testimony: The defense moved for summary judgment when the
plaintiffs failed to designate an expert by the date required by the court. Although the
plaintiffs submitted an affidavit by Noel relating to the manufacturing defect, it was too late
to designate him as an expert. The Court of Appeal held that the layperson exception did not
apply here, as the issue of a manufacturing defect in a prosthetic knee required actual expert
testimony. The Court of Appeals held that the District Court did not abuse its discretion in
excluding Noels affidavit and granting summary judgment to the defense.
Design Defects in Automotive Products Liability Cases
The basic elements of proof that a plaintiff in a products liability action against the
manufacturer or seller of a car or truck has to establish are that the vehicle as sold contained a
defect that created an unreasonable risk of death, personal injury, or property damage when
the vehicle was used for its intended purpose and that the defect caused an accident or similar
incident, such as a vehicle fire, that resulted in the loss for which the plaintiff is seeking to
recover damages. Allegations of product defect in automotive products liability cases include
inadequacies in vehicle design, errors in the manufacture of vehicle parts and their assembly
into a completed car or truck, and failure to warn users of a vehicle about dangers inherent in
its use.
Claims of design defect in a motor vehicle can involve allegations about many of the
vehicle's parts or assemblies, singly or in combination. A few past examples include
allegations that the design of a fuel tank holding strap and its connection to the fuel tank
permitted the fuel tank to be pierced in a rear-end collision, that a rear seat belt design created
an unreasonable risk of abdominal injury in an accident, and that the location of the fuel tank
on a pickup truck failed to provide sufficient protection against the risk of fire in a side
collision. A subset of the overall area of design defect involves crashworthiness claims, in
which it is alleged that because manufacturers know that cars and trucks will be involved in
collisions in the ordinary course of their operation, failure to design a vehicle so as to provide
a reasonable degree of protection against injury in the event of an accident is itself a design
defect that creates liability on the part of the manufacturer. Some courts require the plaintiff
in a design defect case to introduce evidence of a feasible alternative design that could have
been employed in the place of the allegedly defective design element in the vehicle, while
other courts allow a jury to consider design defect claims without the necessity for
establishing the existence of such an alternative design.


Products liability law in the United States, including automotive products liability law, has
evolved for over half a century out of developments in the separate legal systems of each of
the states, rather than as a single unified body of federal law. (The National Highway Traffic
Safety Administration, NHTSA for short, has enacted a body of Federal Motor Vehicle
Safety Standards, or FMVSS, with which every new motor vehicle must comply, and these
standards may play some part in an automotive products liability case.) While developments
in products liability law in the different states contain many similarities, the legal principles
governing claims of design defect in automotive products liability cases will vary from state
to state.
2.3 Negligence
What is negligence?
Negligence is defined as an omission or careless act that causes harm and for which the law
entitles the injured party to compensation. Some of the examples of negligence include:
Serving alcohol to an already intoxicated person who subsequently harms another person due
to their increased inebriation. Careless driving by a delivery person that causes injuries to
another. Failure to ensure that an employee gets home from a company party that served
alcohol. Offering negligent professional advice such as given by a lawyer, accountant, doctor,
architect or engineer
Negligence Cases
This case type most resembles an ordinary negligence lawsuit. In addition to duty, defect,
causation and injury, you need to prove that the manufacturer or seller breached its duty to
you. Usually you prove the seller or manufacturer was aware of the defect or should have
been aware based on information known or available to it.
If you're hurt by a defective product you can recover damages for various aspects of your
injury. These include the cost of immediate and future medical care, your lost wages and
future wages, and an amount to compensate you for your pain and suffering, including mental
or emotional distress.
Product liability negligence: USA
Definition, a failure to behave with the level of care that someone of ordinary prudence
would have exercised under the same circumstances. The behaviour usually consists of


actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help
victims of one's previous conduct).
Overview of the primary factors to consider in ascertaining whether the person's conduct
lacks reasonable care are the foreseeable likelihood that the person's conduct will result in
harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to
eliminate or reduce the risk of harm. See Restatement (Third) of Torts: Liability for Physical
Harm 3 (P.F.D. No. 1, 2005). Negligent conduct may consist of either an act, or an
omission to act when there is a duty to do so. See Restatement (Second) of Torts 282
(1965).
Five elements are required to establish a prima facie case of negligence: the existence of a
legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in fact of
physical harm by the negligent conduct; physical harm in the form of actual damages; and
proximate cause, a showing that the harm is within the scope of liability.
Product liabilities: ENGLAND
Previous law
A consumer who was injured or whose property was damaged by a product which he had
bought could bring an action against the retailer for damages for breach of contract. Under
the Sales of Goods Act an implied term was included in the contract to the effect that the
goods will be fit for the purpose intended. However, because of the doctrine of privity of
contract no action for damages could be brought by a third party even when it was
foreseeable that a defective product would cause him harm, e.g. a member of the purchaser's
family. In the landmark case Donoghue v. Stevenson the House of Lords acknowledged the
possibility of tort brought by the ultimate consumer against the producer, but as the difficulty
of proving negligence remained, the situation of the consumer remained relatively
unfavoured.
Comparison of the Product Liability System: Negligence
The law and legal system of the United States evolved from the British legal system. The
development of the product liability system generated three theories, negligence liability,
warranty theory and strict liability in tort. Strict liability began with a landmark case
Greenman v. Yuba Power Products, Inc. in 1963 in California. From then on, many
manufacturing companies in the US were badly knocked to their knees by the product


