William Mitchell Law Review Volume 27 | Issue 1 Article 17 2000 The eT n Myths of Product Liability Kevin Reynolds Richard J. Kirschman Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Reynolds, Kevin and Kirschman, Richard J. (2000) "The eT n Myths of Product Liability ," William Mitchell Law Review: Vol. 27: Iss. 1, Article 17. Available at: http://open.mitchellhamline.edu/wmlr/vol27/iss1/17 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Reynolds and Kirschman: The Ten Myths of Product Liability THE TEN MYTHS OF PRODUCT LIABILITY Kevin Reynoldst RichardJ. Kirschmant Both dreams and myths are important communicationsfrom ourselves to ourselves. If we do not understand the language in which they are writ- ten, we miss a great deal of what we know and tell ourselves in those hours when we are not busy manipulatingthe outside world.' I. INTRO DUCTIO N ...................................................................... 552 II. MYTH NO. 1: YOU CAN RECOVER BASED ON STRICT LI- ABILITY IN TORT AND IMPLIED WARRANTY FOR THE SAME D EFECT ...................................................................................553 A. Implied Warranty, Strict Liability And Negligence Claims Are Governed By The Same Statute Of Limitations............. 553 B. WarrantyDisclaimers Are Ineffective Or Void In Personal Injury Cases ................................................................ 555 C. An Implied Warranty Theory Can Be Pursued With Strict Liability Or Negligence Claims As An Alternative Ground Of L iability.................................................................. 557 III. MYTH NO. 2: DESIGN DEFECT CAN BE BASED ON STRICT LIABILITY IN TO RT .................................................................. 558 IV. MYTH No. 3: FAILURE To WARN CAN BE BASED ON STRICT LIABILITY ON TORT .................................................... 563 V. MYrH No. 4: STRICT LIABILITY APPLIES EVEN IF THE PRODUCT HAS BEEN ALTERED, So LONG As THE ALTERA- TION WAS FORESEEABLE ......................................................... 564 t Kevin M. Reynolds and Richard J. Kirschman are members in the Des Moines law firm of Whitfield & Eddy, PLC. Mr. Reynolds received a B.S. in Politi- cal Science from Iowa State University in 1978 and graduated from the University of Iowa Law School in 1981. tt Mr. Kirschman obtained a B.S. in Political Science from Northeast Mis- souri State University in 1988 and graduated from the University of Iowa Law School in 1991. Both are active members of the Product Liability Committees of the Defense Research Institute and the Iowa Defense Counsel Association. 1. Dr. Erich Fromm, NY TIMES, Jan. 5, 1964. Published by Mitchell Hamline Open Access, 2000 1 WilliamWILLIAM Mitchell Law MITCHELL Review, Vol. 27, LA Iss. W 1 REVIEW [2000], Art. 17 [Vol. 27:1 VI. MYTH No. 5: A PRODUCT MANUFACTURER'S DUTIES ARE FIXED AT TIME O F SALE ......................................................... 566 A. A ManufacturerHas A Legal Duty To Recall Or Retrofit A P roduct.................................................................... 567 B. A Manufacturer's "ContinuingDuty To Warn" Is Lim- ited To The Duty To Exercise Reasonable Care................... 568 VII. MYTH NO. 6: OTHER ACCIDENTS, CLAIMS OR LAWSUITS ARE ADMISSIBLE IN A PRODUCT LIABILITY CASE ................... 570 VIII. MYTH No. 7: SUBSEQUENT REMEDIAL MEASURES ARE ADMISSIBLE IN A PRODUCT LIABILITY CASE ........................... 572 IX. MYTH No. 8: THERE IS A DUTY To 'REMIND' USERS OR CONSUMERS OF KNOWN, UNDERSTOOD OR OBVIOUS PRODUCT DANGERS ................................................................ 575 X. MYTH No. 9: IN A FAILURE TO WARN CASE, THERE IS A PLAINTIFF'S HEEDING PRESUMPTION AND CAUSATION DOES NOT HAVE TO BE PROVEN ........................................... 577 XI. MYrH No. 10: THE FAILURE To USE A SEAT BELT IS IN- ADMISSIBLE EVIDENCE, EVEN IN A CRASHWORTHINESS C ASE ....................................................................................... 5 78 X II. C O NCLUSIO N .......................................................................... 