PRODUCTS LIABILITY

I.    GENERALLY.

A consumer has a right to products that are reasonably safe. If a product proves to be dangerous, the purchaser may be able to hold the manufacturer or retailer liable for damages. A manufacturer's liability is in general the most extensive created by the law. This liability may be based upon one of four theories: negligence, breach of warranty, strict liability, or misrepresentation. PRODUCTS LIABILITY HAS BEEN THE SUBJECT OF MUCH STATE-SPECIFIC LEGISLATION REGARDING STANDARDS OF CARE, CHAIN OF RESPONSIBILITY AND LIMITATIONS ON CONSUMERS' RIGHTS TO RECOVER. CHECK STATE STATUTES AND CASE LAW. SEE ORS 30.900 ET SEQ.; ORS 30.907 FOR BREAST IMPLANT LITIGATION; ORS 30.908 FOR ASBESTOS-RELATED INJURIES; AND ORS 30.910 FOR EVIDENTIARY PRESUMPTIONS.

II.    NEGLIGENCE.

1. Failure to Warn Adequately. The manufacturer is under a duty to warn of risks with which it is familiar, or with which in the exercise of reasonable care it should have been familiar.
   
   
2. Improper Design. The manufacturer must so design the product as to make it reasonably safe for its foreseeable uses.
   
   
3. Failure to Test and Inspect Adequately. The manufacturer is under a duty to turn products out of his production line without unintended defects. There is a breach of this duty where it fails to make reasonable inspections and tests on his product during the course of construction. This includes a duty to make proper tests before the product is first marketed to make sure it will be safe.

III.    BREACH OF WARRANTY.

1. Implied Warranties. The manufacturer is understood by the marketing of his chattel to make the general implied warranties or promises that his product is both merchantable and reasonably fit for the general uses intended. In the case of food and drugs, this warranty is sometimes called a warranty of wholesomeness.
   
   
2. Express Warranty. If the manufacturer makes an assertion of fact as to the nature, quality, or use of his product, which assertion tends to induce the sale or use of the product, he is exposed by the common law or the sales acts to liability if injury arises proximately from a breach of that warranty or promise.

IV.    STRICT LIABILITY.

Strict liability is a new concept, holding the manufacturer liable without fault on his part for injuries arising from the marketing of a product that is unreasonably dangerous cabana D Y

V.    MISREPRESENTATION:

1. Intentional. The traditional fraud action in products cases is that against a manufacturer who makes a material misrepresentation of fact that it knows to be false and that it makes with the intent that the injured person rely upon it, if the injured person relies on the misrepresentation to his or her own injury in ignorance of its falsity. The same liability exists where the statements are made recklessly rather than intentionally.
   
   
2. Negligent. Here the manufacturer may be liable, in some states, for making the representation carelessly.
   
   
3. Innocent. New § 402B of the Restatement of Torts, 2d, creates liability for injuries arising out of reliance by a person upon representations that are false even though they are made wholly innocently.

VI.    PARTIES.

1. RETAILER. The retailer may be liable under any of the four theories listed above, but often his liability is of a narrower scope than that of the manufacturer.
   
   
1. Negligence. The retailer is under a duty to warn of the dangers in the use of the products of which he is aware.
   
   
2. Breach of Warranty. As a rule the seller makes the same implied warranties as does the manufacturer. This makes him liable for all defects, even though he was under no duty to discover them and even though they might have been latent. A retailer can make an express warranty about his product just as the manufacturer can, and he frequently does make one orally at the point of sale. Where the only express representation comes from the manufacturer, however, as through national advertisement, and all the retailer does is pass on the product without repetition or addition, it is generally recognized that the retailer has no potential liability for breach of express warranty.
   
   
3. Strict Liability. Recent cases make it clear that the retailer, like any other supplier, is strictly liable when products are sold in a defective state.
   
   
2. SELLERS OF SECONDHAND GOODS. The seller of used goods has the same responsibilities of care as the seller of new goods. For example, where a new car dealer has an obligation to inspect', so does a used car dealer. The liability, based upon breach of warranty, however, is much less for the secondhand dealer, partly because the buyer's expectations might be less.
   
   
3. PURCHASERS. The purchaser is the traditional plaintiff. Actions by purchasers today run back against various parties in the distributive chain, and particularly back to the manufacturer of the product involved. There is no requirement that the plaintiff be in a direct contractual relationship with the defendant.
   
   
4. ULTIMATE CONSUMERS. Any consumer can sue for damages, even though he was not the purchaser of the product. The consumer can and does sue anyone in the distributive chain, especially the manufacturer.
   
   
5. USERS IN AMBIGUOUS SALES-SERVICE SiTUATION. Often the injured person neither bought the product involved nor got it from someone who had direct dealings with a retailer.
   
   
   1. Restaurants. Almost all courts agree that a restaurant or other place, serving food or drink has no defense based on an argument that rather than selling food, it "served" it. If the food is unwholesome, the customer has a breach of warranty action.
      
      
   2. Miscellaneous. Liability has also been held to exist where the product was obtained as a free sample, had been picked out by a prospective purchaser but not yet paid for or was being tried out by a prospective purchaser.
      
      
6. BYSTANDERS. When a defective car goes out of control suddenly, it may injure a pedestrian. The question of the retailer's or manufacturer's liability to the pedestrian is generally analyzed as the liability of the supplier to a "bystander"--someone not in the chain of distribution. Upon reflection it will be seen that any sort of product can injure bystanders, including those products intended for "intimate consumption," such as the hair spray that gets into brother's eye, or the polio vaccine that causes polio in the fetus when the mother takes it for immunization. In negligence actions, there is little hesitation to include the bystander among proper plaintiffs who may sue when injury arises from a defect in a product. The natural limits here would only be those in tort cases generally-zone of the risk and foreseeability of danger.