Impact of Product Liability Law on Aviation in the US - Essay Example

The impact of product liability law on aviation in the USA with reference to case law and Federal Law developments. The Re ment (Third) of Torts: Products Liability (hereinafter referred to as “Restatement (Third)” or “Restatement”),1 is being woven into the fabric of products liability law of many states. Even where the law of the state is unsettled, the federal courts are not fertile grounds for change. Indeed, at least two United States Courts of Appeals have been unable to predict whether a states Supreme Court would follow the Restatement (Third) as it pertained to a point of unsettled law in that state.2 Nevertheless, the federal courts preliminary references confirm the significance of ALIs product and lend support to our belief that the Restatement (Third) will have a significant influence in establishing a more uniform national products liability law. The Restatement (Third) already is having a notable impact on the products liability jurisprudence of many states. The states treatment of the Restatement (Third) is grouped into three categories. The first category consists of those states that expressly have incorporated various sections of the Restatement into their law. The second category consists of states that expressly have rejected various provisions or principles of the Restatement. The final category consists of states that have cited and discussed the Restatement in a significant way, but whose treatment of the Restatement falls short of an express adoption or rejection. The issue before the Supreme Court of Iowa in Lovick v. Wil-Rich,3 was whether the trial court erred in its instruction to the jury regarding the defendant-manufacturers post-sale duty to warn. In concluding that the instruction was improper, on the grounds that the court failed to inform the jury of the “special” circumstances affecting the reasonableness of the manufacturers conduct, the Iowa Supreme Court expressly adopted Section 10 of the Restatement (Third), “including the need to articulate the relevant factors to consider in determining the reasonableness of providing a warning after the sale.” Although Section 10 was consistent, in principle, with Iowa law, the Iowa Supreme Courts adoption of Section 10 in full, and its corresponding rejection of an Iowa standard jury instruction, underscores the significance of the Iowa development. The second category consist of those states that expressly have rejected various aspects of the Restatement (Third). This group consists of Connecticut, Kansas, Missouri, Montana, New Jersey, and Tennessee. Although New Jersey also was one of the states in the first category--on the basis of its adoption of the “indeterminate product defect” standard of Section 3, its endorsement did not extend to the Restatement as a whole. In Lefever v. K.P. Hovnamian Enterprises, Inc.,4 the Supreme Court of New Jersey refused to depart from its previous recognition of the product-line exception to successor liability. Recognizing the ALIs rejection of New Jerseys product-line exception, the court nevertheless held that it would remain with the “strong minority of states tak[ing] less restrictive positions on successor liability.”5 The third and final category is comprised of those states that have cited and discussed the Restatement (Third) in a significant way, but in a manner falling short of an express adoption or rejection. These states include Alaska, California, Georgia, Massachusetts, New York, North Dakota, Oklahoma, Texas, Vermont, Wisconsin, and Wyoming. Alaska, North Dakota, and Texas all have noted the consistency between their individual states law and the Restatement (Third) without expressly adopting the Restatement. In Clarys v. Ford Motor Co.,6 the Supreme Court of North Dakota cited Section 21 of the Restatement (Third) in full and noted that the economic harm doctrine, as stated there, was consistent with North Dakotas products liability law. Finding consistency between a products liability statute and the express language of a particular Restatement section without any reference to the Restatements comments, notes and illustrations leaves open the question as to whether the particular Section has been adopted in total.7 While the Restatement (Third) of course does not have the force of law in any state until adopted by the courts of that jurisdiction, historically prior Restatements have had great impact on the various state and federal courts and their decisions. If adopted by the states as universally as was its predecessor, the Restatement (Third) will undoubtedly shift the legal landscape of aviation products liability actions, particularly those cases brought by plaintiffs under a strict liability theory of recovery for design defects and inadequate warnings or instructions. The most probable point of contention in aviation cases, as in all other areas of law, is the concept that runs through all the provisions of the new Restatement--reasonableness. As courts begin to address the “twisting and sometimes misdirected course of [a] runaway calf,” and as the respective bars begin to use the Restatement (Third) to their advantage, without a doubt there will be substantial discussion of the ALIs interjection of negligence principles (i.e., foreseeability and