Restatement (Second) of Torts: Defective, Unreasonably Dangerous Products
In 1965, The American Law Institute endorsed The Restatement (Second) of Torts § 402(A) which, under certain conditions, imposes strict liability upon a seller or manufacturer of a product who sells “any product in a defective condition unreasonably dangerous to the user or consumer…” (emphasis added) for physical harm to the consumer caused by such product. Section 402(A) has since been adopted by the vast majority of states.
§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Note 1. In Section 402A(1), what does “a defective condition unreasonably dangerous to the user” mean? Can a defective condition escape legal consequences for its manufacturer or seller if it is only reasonably dangerous? Who do you think is likely to decide what constitutes a defective condition? Who would you think is likely to decide whether the defect is reasonably versus unreasonably dangerous? Why do you think that is so? What sorts of evidence might be used to prove defectiveness, dangerousness and reasonableness, respectively?
Note 2. Would it surprise you to learn that the phrase, as adopted in most jurisdictions, expressly omits the word “unreasonably”? The standard is often stated thus: “defective condition dangerous to the user.” Why do you think that might be?
Note 3. How do Sections 402A(1)(a) and (b) limit the scope of liability? What do you imagine are the real-world effects of such provisions?
Note 4. How do Sections 402A(2)(a) and (b) expand the scope of liability? What is the practical legal effect of each of those provisions?
A Categorical Approach to Liability for Defective Products
In addition to § 402(A), The American Law Institute adopted Restatement (Third) of Torts §§ 1 & 2 in 1998. These newer sections impose liability upon commercial sellers and distributors for harm caused by defective products, and delineate categories of “product defect.” Sections 1 & 2 have been controversial due partly to their use of the reasonable alternative design (as an apparent requirement imposed on the plaintiff rather than a theory of liability and admissible evidence available for the plaintiff).
The relevant volume of the Restatement (Third) of Torts sets out three types of defects that may render a product “unreasonably dangerous”: manufacturing defect; design defect; and defective (or inadequate) warning.
Restatement (Third) of Torts: Products Liability (1998)
§ 1. Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.
§ 2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Contemporary case law has widely adopted this categorical approach as the cases in this section of the book illustrate. A particular unit of a product may be defective because of an imperfection in the manufacturing process. (Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). Additionally, a product’s design may render the item “unreasonably dangerous.” Ford Motor Co. v. Trejo, 133 Nev. 520 (2017). Finally, a failure to post adequate warnings may deem a product “unreasonably dangerous.” Shinedling v. Sunbeam Products, Inc., U.S. Dist. Court, C.D. Cal. (2014) (2014 WL 12589646).
Ford Motor Co. v. Ledesma, Supreme Court of Texas (2007)
(242 S.W.3d 32)
In this products liability case, Ford Motor Co. argues that the trial court reversibly erred in charging the jury by giving an incomplete definition of “manufacturing defect.” We agree. [***] We remand the case for a new trial under a jury charge that reflects our applicable caselaw, including our decision today. In March 1999, Tiburicio Ledesma, Jr. purchased a new Ford F–350 Super Duty pickup truck for his construction business. The truck had four rear tires, two on each side, surrounded by fiberglass fenders extending beyond the sides of the truck.
On June 5, 1999, Ledesma turned onto a two-lane street in Austin and began to accelerate. He testified that after shifting gears the truck suddenly began to lurch, and he lost control, striking two parked cars, a Firebird and a Civic, on the side of the street. The truck then hit the street curb and came to rest. At the time of the accident, the truck’s odometer read about 4,100 miles. Power from the truck engine is conveyed to the rear axle by the drive shaft, which connects the transmission in the front of the truck with the differential/rear axle assembly in the rear. As seen in the trial exhibit reproduced below, the rear-axle housing is attached to two sets of rear leaf springs by u-bolts, which wrap around the axle housing and are bolted to a rear spring plate that sits on top of the leaf-spring assembly. On each side of the truck, two u-bolts attach the rear-axle housing to a spring plate and set of leaf springs.
Both parties agree that the truck’s rear leaf spring and axle assembly came apart and that this separation caused the drive shaft to dislodge from the transmission. The core dispute centers on when and why this malfunction occurred and whether it caused the collision or resulted from it. That is, did a manufacturing defect trigger the right rear-axle displacement and cause Ledesma to lose control of the truck and strike the parked cars (as Ledesma claims), or did the right rear axle detach when Ledesma struck the parked cars and curb (as Ford claims)?
