Strict Liability
Defect Requirement
A product liability claim hinges on demonstrating that a product is defective, which has led to confusion regarding the definition of a defect There are three primary types of defects: manufacturing defects, design defects, and inadequate warnings, each requiring distinct proof to establish liability.
Manufacturing defects exist when a product fails to conform to a
The Oregon product liability statute addresses products affected by natural changes or intentional alterations, offering a defense to sellers or manufacturers if the product has significantly changed since its sale or lease.
The foundation of a product liability system lies in the definition of 'defective,' as establishing defectiveness is crucial for any claim This critical aspect has prompted extensive analysis and debate among legal scholars, highlighting its significance in the realm of product liability law.
Clark, The Conceptual Basis of Product Liability, 48 Moo L REv 325, 325 (1985)
Manufacturing defects occur when a product deviates from the manufacturer's specifications, leading to physical injuries Examples include missing components, the use of substandard raw materials, and contamination in food or drink To establish a manufacturing defect, it is sufficient to demonstrate that the product does not meet the manufacturer's own standards The manufacturer may defend against claims by attributing the defect to misuse, alterations, or factors beyond their control.
Design defects present more complex questions as to what consti- tutes a defect 69 A design defect potentially exists when a product is not
A product is considered "reasonably safe" for its intended use if its design does not present "inherently unreasonable risks," where the potential dangers outweigh the product's utility Examples of such unreasonable risks include defective steering mechanisms that cause cars to veer off course, a drive shaft that detaches during normal operation, paydozers lacking rearview mirrors, sudden brake failures, and accelerators that stick unexpectedly.
63 See Phipps v General Motors Corp., 278 Md 337, 344, 363 A.2d 955, 959 (1976); Singleton v International Harvester Co., 685 F.2d 112, 115 (4th Cir 1981)
64 VanSlyke v Pargas, Inc., 69 A.D.2d 927, 415 N.Y.S.2d 307 (1979) (failure to prop- erly odorize natural gas so that a leak could be detected before an explosion)
65 Probus v K-Mart, Inc., 794 F.2d 1207 (7th Cir 1986) (defect in use of a particular plastic as an end cap on a metal extension ladder); Ford Motor Co v Conrardy, 29 Colo App 577, 488 P.2d 219 (1971) (nonmetallic particles in steering mechanism of car causing mechanism to break); Dunham v Vaughan & Bushnell Mfg Co., 42 Ill 2d 339, 247 N.E.2d 401 (1969) (defective steel causing hammer to chip upon contact); Taylor v Carborundun Co., 107 Ill App 2d 12, 246 N.E.2d 898 (1969) (defect in composition of grinding wheel causing it to shatter)
66 Obieli v Campbell Soup Co., 623 F.2d 668 (lOth Cir 1980) (defect where cock- roach was discovered in a can of soup)
67 Singleton v International Harvester Co., 685 F.2d 112, 115 (4th Cir 1981)
68 See Phipps v General Motors Corp., 278 Md 337, 344-45, 363 A.2d 955, 959
69 As the court noted in Phipps, "[w]here the alleged defect is the result of the design process so that the product causing injury was in a condition intended by the manufacturer, the test [for strict liability] has proved more difficult to apply." /d
72 Elmore v American Motors Corp., 70 Cal 2d 578, 451 P.2d 84, 75 Cal Rptr 652
73 Pike v Frank G Hough Co., 2 Cal 3d 465, 467 P.2d 229, 85 Cal Rptr 629 (1970)
74 Sharp v Chrysler Corp., 432 S.W.2d 131 (Tex Civ App 1968)
The Court of Appeals of Maryland highlighted that certain situations present inherently unreasonable risks that eliminate the need to evaluate the design's utility The court emphasized that conditions arising from product design can be deemed defective and unreasonably dangerous without the need to assess various contributing factors.
An "inherently unreasonable risk" design defect is akin to a manufacturing defect, as both types occur when a product fails to operate as intended by the manufacturer These defects are evaluated based on consumer expectations For a design defect, the product must be deemed "unreasonably dangerous," while for a manufacturing defect, it must be in a "defective condition" at the time of sale According to the Restatement (Second) of Torts, both criteria are satisfied if the condition leading to injury is not something an ordinary consumer would foresee.
When assessing design defects, it is crucial to balance the product's risk against its utility, especially if the defect is not inherently unreasonable The Supreme Court of Tennessee noted that this area of law is marked by confusion and a lack of consensus Courts vary in their focus, considering factors such as the product's condition, the manufacturer's conduct and knowledge, and the consumer's understanding, often exploring various combinations of these elements.
77 Phipps v General Motors Corp., 278 Md 337, 345-46, 363 A.2d 955, 959 (1976)
A product is considered defective if, when it leaves the seller's possession, it is in a condition that the ultimate consumer did not anticipate and poses an unreasonable danger to them, as outlined in the Restatement (Second) of Torts § 402A, comment g (1965).
81 /d A product may be dangeorus yet not defective In Kelley v R.G Indus., 304
In the case Md 124, 497 A.2d 1143 (1985), the plaintiff argued that a handgun used in his armed robbery was both defective and unreasonably dangerous However, the court dismissed this claim, stating that the inherent dangerousness of a gun is a fundamental aspect of its intended function.
A handgun poses inherent dangers as it is designed to propel bullets with lethal force; however, for a manufacturer to be held liable under § 402A, there must be evidence of a defect in its design or manufacturing This defect could involve a faulty or misaligned component that leads to unexpected firing or malfunctions.
82 Gann v International Harvester Co of Canada, 712 S.W.2d 100, 104-05 (Tenn
1986) ("In design defect cases, some jurisdictions have adopted the risk-utility test, while others have adopted the reasonably prudent manufacturer test.")
83 /d at 104 For a discussion of the various tests that courts apply in design defect
Maryland utilizes the "risk-utility" test to assess product defectiveness, as outlined by the Court of Appeals in Phipps This test evaluates whether a design is defective by balancing its utility against the associated risks In this context, seven key factors are taken into account to determine the reasonable safety of a product.
