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12. Based upon the foregoing facts, if the roommate sues the shampoo company to recover damages for his dermatitis, his most promising theory of liability will be that the No-Flake shampoo
After three weeks of such use, the roommate finally consulted a doctor who diagnosed his problem as a serious and irreversible case of dermatitis caused by excessive exposure to the active ingredients in No-Flake. These ingredients are uniquely effective at controlling dandruff, but there is no way to remove a remote risk to a small percentage of persons who may contract dermatitis as the result of applying, for prolonged periods of time, amounts of No-Flake substantially in excess of the directions. This jurisdiction adheres to the traditional common law rules pertaining to contributory negligence and assumption of risk.
A college student purchased a large bottle of No-Flake dandruff shampoo, manufactured by a shampoo company. The box containing the bottle stated in part: «CAUTION — Use only one capful at most once a day. Greater use may cause severe damage to the scalp.» The college student read the writing on the box, removed the bottle, and threw the box away. The college student's roommate asked to use the No-Flake, and college student said, «Be careful not to use too much.» The roommate thereafter used No-Flake twice a day, applying two or three capfuls each time, notwithstanding the label statement that read: «Use no more than one capful per day. See box instructions.» The more he used No-Flake, the more inflamed his scalp became, the more it itched, and the more he used.
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A commercial supplier can be held liable for the production or sale of a product which is in a defective condition, or one unreasonably dangerous to the user based on a design or manufacturing defect. A type of design defect is an inadequate warning which does not provide users with clear and complete warnings of dangers which may not be apparent.
D is correct. The roommate's best argument would be that the shampoo was inadequately labeled to warn of its dangers. The shampoo was not unreasonably dangerous beyond the expectations of the ordinary consumer because of a departure from its intended design. On the contrary, the shampoo was neither designed nor manufactured defectively, and the minimal use of risk did not outweigh the benefits of the product at fighting dandruff, and it was not possible for the manufacturer to remove this unlikely risk. Further, the college student substantially altered the shampoo before it reached the roommate by disposing of the box which contained more complete warning instructions. However, the warnings which were on the shampoo bottle did not advise of the remote risk of dermatitis from prolonged overuse. Therefore, the roommate's best claim would be that the shampoo contained inadequate warnings.
A is incorrect. The shampoo did not have an unreasonably dangerous manufacturing defect, because it was not defective or dangerous beyond the expectations of the ordinary consumer. A manufacturing defect occurs when a product emerges from a manufacturing process different from the other products and more dangerous than if it had been made the way it should have been. Here, there are no facts to indicate a manufacturing defect.
B is incorrect. The shampoo did not have an inherently dangerous design defect, as there is no evidence that a safer alternative product existed. No such showing has been made by the roommate or suggested by the facts.
C is incorrect. Strict liability cannot be applied here due to the substantial altering of the packaging by the college student before it reached the roommate. Further, the shampoo only had a minimal risk of harm. The minimal risk does not outweigh the benefits of the product. Therefore, this is a weaker answer.