Plain English Jury Instructions
Section 6. Products Liability
Table of Contents
6.0 Liability for Manufacture of a Defective Product
6.1 Defect in Existence at the Time of
6.3 Manufacturer/Seller Duty to Warn
6.4 Manufacturer/Seller Duty to Warn about Obvious or Generally Known Dangers
6.5 Inherently Dangerous Products
6.6 Foreseeable Misuse of Product
6.10 Design Defect—General Instruction
6.11 Notes about Product Liability Cases Based on Negligence and Allegations of Breach of Warranty
A
[manufacturer/distributor/seller] of a product such as [identify product] is
liable for harm to a person or property if the product was defective and if the
defective product caused the harm [and if it reaches a user without undergoing
substantial change].
Reporter’s Notes
Paquette v. Deere & Co., 168 Vt. 268 (1998); Webb v. Navistar
Int’l Transp. Corp., 166 Vt. 119 (1996); Zaleski v. Joyce, 133 Vt. 150 (1975); see also Restatement (Second) of Torts § 402A(1)
(1965) (one who sells any product in defective condition unreasonably dangerous
to user or user’s property is “subject to liability for physical harm thereby
caused to the ultimate user . . . or to his property.”)
Note that the Restatement
(Third) of Torts–Product Liability § 1 (1998) (“One who is engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to liability
for harm to person or property caused by the defect”) makes no mention whether
or not the “harm” must be “physical” in order to be actionable.
The last portion of this instruction addresses the
requirement that the product reach the user without substantial change. This is
to be added to the instructions if the evidence requires discussion of this
affirmative defense.
A product
is defective when, at the time it is [sold/delivered/distributed], it [has a
manufacturing defect/has a design defect/doesn’t have adequate
warnings/instructions].
Reporter’s Notes
This instruction comes from § 2 of the Restatement (Third) of Torts–Product Liability
§ 1 (1998).
A
defective product is one that is more dangerous than an ordinary consumer, with
the ordinary knowledge common in the community about the characteristics of
such a product, would expect.
Reporter’s Notes
This definition of product defect comes from Webb v. Navistar
Int’l Transp. Corp., 166
This formulation of product defect does not reflect
the categories of product defects recognized in the Restatement (Third) of Torts–Product Liability § 1 (1998) at
§ 2. The third Restatement
appears to impose strict liability in the case of manufacturing defects, while
conditioning liability on foreseeability in the case of design defects and
cases involving inadequate instructions or warnings.
[Name
of Defendant] has a duty to warn of known dangers regarding [name of product]
if the [Name of plaintiff] claims that [he/she] was injured by a defective
product that did not have a proper warning.
To win [his/her] case, [name of plaintiff] has to prove all three of the
following things:
1.
[Name of product] was
unreasonably dangerous, that is, more dangerous that an ordinary person would
expect. An “ordinary person” is a person with the ordinary and common knowledge
of the community about the product's characteristics. In order to prove [“his”
or “her”] claim, the plaintiff must show that the manufacturer had a duty to
warn, that the failure to warn made the product unreasonably dangerous and
therefore defective, and that the; and
2.
[Name of defendant]
had a duty to warn of the danger; and
3.
The lack of a warning
was a substantial cause of the[name of plaintiff]’s injury.
Reporter’s Notes
Town of Bridport v. Sterling Clark Lurton
Corp., 166 Vt.
304 (Vt. 1997); Ostrowski v. Hydra-Tool Corp., 144 Vt. 305, 308, 479 A.2d
126, 127 (1984); Menard v. Newhall, 135 Vt. 53, 55, 373 A.2d 505, 507 (1977)); see
also McCullock
v. H.B. Fuller Co.,
61 F.3d 1038, 1044–45 (2d Cir.1995) (outlining plaintiff's burden in failure to
warn case under Vermont law); Restatement
(Second) of Torts § 388 (1965).
Arguably this instruction, which
obligates the Defendant to warn of “known dangers,” imposes a higher degree of
liability on a Defendant than is contemplated by the Restatement (Third) of Torts—Product Liability § 1 (1998). The Third
Restatement imposes an obligation to warn of “foreseeable risks of
harm,” where the lack of warnings makes the product “not reasonably safe.”
[Describe
product] is not “unreasonably dangerous” if the danger of its [use/misuse] was
open and obvious or was understood by [name of plaintiff] without a warning by
the manufacturer or seller.
Reporter’s Notes
In Farnham v. Bombardier, Inc., 161 Vt. 619 (1994), the
The facts of this case are more
like those in Menard v. Newhall, 135
See also Hylton v.
John Deere Co., 802 F.2d 1011, 1015 (8th Cir.1986) (where danger of climbing
into bin of combine was open and obvious, design of combine not dangerous
beyond contemplation of ordinary consumer); Restatement,
supra, § 402A comment i.
The
concept that there is no liability for failing to warn of obvious or generally
known dangers is retained in the Restatement
(Third) of Torts–Product Liability § 1 (1998). See Comment j. Warning
about a commonly understood danger does not provide an additional measure of
safety and may actually have deleterious consequences.