(1) The usefulness and desirability of the product - its utility to the user and to the public as a whole
(2) The safety aspects of the product - the likelihood that it will cause injury, and the probable seriousness of the injury
(3) The availability of a substitute product which would meet the same need and not be as unsafe
(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility
(5) The user's ability to avoid danger by the exercise of care in the use of the product
The anticipated awareness of users regarding product dangers and their avoidability is critical in determining product defects The two main tests for assessing design defects are the "consumer expectation test" and the "risk-benefit test." The consumer expectation test defines a product as defective if it is in a condition not expected by the consumer and poses an unreasonable danger at the time of sale Conversely, the risk-benefit test considers a product defective if it does not perform safely as an ordinary consumer would expect or if the inherent risks of its design outweigh the benefits This dual approach allows plaintiffs to argue their case from multiple angles However, in Singleton v International Harvester Co., the court opted against adopting the "double bite" test from Barker, stating that Maryland law requires a risk-utility test in cases without inherently unreasonable risks, which does not factor in consumer expectations.
Negligence
With the emergence and rapid development of strict liability, less
128 See RESTATEMENT (SECOND) OF TORTS § 402A(l) (1966); Virgil v "Kash N' Karry" Serv Corp., 61 Md App 23, 30, 484 A.2d 652, 656 (1984) (citing Phipps v General Motors Corp., 278 Md 337, 363 A.2d 955 (1976))
In the case of Lohrmann v Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir 1986), the court addressed a strict liability claim under Maryland law from a shipyard pipe fitter who developed asbestosis due to asbestos-containing products used at the shipyard Citing Robin Express Transfer, Inc v Canton R.R., 26 Md App 321 (1975), the court emphasized that plaintiffs must present evidence allowing the jury to conclude that it is more likely than not that the defendant's actions significantly contributed to the plaintiff's condition This standard aligns with the RESTATEMENT (SECOND) OF TORTS § 431, reinforcing the necessity for a substantial causal connection in such cases.
An actor's negligent behavior can legally cause harm to another if it significantly contributes to the harm and there are no legal provisions exempting the actor from liability due to the nature of their negligence.
REsTATEMENT (SECOND) OF TORTS§ 431 (1967) Comment a to§ 431 elaborates on the substantial factor requirement:
The term "substantial" refers to the defendant's actions having a significant impact in causing harm, leading reasonable individuals to perceive it as a causal factor This interpretation emphasizes the notion of responsibility rather than adhering strictly to legal definitions.
"philosophic sense" which includes every one of the great number of events without which any happening would not have occurred
RESTATEMENT (SECOND) OF TORTS§ 431 comment a (1967)
Some courts interpret the substantial factor requirement to establish liability even when a defect is not the sole cause of an injury; it suffices if the defect is the most probable or a concurrent cause For instance, in Lifritz v Sears, Roebuck & Co., expert testimony indicating that the defect was the most probable cause of the accident was deemed sufficient for liability Similarly, in Vlahovich v Belts Mach Co., it was determined that a defect does not need to be the only, last, or nearest cause to hold liability.
130 See Singleton v International Harvester Co., 685 F.2d 112, 116-17 (4th Cir 1981)
In the case of Singleton, the court upheld an instruction indicating that if adequate warning was provided but the accident would have still occurred regardless, the manufacturer bears no liability, as the absence of warning was not the proximate cause of the incident The plaintiff, who believed he was driving on dry, level ground, testified that knowledge of a mud hole would have deterred him from proceeding This testimony suggested that a reasonable jury could conclude that even with a warning, the plaintiff's actions would not have changed.
In Maryland, product liability cases often emphasize the importance of negligence, which can provide strategic advantages in legal actions While strict product liability focuses solely on the defectiveness of a product, a negligence claim allows for the inclusion of the defendant's conduct, potentially garnering juror sympathy and increasing the chances of punitive damages, which are typically unavailable under strict liability However, a drawback of pursuing a negligence claim is that some jurisdictions may not allow evidence of subsequent remedial measures to demonstrate culpable conduct, a limitation not present under strict liability.
In a strict product liability case, the primary focus is on the condition of the product rather than the defendant's actions This principle is illustrated in the case of Werner v Upjohn Co., where the court emphasized that liability hinges on the product's safety and design, not the conduct of the manufacturer.
449 U.S 1081 (1980); Phipps v General Motors Corp., 278 Md 337, 344, 363 A.2d
955, 962 (1976); Lahocki v Contee Sand & Gravel Co., 41 Md App 579, 594-95,
398 A.2d 490, 500 (1979) Punitive damages are unavailable because they are in- compatible with the concepts underlying product liability law See Butcher v Rob- ertshaw Controls Co., 550 F Supp 692, 704-05 (D Md 1981)
The Maryland Court of Appeals has yet to establish if punitive damages can be awarded in strict product liability cases This topic was addressed by the Court of Special Appeals in the case of American Laundry Mach Indus v Horan, 45 Md App 97.
In the case of Horan, 412 A.2d 407 (1980), the court reversed a punitive damages judgment in a product liability case based on negligence and strict liability theories The court did not decide whether punitive damages could be awarded in strict product liability actions, as this issue was unresolved by the court of appeals However, it affirmed that punitive damages could be granted under a negligence theory but reversed the judgment due to insufficient evidence of wanton and reckless conduct necessary for such recovery This unresolved issue is expected to be significant in future legal cases, as illustrated by Holman v Mark Indus., 610 F Supp 1195 (D Md 1985), which denied punitive damages in the absence of negligence or actual malice.
133 See Ault v International Harvester Co., 13 Cal 3d 113, 120, 528 P.2d 1148, 1152,
In the case of 117 Cal Rptr 812, 816 (1974), it was established that statutes disallowing the admissibility of remedial measures to prove negligence do not apply to strict liability cases The Maryland Court of Special Appeals, in Troja v Black & Decker Mfg Co., 62 Md App 101, 488 A.2d 516 (1985), highlighted the division among courts regarding the application of Rule 407 of the Federal Rules of Evidence This rule raises the question of whether evidence of subsequent remedial measures in product liability cases, specifically concerning design flaws or failure to warn, should be permitted in court.