liability lawsuits and lost millions of profit. It is estimated the product liability costs
government, manufacturing and insurance companies over $100 billion annually, more than
the profit of the United States top 200 corporations and it continues to mount. Obviously
product liability is one of the most controversial topic now in the US. There are many claims
to reform product liability system. Anyway, the emergence of strict liability theory is far-
reaching. Many countries in the world have adopted it including Europe, Japan and China.
The scope of product in the US is quite broad. Product liability has extended tangible goods
to include intangibles such as electricity after it has been delivered to the consumer (Houstin
Lighting & Power Co. V. Reynolds, Tex. 1988). In deciding whether the law of product
liability should apply, the issue should not be restricted the inquiry of whether a product is
involved. Rather the inquiry should be directed to whether or not the defendant is in the best
position to spread the loss and prevent injuries.
Some authors claim that the US is the most litigious country in the world. In fact, the product
liability system in the US is well-developed and comprehensive. Also the US legal
environment makes it easy for one person to sue another. The high damage compensation and
plenty of lawyers are two important factors contributing to the flourishing of product liability
lawsuits.
On the contrary, in China there are not many product liability lawsuits. There are many
reasons for this. First, Chinese people dont have strong legal consciousness. Second, the
damage compensation is not so lucrative as that of the US and the court process is time
consuming. Third, the bureaucratic practice of some courts and local government protection
for its local companies make it very difficult for the plaintiff to get recovery from the court.
Besides the legal system, News media play an important role in the settlement of product
liability lawsuits as well as customer protection. In the US, 96% of the product liability cases
were settled out of court. Most companies are afraid of being exposed of product liability
cases which will bring bad effect to its business image and marketability. This loss will be
much bigger than the damage compensation ruled by the court.
A Comparative Study of Product Liability of the United States
The enthusiastic adoption of 402A by the majority of jurisdictions unleashed a rich
and diverse body of case law unrivalled anywhere. The abstract, and to a great extent
unclear, formulation of 402A is out-dated. A restatement of products liability law,


therefore, is welcome. The Restatement (Third) of Torts: Products Liability (Proposed Final
Draft) (April 1, 1997) recognizes that the present day strict products liability regime has
caused much confusion. In particular, the Restatement (Third) views, as a misnomer, the
notion that strict liability applied to design and warning defects. With this said, what is the
appropriate standard in design and inadequate warning defects?
The answer does not lie in an abstract re-formulation but rather lies in the judicial
application of a standard that results in a fair and equitable balance between consumer
interests and manufacturer interests.
Did the Restatement (Third) achieve this golden mean? It does not appear to have done so,
only with judicial application will we know for certain. It is no secret that American
products liability law is retreating back to negligence. In England, however, products
liability law is embracing the so-called American brand of strict liability. The objective
of this comparative study is twofold. First, given that the American products liability
regime has more experience than its English counterpart, American products liability
developments might define and forecast the trend of English products liability. Second,
because England is the cradle of the common law, English products liability
developments may be relevant to the American experience. This section consists of five
parts. Part one surveys the evolution of products liability law in the United States
from Winterbottom to 402A.
Part two surveys the evolution of relevant English law from Winterbottom to 1987. Part
three includes a case analysis between English law prior to 1987, and American law
prior to the Restatement (Third); the analysis pertains to manufacturing, design, and
inadequate warning defects, concluding that only minor differences existed between
both systems. Part four analyzes the Restatement (Third) and surveys the scholarly response.
Part five analyzes the U.K. Consumer Protection Act 1987 Part I, with the Restatement
(Third) in the background. Finally, part five finds that the products liability regime in the
United States and in England is negligence based, yet couched in strict liability terminology,
or strict liability linguistics.
How to Prove Negligence
The burden of proof regarding negligence involves demonstrating lack of duty of care,
standard of care and causation. More specifically, there is a standard of proof which is a