reasonableness) into legal reasoning and decisions that since 1965 in many jurisdictions have come to apply “strict products liability” to all categories of defect, whether arising from manufacture, design, or inadequate warnings or instructions. If Section 2 of the Restatement (Third) is adopted and followed, there should be more opportunities for manufacturing defendants in the aviation industry to introduce evidence of industry practice and “state-of-the-art” that bears on whether an alternative design is practicable and reasonable. Defendants also should be able to offer proof that their design was the safest available at the time of sale, considering the technology then available. Industry practice evidence also should be admissible (but not necessarily dispositive) on the issue of availability of alternative designs, as well as to prove whether the omission of an alternative design rendered the product not reasonably safe. These opportunities to introduce evidence should be significant, especially when considering that as part of the prima facie proof of a design defect a plaintiff ordinarily will not be required to produce a prototype of the alternative design, for example, where expert testimony is available to establish that a reasonable alternative design could have been adopted. Under the reasonableness test of Section 2(b) of the Restatement (Third), the following five factors should be addressed in a typical aviation products liability case during the analysis of whether: (1) a design is reasonably safe; (2) an alternative design is reasonable; and (3) the omission of the alternative design feature(s) renders a product not reasonably safe: (a) the magnitude of foreseeable risks of harm; (b) the probability of foreseeable risks of harm; (c) the nature of instructions and warnings accompanying the product; (d) the nature and strength of consumer expectations regarding the product (to include expectations arising from product portrayal and marketing); and (e) the relative advantages of the product as designed and in the plaintiffs proposed reasonable “alternative design” (which should include analysis of factors such as production costs; effects on product longevity, maintenance, repair and esthetics; and the range of consumer choice among products). Subsection (c) of Section 2 also adopts a reasonableness test for the adequacy of product instructions and warnings at the time of product sale or distribution, such as the warnings that typically are contained in a pilot operating handbook or in an aircraft flight or maintenance manual. In aviation litigation it should be expected that this reasonableness test may be more difficult for courts to apply in the warnings context than in the context of defective designs. It can be very difficult to identify a “perfect” level of detail to be included in a written product warning or instruction; accordingly, courts should be expected under Section 2(c) to focus on a variety of factors in applying the proposed test of reasonableness to the adequacy of warnings and instructions for aviation products, including: (1) content and comprehensibility; (2) intensity of expression; (3) the nature of the risk(s) involved; and (4) the characteristics of the expected user group(s). However, in what is a departure from the law in some states, under Section 2 of the Restatement (Third), a warning is not an adequate substitute for a reasonably safe design--that is, “when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks.” Consistent with this approach, the “openness” and “obviousness” of a risk most likely will not negate the duty of a manufacturer to provide a safer design under the analysis of Subsection (b). However, Subsection (c) does not impose a duty to warn about risks that are obvious, nor does it impose liability under circumstances where a plaintiff would use the product regardless of the content or absence of a warning or instruction. As a general rule, a warning that satisfies the requirements of Subsection (c) is not a substitute for a reasonably safe design under Subsection (b). With respect to the “indeterminate product defect test” of Section 3, aviation manufacturers should expect this test to be applied primarily in the context of claims for manufacturing defects. For example, if a gas turbine engine with a history of reliable service were to suffer a catastrophic failure during the first 100 hours of a new engines operation and became separated from the aircraft and lost as a result of the catastrophic failure, this would be a circumstance where application of this test should be considered. It remains to be seen whether courts will restrict the application of this section, as intended by the ALI, to extraordinary circumstances such as in this example, when the product is lost or completely destroyed in the accident. However, even under circumstances where this section properly may be applied, the plaintiff still will have the burden of proving that the defect existed at the time it left the manufacturer or distributors possession. In connection with a courts inquiry into the reasonableness of a products design, instructions or warnings under Section 4 of the Restatement (Third), courts should consider as relevant evidence, but not necessarily conclusive evidence, the aviation products compliance with an applicable