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Products Liability:

Products Liability March 28, 2011 Robert F. Prince www.princelaw.net www.princegloverblog.com

Slide 2:

Products Liability in Alabama A plaintiff must prove he or she suffered injury or damages to themselves or their property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer. If: (a) the seller was engaged in the business of selling such a product, and (b) it was expected to, and did, reach the user or consumer without substantial change in the condition in which it was sold.

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APJI 32A.00 Introduction — Multiple counts Plaintiff (name of plaintiff) says that a (name the product) which was [made/designed/sold/distributed/supplied/marketed] by the Defendant (name of defendant) caused [him/her/name of deceased][harm/death] on (insert date of event) . (Name of plaintiff) makes several different claims in this case: 1. (Name of plaintiff) says that the (name the product) was made/designed/sold/distributed/supplied/marketed] in a defective condition and caused the [harm/death] . This claim is made under the Alabama Extended Manufacturers' Liability Doctrine. 2. (Name of plaintiff) says that (name of defendant) negligently [made/designed/sold/distributed/supplied/marketed] the (name the product) , and caused the [harm/death] . This claim is known as a negligence claim. 3. (Name of plaintiff) says that (name of defendant) wantonly [made/designed/sold/distributed/supplied/marketed] the (name the product) , and caused the [harm/death] . This claim is known as a wantonness claim. 4. (Name of plaintiff) says that (name of defendant) gave a promise, known in the law as “a warranty,” to [him/her/name of deceased] about the [use/features/suitability] of the (name the product) , and that the promise or warranty was broken, resulting in [harm/death] . This claim is known as a breach of warranty claim. (Name of defendant) denies that these claims are true. I will now explain each of (name of plaintiff) 's claims and the defenses raised by (name of defendant) . You must decide each claim separately. ALABAMA PATTERN JURY INSTRUCTION: PRODUCTS LIABILITY

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APJI 32.22 Crashworthiness--General Instructions Under AEMLD Plaintiff in this case does not claim that (the defendant manufacturer) caused the accident in question, but plaintiff claims that (the defendant manufacturer) is liable under what is known as the Alabama Extended Manufacturers Liability Doctrine. In order for plaintiff to recover against (the defendant manufacturer) , the plaintiff has the burden of proving each of the following elements: 1. That the plaintiff was involved in an accident in which he was (using)(affected by) the (product) . 2. That the (product) was manufactured by (the defendant manufacturer) . 3. That, at the time of the accident, the (product) was in substantially the same condition as it was when it left the manufacturer. 4. That the (product) was “defective” that is to say, plaintiff must prove it did not meet the reasonable expectations of an ordinary consumer as to its safety because it was unreasonably dangerous; that is, not fit for its intended purpose. In order for plaintiff to prove that the (product) was defective, the plaintiff must prove that a safer, practical alternative design was available to the manufacturer at the time it manufactured the (product) . The existence of a safer, practical alternative design must be proven by plaintiff by showing that: a. The plaintiff's injuries would have been eliminated or in some way reduced by the use of the alternative design, and that; b. The utility of the alternative design outweighed the utility of the design actually used. In deciding whether the utility of the alternative design outweighed the utility of the design actually used, factors which may be considered would include the intended use of the (product) , its styling, cost, desirability, safety aspects, the foreseeability of the particular accident, the likelihood of injury, the probable seriousness of the injury if that accident occurred, the obviousness or not of the defect, and the manufacturer's ability to eliminate the defect. 5. The fifth element which plaintiff must prove is that the defect in the (product) proximately caused plaintiff's injuries. In summary, in order for plaintiff to recover against (the defendant manufacturer) , plaintiff must prove to your reasonable satisfaction each of the five elements of plaintiff's claim as I have just explained.

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APJI 32A.07 AEMLD — Design defect — Elements Plaintiff (name of plaintiff) says that the (name the product) was defective as designed. To recover damages on this claim, (name of plaintiff) must prove to your reasonable satisfaction all of the following elements: 1. (Name of defendant) was a [manufacturer/ supplier/distributor/seller] of (name the product) ; 2. (Name of defendant) did [manufacture/supply/distribute/sell] the (name the product) ; 3. The (name the product) was defective; 4. There was no substantial change to (name the product) from the time it left the possession of (name of defendant) until it reached (name of plaintiff) ; 5. [Name of plaintiff/name of deceased] was caused [harm/death] by the defect in the (name the product) ; and 6. There was a safer and practical alternative design that (name of defendant) could have used at the time the (name of product) was manufactured.

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APJI 32.24 Compliance with Federal Motor Vehicle Safety Standards Federal safety standards under the National Traffic and Motor Vehicle Safety Act of 1966 have been received into evidence in this case, along with evidence concerning compliance with these standards. While this evidence may be considered by you on the issue of whether or not this vehicle is defective, compliance with such safety standards is not conclusive and does not provide a defense to claims under the Alabama Extended Manufacturers Liability Doctrine. It is for you to determine whether or not these standards are applicable to the defects claimed in this case, and if there was compliance, whether there is a defect under the Alabama Extended Manufacturers Liability Doctrine despite such compliance.