measure of the degree that the aforementioned three facets have to be proven. Each facet
requires proof as follows:
Duty of care It has to be reasonably foreseeable that the defendants conduct could have
injured the plaintiff if the plaintiff was in a zone of danger created by the defendant. Further,
there cannot be any compelling policy reason for refusing to impose duty of care.
Standard of care - Negligence takes place when the conduct by the defendant falls below a
certain standard. Factors that create a breach in the standard of care include violating a statue
which can create an arguable presumption of negligence, community custom or an
emergency that caused action by the defendant to keep an increased harm from occurring.
Causation This simply states that there must be proof by the plaintiff that carelessness on
the behalf of the defendant caused the plaintiff to suffer damage.
Standard of proof The balance of probabilities is proof of all three facets by the plaintiff.
Additionally, it must be demonstrated by the plaintiff that there was more than a 50 percent
chance that the actions of the defendant resulted in the harm to the plaintiff.
U.S.-U.K. CASE LAW COMPARISON
The evolution of case law applying 402A classified the concept of defect into
manufacturing, design, and inadequate warning or instruction defect. Unlike the U.S.,
English products liability law remained negligence based until the enactment of the
Consumer Protection Act (1987). English productliability case-law, to a certain extent,
made reference to the type of defect involved: manufacturing, design or inadequate
warning. The purpose of this section is to place the Restatement (Third) of 1997 and
the Consumer Protection Act of 1987 within their historical decisional context. To observe
how American courts applied 402A, compared to how the English negligence based
regime functioned, a case on each defect was chosen for comparative review.

Manufacturing defects: Negligence
(1) United Kingdom.
In Hill v. James Crowe Ltd., the plaintiff was standing on a wooden case while loading
his truck. The wooden case collapsed because it was poorly constructed and plaintiff fell


injuring himself. Rejecting the defendant's proof that his factory was run with reasonable
care, the court held that:
The manufacturer's liability in negligence did not depend on proof that he had either a bad
system of work or that his supervision was inadequate. He might also be vicariously
liable for the negligence of his workmen in the course of their employment. If plaintiffs
injuries were a reasonably foreseeable consequence of such negligence, the
manufacturer's liability would be established under Donoghue. Theoretically, as long as
the manufacturer exercised reasonable care in his factory, he would not be liable for
manufacturing defects. James illustrated that courts are willing to find negligence based
solely upon circumstantial evidence. This may indicate the court's liberal application of res
ipsa loquitur. Many commentators posit that "the law is tantamount to the automatic
imposition of liability for injuries caused by defects due to the product's failing to
conform to its specifications and design."
(2) United States
In Orth v. Emerson Electric Co., White-Ridgers Division, plaintiffs were severely burned
when their propane furnace in their mobile home exploded. The furnace in question
was a "sealed combustion" furnace appropriate for mobile homes. The furnace was
equipped with a control valve manufactured by defendant. The expert testimony
concluded that the "safety valve malfunctioned due to a manufacturing defect."
Consequently, propane seeped out of the furnace combustion causing the explosion and fire.
The expert testimony, the court pointed out, "though based on circumstantial evidence,
was sufficiently reliable. "This certainly," noted the court," 'justify[ies] an inference of
probability' that the valve malfunctioned." The Court of Appeals affirmed finding that
there was sufficient evidence feasible to design the product in a safer manner." Based on
the foregoing elucidation of the law, the court held that the plaintiff had presented sufficient
evidence to submit the defective design to the jury for it to decide whether the
unprotected portion of the blade met the minimum safety standards.
(3) Comparison
Unlike manufacturing defects, there are some differences between design defect cases
under English negligence law and American strict liability law. The differences are
actually in form not in substance. Both, albeit in different wording, require that the product


be defective rendering it dangerous, and that the harm be foreseeable. Vosss
substantial likelihood of harm" standard is another way of stating Lambert's "reasonably
foreseeable" standard. Like Lambert, Voss required that there be a safer alternative design.
Voss, however, emphasized that the alternative design must pass a cost-benefit test. It was
clear that the manufacturer in Lambert was only concerned with convenience and not
financial cost, and as such, the cost-benefit analysis of alternative designs was not an
issue. If the product was more complex or the cost was not so negligible and the
benefit so great, as is the case in Lambert, the English court would have engaged in a
cost-benefit analysis. In sum, the differences between English negligence based design
defect and American strict liability design defect are minor.
In conclusion of the foregoing comparison between the Restatement (Third) and the
Consumer Protection Act attempted, through a comparative textual analysis, to shed some
light on the differences between both systems. As we have seen in part I of the
paper, products liability in England was essentially negligence based. There was no
comparable evolution of case law toward strict liability as there was in the United States.
However, English policy trends encouraged a movement toward a United States
version of strict liability. Ironically, the evolution of United States products liability
indicates a retreat from strict liability and a return to a negligence-based
conceptualization of products liability. Finally, in the absence of judicial interpretation
of the CPA, 4 37 one cannot be certain of the direction U.K. Products liability will take
in the future. In addition to the development risk defense and hints of cost-benefit
analysis, it is extremely likely that judicial interpretation of the CPA will move toward
the Restatement (Third). That is, a strong negligence basis for products liability couched in
strict liability terminology or strict liability linguistics.
2.4 Strict tort liability