407, captioned "Subsequent Remedial Measures," provides:
After an event occurs, any measures implemented afterward that could have prevented the event from happening cannot be used as evidence to establish negligence or wrongdoing related to that event However, evidence of these subsequent measures may still be admissible for other purposes, such as demonstrating ownership, control, or the feasibility of precautionary measures, if those aspects are disputed, or for impeachment purposes.
Rule 407 of the Federal Rules of Evidence restricts the admission of evidence regarding subsequent remedial measures in strict liability cases to establish culpable conduct Courts consistently uphold this rule, ensuring that such evidence is not permitted to demonstrate fault or liability.
Negligence consists of four key elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) an injury; and (4) a direct causal link between the breach and the injury According to section 388 of the Restatement (Second) of Torts, a supplier can be held liable for injuries caused by a defective product if they are aware or should be aware of the potential danger, if they have no reason to believe that users would recognize the risk, and if they fail to provide adequate warnings about the danger.
Other courts hold that Rule 407 does not apply in strict liability actions Troja, 62
In the case of Troja, 62 Md App at 113, 488 A.2d at 522, and supported by Werner v Upjohn Co., 628 F.2d 848, 856-58 (4th Cir 1980), the court was asked to consider adopting the stance from Ault, 13 Cal 3d 113,528 P.2d 1148, 117 Cal Rptr 812, which suggests that the prohibition on admitting evidence of subsequent remedial measures does not apply in product liability cases However, the Werner court ultimately rejected this position.
The Ault court presumes that a product is defective, neglecting scenarios where a product, while not defective, could still be improved Additionally, the court noted that permitting evidence of remedial measures in strict product liability cases contradicts the principles outlined in Rule 407.
Warranty
Alternative Liability
Regardless of the cause of action, under Maryland law one seeking
172 ld at 56, 497 A.2d at 1159 The case upon which the Court of Appeals of Mary- land relied was Moning v Alfano, 400 Mich 425, 154 N.W.2d 759 (1977)
173 See Dorr & Burch, Saturday Night Fever, THE BRIEF, Winter 1986, at 10
175 Note, Saturday Night Specials: A "Special" Exception in Strict Liability Law, 61 NOTRE DAME L REV 478, 493 (1986)
176 Senate Bill 151 and House Bill 1595 each would have had the result, if passed, of overturning the decision of the court of appeals in Kelley S 151 (1986); H.R 1595
(1986) Neither bill survived the 1986 legislative session See Library and Com- puter Div of the Md Dept of Legislative Reference, Final Status Report for the
1986 Session and the October 1985 Special Session of the General Assembly of Mary- land, 46, 140 (1986) A similar bill failed in the 1987 legislative session
The Kelley opinion highlights that, despite the absence of a traditional legal framework for holding gun manufacturers liable, the common law can evolve to meet modern societal needs The court supports the application of strict liability for handguns, aligning with existing state and federal gun control laws It emphasizes that these laws reflect a governmental stance on certain handguns, particularly the "Saturday Night Special," which are viewed as having minimal legitimate use in contemporary society.
In Maryland, to successfully claim product liability, a plaintiff must demonstrate the existence of a defect, link that defect to a seller, and establish a direct causal relationship between the defect and the injury sustained If a product from a manufacturer is not directly responsible for the harm, the claim will be dismissed Recent litigation across various industries has prompted courts to reassess this conventional framework, particularly in cases involving asbestos, generic products with similar formulations, and toxic chemicals with delayed side effects In response to these complexities, some courts have developed nontraditional liability theories to address the challenges of identifying manufacturers in such cases.
One such nontraditional theory is "alternative liability." Summers v Tice provides a framework for the alternative liability theory 180 In
In a notable case, two hunters negligently fired their guns towards the plaintiff, who successfully demonstrated negligence but could not identify which hunter's shotgun pellets caused his injuries The Supreme Court of California drew an analogy to a scenario where an unconscious patient is harmed during surgery and is unable to determine the responsible party To support plaintiffs in such situations, the court established a new liability theory that shifts the burden of proof regarding causation to the defendants This shift occurs only if two criteria are met: the plaintiff must identify all potentially negligent parties and must be unable to prove which defendant caused the injury, rather than simply unwilling to do so.
The theory of alternative liability is problematic because it assumes that a plaintiff can identify and bring all potentially negligent parties to court, which may not always be feasible.
178 Phipps v General Motors Corp., 278 Md 337, 344, 363 A.2d 955, 958 (1976); Jen- sen v American Motors Corp., 50 Md App 226, 234, 437 A.2d 242, 247 (1981)
In the case of Lohrmann v Pittsburgh Coming Corp., 782 F.2d 1156 (4th Cir 1986), the court determined that a plaintiff must demonstrate that each manufacturer of asbestos insulating materials was a direct cause of their disease in order to recover damages.
Over the past decade, asbestosis litigation has evolved, with plaintiffs typically suing all known manufacturers of asbestos products During discovery, some defendants are dismissed on summary judgment motions due to a lack of evidence linking them to the asbestos-related claims A key principle in products liability law is that plaintiffs must demonstrate that the specific product manufactured by the defendant caused their injuries, as established in cases like Gray v United States.
The court's ruling in Summers addresses a scenario where all potential defendants are included as litigants Injuries resulting from drugs, chemicals, and similar products often appear long after their purchase and use, which may explain why the doctrine of alternative liability has not been embraced in Maryland and other jurisdictions.
Concert of Action
The concert of action theory of liability asserts that all participants in unreasonably dangerous group activities should be held jointly and severally liable, regardless of who specifically caused the harm This principle is frequently applied in cases of drag racing on public roads, where participants are viewed as "wrongdoers acting in concert." For instance, in the Summers case, the court noted that the shotgun pellets injuring the plaintiff could only have originated from one of the two defendants, highlighting the collective responsibility of those involved in dangerous conduct.
