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Sensing Danger Autos, Inc. manufactures a two-seater convertible, the Roadster. The Roadster has an airbag for each seat. Autos, Inc. was aware that airbags can be dangerous to children, so it considered installing either of two existing technologies: (1) a safety switch operated by a key that would allow the passenger airbag to be turned off manually, or (2) a sensor under the passenger seat that would turn off the airbag upon detection of a child’s presence. Both technologies had drawbacks. The sensor technology was relatively new and untested, and the safety switch technology had the risk that people might forget to turn the airbag back on when an adult was in the seat. The safety switch would have increased the price per car by $5, and the sensor would have increased the price per car by $900. Research showed that most riders were adults and that the airbags rarely hurt children who were properly belted into the seat. No federal or state regulation required either a safety switch or a sensor. Autos, Inc. chose to install neither. Oscar bought a Roadster. On his first day of ownership, he decided to take his 10-year-old daughter, Chloe, to a local ice cream shop. On the way home, Oscar accidentally ran the Roadster into a bridge abutment. The airbags inflated as designed and struck Chloe in the head, causing serious injury. Chloe was properly belted into the seat. She would not have been hurt if the airbag had not struck her. What tort theories can reasonably be asserted on Chloe’s behalf against Autos, Inc., what defenses can Autos, Inc. reasonably raise, and what is the likely outcome? Discuss.
Answer 1 This answer provided by Scott F. Pearce’s Master Essay Method, www.calbarexam.com. I. Products Liability Chloe, a 10-year-old girl, suffered serious injury when she was struck in the head by an airbag during a car accident. The primary tort theories that can be asserted on her behalf arise out of products liability. Autos, Inc., the manufacturer, is the appropriate defendant. A. Strict Liability To prevail under strict products liability, Chloe will have to establish that the Roadster was unreasonably dangerous when it left the control of the defendant. Since Chloe was injured on the first day her father Oscar’s owned the Roadster, the product had only been out of the control of Autos, Inc. for a few hours. 1. Design Autos, Inc. was unable to design the Roadster in a way that was perfectly safe for children in every case. It could have installed a safety switch, or a sensor under the passenger seat, but both of these technologies had drawbacks. The safety switch would have created a situation in which some drivers would disable the passenger airbag and forget to reset the airbag for the next adult passenger. The sensor, which would detect children and disable the airbag, was new and untested. The Roadster’s design was not unreasonably dangerous. Autos, Inc. knew that the airbags rarely hurt children who were properly belted into the seat. Its decision not to install either the $5 switch or the $900 sensor was reasonable, as either might have caused more problems than it solved. 2. Manufacturing No facts suggest that there was a manufacturing defect in the Roadster that was delivered to Oscar. The airbags inflated according to their design. 3. Warning Autos, Inc. knew that airbags can be dangerous to children. The defendant made a conscious decision not to install either of two existing technologies that could have prevented Chloe’s injuries. Although this decision was not unreasonable, Autos, Inc. should have put a warning inside the car. That way, at least Oscar would have been on notice of the risk he was taking by letting his young daughter ride in the car as a passenger. 4. Defense � Unsafe misuse of product by Oscar Oscar accidentally ran the Roadster into a bridge abutment on the way home from the ice cream shop which Oscar and Chloe had visited. Without more facts, it is unlikely that the defendant will escape strict liability. Still, if Oscar’s driving was sufficiently reckless, Autos, Inc. would not be responsible for Chloe’s injuries. 5. Conclusion The likely outcome is that Autos, Inc. will be strictly liable for Chloe’s injuries, because the company’s failure to warn made the Roadster unreasonably dangerous when they delivered it to Oscar. B. Negligence � not per se because no federal or state regulation violated To prevail with a negligence theory, Chloe will have to show that Autos, Inc. breached a duty the company owed her, which caused her damages. 1. Duty Autos, Inc. has a duty to build cars that are not unreasonably dangerous to drivers, passengers (such as our plaintiff Chloe), or other foreseeable plaintiffs. 2. Breach The defendant’s failure to warn drivers of the Roadster about the risks posed to children by airbags was a breach of the duty reasonable care. 3. Causation Although it is impossible to say whether or not Oscar would have driven his daughter in the Roadster if he had been put on notice of the danger, the facts presented are likely sufficient to establish ‘but-for’ cause. The chain of causation will not be broken by Oscar’s bad driving, unless it was so outrageous as to be unforeseeable to the defendant. Thus, the plaintiff is likely to establish proximate cause as well. 4. Damages Chloe suffered serious personal injury when the airbag inflated and struck her in the head. She will be entitled to compensatory damages, according to proof. 5. Defenses It does not appear as if Autos, Inc. has any good defenses to liability. Chloe was properly belted in her seat. Although Oscar had an accident, airbags are supposed to prevent, not cause, injury during car crashes. 6. Conclusion The likely outcome is that Chloe will prevail against Autos, Inc. for negligence. Warranty Chloe’s final products liability theory, breach of warranty, technically arises out of the law of contracts, but it usually is pled in products liability cases. 1. Fitness for use / Merchantability Chloe will have to show that the Roadster was unfit for use or unmerchantable. The facts she will plead with her strict liability claim, discussed at length above, will establish her warranty claim as well. 2. Defenses Again the defendant does not have any persuasive defenses. Historically, a products liability defendant could use privity as a defense to claims based on breach of warranty, but today this defense is not available. 3. Conclusion: Plaintiff wins The likely outcome is that Chloe will prevail against Autos, Inc. for breach of warranty. II. Other Tort Theories A. Battery Chloe suffered a harmful and offensive touching when she was struck by the airbag. Battery would be an attractive theory of liability for the plaintiff because if she prevailed she could pursue a claim of punitive damages. Unfortunately for Chloe, it is unlikely she will be able to establish that the defendant intended to strike her with the airbag. Thus, the likely outcome is that the defense would prevail on the battery theory. B. Recklessness Chloe would have to establish that the conduct of Autos, Inc. was extreme and outrageous, not merely negligent. Although reasonable people could differ as to whether or not Autos, Inc. had been more than merely negligent, it seems more likely than not that the defendant would prevail on this theory as well. Again, this would deny the plaintiff a chance to pursue punitive damages. C. Fraud Here, Chloe would have to show that she suffered harm as a result of material mis-statements of fact by the defendant. Even Oscar would have trouble showing that Autos, Inc. defrauded him out of the purchase price of the Roadster. Once again, the defendant would likely escape liability. III. Remedies A. Damages Chloe will be entitled to compensatory damages for her injuries, according to proof. She will not be entitled to punitive damages. B. Restitution Chloe did not confer a benefit on Autos, Inc., and therefore cannot seek restitution. C. Equity Although it is possible that the court could issue a mandatory injunction ordering Autos, Inc. to put a proper warning on the Roadster, this relief will not be hugely important to the plaintiff. IV. Conclusion The likely outcome is that Autos, Inc. will be liable to Chloe for compensatory damages under all the products liability theories.

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