product safety statute or administrative regulation, such as the Federal Aviation Regulations (“FARs”). Currently, many courts will not consider such evidence when plaintiffs proceed only under a strict products liability theory of recovery. However, with respect to a plaintiff establishing a defect through an aviation products noncompliance with a statute or regulation, such as an FAR, a defendant is presumed to know the law, and lack of knowledge of the statute or regulation ordinarily is no defense. Section 5 discusses the liability of component part manufacturers, specifically addressing one of the most significant voids in the law from the Restatement (Second). This new section in the Restatement (Third) has the potential to be of significance in many, if not most, cases involving allegations of defect in products used in aviation, since many aviation products (particularly turbine and jet engines and aircraft) are composed literally of hundreds if not thousands of component parts. Under this Restatement section, a component manufacturer or distributor will be liable for harm caused by a defect in its own products, but not for defects arising out of the integration of its component(s) into a final product (such as a turbine engine or passenger aircraft) unless the manufacturer or distributor participated in the integration of the component. Consistent with this rule, component manufacturers and raw material suppliers are not required to monitor the development of products into which their products are incorporated, but are required to provide instructions and warnings regarding risks associated with the use of their component products. Moreover, when a sophisticated buyer or manufacturer integrates a component part or raw material into a final product, the component seller or distributor does not have a duty to warn either the sophisticated buyer/manufacturer or ultimate consumers of dangers arising because the component or material is unsuited for the special purpose to which it is put by the final manufacturer. This rule should be of particular significance in the context of aviation products, due to the sophistication of most aviation final product manufacturers. The Restatement (Second) also did not address adequately the topic of post-sale duty to warn, which has become a topic of increasing interest to aviation product manufacturers in recent years. The post-sale duties to warn set out in the Restatements (Third) Section 10 are limited; aviation manufacturers must beware, however, that broader duties to warn apply if a product is defective for inadequate warnings or instructions at the time of original product sale, as addressed in Section 2(c). Many commentators and courts have concluded that Section 10 is one of the most favorable provisions of the Restatement (Third) for plaintiffs.8 Section 10 requires a manufacturer to warn if it “knows or reasonably should know that the product poses a substantial risk of harm to persons or property.” In light of this provision, aviation manufacturers should consider developing internal processes to address post-sale duty to warn, including a procedure for alerting and involving those employees likely to learn about new and significant risks of harm to product users. While some cases have suggested that the rationale for imposition of a post-sale duty to warn should logically extend with equal force to a post-sale duty to recall, the Restatement rejects this position or, indeed, the adoption of any broad tort-based duty to recall. Instead, Section 11 of the Restatement provides for very limited circumstances under which a duty to recall may exist, based on the rationale that under most circumstances government agencies, not courts, should be responsible for determining when recall obligations should exist. Aviation manufacturers are well familiar with the power of government regulatory agencies, such as the Federal Aviation Administration in the United States, to order through Airworthiness Directives9 the recall and modification of a product. Of special interest to aviation manufacturers may be the operation of provisions of Sections 11(a)(2) and 11(b), under which a manufacturer who begins but unreasonably does not complete a recall may be liable, even when initially there was no requirement to undertake a product recall. The operation of these provisions of Section 11 may reduce the incentives for an aviation manufacturer to voluntarily recall a product, and may suggest that a manufacturer should consider the issuance of post-sale warnings rather than a recall of a product, depending on the circumstances. Section 15, the Restatement (Third)s provision addressing causation principles, could be considered a disappointment for failing to promulgate causation rules. Instead of setting out new and consistent rules, Section 15 instead makes reference to the various tort rules as they exist under current state law. Of significance to many aviation cases, however, is the Sections comment that a plaintiffs misuse of a product can be resolved “under the prevailing rules and principles governing causation or the prevailing rules and principles governing comparative responsibility, as the case may be.” Thus, states will continue to follow existing rules for burden of proof, causation, and attribution of responsibility in