02134

Question Analysis

Darla (defendant) is in the pest control business.(commercial supplier) She develops and produces fumigation gas (a product under products liability) for her own use. She also sells the gas to consumers. (stream of commerce) Some of her competitors do not sell gas to consumers because consumers sometimes do not follow safety instructions.

Darla sold a container of fumigation gas to Albert for use in ridding his apartment of insects. Although she had intended to produce gas of standard toxicity, she had unknowingly produced gas of unduly high toxicity. Albert used the gas and succeeded in killing all the insects in his apartment. Because he used the gas carelessly, some made its way into the apartment of his neighbor, Paul. (plaintiff) The gas caused Paul to suffer serious lung damage (physical injury) and to fear that he would contract cancer as a result. (emotional distress)

1. Is Darla liable to Paul? Discuss. (#1)

2. If so, may Paul obtain damages from Darla for fear of contracting cancer? Discuss. (#2)

Outline

#1 P v. D

Strict Liability- abnormally dangerous activity

Strict Products Liability

Commercial supplier

Defect

manufacturing

design

warning

Actual and Proximate cause

Damage

Defenses

Negligence

Duty-Foreseeable plaintiff

Breach

Causation

Damage

Defenses

#2 Emotional Distress

Negligent infliction of emotional distress

Damages- foreseeable, certain, definite, and unavoidable