Strict tort liability basically is the Absolute responsibility for an injury that can be imposed
on the wrongdoer without proof of carelessness or fault
Strict tort liability often called absolute liability is a legal responsibility for damages or
injury, even if a person found absolutely liable was not at fault or negligent. Strict liability
has been applied to some activities in tort law, such as holding an employer strictly liable for
the torts of his/her employees. But nowadays strict tort liability is associated mainly with


defectively produced goods. In addition, for reasons of public policy, certain activities may
be conducted only if the person conducting them is willing to insure others against the harm
that results from the risks the activities create.
People been injured by defectively produced products greatly rely on strict tort liability. This
part of it falls under the main category of product liability. A manufacturer must guarantee
their products are suitable for the products intended use when they are sold in the market for
people to use. Strict or absolute liability will hold manufacturers greatly liable for any
damages that result in putting unreasonably dangerous or hazardous products to the market
for consumers to use. Without the regard for without regard to the amount of care exercised
in preparing the product for sale and distribution and without regard to whether the consumer
purchased the product from, or entered into a contractual relationship with, the manufacturer.
- To prove a strict liability case you need to prove these facts:
The plaintiff's injury must have been caused by a "defect" in the product. Thus the
manufacturer is not deemed responsible when injury results from an unforeseeable use of its
product. The essential elements of a claim based upon an alleged manufacturing defect are:
1. The defendant was the manufacturer or supplier of a product;
2. The product possessed a defect in its manufacture;
3. The defect in manufacture existed when the product left the defendant's possession;
4. The defect in manufacture was a cause of injury to the plaintiff; and
5. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable to the
defendant.
A defect in the manufacture of a product exists if the product differs from the manufacturer's
intended result or if the product differs from apparently identical products from the same
manufacturer.
Case of Strict product liability
Brief Fact Summary
The Plaintiff, William Greenman (Plaintiff), was injured when his Shopsmith combination
power tool threw a piece of wood, striking him in the head. Plaintiff sued and the Defendant,


Yuba Power Products, Inc. (Defendant) the manufacturer, defended claiming that Plaintiffs
breach of warranty claim was barred due to his failure to give timely notice.

Synopsis of Rule of Law
Individuals injured by products with design or manufacturing defects may bring suit under
strict liability regardless of a failure to give timely notice to the manufacturer for a breach of
warranty.

Facts
The Plaintiff saw a Shopsmith combination power tool demonstrated by a retailer and he
studied a brochure prepared by the manufacturer. His wife bought him a Shopsmith, and
Plaintiff bought necessary attachments to use the Shopsmith as a lathe. After working with
the lathe several times without difficulty, it suddenly threw the piece of wood he was working
with out of the machine, striking him in the head inflicting serious injuries. Approximately
ten and one-half months later, Plaintiff gave the retailer and the manufacturer written notice
of claimed breaches of warranties and filed a complaint alleging said breaches and
negligence.
Issue
Is Plaintiffs action based on representations contained in the brochure barred against the
manufacturer due to a failure to give timely notice?
Held, No Judgment affirmed
Plaintiff introduced substantial evidence from which to conclude that his injuries were the
result of defective design and construction of the Shopsmith. However, the Defendant
contends that Plaintiff did not give it notice of a breach of warranty within a reasonable time.
The Civil Code provides that failure of the buyer to give the seller notice of a breach of
warranty within a reasonable time precludes liability [Civ.Code Section: 1769]. However,
this notice requirement is inappropriate for this Court to adopt in an action by injured
consumers against manufacturers with whom they have not dealt. Because the injured party is


generally unaware of the business practice justifying the rule, it would simply be an unfair
booby-trap for the unwary.
Even if Plaintiffs claim for breach of warranty were barred, the imposition of strict liability
is appropriate in this case. From the evidence, it can be shown
That the manufacturer placed a product on the market; knowing that it is to be used without
inspection for defects; That proved to have a defect and That caused an injury.
To establish liability, it is sufficient that Plaintiff was injured while using the Shopsmith in a
way it was intended to be used, as a result of a defect in design and manufacture.