cases where misuse of the product is at issue. Section 16 of the Restatement addresses another of the major gaps in the Restatement (Second) that is of particular importance in aviation cases--the failure of the Restatement (Second) to provide a framework for liability determination in “enhanced injury” or “crashworthiness” cases. In the aviation context these crashworthiness cases typically deal with issues such as the design of the aircrafts restraint system, the fire-retardant qualities of the aircrafts materials, and the susceptibility of fuel systems to crash-induced fires or explosions, to name a few examples. Under Section 16, a plaintiff first must prove the existence of a defect, as defined in Sections 2, 3 or 4, in order to bring a crashworthiness claim; and second, must prove that the defect increased the harm to the plaintiff. Having met this proof, a plaintiff need not prove by how much the defect increased the harm; instead, Section 16(c) places the burden on manufacturers to determine the amount of additional injury caused by the crashworthiness defect, or else the manufacturer is responsible for the entire quantum of injury. This rule implicitly recognizes that in most cases the proof of “enhanced injury” is difficult for plaintiffs to make, and more often than not, a manufacturer is in a better position (by way of resources, technical expertise, etc.) to determine the amount of additional injury caused by a defect in their products. It remains to be seen to what extent “junk science” issues will be implicated in expert testimony attributing and apportioning causation of injuries to various defects alleged in aviation products. Subsection (d) of Section 16 is of potential significance for aviation manufacturers because of its adoption of comparative fault principles in crashworthiness cases. A common issue of comparative fault that arises in crashworthiness cases, including aviation cases, is a plaintiffs failure to wear a seatbelt. The issue of the effect of a plaintiffs negligent failure to wear a seatbelt, at least in the automobile context, is addressed by statute in most states. In the absence of a statute, this subsection of the Restatement (Third) provides that courts may consider whether a plaintiff failed to wear a seatbelt, which is somewhat surprising in light of the large body of case law in the United States that has rejected consideration of this issue. In addition, Section 16 permits a court to consider, in a comparative fault analysis, whether the plaintiff caused the original accident, a position that also has been rejected in many jurisdictions. Finally, Section 17 of the Restatement (Third) (which addresses apportionment of responsibility among parties to litigation), if followed, could drastically alter the presentation of evidence in aviation products cases. In many jurisdictions if a plaintiff pilot, for example, proceeds only under a strict products liability theory of recovery, manufacturing defendants may be excluded from presenting evidence of the pilots comparative negligence and the contribution of the pilots negligence to the occurrence of the accident. Subsections (a) and (b) provide for reduction of recoverable damages if a plaintiffs conduct is negligent and combines with product defect to cause harm to the plaintiff, according to the “generally applicable rules apportioning responsibility” in that jurisdiction. The content of Section 17 and its comments are likely to be superceded by this apportionment of liability project when it is completed. Until then, how this comparative fault regime will be applied in jurisdictions that currently would exclude evidence of pilot negligence in strict products liability actions alleging design defects or defect due to inadequate warnings or instructions remains to be seen. References: Alan J. Lazarus et. al., Recent Developments in Products, General Liability, and Consumer Law, 34 Tort & Ins. L. J. 573, 588 (1999) Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 26 (1st Cir. 1998) DeSantis v. Frick Co., 745 A.2d 624 (Pa. Super. Ct. 1999)). Geoffrey C. Hazard, Jr., Foreword to Restatement (Third) of Torts: Products Liability at XVI (1998). James A. Henderson, Jr. & Aaron D. Twerski, Intuition and Technology in Product Design Litigation: An Essay on Proximate Causation, 88 Geo. L.J. 659, 666 (2000). Martin A. Kotler, Reconceptualizing Strict Liability Tort: An Overview, 50 Vand. L. Rev. 555, 603 (1997)) Max Radin, The Trail of the Calf, 32 Cornell L. Q. 137, 137-38 (1946) Rull v. Volkswagon of Am., Inc., 187 F.3d 88, 100-03 (1st Cir. 1999) Scanlon v. General Motors Corp., 326 A.2d 673, 678 (N.J. 1974). Stanton v. Carlson Sales, Inc., 728 A.2d 534, 549 (Conn. Super. Ct. 1998) Tracey Blitz Newman, No Post-Sale Duty to Warn, Superior Court: Restatement Third Does Not Represent Pennsylvania Law, The Legal Intelligencer, December 29, 1999 William A. Drier, The Restatement (Third) of Torts: Products Liability and New Jersey Law--Not Quite Perfect Together, 50 Rutgers L. Rev.2059 (1998). 2 S.W.3d 251 (Tex. 1999). 14 C.F.R. § 39 (1999). 588 N.W. 2d 688 (Iowa 1999). 592 N.W.2d 573 (N.D. 1999). 694 A.2d 1319 (Conn. 1997). 723 A.2d 45 (N.J. 1999). 733 A.2d 712 (R.I. 1999). 734 A.2d 290 (N.J. 1999). 975 S.W. 2d 147 (1998). 996 S.W.2d 47 (Mo. 1999). 1999 N.Y. App. Div. (N.Y. 1999). Read More