The two most common causes of action alleged, and by far the two most common to be tried are strict liability and negligence. Each requires proof of different elements and, despite their similarities, one theory or the other will typically prove more likely to result in judgment in any particular case. While it is entirely possible and quite common to proceed to trial on both theories , there are also advantages to deciding which theory is stronger in your case and proceeding to trial only on that theory. Both negligence and strict liability causes of action can claim flaws in design, flaws in manufacturing or flaws caused by inadequate warnings (“marketing flaws”).

I. NEGLIGENCE

The elements of a cause of action for negligence are:

1. A duty of care owed by the defendant to the user of a product or a forseable bystander
2. Breach of that duty, meaning that the defendant's conduct falls below the applicable standard of care for the activity in which he is engaged.
3. Injury to the plaintiff that was caused by the breach.
4. Damages.

In the products liability context, the breach of duty is likely to be one of the following:failure to design a safe product, failure to manufacture a safe product, failure to safely market a product (including both a failure to warn of dangers involved in using the product and advertising the product as capable of performing in ways it cannot safely perform), failure to inspect a product for dangerous conditions, and failure to test or adequately test the product for defects.

In practice, of course, the bare elements of the cause of action of negligence must translate into actual allegations in a complaint.With the Rules of Civil Procedure permitting bare bones “notice” pleading, your own philosophy will dictate the extent to which you want to detail the facts of your case in a products liability complaint; however, there are certain minimum allegations that should be made to state a cause of action in negligence in a products liability case.At a minimum, a complaint should allege the following general and specific allegations:

General Allegations:

1. The action is for damages in an amount over the minimum required to trigger the court's jurisdiction.
2. Who the parties are and, if the are not Florida residents, the basis for personal jurisdiction.
3. The product that is the subject of the case
4. The defendant's relationship to the product. This relationship e.g. designer, manufacturer, distributer or seller, establishes the standard of care of which the defendant will be held.

Allegations Specific to the Negligence Count:

1. The defendants is in the business of designing, maufacturing, distributing and/or selling the product at issue.
2. The defendant's role in placing the product in commerce created a forseeable zone of risk thereby creating a duty for the defendant to take reasonable precautions to prevent harm.
3. The defendant breached its duty by failing to design, manufacture, distribute and/or sell a product that was safe when used in a reasonable and foreseeable manner. Another way of saying the defendant sold a product with a defect.
4. The plaintiff’s use of the product was reasonable and foreseeable to the defendant.
5. That the defendant knew or should have known about the defect in the product.Jackson v. H.L. Bouton Co., Inc., 630 So.2d 1173 (Fla. 1st DCA 1994).
6. The defect existed at the time the defendant parted with the product.
7. The plaintiffs injuries were proximately caused by the defect in the product and the defect in the product resulted from the defendant’s failure to use due care.
8. The plaintiff suffered damages as a result of the defect.
   

While both negligence and strict liability cases involve injuries caused by a defect in a product, a negligence action focuses on the defendants lack of due care in manufacturing or selling the defective product and strict liability focuses only on the defect. As one court expressed it, in negligence cases, the plaintiff must impugn the defendant and in strict liability cases, the plaintiff must impugn the product. Cassisi v. Maytag Company, 36 So.2d 1140 at 1145 (Fla. 1st DCA 1981).

II. STRICT LIABILITY

The doctrine of strict liability is most succinctly stated in the RESTATEMENT (SECOND) OF TORTS §402A (American Law Institute 1965):

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consume, or to his property, if

   (a) the seller engaged in the business of selling such a product, and

   (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

2. The rule stated in Subsection (1) applies through

   (a) the seller has used all possible care in the preparation and sale of the product, and

   (b) the user or consumer has not bought the product from or entered into andy contractual relation with the seller.

Subsections (2)(a) and (b) obviously distinguish strict liability as a cause of action completely separate from negligence and breach of warranty actions which had, prior to the creation of strict liability, been the only means of recourse for injuries caused by dangerous products.

Florida joined the many other states that recognized the doctrine of strict liability in 1976 with the issuance of the Florida Supreme Court’s decision in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976). As the Second RESTATEMENT states, the seller of a defective product can be liable regardless of whether it exercised all possible care.

Despite one court’s apparent reliance on RESTATEMENT (THIRD) of Torts in at least one products liability case (Schemann-Gonzales v. Saber Manufacturing, 816 So.2d 1133 (Fla. 4th DCA 2002)), the Florida Supreme court has not abandoned the Second Restatement, which it adopted in West v. Caterpillar in favor or the Third Restatement. There are significant differences between the Second and Third Restatements that make the Third Restatement more challenging for Plaintiffs. For example, the Second Restatement defines a defective product as one which is “dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics”. This is commonly referred to as the “consumer expectations” test. The RESTATEMENT (THIRD) of Torts states that a product is defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and its omission renders the product not reasonably safe”. This is commonly referred to as the “risk/benefit test” which not only requires the plaintiff to show that the risks inherent in the product outweigh the benefits of the product, but also requires the plaintiff to prove that an economically and technologically feasible alternative design was available at the time the product was manufactured. However, as recently as August 2005, the Eleventh Federal Circuit confirmed that Florida is still a RESTATEMENT (SECOND) state. As such, a products liability compliant should not allege the elements of proof required by the RESTATEMENT (THIRD).

The elements of a cause of action for strict liability under Florida law are:

1. A defect was present in a "product" at the time the defendant parted with possession.
2. The defect caused the plaintiff's injury
3. The plaintiff sustained damages as a result of the defect, including...

The elements of a cause of action for strict liability could be translated into the following general and specific allegations:

General Allegations:

1. The action is for damages in an amount over the minimum required to trigger the court’s jurisdictional.
2. Who the parties are and, if they are not Florida residents, the basis for personal jurisdiction.
3. The product that is the subject of the case.
4. The product was manufactured for profit and placed into the stream of commerce for sale to the public.
5. The plaintiff was injured by the product.

Allegations specific to a Strict Liability Court:

1. The defendant is engaged in the business of designing, manufacturing, selling (whichever applies) the product at issue.
2. The product was defective and unreasonably dangerous when used.
3. The defect in the product was the legal cause of plaintiff’s injuries.
4. Plaintiff sustained damages as a result of the defect.

FAILURE TO WARN

Florida recognizes causes of action for both negligent and strict liability failure to warn. While failure to warn is often referred to as a separate theory of liability, in reality, it is simply one type of defect that can be the subject of either a negligence or strict liability cause of action. Separate causes of action for failure to warn are frequently labeled “Failure to Warn”, but the more correct name for such a cause of action would be “Negligent Failure to Warn”, “Strict Liability Failure to Warn” or “Strict Liability for Marketing Defects”.

As is the case with negligence and strict liability causes of action, the negligence action focuses on the culpable conduct of the defendant in failing to warn of dangers and the strict liability and the strict liability action focuses on defective condition of the product caused by the lack of adequate warnings. One difference between strict liability for failure to warn and strict liability for other types of defects is that, in a failure to warn case, the plaintiff does have to prove some degree of knowledge or constructive knowledge on the part of the manufacturer. This does not, however, eliminate the difference between negligence and strict liability failure to warn. To establish negligent failure to warn, the plaintiff must plead and prove that the defendant failed to warn of a particular risk that a reasonably prudent defendant would have known and warned about. To establish strict liability failure to warn, the plaintiff must only plead and prove that the defendant did not warn of a particular risk that was known or knowable in light of current science.

The next article in this series will discuss contract and statutory based causes of action, including breach of express and implied warranties, breach of the warranty of fitness for a particular purpose and rights under the Magnuson-Moss Act.