Π must show 4 things:
- Δ is a merchant (who routinely deals in goods of the kind). Only a merchant will be held strictly liable.
- Casual sellers – they are not merchants. They are people who sell stuff on e-bay, at a garage sale, those who advertise their car for sale in the classifieds.
- Service providers – a provider of services will often make goods available as part of the service, but they are not considered a merchant of those items and they will not be strictly liable. Restaurant not strictly liable for faulty chairs.
- Commercial lessor – is a merchant even though it doesn’t part with title to the goods. Therefore, it can be strictly liable. (Rental Car company)
- Every merchant in the chain of distribution is a merchant and can be held strictly liable. Π is not limited to suing the party that he dealt with directly. No privity of contract is required for strict liability.
- Π must show that product can be defective (2 ways)
- By showing that the product has a manufacturing defect – if it is different from all the others that came off the assembly line in a way that makes it more dangerous than consumers would expect.
- Unexpectedly dangerous – it’s a 1 in a million. Where the blade comes off the base housing and cuts your leg when you go to mow the lawn.
- Safety precautions are irrelevant for SL!
- Design defect: a product has a design defect when there is another way to build it. When there is a hypothetical alternative design that can be shown by Π. Π must show that HAD meets 3 tests, and if Π does that, they can show that version actually marketed is defected.
- Π must show that HAD is safer than product that was actually marketed
- Π must show that HAD is cost neutral. (same price to manufacture as the one marketed)
- Π must show that HAD is practical. Product can’t be hard to use or its central function can’t be undermined.
- If Π does this, it means that the version marketed is defective and any person injured by it has a valid claim against any company in the product distribution chain.
- Product information can become relevant in an SL analysis. If a product cannot be physically redesigned to be safer in a cost neutral and practical way, and if it has a residual risk not apparent to users/consumers, that product must bear a warning. If it lacks a warning it is a defective product.
- Warnings must come to the attention of the user. Must be clear, maybe have multiple languages, or pictures.
- You cannot absolve yourself of SL by slapping a warning on a product if there is a valid HAD.
- Π must show that product was not altered since it left Δ’s hands.
- If the product traveled in ordinary channels of distribution, it was assumed that it was not altered. Δ must raise the issue, if the Δ has evidence that something else happened in the chain.
- Π must show that he was making a foreseeable use of the product.
- Bar exam trick: A foreseeable use is not limited to whether it was proper or improper use.