Discussion
The Court in this case finds that an apparently applicable statute will not bar recovery. Many
of the products liability decisions tend to insure the protection of the consumer over that of
manufacturers.
2.5 Breach of warranty

Warranties are promises that a business owner makes to stand behind his products or
services, and to protect consumers against damages or injuries caused by defective products.
A warranty is also a limited promise made by a manufacturer or seller of a product that
guarantees some aspect of the product.
There are two types of warranties including express warranty and implied warranty. The legal
differences between the two can be quite dense and difficult to properly parse, but in general,
an implied warranty is sort of a handshake promise to make things right, while an express
warranty is more formal
Express Warranty
An express warranty is a specific promise or guarantee made by a manufacturer or seller
making representations concerning the quality, condition, description of performance
potential of a product. This warranty can be made in writing or verbally,


Depending on where you live and the laws that apply, there are actually a few different things
that could be considered express warranties. As illustration, an express warrant can be:
A seller or manufacturer's oral or written promise or affirmation of fact that describes the
product at the time of sale.
A seller or manufacturer's written promise to repair or replace defective parts for a stated
period of time.
The seller's written promise containing representations that the product is defect free and/or a
promise to repair or replace it.
As illustration, , if a car dealer tells you that a vehicle has an eight cylinder engine, and you
find out that you have been delivered a car with a four cylinder engine, the express warranty
made by the car dealer has been violated. General statements about an item such as, that
paint shines like a diamond! are not express warranties. Specific statements of fact are
considered to be express warranties.
2-313. Express Warranties by confirmation, Promise, Description, or Sample.
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to
the goods and becomes part of the basis of the bargain creates an express warranty that the
goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an
express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express
warranty that the whole of the goods shall conform to the sample or model.
Breach of express warranty
Alan purchases a computer and some expensive accounting software from ABC Computer.
He thoroughly explains his specialized bookkeeping needs to the salesperson and is assured
that the computer and software will do the job. The computer contains a written warranty
against defects in parts and labor for 90 days. The warranty statement says that all implied
warranties are disclaimed. The software contains no written warranty statement. It is apparent
to Alan after a couple of days' work that the software simply is not sophisticated enough to


meet the bookkeeping needs he had explained to the salesperson and that the salesperson
didn't know what he was talking about when he said it was "perfect for the job."
Two days later the computer has a major crash. Alan calls ABC and asks for the computer to
be fixed or replaced and for his money back on the software. When ABC ignores him, Alan
sues in small claims court. Alan should have no problem recovering for the price of the
computerit failed within the written warranty period. But the software raises a tougher
problem. Alan is claiming a breach of an express oral warranty (the salesperson's statement
that the software would meet his needs), and a breach of the implied warranty of general
fitness or merchantability. To succeed on the first claim, he must prove that the salesperson
did in fact assure him that the software was right for his needs, which may be difficult.
Proving the second claim will be even harder, however, because Alan must somehow prove
that the software falls below the reasonable standard for sophisticated small business
accounting packages. ABC is likely to counter Alan's claim with evidence that the software is
in wide use and is generally considered to be adequate to accomplish most accounting tasks.
In short, Alan would be smart to focus on trying to prove that in making his decision to
purchase the software, he relied on the salesperson's oral statements that the software would
meet his specific bookkeeping needs.
How should he do this? If Alan gave the salesperson a written specification detailing his
accounting needs and still has a copy, he should show it to the judge. Even better, if he has a
witness who heard the salesperson's overly optimistic promises, he should ask this person to
testify in court or at least write a letter stating what happened. Unfortunately, if Alan has no
convincing evidence as to the salesman's statements, the small claims hearing is likely to
come down to his word against the salesperson's, with the judge left to decide who appears to
be telling the truth.
Example 2
Al Dawood Shipping Lines Limited v Dynastic Maritime Incorporated (MT Napa) [2010]
EWCA Civ 104

Faced with the owners' claim for unpaid hire and damages, the charterers put forward the
defense of breach of warranty and counterclaimed for the loss of profit that they would have
made on the sub-charter had the owners complied with the warranty. To succeed, charterers


needed to demonstrate that the owners breached the warranty, that they would have been able
to have concluded the sub-charter but for the breach and that the hire rate of such sub-charter
would have been higher than the charter hire rate.
Breach of Implied warranty
In common law jurisdictions an implied warranty is a contract law term for certain assurances
that are supposed to be made in the sale of products or real property due to the conditions of
the sale. These assurances are considered as warranties irrespective of whether the seller has
specifically promised them orally or in writing. They include an implied warranty of fitness
for a particular purpose, an implied warranty of merchantability for products, and an implied
warranty of habitability. An implied warranty is one that arises from the nature of the
transaction and the inborn understanding by the buyer rather than from the express
representations of the seller.
If a customer claims that the goods that he purchased did not have the quality that he or she
would reasonably expect it is known as "breach of an implied warranty." To establish this
claim he/she must prove all of the following:
1. That he/she bought the consumer goods from/ manufactured by (name of defendant)
2. That at the time of purchase (name of defendant) was in the business of selling (consumer
goods) to retail buyers manufacturing (consumer goods)
3. That the consumer good was not of the same quality as those generally acceptable in the
trade or was not fit for the ordinary purposes for which such goods are used or was not
adequately contained, packaged, and labelled or Did not measure up to the promises or facts
stated on the container or label.
For example, a fruit that looks and smells good but has hidden defects would violate the
implied warranty of merchantability if its quality does not meet the standards for such fruit
"as passes ordinarily in the trade". In Massachusetts consumer protection law it is illegal to
disclaim this warranty on household goods sold to consumers etc.
American Suzuki Motor Corp. v. Superior Court (Carney) (1995) is a great example court
case for the implied warranty of merchantability. Where class action plaintiffs allege they
have suffered no personal injury or property damage from a vehicle they claim is defectively
designed, and it is impliedly conceded that their vehicles have since the date of purchase


