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