Hawaii has long followed the Restatement (Second) of Torts Section 402A (1965) which sets out the elements a plaintiff must prove in a strict products liability case as:
1) A defect in the product that rendered it unreasonably dangerous for its intended or reasonably foreseeable use;
2) A causal connection between the defect and the plaintiff’s injuries; and,
3) The seller or distributor of the defective product is engaged in the business of selling or distributing such product.
What is a “Product”
Whether an object is a product for purpose of strict liability should be determined on a case-by-case basis. For instance, an escalator in a commercial building accessible to the general public constitutes a product for purpose of a strict liability claim against the manufacturer of distributor of the escalator but not as to the premises owner.
A product may be defective under one of three general theories:
1) Defective manufacture;
a) A manufacturing defect looks at the blueprints or design and compares it the final product in the hands of the consumer to determine if there is a defect. For instance, the manufacturer’s failure to equip its product with a safety device may constitute a design defect. Although a manufacturer is not subject to an independent continuing duty to “retro-fit” its product with aftermarket manufacturer safety equipment, the focus of any duty begins with whether the product was defective when it left the manufacturer’s control. (Tabieros v. Clark Equip. Co., 85 Haw. 336 (Haw. 1997)
2) Defective design;
a) “Aproduct may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.” (Ontai v. Straub Clinic & Hosp., 66 Haw. 237 (Haw. 1983) (Masaki v. General Motors Corp., 71 Haw. 1 (Haw. 1989)
The balance of the risk utility test weighs many factors. In Tabieros v. Clark Equip. Co., 85 Haw. 336 (Haw. 1997) the Supreme Court ruled the following guide line for the risk utility test. “The following risk-utility factors are relevant to determine whether a product is defective: 1)the usefulness and desirability of the product; 2) its utility to the user and to the public as a whole; the safety aspects of the product; 3) the likelihood that it will cause injury and the probable seriousness of the injury; 4) the availability of a substitute product which would meet the same need and not be as unsafe; 5) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; 6) the user’s ability to avoid danger by the exercise of care in the use of the product; 7) the user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the exercise of suitable warnings or instructions; and 8) the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.” Tabieros
3) Insufficient warning
a) “To establish a failure to warn claim, a plaintiff must prove that the manufacturer had a duty to warn of the dangers arising from a foreseeable use of the product and that the breach of that duty was the proximate cause of the plaintiff’s injuries. When a manufacturer is or should have been aware that a product is unreasonably dangerous absent a warning and such warning is feasible, the manufacturer will be held strictly liable if it fails to give an appropriate and conspicuous warning.” (Tabieros v. Clark Equip. Co., 85 Haw. 336, 354-356 (Haw. 1997)
Who is Liable?
Section 402A of the Restatement provides “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 consumer, or to his property.”Tabieros v. Clark Equip. Co., 85 Haw. 336 (Haw. 1997)