WHEN PRODUCTS FAIL: PRODUCTS LIABILITY AND CRASHWORTHINESS:

WHEN PRODUCTS FAIL: PRODUCTS LIABILITY AND CRASHWORTHINESS When good products go bad Some examples of products liability cases Automotive: Door Latch Failures, Roof Crush, Seat Back Defects, Seat Belt Defects, Recalls, Faulty Airbags Hazardous to Infants and Children: Crib Failures, Toy Recalls, Faulty Child Safety Seats and Harness Defects

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Door Latch Failures and Tempered Glass A common cause of ejection from a wrecked vehicle occurs during rollover accidents. As the car rolls over, the vehicle door (s) open, causing the driver or passenger to be ejected. Cars equipped with door mounted seatbelts are at an increased risk of being ejected in the event that door latches fail. In this picture, the liftgate door latch failed, resulted in the fatality of a child riding in the back seat. Currently, Federal Safety Regulations require windshields to be equipped with laminated glass. Side and rear windows are not required to use laminated glass, only tempered glass. Which shatters easily and contributes to ejections during a crash.

Slide 9:

ROOF CRUSH AND FEDERAL SAFETY STANDARDS TESTING PROCEDURES Referred to as the “survival space” by engineers, the integrity of the roof in your vehicle could determine the difference between minor injuries and fatality if involved in a roll over accident. The current National Highway Traffic Safety Administration’s crush force standards have been in place since 1973.

Slide 10:

Seat Back Defects Another determining factor of a vehicle’s crashworthiness is seat back integrity. Rollover wrecks are highly survivable if the vehicle is equipped with an effective restraint system. In a rear end accident, if the structural integrity of the seat back fails to safely keep occupants in place, the likelihood of ejection is increased, as well as rear seat passenger impact injuries.

Slide 11:

SEAT BELT DEFECTS Seat belts are one of the most important safety features in your vehicle. Seat belt failures are a common cause of serious injury, fatalities and ejections in car accidents. Poor design of restraint systems results in: false latching (belt looks and feels latched, but will completely release with ease), inertial unlatching (upon impact, force applied to the buckle will cause it to unlatch) and retractor failures. The retractor is designed to restrict the shoulder belt to prevent the passenger from moving around upon impact. If the retractor fails, the belt will spool out, allowing the passenger to essentially become unrestrained.

Slide 12:

Child Safety Seats and Safety Harness Failures Car crashes are the leading cause of death in children, making child restraint seats even more important. Unfortunately, many child safety seats do not even meet the minimum safety requirements set forth by the National Transportation Safety Board. Common child safety seat defects include handle failures, base separation, inadequate instructions and warnings, harness failures and faulty shells. The National Highway Traffic Safety Administration has recently released the following guidelines for children’s safety seats by age: (with harness systems) 1-3: rear facing seat 4-7:forward facing seat 8-12: booster seat Unfortunately the public has not been properly educated on the necessity of a five point harness system for all ages and weights of children restrained in a safety seat.

Rear Facing v. Front Facing Crash Test :

Rear Facing v. Front Facing Crash Test

Trouble in Toyland: Products Liability Hazards to Children:

Trouble in Toyland: Products Liability Hazards to Children Cribs and bassinets can be potentially hazardous to children. Since 2007 over 11 million products have been recalled; approximately 10,000 children are injured a year due to faulty crib and bassinet design. Hardware failures such as bracket and rail defects can cause cribs or bassinets to collapse, crack, break or detach. Children have been suffocated and strangled when hardware fails and they become entrapped in bed linens. Every year thousands of new toys flood the market. With the volume of new toys designed a year, some products are bound to fail. Thousands of children suffer eye, ear, puncture wounds and internal injuries from poorly designed products sold using misleading marketing. The following list shows some of the most popular and most dangerous toys sold in 2010.

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Top 10 Worst Toys of 2010 Pull Along Caterpillar My First Mini Cycle Tug Boat Play Center The Pull Along Caterpillar-the breakaway pull string is a choking hazard for children. This toy is recommended for ages 12months+ My First Mini Cycle is sold with the following warning: Not for use on driveways, hill, roadways, slopes, or steps. The low profile makes riding anywhere other than inside a hazard. This toy is recommended for ages 18 months+ The Tug Boat Play Center, while marketed for use in outdoor, warns against using near water, and is sold with inconsistent age recommendations. Parents are warned not to let their children stand in the play center.

Top 10 Worst Toys of 2010:

Top 10 Worst Toys of 2010 Spy Gear Split Blaster Supersplat Blaster Buzz Magnets Kung Fu Panda Sword of Heroes

Top 10 Worst Toys of 2010 :

Top 10 Worst Toys of 2010 Animal Alley Pony Big Bang Rocket Walkaroo II Aluminum Stilts Toys like the splat blaster, bang rocket, split blaster, kung fu panda sword and buzz magnets all carry the potential for eye injuries, choking hazards, hearing loss, and high impact injuries. These toys are marketed for children as young as five years old. The Walkaroo Stilts, sold for ages five and up warn of head, impact and other injuries and states that children should “control their motions when using”. The Animal Alley Pony is sold for infants age 0 months+ and has been recalled for choking and aspiration injuries, even death.

Slide 18:

Consumer Websites For more information on Products Liability, and current information on product recalls, ratings and warnings please visit: www.princegloverblog.com www.safercar.gov www.safeproducts.gov www.toysafety.org www.cpsc.gov www.nhtsa.gov Organizations such as Caution, WATCH, and PIRG monitor Toys as they are released to the public, and provide warnings.

Products Liability:

Products Liability March 28, 2011 Robert F. Prince www.princelaw.net www.princegloverblog.com

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