186 The doctrine has been rejected in California, Sindell v Abbott Labs., 26 Cal 3d 588,
In several U.S states, courts have ruled against the application of the alternative liability theory for drug manufacturers In California, the case of 607 P.2d 924 determined that manufacturers could not be held liable under this theory, a decision upheld by the U.S Supreme Court's certiorari denial Similarly, in Florida's Morton v Abbott Labs, the court found the theory inapplicable as the plaintiff failed to prove causation Georgia's Starling v Seaboard Coast Line R.R also concluded that the alternative liability theory lacks legal basis in the state Conversely, Michigan has embraced the doctrine, as seen in Abel v Eli Lilly & Co., where the court stated it could be applied if plaintiffs fulfill specific requirements South Carolina has suggested a willingness to consider the doctrine under appropriate circumstances.
In the case of Ryan v Eli Lilly & Co., the court ruled that manufacturers could not be held liable under alternative liability theory when the plaintiff identified only 7 out of 118 drug manufacturers Conversely, in Ferrigno v Eli Lilly & Co., New Jersey courts applied alternative liability, allowing the burden of proof to shift from the plaintiffs, who could not identify the specific manufacturers of synthetic estrogen their mothers consumed However, this application of alternative liability faced skepticism in Namm v Charles E Frosst & Co., where the court declined to adopt the theory for a products liability case involving some manufacturers of the pharmaceutical DES, arguing that it would undermine traditional legal principles.
187 The basic formulation of the theory is contained in section 876 of the Restatement (Second) of Torts, which provides:
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tor- tious result and his own conduct, separately considered, consti- tutes a breach of duty to the third person
188 Bierczynski v Rogers, 239 A.2d 218, 221 (Del 1968) In Bierczynski, the Supreme Court of Delaware upheld a verdict in favor of two motorists who were injured by
Under the concert of action theory, all participants in an activity can be held jointly liable for a victim's injuries, even if one participant can demonstrate that another caused the harm Unlike alternative liability, this theory does not transfer the burden of proof regarding causation to the defendants; instead, it establishes liability for all involved once causation is established.
In Cousineau v Ford Motor Co., the Michigan Court of Appeals overturned the trial court's dismissal of a concert of action claim against multiple wheel manufacturers The plaintiff successfully demonstrated, through sufficient documentary evidence, that the defendants engaged in a common plan by neglecting to warn about the dangers of mismatched wheel components, despite being aware of the risks associated with their products Additionally, the plaintiff argued that the defendants opted to provide charts for safe component interchangeability instead of redesigning the components, suggesting a tacit agreement among them to avoid more effective safety measures This case highlights that a concert of action claim necessitates evidence of an agreement or at least a tacit understanding among the defendants.
Cousineau would sustain a judgment against the defendants was not re- solved, but the allegations were sufficient to deny a motion for summary judgment in favor of the defendants 194
The concert of action theory presents challenges when plaintiffs seek to include defendants with greater financial resources, even if the actual wrongdoer is known This theory allows plaintiffs to implicate more solvent industry members based on a tacit understanding among them, despite a less solvent party being the true perpetrator Consequently, many courts have rejected this theory in product liability cases An illustrative case involved two teenagers drag racing on a public highway, where one participant, not directly involved in an accident, contested the verdict against him The court ruled that participation in such races constitutes concurrent negligence, making all participants liable for injuries to non-participants resulting from the race, as seen in Ogle v Avina.
146 N.W.2d 422 (1966); Agovino v Kunze, 181 Cal App 2d 591, 5 Cal Rptr 534
190 Cousineau v Ford Motor Co., 140 Mich App 19, 38, 363 N.W.2d 721, 731 (1985)
193 Id at 32, 363 N.W.2d at 728 See also Collins v Eli Lilly & Co., 116 Wis 2d 166,
184, 342 N.W.2d 37, 46 (1984) (the "substantial amount" of parallel action by the defendants in the manufacture and marketing of DES failed to rise to the level of acting in concert)
194 Cousineau, 140 Mich App at 35, 363 N.W.2d at 729
36 Baltimore Law Review [Vol 16 cases 195
Enterprise Liability
Enterprise liability holds entire industries accountable when their collective standards lead to injuries This concept traces its roots back to the case of Hall v.
In the case of E.l DuPont de Nemours & Co., a federal district court addressed injuries caused by defective blasting caps, establishing a precedent for cases involving generic products without a specific manufacturer The court ruled that plaintiffs could hold multiple defendants jointly and severally liable if they could demonstrate a collective agreement to provide insufficient safety warnings Additionally, the court allowed plaintiffs to shift the burden of proof regarding causation by showing that the defendants complied with industry-wide standards for the product in question.
The concept of enterprise liability is still largely ambiguous, with Hall suggesting its application is more suited for centralized industries rather than decentralized ones To date, no court has recognized enterprise liability as a legitimate theory However, its most notable impact lies in paving the way for the development of "market share liability."
In several legal cases, courts have consistently ruled that drug manufacturers cannot be held liable under the concert of action theory For instance, in Morton v Abbott Labs, the court determined that the manufacturers' actions did not indicate any coordinated tortious conduct Similarly, in Ryan v Eli Lilly & Co., the plaintiff failed to demonstrate a common plan among the manufacturers, leading to a lack of liability Additionally, in Sindell v Abbott Labs, the court upheld that the drug manufacturer could not be liable under the same theory, with the Supreme Court later denying certiorari.
1.97 Hall v E.l DuPont de Nemours & Co., 345 F Supp 353, 359 (E.D.N.Y 1972)
The court that ruled on Hall has indicated that enterprise liability could be relevant in "Agent Orange" cases, where a limited number of manufacturers produced the chemical defoliant This liability arises from the defendants' failure to warn about the dangers of the product while benefiting financially from its sales.
200 See Note, Market Share Liability: Is California a Mere Gadfly on the Products Lia- bility Scene or Is It a Harbinger of a National Trend?, 11 OHIO N.U L REV 129,
143 (1984) Enterprise liability was rejected in Cousineau v Ford Motor Co., 140 Mich App 19, 363 N.W.2d 721 (1985); Namm v Charles E Frosst & Co., 178 N.J Super 19; 427 A.2d 1121 (1981); Ryan, 514 F Supp 1004; Sindell, 26 Cal 3d 588,
Market Share Liability
Established Defenses
The evolution of defenses in product liability actions has been less pronounced compared to the rise of new liability theories Historically, the primary defenses included misuse, product alteration, contributory negligence, and assumption of risk Recently, however, there has been a shift towards defenses that consider the actions of the injured party or other third parties.