remained fit for their ordinary purpose, and that the superior court erred in certifying for class
treatment plaintiffs' implied warranty claims, and in thereafter refusing to decertify the class.
Petitioner, American Suzuki Motor Corporation (Suzuki) seeks a writ of mandate directing
the superior court to vacate its order denying Suzuki's motion to decertify a class.
The warranty of fitness for a particular purpose is implied when a buyer relies upon the seller
to select the goods to fit a specific request. For example, this warranty is violated when a
buyer asks a mechanic to provide snow tires and receives tires that are unsafe to use in snow.
This implied warranty can also be expressly disclaimed by name, thereby shifting the risk of
unfitness back to the buyer.
It is a must that a seller must be a merchant in order for there to be a valid cause of action for
breach of this implied warranty. Important issue in a case involving this kind of a warranty is
determining the content of the warranty to find out whether it has been breached and how
good must a product be in order to be merchantable? It is not normally a defense to a claim
for breach where the seller could not have done anything to detect or prevent the defect. Even
if goods are not fit for their ordinary purpose they might still would be merchantable. The
relationship between defective and merchantable is a big issue in this type of warranty
claims, just because something is defective it would not necessarily make it not suitable for
merchandise.
The seller ask for any reason to know any particular purpose for which the goods a required
and that the buyer is relying on the sellers skill or judgment to select or furnish suitable
goods at time of contracting, there is unless excluded or modified under the next section an
implied warranty that the goods shall be fit for such purpose. A warranty of fitness for a
particular purpose does not automatically apply to all sellers in the chain of distribution, it
applies only to sellers whose conduct creates the warranty.
In international sales law, the obligation is found in Article 35(2)(b) of the United Nations
Convention on Contracts for the International Sale of Goods. But in United States, the
obligation is in Article 2, Section 315 of the Uniform Commercial Code. The warranty of
fitness differs from a warranty of merchantability in that it applies to all sellers, not only
professional merchants. In the United States, this warranty is sometimes referred to simply as
a warranty of fitness.


An example case would be Peterson v. Lamb Rubber Co in 1960. In December, 1954,
defendant, a manufacturer of rubber bonded abrasives, sold and delivered to plaintiff's
employer, AiResearch Manufacturing Company, a corporation one hundred rubber bonded
abrasive wheels for use in grinding and burring operations. The wheels were two inches in
diameter, contained no markings either to identify the manufacturer or to indicate the
maximum revolutions per minute at which the abrasive wheels could be safely operated.
In June, 1955, while plaintiff in connection with his employment was using a wheel which he
alleges was one of those sold to his employer by defendant, the wheel blew up or
disintegrated in his face and a portion of the abrasive imbedded itself in his left eye, resulting
in admittedly serious injury.
In this action to recover for personal injuries suffered by plaintiff as the result of explosion of
a grinding wheel purchased from defendant by plaintiff's employer, the trial court sustained
without leave to amend a general demurrer to the count of the complaint based on breach of
implied warranty. Trial was had on the other count, based on negligence, and the jury found
for defendant. Plaintiff appeals from the ensuing judgment for defendant.
Another implied warranty is the warranty of title which implies that the seller of goods has
the right to sell them (to make sure they are not stolen or patent infringements or already sold
to someone else). This theoretically saves a buyer from having to pay again for the same
product, if it is confiscated by the rightful owner, but only if the seller can be found and
makes restitution.
The next point is implied warranty of habitability. Generally, is a warranty implied by law
that by leasing or buying a residential property, the seller is promising that the property is
suitable to be lived in. The warrant of habitability can be breached if there is no heat, hot
water, or other essential services and also, safety issues like no smoke alarm or other fire
code issues can be considered to make a residence uninhabitable.
Also if the municipality has not issued a certificate of occupancy or it is not legal and as a
result uninhabitable. The breach of the implied warrant of habitability can be used to legally
break a lease.
If the factors have been created or are controllable by the landlord and he has not fixed them
despite ample written notification, this situation can also be considered constructive eviction,


