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3.10-1  Product Liability

Revised to March 23, 2012

Note: The following charge applies to the most common type of product liability action, one in which a tool or machine is claimed to be defective. This charge is not appropriate in cases in which the claimed defect concerns a product about which the ordinary consumer would have no basis for having any expectations about the item, for instance, complex machinery not encountered in the everyday experience of consumers. See Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 222 (1997). If there is a factual issue whether the defendant is "engaged in the business of selling such products," (§ 52-572m (a)), you will need to charge in more detail on that topic.

In the interest of avoiding unnecessary confusion, the language concerning bailments may be omitted if no such issue is presented in the case.

The plaintiff claims that the defendant is liable to (him/her) under the Connecticut Product Liability Act. [<optional:> That Act is a statute enacted by the General Assembly. It provides that those who put defective products into the stream of commerce shall be liable to people who suffer injuries or damages resulting from those defective products. To be "liable" means to be required to pay compensation to an injured party.] In order to prove a claim under the Connecticut Product Liability Act, the plaintiff must prove all of the following things:

  1. the defendant was a "product seller," within the terms of the statute;

  2. the product was defective in the way claimed by the plaintiff;

  3. the defect existed at the time the product left the defendant, and the product was expected to reach the user without substantial change in condition and did reach the user without substantial change in condition as to the feature claimed to be a defect; and

  4. the defect proximately caused injury or damage to the plaintiff.

Product Seller
A person or entity is a "product seller" if, as a manufacturer, wholesaler, distributor or retailer, it is (in the business of selling or leasing/gives a bailment of) the product, whether the sale is for use by the buyer or for resale to another. If the other elements of a product liability claim are proved, a product seller is liable to any person who is injured by the product, not just to the person to whom it originally sold the product.

<Select one of the following, depending on allegations:>

  • There is no dispute that the defendant (manufactured/sold) the <identify product> at issue in this case.

  • There is a dispute whether the defendant was a product seller with regard to the product that the plaintiff claims caused (him/her) to suffer injuries and loss. You must consider all of the evidence on this issue and decide whether this defendant has or has not been proved to be a "product seller" with regard to the product at issue. A "product seller" is any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. More than one entity may be a "product seller" with regard to the same item. If the defendant has been shown to be a product seller, then the defendant may be held liable to the plaintiff if (he/she) has proved the other elements of (his/her) claim under the Product Liability Act. If not, the defendant is not liable under the Connecticut Product Liability Act.

Existence of a Defect
The condition that the plaintiff claims is a product defect is <identify alleged defect>. In order to prove that the product was defective, the plaintiff must prove that the condition that is claimed to be a defect made the product unreasonably dangerous. A product is unreasonably dangerous if, at the time of sale, it is defective to an extent beyond that which would be contemplated by the ordinary consumer.

The plaintiff claims, in effect, that an ordinary consumer would expect <explain plaintiff’s position>. In order to decide this issue of the expectations of a reasonable consumer, you should consider <discuss the way the defect is claimed to have caused the injury>. If you find that an ordinary consumer would expect <the plaintiff's position> and that the product did not meet the expectations that the ordinary consumer would have in this regard, then the plaintiff has proven the existence of a product defect. If an ordinary consumer would not expect <the plaintiff's position>, then the plaintiff has not proved that the design or feature at issue constituted a product defect.

A product seller, under Connecticut law, is not in the position of guaranteeing that no one will ever be injured while using its product, and a product seller is not liable for injuries simply because those injuries occurred during the use of its product.

Absence of Substantial Change

The plaintiff must also prove that the feature or condition that is claimed to be a defect, or to make the product defective, existed at the time that the product left the defendant, that the product was expected to reach the user without substantial change in condition as to the feature claimed to be a defect, and that the product in fact reached the ultimate user without substantial modification.

<Select one of the following, depending on the allegations:>

Proximate Cause
In addition to proving the other elements, the plaintiff must also show that the defect proximately caused the injury or loss.

<Insert appropriate instructions on proximate cause; see Proximate Cause, Instruction 3.1-3 and Proximate Cause - Substantial Factor, Instruction 3.1-4.>

Authority

General Statutes §§ 52-572m, 52-572p; Wagner v. Clark Equipment Co., 243 Conn. 168 (1997); Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (1997).

Notes

In cases involving a claimed defect of a product about which the ordinary consumer would not have a basis for having any expectations, this charge, which incorporates the ordinary consumer expectation test, may not be appropriate. In Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (1997), the Supreme Court explained that “instructions based on the ordinary consumer expectation test would not be appropriate when, as a matter of law, there is insufficient evidence to support a jury verdict under that test. . . . In such circumstances, the jury should be instructed solely on the modified consumer expectation test . . . .” (Citation omitted.) Id., 222-23. The court explained that “the jury should engage in the risk-utility balancing required by our modified consumer expectation test when the particular facts do not reasonably permit the inference that the product did not meet the safety expectations of the ordinary consumer.” Id., 222. “[U]nder this modified formulation, the consumer expectation test would establish the product's risks and utility, and the inquiry would then be whether a reasonable consumer would consider the product design unreasonably dangerous.” Id., 220-21. “[T]he relevant factors that a jury may consider [under the modified consumer expectation test] include, but are not limited to, the usefulness of the product, the likelihood and severity of the danger posed by the design, the feasibility of an alternative design, the financial cost of an improved design, the ability to reduce the product's danger without impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing the product's price.” (Emphasis in original.) Id., 221.

The court further explained that “it is the function of the trial court to determine whether an instruction based on the ordinary consumer expectation test or the modified consumer expectation test, or both, is appropriate in light of the evidence presented. In making this determination, the trial court must ascertain whether, under each test, there is sufficient evidence as a matter of law to warrant the respective instruction.” Id., 223.

It is hard to envision a court giving both instructions.
 


 

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