The defendant holds a superior position compared to the plaintiff in identifying other drug companies that may be liable While it is acknowledged that many drug companies lack pertinent records, their involvement in the DES market likely provides them with greater access to relevant information than the plaintiff possesses.
In the case of Collins, the court established that a plaintiff can file suit against just one defendant The Supreme Court of Washington, in Martin, clarified that a plaintiff must allege that their mother consumed DES, which led to the plaintiff's injuries, and that the defendant was responsible for producing or marketing the specific type of DES taken by the mother Furthermore, it must be demonstrated that the defendant's actions in producing or marketing DES constituted a breach of a legally recognized duty to the plaintiff.
/d at S94, 689 P.2d at 382 (quoting Collins, 116 Wis 2d at 193-94, 342 N.W.2d at SO)
In addition to the Sindell case, various courts have established market share liability in DES litigation, as evidenced by decisions such as McElhaney v Eli Lilly & Co., Mertan v E.R Squibb & Sons, and Miles Labs v Superior Court.
In several notable legal cases, courts have consistently rejected the concept of market share liability For instance, in Starling v Seaboard Coast Line R.R., the court determined that market share liability is not recognized under Georgia law in asbestosis cases Similarly, in Morton v Abbott Labs., eight out of 149 manufacturers of DES were found not liable under Florida law, neither through the concert of action theory nor market share liability The District of Columbia also declined to acknowledge market share liability in Tidier v Eli Lilly & Co These rulings highlight a trend across various jurisdictions to limit the applicability of market share liability in product liability cases.
In 1981, South Carolina declined to acknowledge market share liability in a case involving DES, while New Jersey similarly rejected the adoption of market share liability, citing concerns that such a change would necessitate significant policy alterations.
221 See Collins, 116 Wis 2d 166, 342 N.W.2d 37; Martin, 102 Wash 2d 581, 689 P.2d
222 The Court of Appeals of Maryland in Phipps v General Motors Corp., 278 Md
In the case of 337, 363 A.2d 955 (1976), two key defenses emerged in product liability litigation: the sophisticated user defense and the informed intermediary defense These defenses reflect a nuanced comprehension of the underlying causes of injury, yet the traditional theories of defense continue to play a significant role in such legal cases.
Assumption of Risk
The assumption of risk defense posits that an injured party cannot seek recovery if they are aware of a product's defect and the associated dangers but choose to use the product anyway This defense is applicable across various theories of recovery presented by the plaintiff.
In the case of Ellsworth v Sherne Lingerie, Inc., the Court of Appeals of Maryland acknowledged assumption of risk as a valid affirmative defense in product liability lawsuits The court emphasized that for a defendant to successfully invoke this defense, they must demonstrate that the plaintiff was fully aware of and understood the specific risks associated with the defect in question.
Under § 402A, sellers can utilize several defenses in strict liability tort cases, as detailed in the official comments Notably, sellers are not liable if injuries arise from abnormal product use (Comment h), or if mishandling after delivery compromises safety (Comment g) Furthermore, if consumers ignore provided warnings or instructions, leading to unsafe usage, liability may be avoided (Comment j) Additionally, the defense of assumption of risk applies when a plaintiff knowingly uses a product despite being aware of its dangers (Comment n).
The court of appeals' intent regarding the adoption of defenses remains ambiguous, as it may have been discussing their implications rather than formally adopting them Following the Phipps case, the court has addressed various defenses, including assumption of risk, notably in Ellsworth v Sheme Lingerie, Inc.
(1985) and Anthony Pools v Sheehan, 295 Md 285, 455 A.2d 434 (1983); misuse, in Ellsworth, 303 Md 581, 495 A.2d 348; and contributory negligence, which gener- ally is not a defense in a strict liability claim, in Anthony Pools, 295 Md 285, 455 A.2d 434
223 RESTATEMENT (SECOND) OF TORTS 402A comment n (1965) provides:
Contributory negligence, often referred to as assumption of risk, serves as a defense in cases of strict liability If a user identifies a defect and acknowledges the associated danger but still chooses to use the product unreasonably, resulting in injury, they forfeit their right to recovery.
See also Ellsworth, 303 Md at 597, 495 A.2d at 356
In Maryland, the assumption of risk serves as a defense in all tort cases, with a less stringent standard applied in negligence cases compared to strict liability Under the negligence standard, defendants are not required to prove that plaintiffs acted unreasonably when facing the risk, as established in Rogers v Frush, 257 Md 233, 262 A.2d.
The case of Erdman v Johnson Bros (1970) is significant as it predates Maryland's strict liability in tort, yet its facts are relevant to this legal principle While the primary focus of Erdman is on the defense of contributory negligence, its analysis also applies to the concept of assumption of risk.
In Maryland, the assumption of risk defense in product liability cases involves three key elements: (1) the plaintiff must have voluntarily encountered a known risk, (2) they must have been aware of the danger, and (3) their decision to face this risk must be deemed unreasonable Despite the recognition of this defense, Maryland appellate courts have yet to address its specific application within the context of product liability law.
To successfully use assumption of risk as a defense against a strict liability claim, it must be proven that the plaintiff was aware of the product's defect Simply failing to identify the defect does not support this defense This approach introduces elements of contributory negligence into the assumption of risk defense, which typically does not apply in strict liability tort cases.
In many jurisdictions, defendants must demonstrate that plaintiffs not only recognized a product defect but also fully comprehended the associated risks While some courts accept evidence that the plaintiff knew or should have known about the danger, the majority impose a stricter requirement, necessitating proof of the plaintiff's actual or subjective awareness of the risk Maryland employs a subjective standard to evaluate a plaintiff's understanding of the danger, focusing on their personal knowledge and appreciation of the risk rather than relying on the hypothetical "reasonably prudent person" standard used in contributory negligence cases Additionally, a plaintiff's subjective awareness may be inferred from external circumstances.