which allows the tenant to break the lease but also may allow the tenant to sue for damages in
some jurisdictions.
In the United States a disclaimer must be conspicuous in the contract. For example in a
different kind of print or font that makes it stand out. On the other hand, express warranty
that is any confirmation of fact or promise to the buyer or a description of the good orally or
written form can be invalid or limited only if such disclaimers are not unreasonable according
to Uniform Commercial Code, Section 2-316. However some jurisdictions limit the ability of
sellers or manufacturers to disclaim the implied warranty of merchantability or fitness, such
as Massachusetts. (Massachusetts General Laws, Chapter 106: Section 2-316A).Contractual
language can also limit the remedies available for breach of an implied warranty for example,
limiting the remedy to a replacement of a defective item. However, such a term can be found
to be unconscionable. For example, if a defective product causes a personal injury, a
contractual provision limiting recovery in such a case will be deemed prima
facie unconscionable. (Uniform Commercial Code, 2-719).
Green v. Superior Court, (1974) is a great example court case for this kind of a breached
implied warranty. This is a landmark California Supreme Court case that overruled common
law practices that established a landlord had no obligation to maintain residential premises
during the course of a lease. The Court held that the landlord-tenant relationship includes an
implied warrant of habitability in a residential lease. The domicile must be within substantial
compliance of local housing and building codes, and must be maintained in a condition that
meets basic living requirements although it need not be attractive or perfect. The landlord is
required to maintain the property in compliance with basic health and safety mandates.
Breach of warranty may be raised as a defense to an unlawful detainer action. Under certain
circumstances (to be determined by the court), the tenant has the right to quit the lease or
continue in the lease with an adjustment of rent, sometimes down to zero, if the landlord is
found to have committed a gross breach of warranty.



3. VARIOUS DEFENSES TO PRODUCT LIABILITY

These are some of the defenses that a manufacturer can use in a usual product liability
lawsuit. The laws that administer these legal defenses are quite varies and inconsistent.
Statute of limitations
In general, there are two kinds of legal defenses: those that avoid liability, and those that
decrease the extent of liability. The statute of limitations is a defense that avoids liability by
requiring an injured person to file her lawsuit within a specified period of times. If the
lawsuit is not filed within the specified period of time it is dismissed, even if the claim is
otherwise valid.
There are some exceptions to this. If the injured person is a minor, limitations period exists
until she turns eighteen years old. Likewise, if the injury is such that a person may not know
of the injury right away (e.g. exposure to asbestos) the time period does not start until the
person discovers the facts necessary to realize he may have a claim. This exception is
normally called the discovery rule.
Statutes of repose
Statutes of repose are similar to statutes of limitations but, instead of running from a date of
injury, the time limitation usually begins to run from the date on which the product was made
or sold. While there is little uniformity among the states on how long the time period is, it is
usually at least ten years long. Additionally, in most states, statutes of repose are narrowly
interpreted and strictly enforced. As a result, once the time period expires, there is usually no
getting around the defense.
Federal preemption
There are several situations where federal law prevents state tort law. Federal preemption is a
general principle of law that applies to many situations, not just product liability. Where a
federal statute or regulation occupies an entire field of law, and subjects it to a lot of
regulation, there is no room left for state law to operate within that field. The law of federal
preemption is very complex. The simplest example of federal preemption is when the U.S.
Congress expressly obstructs a given field, such as with the pesticides or the maritime
industry. Another example of federal prevention involves cigarettes where the Supreme


Court held that legislation requiring warnings on cigarette packages insulated manufacturers
against lawsuits based on state product liability law.
Unavoidable danger
Although manufacturers and sellers have a duty to take precautions and provide adequate
warnings and instructions, the public can still obtain products that are unavoidably unsafe. A
Seller is not held strictly liable for providing the public with a product that is needed and
wanted in spite of the potential risk of danger. Prescription drugs illustrate this principle,
because all of them have the potential to cause serious harm if used unreasonably although
manufacturers of pharmaceuticals often face failure to warn cases.
Contributory negligence
There are many kinds of contributory negligence. As a general principle, contributory
negligence is a situation in which more than one factor contributed to or caused, the injury
that forms the basis of the lawsuit. In some states, if the injured person himself contributed to
the injury, and a jury determines he was more than 50% at fault for causing the injury, no
recovery is allowed. However, in a majority of states, the injured persons recovery is simply
reduced by his percentage of fault. This is usually referred to as comparative fault. Other
kinds of contributory negligence (or comparative fault) include:
Assumption of Risk: This is the voluntary and knowing decision to place oneself in a
dangerous situation, or to use a product with full knowledge and appreciation of the danger.
In some states, assumption of risk is a complete defense that allows a manufacturer to avoid
all liability. However, in most states, it is another form of comparative fault.
Misuse: Like the assumption of risk, the misuse of a product is, in a few states, a complete
defense. In most states, however, it is another kind of comparative fault. In other words, a
fact-finder is asked to determine to what percentage degree the injury was caused by misuse
of the product in comparison with the percentage attributable to the product defect.
Alteration: Alteration, like misuse, is closely related to contributory negligence. This
defense is available where the manufacturer can demonstrate that a person was injured
because the product was altered. For example, a person using a power saw may have been
injured because he removed a protective shield from the saw blade.