At trial, Ledesma claimed that he lost control of the truck when its drive shaft separated from the transmission and “pronged” on the pavement, causing him to hit the parked cars. A police officer testified that he investigated the accident scene and prepared a report based on Ledesma’s description of the accident. The report makes no mention of any other witnesses. Ledesma also presented two expert witnesses in support of his manufacturing defect claim, as discussed below.
Ford presented an expert, Dan May, in support of its theory that the axle-to-spring attachment failed, not because of a manufacturing defect, but because of the forces exerted on it when Ledesma struck the parked vehicles and curb. Among other efforts to discredit May, Ledesma emphasized to the jury that May was a long-time Ford employee and had never found a defect in a Ford product.
Ford also called the owner of the Firebird, Edward Plyant, who testified by deposition that he witnessed the accident from a driveway. Plyant testified that Ledesma was speeding and inattentive and struck the Firebird at a high rate of speed. Ledesma testified that Plyant did not see the accident, but came outside after hearing the ensuing commotion, and that Plyant had unsuccessfully sued Ledesma.
The jury sided 11–1 with Ledesma, finding that a manufacturing defect caused the accident and that Ledesma was not contributorily negligent, and awarding economic damages of $215,380. The court of *37 appeals affirmed. [***]
A. Admissibility of Ledesma’s Expert Testimony. [discussion omitted]
B. Jury Charge
Ford complains that, over its objection, the trial court improperly instructed the jury on the definitions of manufacturing defect and producing cause. The jury affirmatively answered Question No. 1 of the jury charge, which asked:
Was there a manufacturing defect in the 1999 Ford F–350 pickup truck at the time it left Ford’s possession that was a producing cause of the June 5, 1999 incident in question?
A “defect” means a condition of the product that renders it unreasonably dangerous. An “unreasonably dangerous” product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product’s characteristics.
“Producing cause” means an efficient, exciting, or contributing cause that, in a natural sequence, produces the incident in question. There may be more than one producing cause.
In defining defect, the trial court followed Texas Pattern Jury Charge (PJC) 71.3. As specified in the comment to PJC 71.3, the trial court included in the question the definition of producing cause found in PJC 70.1. Ford objected that both PJC 71.3 and PJC 70.1 were “not accurate under the law” and failed to track this Court’s precedent. We agree. Ledesma may have argued a manufacturing defect to the jury, but the law requires the jury to determine specifically whether he had proven one. The jury here received a legally incorrect charge that omitted an indispensable element: that the product deviated, in its construction or quality, from its specifications or planned output in a manner that rendered it unreasonably dangerous.
1. The Court’s Charge on Manufacturing Defect Failed to Include the Essential Element of a Deviation from Design
The trial court submitted the pattern jury charge’s definition on manufacturing defect. We agree with Ford, however, that the model charge is erroneous, as it does not include the requirement that a manufacturing defect must deviate from its specifications or planned output in a manner that renders the product unreasonably dangerous. We established this standard in American Tobacco Co. v. Grinnell (951 S.W.2d 420, 434 (Tex.1997)) and in three other cases since Grinnell was issued a decade ago, we have recognized, with essentially identical statements, the “deviation from specifications or planned output” requirement [Citations omitted]. This *42 requirement is separate from, and in addition to, the requirements that the product was defective when it left the manufacturer and that the defect was a producing cause of the plaintiff’s injuries. [***]
We note that the current Restatement of Torts essentially follows the same concept of a deviation from the manufacturer’s design by providing that a product “contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product….” The requirement of a deviation from the manufacturer’s specifications or planned output serves the essential purpose of distinguishing a manufacturing defect from a design defect. PJC 71.3 refers to a “manufacturing defect” in the product “at the time it left” the manufacturer. A jury—without further guidance—may view any defect in a product at the time it leaves the manufacturer as satisfying the PJC’s reference to a “manufacturing defect,” rather than making the essential distinction between a manufacturing and design defect. As it stood, the court’s charge merely inquired whether a “condition” of the product rendered it unreasonably dangerous. That “condition” could have been a design defect or a manufacturing defect.