The second element of the assumption of risk defense is that the
According to the RESTATEMENT (SECOND) OF TORTS § 402A comment n (1965), a plaintiff's contributory negligence cannot be used as a defense if it simply involves failing to identify a defect in a product or to take precautions against its potential presence.
229 See, e.g., Christner v E.W Bliss Co., 524 F Supp 1122 (M.D Pa 1981); Rhoads v Serv Mach Co., 329 F Supp 367 (E.D Ark 1971); Culp v Reynord and Booth- Rouse Equip Co., 38 Colo App 1, 553 P.2d 844 (1976); Wilson v Norfolk & W
Ry Co., 109 Ill App 3d 79, 440 N.E.2d 238 (1982); Hughes v Magic Chef, Inc.,
In the case of 288 N.W.2d 542 (Iowa 1980), along with Harris v Atlanta Stove Works, 428 So 2d 1040 (La App.), cert denied, 434 So 2d 1106 (La 1983), and Kuiper v Goodyear Tire & Rubber Co., 673 P.2d 1208 (Mont 1983), significant legal precedents were established Additionally, Brown v North Am Mfg Co., 176 Mont 98, 576 P.2d 711, which was later reversed on other grounds in Zaharte v Strurm, Ruger & Co., 661 P.2d, further contributed to the evolving landscape of case law in the respective jurisdictions.
17 (Mont 1983); Mauch v Manufacturers Sales & Serv., 345 N.W.2d 338 (N.D 1984); Olson v A.W Chesterton Co., 256 N.W.2d 530 (N.D 1977); Smith v Smith,
278 N.W.2d 155 (S.D 1979); Ellithorpe v Ford Motor Co., 503 S.W.2d 516 (Tenn 1973); Klein v R.D Werner Co., 98 Wash 2d 316, 654 P.2d 94 (1982)
In the case of Ganji v Sears, Roebuck & Co., 33 Conn Supp 81, 360 A.2d 907 (1976), it was established that a defendant is required to demonstrate that the plaintiff either had or should have had awareness and understanding of the specific danger they faced, and that the plaintiff chose to remain in that perilous situation.
232 Sheehan v Anthony Pools, SO Md App 614, 625-26 nn.10, 11, 440 A.2d 1085, 1091-92 nn.to; 11 (1982), aff'd, 295 Md 285, 455 A.2d 434 (1983)
In cases involving assumption of risk, the plaintiff's voluntariness is often a key issue, particularly when they claim that their interaction with a hazardous condition was unintentional This distinction was highlighted in the Maryland Court of Special Appeals case, Banks v Iron Hustler Corp., where an employee was injured by a conveyor belt The court faced uncertainty over whether the employee had intentionally placed his hand in a known danger zone or had inadvertently tripped into it This ambiguity led the court to determine that the question of whether the defendant could invoke the assumption of risk defense should be decided by a jury, referencing the precedent set in Kessler v Bowie Machine Works.
To establish an assumption of risk defense, the defendant must demonstrate that the employee was aware of the risk, understood its nature, and voluntarily accepted it This requires the employee to have adequate time, knowledge, and experience to make an informed decision regarding the risk involved.
Misuse
Manufacturers are not held liable if their products become hazardous due to misuse, as they are generally not required to design safeguards against potential misuses According to comment h of section 402A in strict liability cases, this principle forms the foundation for the misuse defense, which is widely recognized in legal contexts.
A product is considered safe and non-defective when it can be handled and consumed normally without risk If injuries occur due to improper handling, such as using a bottle opener against a hard surface, or from incorrect preparation, like adding excessive salt, or from abnormal consumption, such as a child overeating candy, the seller is not held liable for those injuries.
The general rule is that a product is misused when it is not used in a manner which is reasonably foreseeable 247 Jurisdictions are split, how-
242 Maryland has recognized the assumption of risk defense to a negligence claim See
243 See infra note 272 and accompanying text See also Daly v General Motors Corp.,
20 Cal 3d 725, 575 P.2d 1162, 144 Cal Rptr 380 (1978) (court abolished assump- tion of risk as a complete defense and adopted comparative fault)
244 See Zahrte v Sturm, Ruger & Co., 661 P.2d 17 (Mont 1983); Trust Corp of Mont v Piper Aircraft Corp., 506 F Supp 1093 (D Mont 1981), aff'd, 701 F.2d 85 (9th Cir 1983)
245 See Westerman v Sears, Roebuck & Co., 577 F.2d 873 (5th Cir 1978); Latimer v General Motors Corp., 535 F Supp 1020 (7th Cir 1976)
246 RESTATEMENT (SECOND) OF TORTS§ 402A comment h (1965)
247 Maryland adopted this standard in Ellsworth v Sheme Lingerie, Inc., 303 Md 581, 595-96, 495 A.2d 348, 355 (1985) A wide range of uses are held misuses because they are not reasonably foreseeable See, e.g., Kay v Cessna Aircraft Co., 548 F.2d
In several legal cases, failures to adhere to safety guidelines and manufacturer instructions have led to significant liability issues For instance, in 1977, the Ninth Circuit ruled on a case involving noncompliance with an airplane instruction manual (1370, 1372-73) Similarly, the Fifth Circuit addressed the installation of incorrectly sized tires despite the plaintiff receiving proper manufacturer's instructions (McDevitt v Standard Oil Co., 391 F.2d 364, 370, 1968) Additionally, a case in 1971 highlighted the dangers of overloading an airplane (O'Keefe v Boeing Co., 335 F Supp 1104, 1133) In 1980, the Illinois Appellate Court found liability due to the use of excessive counterweights on a crane, violating OSHA safety regulations (McCormick v Bucyrus-Erie Co., 81 Ill App 3d 154, 162-63, 400 N.E.2d 1009, 1015-16) These cases underscore the critical importance of following established safety protocols and guidelines in various industries.
