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13. Which of the following would constitute a defense for the shampoo company?
The roommate asserts a claim for his injuries against the shampoo company based on strict liability in tort. Three important facts were established at trial: The roommate misused the No-Flake shampoo, the roommate was contributorily negligent in continuing to use No-Flake shampoo when his scalp began to hurt and itch, and the roommate was a remote user and not in privity with the shampoo company.
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 by 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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Under the Restatement (Second) of Torts, ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff merely failed to discover the defect or guard against its existence, or where the plaintiff's misuse was reasonably foreseeable. However, assumption of risk may be a defense, where the plaintiff engaged in voluntary and unreasonable conduct and used the product despite discovering the defect and being aware of the danger.
D is correct. An element of a strict products liability claim is that the defect at issue must have existed at the time the product left the defendant's control. Similarly, there is a threshold requirement that the product reached the plaintiff without substantial alteration. If a substantial alteration has occurred, then a strict liability claim fails, because there is no longer adequate causation demonstrating that the product defect caused the injury.
Here, the shampoo came in a box that included additional warning instructions, which were referenced on the shampoo bottle. However, when the shampoo was borrowed by the roommate, it came without the box because the college student had disposed of it. Because the additional instructions on the box were absent, the shampoo could be considered to have been substantially altered by the college student purchaser before it reached the roommate. Therefore, the shampoo company's best argument would be that the shampoo had been substantially altered,
A is incorrect. The roommate's misuse would not be the shampoo company's best defense, as it would not cut short their liability. For misuse to be a defense to strict liability, the misuse must not be reasonably foreseeable. Here, the roommate used the shampoo for its intended purpose, but misused it by frequently applying more product than directed. Because the roommate was still otherwise using the product as directed to fight dandruff, his misuse was reasonably foreseeable and would not relieve the shampoo company of liability.
B is incorrect. Contributory negligence by the roommate would not be the shampoo company's best defense to strict liability. Contributory negligence does not bar recovery under a strict liability claim where the plaintiff simply failed to recognize the danger or guard against its existence. To be barred from recovery, the plaintiff needed to have assumed the risk by being aware of the danger, but nevertheless proceeding to use the product. Here, although the roommate negligently overused the shampoo, he was not aware of the risk of dermatitis. Therefore, his contributory negligence would not prevent him from holding the shampoo company strictly liable.
C is incorrect. The fact that the roommate was a remote user without privity would not allow the shampoo company to avoid strict liability. Under a strict liability theory, anyone who is within the foreseeable zone of risk can bring a claim, and no privity is required. As a roommate of the purchaser, the employee was within the foreseeable zone of risk, and thus could bring a products liability claim against the shampoo company.