Vermont Civil Jury Instruction Committee

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 Sale

6.2       Defective Product Defined

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

6.7       Scope of Duty to Warn

6.8       Presumption that Instruction or Warning Would Have Been Read and Heeded (No Evidence to Overcome Presumption)

6.9       Presumption that Instruction or Warning Would Have Been Read and Heeded (Evidence Presented to Overcome Presumption)

6.10     Design Defect—General Instruction

6.11     Notes about Product Liability Cases Based on Negligence and Allegations of Breach of Warranty

 

 

Part I       Products Liability: Injuries and property damage caused by a defective product

6.0      Liability for Manufacture of a Defective Product

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.

 

6.1      Defect in Existence at the Time of Sale

            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).

 

6.2      Defective Product Defined

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 Vt. 119, 127 (1996), which relied on the Restatement (Second) of Torts § 402A cmt. i.

 

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.

 

Part II      Product Liability: Failure of Duty to Warn

6.3      Manufacturer/Seller Duty to Warn

[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.”

6.4      Manufacturer/Seller Duty to Warn about Obvious or Generally Known Dangers

[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 Vermont Supreme Court stated:

 

The facts of this case are more like those in Menard v. Newhall, 135 Vt. 53, 56 (1977) where a seven‑year‑old boy was blinded in a BB‑gun fight. We held that the gun was not unreasonably dangerous because the fact ‘that a BB gun, if fired at a person, could injure an eye, is nothing that even a seven‑year‑old child does not already know.’ Here, as in Menard, the consequences were terrible. But the dangers of racing snowmobiles five abreast on a narrow strip of land at high speeds are manifestly within the common knowledge of the ordinary consumer. There is no evidence that the snowmobile was unreasonably dangerous under these circumstances even if it behaved as plaintiff alleges. See Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir.1990) (where plaintiff injured when she jumped into water next to pleasure boat, boat’s unguarded propeller not dangerous beyond expectation of ordinary consumer because ‘consumer clearly understands that a revolving propeller involves danger’ . . . .

 

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. Id.

 

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.).

6.5      Inherently Dangerous Products

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.

 
Reporter’s Notes

Lewis v. Vermont Gas Corp., 121 Vt. 168, 182 (1959).

6.6      Foreseeable Misuse of Product

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 Vt. 619, 620 (1994) (citing Vickers v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir.1987)).

 

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.

6.7      Scope of Duty to Warn

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].

 

Reporter’s Notes

Ostrowski v. Hydra-Tool Corp., 144 Vt. 305, 309 (1984); O’Brien v. Comstock Foods, Inc., 125 Vt. 158, 160 (1965).

 

6.8     Presumption that Instruction or Warning Would Have Been Read and Heeded (No Evidence to Overcome Presumption)

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 Vt. 53, 54–55, 373 A.2d 505, 507 (1977)] (adopting “read and heed” presumption); Restatement (Second) of Torts § 402A cmt. j (1965).

A defendant may, of course, present evidence to overcome the presumption.  See Menard, 135 Vt. at 55, 373 A.2d at 506–07 (where child ignored instructions given by father, presumption that warning would have been read and heeded disappeared).  

 

6.9     Presumption that Instruction or Warning Would Have Been Read and Heeded (Evidence Presented to Overcome Presumption)

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 Vt. 53, 54–55, 373 A.2d 505, 507 (1977)] (adopting “read and heed” presumption); Restatement (Second) of Torts § 402A cmt. j (1965).

A defendant may, of course, present evidence to overcome the presumption.  See Menard, 135 Vt. at 55, 373 A.2d at 506-07 (where child ignored instructions given by father, presumption that warning would have been read and heeded disappeared).  

 

part iii     Product Liability: Cases based on the design of a product

6.10    Design Defect—General Instruction

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.

 

6.11    Notes about Product Liability Cases Based on Negligence and Allegations of Breach of Warranty

While lawyers representing plaintiffs in product liability cases in Vermont often plead a cause of action based on strict liability, negligence and breach of warranty, it is probably simplest for the jury in lawsuits brought to recovery damages for property damage or personal injury to instruct the jury on the law of strict liability in tort. To quote the Vermont Supreme Court in Webb v. Navistar Intern. Transp. Corp., 166 Vt. 119, 125–26 (1996),

 

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 (Alaska 1976). In negligence actions, plaintiffs were unable to isolate the negligence of the manufacturer as manufacturing processes became more complex. Id. In actions based on warranty theories, plaintiffs confronted defenses of disclaimer, notice of breach and lack of privity, also problematic in complex distribution systems. Id.; see also O’Brien v. Comstock Foods, Inc., 125 Vt. 158, 162, 212 A.2d 69, 72 (1965) (abolishing privity requirement to prove liability of food producer). Strict products liability removed the difficulties plaintiffs faced in proving warranty or negligence claims against mass producers and distributors by imposing liability upon them without regard to fault or privity of contract. See W. Keeton, et al., Prosser and Keeton on the Law of Torts § 98, at 692 (5th ed.1984). The purpose of this judicially created doctrine is to lessen the burden of proof for plaintiffs injured by defective products. Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 386, 575 P.2d 1162, 1168 (1978); see also Zaleskie v. Joyce, 133 Vt. 150, 154‑55, 333 A.2d 110, 113 (1975) (one reason to adopt strict products liability is to respond to problems of availability of proof).