Intervening or superseding negligence
Like the statute of limitations defense, the defenses of intervening or superseding negligence
provide a complete defense and cut off all liability. Like contributory negligence, the
defenses are based on an accusation that someone elses negligence caused the injury upon
which the lawsuit is based. To be successful, the intervening negligence must have been
unforeseeable.
For example, in one recent case, a person sued a car manufacturer because the trunk in which
he had been placed by a car thief had no emergency-release mechanism. On the other hand,
in a different case, the court held that it was for the jury to decide whether a person killed by
a hit-and-run vehicle could sue the manufacturer of a car that had been in a roll-over accident.
The person killed had pulled his own car to the side of the road to assist in the rescue of the
person injured in the roll-over accident and was killed as he returned to his car. As this case
should therefore make clear, the success of this kind of defense is highly dependent on the
facts.
Failure to mitigate
This defense is another form of contributory negligence. Because the law assumes that a
person has a duty to take reasonable steps to prevent an injury from becoming worse, the
failure to mitigate is another way of saying that a person contributed to his own injuries by
failing to act in a reasonable manner. To the extent that the defendant can demonstrate that a
percentage of an injury is because of the failure to mitigate, a jury award would be reduced
by that percentage. In other words, the failure to mitigate is not a defense to liability but is an
attempt by the defendant to lessen the amount of damages that the defendant would otherwise
have to pay.



REFERENCES

A Comparative Study of Product Liability of the United States. Retrieved from
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ica&hl=en&rlz=1C1DVCJ_enNZ384NZ386&biw=1366&bih=677&prmd=ivns&ei=40q0Te
PqI87prQeK-JnIDQ&start=20&sa=N
Award., A., Pace International Law Review, Volume 10, Issue 1 Summer 1998, Article 11,
6-1-1998, The Concept of Defect in American and English, Products Liability Discourse:
Despite Strict, Liability Linguistics, Negligence Is Back with a Vengeance!. Retrieved from
http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1262&context=pilr p275-6, 368.
Biers., S. (1963). Greenman v Yuba Power Products. Retrieved from
http://www.4lawschool.com/torts/yuba.shtml
Cf. Whitehead & Scott, 'A Comparison of Product Liability Law in the US and the EC',
(1991) European Business Law Review, 171.
Cornell University Law School. (2010). Products liability law: an overview. Retrieved from
http://topics.law.cornell.edu/wex/products_liability
Floudas, D.A., Some aspects of liability for defective products in England, France and
Greece after directive 85/374/eec. Retrieved from
http://www.intersticeconsulting.com/documents/Product_Liability_EU.pdf
Howells, 'The Consumer Protection Act 1987', (1987) p159.
John., D.P.C., (2010). Leading Tennessee Tort Cases - Comparative Fault - Strict Liability
Cases.Tennessee personal injury lawyer & attorney John Day of Law Offices. Retrieved from
http://www.dayontorts.com/leading-tort-cases-leading-tennessee-tort-cases-comparative-
fault-strict-liability-cases.html
Lawyers.com. (2009). Making a Product Liability Claim. Retrived from http://product-
liability.lawyers.com/Product-Liability/Making-a-Product-Liability-Claim.html &
http://product-liability.lawyers.com/Product-Liability/Making-a-Product-Liability-
Claim.html?page=2


O'Keefe., J. (2010). Design Defects in Automotive Products Liability Cases. Retrieved from
http://www.jacksonokeefe.com/news/2010/08/design-defects-in-automotive-products-
liability-cases.html
Online Lawyer Source (2001 2010). Strict Liability Torts. Retrieved from
http://www.onlinelawyersource.com/product/sltorts.html
Pearson, op. cit., 268 et seq.; Clark, 'The Consumer Protection Act 1987', (1987) Modern
Law Review, 614.
Product Liability Lawyer. (2010). Proving Negligence. Retrieved from
http://www.productliabilitylawyer.com/proving-negligence.cfm
This increases the possibility of potential plaintiffs actively seeking the most advantageous
jurisdiction to conduct litigation ('forum shopping'); cf. Atree, 'Jurisdiction, Enforcement of
Judgement and Conflicts of Laws', in Kelly & Atree (eds.), European Product Liability Law
(1992), 147.
Whittaker, The EEC Directive on Product Liability, (1985) 5 Yearbook of European Law,
233. Markesinis & Deakin, Tort Law, Oxford (1994), 535-536.

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