44 [Vol 16 ever, as to whether misuse is an affirmative defense, or whether it is an element of the plaintiff's claim 248 In Ellsworth v Sherne Lingerie,
Inc , 249 the Court of Appeals of Mary land held that misuse is an element of the plaintiff's claim:
Misuse is not considered an affirmative defense in legal cases, as the plaintiff must prove defectiveness and causation Instead, misuse serves as a "defense" by undermining key elements of the plaintiff's case, potentially preventing recovery.
In Maryland, the "general field of danger" test expands the reasonably foreseeable standard for misuse defenses, requiring defendants to demonstrate that not just a specific use, but the overall potential for danger was unforeseeable In the case of American Laundry Machine Industries v Horan, the court ruled in favor of the plaintiff, who suffered injuries from an industrial dryer that exploded while attempting to dry a large hot air balloon Similarly, in LeBouef v Goodyear Tire & Rubber Co., the court found that a tire manufacturer could be held liable for injuries resulting from a tire blowout at over 100 m.p.h due to a failure to provide adequate warnings about safe speed limits.
App 2d 374, 379, 222 N.E.2d 348, 350 (1966) (use of an automobile jack that the plaintiff knew was not suited for use on a particular make of vehicle)
248 See Ellsworth v Sherne Lingerie, Inc., 303 Md 581, 592-93, 495 A.2d 348, 355
In 1985, several states, including Alabama, Colorado, Florida, and Texas, recognized misuse as an affirmative defense in legal cases Conversely, states such as Arizona, Illinois, and Missouri require plaintiffs to demonstrate the absence of misuse when addressing issues related to defectiveness and proximate cause.
In the case of Ellsworth, 249 Md 581, 495 A.2d 348 (1985), the plaintiff suffered injuries when her nightgown, worn inside out with a pocket protruding, ignited after coming into contact with a hot burner on an electric stove The plaintiff claimed that her injuries were due to the manufacturer's failure to make the gown flame-resistant and a lack of warnings regarding the fire hazard associated with the garment.
587, 495 A.2d at 351 The court found that it was entirely foreseeable to the manu- facturer that the apparel would be worn inside out and close to sources of ignition
/d at 598, 495 A.2d at 357 The court held that such use of the nightgown was not
"misuse" which would preclude recovery /d at 598, 495 A.2d at 356
251 See Moran v Faberge, Inc., 273 Md 538, 551, 332 A.2d 11, 19 (1975); American Laundry Mach Indus v Horan, 45 Md App 97, 104, 412 A.2d 407, 413 (1980)
253 American Laundry Mach Indus v Horan, 45 Md App 97, 100, 412 A.2d 407, 411
254 451 F Supp 253 (W.O La 1978), a.ff'd, 623 F.2d 985 (5th Cir 1980)
255 LeBouefv Goodyear Tire & Rubber Co., 451 F Supp 253, 257 (W.O La 1978), a.ff'd, 623 F.2d 985 (5th Cir 1980)
In the case of Ellsworth, the court of appeals determined that assumption of risk is an affirmative defense, while misuse is not It clarified that contributory negligence does not serve as a defense in strict liability cases, noting that a plaintiff may be barred from recovery due to misuse or assumption of risk, rather than contributory negligence While contributory negligence is a valid defense in negligence claims, the court refrained from establishing a mandatory instruction for juries regarding its inapplicability in strict liability cases The court acknowledged that when both negligence and strict liability are involved, an instruction stating contributory negligence is irrelevant could be misleading, leaving this decision to the trial judge's discretion In jurisdictions that have adopted comparative fault, misuse is considered alongside other factors in determining fault, unlike in Maryland, where it serves as a complete defense.
Alteration of Product
The alteration of a product after it leaves the seller's possession can make the product defective and unreasonably dangerous According to section 402A(l)(b) of the Restatement (Second) of Torts, strict liability requires that the product reaches the user "without substantial change in the condition in which it is sold." If a product is modified after leaving the manufacturer's control and this modification directly causes the plaintiff's injuries, the manufacturer may not be held liable.
Maryland's appellate courts have rarely addressed the term "substantial change." Recently, the Court of Special Appeals clarified that, according to section 402A(l)(b), the key consideration is the adjective "substantial," indicating that not every alteration to a product post-manufacture eliminates liability.
262 See Mulherin v Ingersoll-Rand Co., 628 P.2d 1301, 1303-04 (Utah 1981)
264 Where the subsequent alteration leading to the accident was forseeable by the seller, the seller may be held liable See Webb v Rodgers Mach Mfg Co., 750 F.2d 368,
265 Banks v Iron Hustler Corp., 59 Md App 408, 432, 475 A.2d 1243, 1255 (1984)
In the Baltimore Law Review, the court highlighted differing judicial perspectives on product alterations, noting that some courts focus on the foreseeability of the change, while others assess whether the alteration renders a safe product unsafe Additionally, some courts apply negligence principles to determine if the alteration acts as a supervening cause Ultimately, the court emphasized that the significance of the change is a factual question, and any evidential conflicts should be resolved by the jury.
In the case of Seeborg v General Motors Corp., a fire incident involving a new vehicle highlighted the importance of product misuse in liability cases The vehicle owner replaced a fuse with a stronger and heavier one, contrary to the explicit warning in the owner's manual against using higher amperage fuses As a result, the court ruled that the manufacturer could not be held liable due to the owner's misuse of the product.
Foreseeability issues often emerge in product alteration cases, as some jurisdictions state that the alteration defense is void if the change was "reasonably foreseeable." However, applying a reasonableness standard is unsuitable in strict liability cases, as it introduces negligence into a framework based on liability without fault Maryland has yet to decide if foreseeability should be considered in strict liability cases involving product alterations.
Comparative Fault
Emerging Defenses
Emerging defenses in failure to warn claims include the "sophisticated user" defense and the "informed intermediary" defense, which suggest that manufacturers may have no duty to warn or can be excused from this duty under specific conditions These defenses, along with the "state of the art" defense, introduce negligence principles into strict product liability cases, highlighting the evolving legal landscape in product liability law.