The distinction is material. The danger of allowing a jury to conclude that the defect was or might have been a design defect is that “[a] design defect claim requires proof and a jury finding of a safer alternative design.” [fn] The charge did not make such an inquiry.
Moreover, requiring a deviation from specifications or planned output permits a jury to determine whether a specific defect caused the accident, rather than premising liability on a belief that a product failure, standing alone, is enough to find a product defect. Texas law does not generally recognize a product failure or malfunction, standing alone, as sufficient proof of a product defect. [fn] Instead, we have held that “a specific defect must be identified by competent evidence and other possible causes must be ruled out.” [fn] Our law requires more than finding an undifferentiated “condition” that renders the product unreasonably dangerous, which is all the court’s charge mandated. While a products liability claim does not of course require proof of manufacturer negligence, the deviation from design that caused the injury must be identified. Otherwise, the jury is invited to find liability based on speculation as to the cause of the incident in issue.
Requiring proof of a deviation from manufacturer specifications or planned output also comports with our recognition that expert testimony is generally encouraged if not required to establish a products liability claim. [Citations omitted] If juries were *43 generally free to infer a product defect and injury causation from an accident or product failure alone, without any proof of the specific deviation from design that caused the accident, expert testimony would hardly seem essential. Yet we have repeatedly said otherwise.
For these reasons, we hold that the court’s charge was fundamentally flawed in omitting the requirement that the product deviate, in its construction or quality, from its specifications or planned output in a manner that renders it unreasonably dangerous.
Since Ford preserved error, we turn to whether the charge error is reversible. We hold that it is. “It is fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in the law.” [fn] “There can be no question that it was [the plaintiff’s] burden to obtain affirmative answers to jury questions as to the necessary elements of his cause of action.” [fn] The jury was not asked to decide an essential element of a manufacturing defect claim, namely whether the u-bolt deviated from Ford’s specifications or planned output.
[***] In the pending case, the trial court followed the [Pattern Jury Charges (“PJC”)]. On one occasion we not only approved a PJC issue and instruction for design defect cases, we expressly disapproved of the use of any other instructions in such cases, [fn] prompting one court of appeals to remark that “[o]ur highest court has made it abundantly clear that to deviate from the pattern jury charges in products liability cases is a perilous journey.” Given that our trial courts routinely rely on the Pattern Jury Charges in submitting cases to juries, and we rarely disapprove of these charges, we conclude that the interests of justice would not be served by reversing and rendering judgment in favor of Ford. The more appropriate remedy is to reverse and remand for a new trial.
Note 1. The court remands with a warning about the “perilous journey” of deviating from pattern jury instructions. If the challenges of instructing juries are so high, and the risks of error so seemingly significant that judges describe the adjudication as “perilous,” does it continue to make sense to allocate so much authority to juries? Can you think of alternatives (in terms of decisional allocation, instructional practice, or doctrinal development)?
Note 2. For your own review and understanding, articulate the difference between a manufacturing defect and a design defect, as you understand it so far. Can you come up with an example of what those might look like in a domain that is familiar to you because of a product you have purchased or routinely purchase?
Note 3. What sort of evidence would a plaintiff need to show to prove that a defect caused the accident that caused the plaintiff’s injury? What sort of evidence might a defendant offer if trying to prove that the accident caused the product to look defective?
Question 1. Ford Motor Co. v. Ledesma articulates the standard for finding a manufacturing defect: “the product [must] deviate, in its construction or quality, from its specifications or planned output in a manner that renders it unreasonably dangerous.” The plaintiff must provide evidence of deviation from design as distinct from manufacturing. Apply that standard to the following hypothetical.
True or false: A new pour-over coffee brewing device, “WydePour” is created with a wide spout to preserve maximum flavor while brewing coffee. Its shape makes spills slightly more likely. A purchaser of WydePour sustains burns when pouring hot coffee into their mug and would like to sue. If any products liability claim is available on the basis of a product defect, the facts suggest that the plaintiff might be able to prove that there was a manufacturing defect but not a design defect.
- COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES & PRODUCTS PJC 71.3 (2d ed.2002). ↵
- RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(a) (1998); see also id. § 1 cmt. a (“A manufacturing defect is a physical departure from a product’s intended design.”). ↵
- Indeed, Ford’s own brief contends that until this Court corrects the PJC 71.3, “it will continue to be used in every case in Texas in which [a manufacturing] defect is alleged.” ↵