There
are special considerations that apply to the use of products by sophisticated purchasers.
The duty to warn does not necessarily apply when the manufacturer supplies a
product to a “sophisticated purchaser.” A sophisticated purchaser is one who
the manufacturer knows or reasonably believes is aware of the risk of danger.
There is no duty to warn the purchaser or its employees about the risks of harm
unless the Defendant knows or has reason to believe that the required warning
will fail to reach the eventual users of the product. See, Restatement (Second) of Torts § 388
(1965 and App.).
The
duty to warn consumers depends on the dangers posed by the product. [Name of
defendant] owes a duty that is directly related to how dangerous the product
is. That is to say, the more dangerous the product, the more care the defendant
must use to warn of those dangers.
Lewis
v. Vermont Gas Corp., 121
Normal
use of product includes all reasonably foreseeable uses, including foreseeable
misuse.
Reporter’s Notes
While not specifically adopted by the Vermont
Supreme Court, this instruction appears to have been accepted by the Vermont
Supreme Court. See Farnham v. Bombardier, Inc., 161
The concept is retained in § 2 of the Restatement (Third) of Torts–Product Liability
§ 1 (1998) at comment m. Defendants are not required to foresee and take
precautions against every conceivable mode of use, misuse or abuse to which
their products might be put. On the other hand, once a Plaintiff establishes
that the product was put to a reasonably foreseeable use and that risks of
injury are “generally known to experts in the field,” then it is not unfair to
charge a manufacturer with knowledge of such generally known or knowable risks.
A
manufacturer’s duty to warn extends not only to purchasers, but also to
foreseeable end users [such as “purchaser’s employees” or “bystanders” or
“purchasers family members,” etc., as the case may be].
Ostrowski v. Hydra-Tool Corp., 144
If a [name of Plaintiff] proves that the manufacturer had a duty to warn and failed to provide an adequate warning, then [name of Plaintiff] does not also have to prove that that if an adequate warning been provided, [user of the product] would have read and heeded the warning and the accident would have been avoided.
Reporter’s Notes
This instruction is from Town
of Bridport v. Sterling Clark Lurton Corp., 166 Vt 304, 307–08 (1997), in which the Vermont Supreme Court stated:
Proximate cause
in [product liability] cases is typically shown by means of a presumption. If a plaintiff can demonstrate that the
manufacturer had a duty to warn and failed to provide an adequate warning, a
causal presumption arises that had an adequate warning been provided, the user
would have read and heeded the warning and the accident would have been
avoided. See Menard v. Newall, 135
A defendant may,
of course, present evidence to overcome the presumption. See Menard, 135
Even if a [name of Plaintiff] proves that the manufacturer had a duty to warn and failed to provide an adequate warning, [name of Plaintiff] also has to prove that that if an adequate warning been provided, [user of the product] would have read and heeded the warning and the accident would have been avoided.
Reporter’s Notes
This instruction is from Town
of Bridport v. Sterling Clark Lurton Corp., 166 Vt 304, 307–08 (1997), in which the Vermont Supreme Court stated:
Proximate cause
in [product liability] cases is typically shown by means of a presumption. If a
plaintiff can demonstrate that the manufacturer had a duty to warn and failed
to provide an adequate warning, a causal presumption arises that had an
adequate warning been provided, the user would have read and heeded the warning
and the accident would have been avoided.
See Menard v. Newall, 135
A defendant may, of course, present evidence to overcome
the presumption. See Menard, 135
A
manufacturer must use reasonable care, skill, and effort when it designs its
product. A manufacturer must reasonably think about the [“way,” “place,” etc.
as the case may be] in which the product is normally used. The manufacturer must
design the product to minimize those risks that can be foreseen from using the
product, but the manufacturer is not required to design a product that is
foolproof or incapable of producing injury.
To decide whether [name of plaintiff] has proved that [name
of defendant] failed to act reasonably in designing [identify product], you may
consider [instruct on as many or as few as is justified by the evidence]:
· the purpose of the product;
· its usefulness and desirability;
· the likelihood of injury from its ordinary use;
· the nature and severity of likely injury;
· the obviousness of danger in the ordinary use of the product;
· the ability to eliminate the danger without making the product less useful, or creating other risks to the user;
· the availability of a feasible alternative design;
· the cost of any alternative design; and
· the likelihood of consumer acceptance of a product with an alternative design.
You can decide which factors apply and the importance of
each.
Reporter’s Notes
The source of this instruction is the Restatement (Second) of Torts §§ 395,
398 (1965 & App.). Although a factor may be listed above, it does not
necessarily mean that it should be used in every charge on negligent design.
Each of the factors should be considered for instructions on a case by case
basis in accordance with the evidence presented at trial.
While
lawyers representing plaintiffs in product liability cases in
The doctrine
of strict products liability was first developed by the California Supreme
Court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27
Cal.Rptr. 697, 377 P.2d 897, 901 (1963), and then set forth in the Restatement (Second) of Torts § 402A
(1965). This doctrine was created in response to the limitations of traditional
negligence and warranty actions for injuries caused by defective consumer
goods. Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 44 (