1201. Strict Liability - Manufacturing Defect - Essential Factual Elements

[Name of plaintiff] claims that the [product] contained a manufacturing defect. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. That the [product] contained a manufacturing defect when it left [name of defendant]'s possession;

3. That the [product] was used [or misused] in a way that was reasonably foreseeable to [name of defendant];

4. That [name of plaintiff] was harmed; and 5. That the [product]'s defect was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

The following may be added as an additional element after element #2 in cases where it is alleged that the product was changed after it left the defendant's possession but in a manner that was foreseeable:

That any changes made to the [product] after it left [name of defendant]'s possession were reasonably foreseeable to [name of defendant];

Some cases state that product misuse must be pleaded as an affirmative defense. (See, e.g., Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229 Cal.Rptr. 605].) However, the advisory committee feels that absence of unforeseeable misuse is an element of plaintiff's claim and that foreseeable misuse is more properly asserted by defendant in support of a claim of contributory negligence. But see below:

"[P]roduct misuse [is] a defense to strict products liability only when the defendant prove[s] that an unforeseeable abuse or alteration of the product after it left the manufacturer's hands was the sole reason that the product caused injury." (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121], internal citations omitted.)

" 'Misuse' is a defense only when that misuse is the actual cause of the plaintiff's injury, not when some other defect produces the harm. This causation is one of the elements of the 'misuse' affirmative defense and thus the burden falls on the defendant to prove it." (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831 [20 Cal.Rptr.2d 296], internal citation omitted.)

Sources and Authority

" 'Regardless of the theory which liability is predicated upon . . . it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product. . . .' " (Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874 [148 Cal.Rptr. 843], internal citation omitted.)

"[W]here a plaintiff alleges a product is defective, proof that the product has malfunctioned is essential to establish liability for an injury caused by the defect." (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 855 [266 Cal.Rptr. 106], italics in original.)

In California, there is no requirement that the plaintiff prove that the defect made the product "unreasonably dangerous." (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 134-135 [104 Cal.Rptr. 433, 501 P.2d 1153].) Also, the plaintiff does not have to prove that he or she was unaware of the defect. (Luque v. McLean (1972) 8 Cal.3d 136, 146 [104 Cal.Rptr. 443, 501 P.2d 1163].)

"We agree that strict liability should not be imposed upon a manufacturer when injury results from a use of its product that is not reasonably foreseeable. Although a collision may not be the 'normal' or intended use of a motor vehicle, vehicle manufacturers must take accidents into consideration as reasonably foreseeable occurrences involving their products." (Cronin, supra, 8 Cal.3d at p. 126, internal citations omitted.)

"[T]he law now requires a manufacturer to foresee some degree of misuse and abuse of his product, either by the user or by third parties, and to take reasonable precautions to minimize the harm that may result from misuse and abuse." (Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 7 [116 Cal.Rptr. 575], disapproved and overruled on another issue in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [34 Cal.Rptr.2d 607, 822 P.2d 298].)

"[A] manufacturer may be held liable where the alteration of the machine or its misuse by the customer was reasonably foreseeable. . . .

It has been held repeatedly that the foreseeability of the misuse of a product is a question for the trier of the facts." (Thompson v. Package Machinery Co. (1972) 22 Cal.App.3d 188, 196 [99 Cal.Rptr. 281], internal citations omitted.)

"A manufacturer is liable only when a defect in its product was a legal cause of injury. A tort is a legal cause of injury only when it is a substantial factor in producing the injury." (Soule, supra, 8 Cal.4th at p. 572, internal citations omitted.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1241-1249

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.11, Ch. 7, Proof, § 7.06 (Matthew Bender)

40 California Forms of Pleading and Practice, Ch. 460, Products Liability, §§ 460.11, 460.30 (Matthew Bender)

19 California Points and Authorities, Ch. 190, Products Liability (Matthew Bender)

(New September 2003)