582 I. INTRODUCTION Product liability is one of the most widely misunderstood and complicated areas of the law. With the emergence of strict liability claims and their subsequent national acceptance, many believe that product manufacturers are responsible, similar to insurers, for any and all injuries resulting from product-related accidents. While a product manufacturer's responsibility is heightened and the rea- sonableness of its conduct is closely examined whenever a serious injury has occurred, liability is not strict in the absolute sense of the word. Armed with a proper understanding of substantive product liability law, the idiosyncrasies of the law in a particular jurisdiction and the intricacies of individual types of claims, which encompass strict liability, negligence and warranty, a product seller has nu- merous defenses in its arsenal. The purpose of this article is to identify the primary myths surrounding product liability law and enable counsel to spot issues that are crucial in the proper han- dling of a product liability case. http://open.mitchellhamline.edu/wmlr/vol27/iss1/17 2 2000] THEReynolds TEN and MYTHS Kirschman: OF The PROD Ten MythsUCT LIABILITYof Product Liability II. MYTH No. 1: YOU CAN RECOVER BASED ON STRICT LIABILITY IN TORT AND IMPLIED WARRANTY FOR THE SAME DEFECT Strict liability was a theory of recovery initially developed, at least in part, to permit injured users or consumers to avoid the rig- ors of the privity requirement attendant to warranty claims.' Prior to the recognition of strict liability in tort, a party who was injured by a product could be denied recovery if he or she was not in priv- ity with the product seller or manufacturer.! The subsequent ad- vent of comparative fault in a majority ofjurisdictions has, however, blurred any meaningful distinctions between negligence, strict li- ability and warranty law. In many jurisdictions all theories of liabil- ity, regardless of their formal label, are considered fault4 The new Restatement (Third) of Torts: Products Liability also recognizes that there is little, if any, distinction between the three product liability theories.5 Although warranty theories may be provide a basis for imposing liability in a product liability case, warranty claims are typically redundant of other available and existing claims. As a re- sult of this overlap, three potential misconceptions should be care- fully examined. A. Implied Warranty, Strict Liability And Negligence Claims Are Governed By The Same Statute Of Limitations Implied warranty claims can be subject to special statutes of limitation based on the Uniform Commercial Code (hereinafter "UCC"), for example, a four-year limitations period.6 Most impor- 2. Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 899-901 (Cal. 1962); Escola v. Coca-Cola Bottling Co., 150 P.2d 436, 438-40 (Cal 1944). See generally Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (NJ. 1960); MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916). 3. See generally Greenman, 377 P.2d 897; Henningsen, 161 A.2d at 80-84, 99-101 (discussing the early common law concepts of privity and then holding that in cer- tain cases the privity requirement is not applicable). 4. See, e.g., IOWA CODE § 668.1 (1) (1999); Uniform Comparative Fault Act, §1(b) (1977). 5. RESTATEMENT (THIRD) OFTORTS: PRODUCTS LIABILITY § 2 cmt. n (1998). 6. U.C.C., § 2-725; Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 919 (Iowa 1990) (applying five-year statute of limitations to implied warranty actions in Iowa); Carlisle v. Fetzer, 381 N.W.2d 627, 628-29 (Iowa 1986) (applying five-year statute of limitations to implied warranty actions in Iowa). Most jurisdictions rec- ognize two theories of implied warranty liability: 1) implied warranty of merchant- ability; and 2) implied warranty of fitness for a particular purpose. U.C.C. §§ 2- 314 & 2-315; IOWA CODE at §§ 554.2314 (1999) (defining implied warranty of mer- chantability) & 554.2315 (defining implied warranty of fitness for a particular Published by Mitchell Hamline Open Access, 2000 3 WilliamWILLIAM Mitchell Law MITCHELL Review, Vol. 27, LA Iss. W 1 REVIEW [2000], Art. 17 [Vol. 27:1 tantly, the limitations period commences at the time tender of deliv- ery is made, i.e., at time of initial retail sale of the product. "A cause of action accrues when the breach occurs, regardless of the ag- grieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made."7 These statutory provisions may govern product liability claims for personal injuries which are premised upon an alleged breach of warranty. 8 Similar in opera- tion and effect to a statute of repose, these statutes strictly circum- scribe warranty liability on older products. It is a common mistake to assume that the general statute of limitations for personal injury claims (for example, two or three years from the date of the accident) applies to a products case grounded on breach of warranty. In many jurisdictions, warranty claims are governed by a distinct limitations period. 9 The UCC statute of limitations for implied warranty