Manufacturers and suppliers are obligated to inform users about potential dangers linked to their products, but this duty arises only when they have reasonable grounds to foresee that such dangers may occur from specific uses.
274 Digges, Jr and Klein, Comparative Fault in Maryland: The Time Has Come, 41
Strict product liability is based on the condition of the product rather than the seller's negligence, as outlined in RESTATEMENT (SECOND) OF TORTS § 402A comment n (1965) This principle is further supported by the case Phipps v General Motors Corp., 278 Md 337, 344, 363 A.2d 955, 958 (1976).
In the case of Dippel v Sciano, the Supreme Court of Wisconsin established that if liability is imposed for violating a statute, it can be regarded as negligence per se when applying the comparative negligence statute, similar to previous cases involving safety statutes.
The court addressed the doctrinal issue by comparing the contributory negligence of a product user with the defendant's strict liability This approach, known as the Dippel approach, has been adopted by other courts, including West v Caterpillar (Fla 1976) and Busch v Busch Construction, Inc (Minn 1977).
The Nevada Supreme Court has determined that comparative fault cannot be used as a defense in strict liability cases, as established in Young's Mach Co v Long, 692 P.2d 24 (Nev 1984) The court ruled that the state's comparative negligence statute does not apply to strict liability actions, indicating that any extension of this principle must come from the legislature.
The Restatement (Second) of Torts § 402 comment h (1965) establishes that if a manufacturer knows that a product's dangers are well understood by the purchaser-employer, there is no obligation to provide warnings Instead, it is the purchaser-employer's duty to safeguard employees through appropriate warnings or precautions The United States District Court for the Western District of Virginia emphasized that when a supplier believes the purchaser recognizes the product's dangers, warnings are not required The sophisticated user defense operates on the principles that knowledgeable purchasers understand the risks and are better positioned to inform employees than the manufacturer In scenarios involving a manufacturer, purchaser, and employee, this defense parallels the doctrines of superseding-intervening cause and informed intermediary In simpler cases involving only the manufacturer and purchaser, it resembles the patent danger rule.
The case of Goodbar v Whitehead Brothers exemplifies the effective use of sophisticated user defense, where plaintiffs employed in a foundry claimed they developed silicosis due to inhaling free-floating silica dust The United States District Court for the Western District of Virginia referenced comment n of Section 388(a) of the Restatement (Second) of Torts, ultimately concluding that Virginia law supported their findings.
279 REsTATEMENT (SECOND) OF TORTS § 388 comment n (1965)
The article discusses the evolution of the sophisticated user defense in products liability cases, originating from the landmark case Littlehale v E.I du Pont de Nemours Co This defense has been notably applied in various contexts, with a specific focus on its use in asbestos-related litigation The commentary provides insights into how this legal doctrine has developed over time and its implications for manufacturers and users alike.
281 Goodbar v Whitehead Bros., 591 F Supp 552, 561 (W.D Va 1984), aff'd sub nom Beale v Hardy, 769 F.2d 213 (4th Cir 1985)
283 See, e.g., Stanback v Parke, Davis & Co., 657 F.2d 642, 644 (4th Cir 1981); Ster- ling Drug, Inc v Cornish, 370 F.2d 82, 85 (8th Cir 1966); Fellows v USV Pharm Corp., 502 F Supp 297,299 (D Md 1980); Chambers v G.D Searle & Co., 441 F Supp 377, 381 (D Md 1975), aff'd, 567 F.2d 269 (4th Cir 1977)
284 See Banks v Iron Hustler Corp., 59 Md App 408, 475 A.2d 1243 (1984)
285 591 F Supp 552 (W.O Va 1984), aff'd, 769 F.2d 213 (4th Cir 1985)
A supplier, whether directly or through a third party, is liable for physical harm caused by a chattel they provide for another's use, particularly to those who the supplier should reasonably expect will use the chattel with consent or may be endangered by its expected use This liability applies when the chattel is used in the intended manner and by the person for whom it was supplied.
(a) knows or has reason to know that the chattel is or is likely to be dan- gerous for the use for which it is supplied;
Restatement, "there is no duty on product suppliers to warn employees of knowledgeable industrial purchasers as to product-related hazards " 288
In the Goodbar case, the decision was rooted in negligent failure to warn rather than strict liability failure to warn However, the United States Court of Appeals for the Fourth Circuit has clarified that, under Maryland law, there is no significant difference between failure to warn claims based on negligence and those based on strict liability in tort Both types of claims ultimately concentrate on the same fundamental issues.
(b) has no reason to believe that those for whose use the chattel is sup- plied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condi- tion or of the facts which make it likely to be dangerous
REsTATEMENT (SECOND) OF TORTS § 388 (1965) The present text of§ 388 re- mains unchanged from the original draft, which the Court of Appeals of Maryland adopted in Kaplan v Stein, 198 Md 414, 420, 84 A.2d 81, 84 (1951)
288 Goodbar, 591 F Supp at 559 The court outlines application of the defense:
A sand supplier to a knowledgeable foundry, such as the Lynchburg Foundry, is not obligated to warn employees about the occupational disease silicosis, as the responsibility for effective communication lies with the Foundry itself The challenges faced by sand suppliers in warning Foundry employees about the hazards associated with sand usage in a foundry environment are significant.
To effectively identify users and those exposed to its products, suppliers must implement continuous monitoring due to the high turnover rate of the Foundry's extensive workforce.
(2) the manner in which the sand products are delivered in bulk (i.e unpackaged railroad car lots or truck);
The absence of written product warnings on railroad cars means that workers involved in casting and those nearby will not receive critical safety information This is primarily due to the method of unloading, conveying, and storing loose sand, which prevents any warnings from reaching them effectively.
The Foundry is uniquely positioned to implement essential housekeeping measures, provide ongoing training, and deliver consistent warnings to its workers, all of which are crucial for effectively minimizing the risk of silicosis.
(5) the sand suppliers must rely on the Foundry to convey any safety information to its employees;
(6) the confusion arising when twelve different suppliers and the Foundry each try to cope with the awesome task of instructing the Foundry workers; and