Negligence Problems for TA Sessions Week of November 18th

Products Liability Problem

I. Ominous Storm Clouds Gather

Vlade Divac decides to quit smoking. He goes to his doctor, who prescribes the patch. Divac, though he knows he needs to quit, is still deeply unhappy. Robert Horry and Nick Van Exel, hating to see him so blue, decide to take him hunting. They bring with them a newly designed heat-seeking bow and arrow set (purchased at a sporting goods store), and a tent that they bought from Karl Malone. Malone had received the tent as a gift, and had never opened it, preferring to sleep outside on his own hunting ventures. The tent features a small warning sticker on the box that says "Do not set up in high winds." The makers of the heat-seeking bow and arrow set designed it for the hunting of elephants, which have a much higher body temperature than humans. If nothing of the temperature of an elephant is in range, the arrow will drop harmlessly to the ground.

II. Bad Things Happen

On the drive up, Divac sits in the back, next to the unopened tent box. He fidgets constantly, like so many ex-smokers. To calm his nerves, he peels off the stickers on the box: the price tag, a sale mark down sticker, and, of course, the warning label. Horry, irritated beyond belief by the sounds of Divac scraping at the box, stops the car, and marches around back to grab the box out of Divac’s hand. The tent falls out of the box, and Divac snatches that up, as Horry reaches in for it. It soon turns into a merry game of tug of war. Finally they call truce, with the tent apparently undamaged. After that respite, and some lively rounds of twenty questions, the car ride passes quickly, and they find themselves in a lovely wooded area.

They get out of the car. Divac and Horry decide to set up the tent, despite the inevitable strong wind whistling through the pines. Van Exel, always eager to get his shot off, pulls out the bow and arrow.

Divac and Horry encounter some difficulty setting up the tent according to the instructions in the pamphlet. This frustrates Divac so much that his already fragile anti-smoking resolve is forgotten, and he lights up a Winston. At that moment, a particularly hard gust of wind blows the almost completed tent into his lit cigarette. The tent ignites, and Divac sustains serious burns. Simultaneously, Van Exel releases his shot. The arrow seeks out the nearest target of adequate heat, namely the source of the fire. Horry is hit by it, standing as he is in the path to the fire. Seconds later, Divac, already seriously injured from the conflagration, flops over in pain, clutching at the arm where the patch is.

III. The Aftermath

Divac is not only seriously burned from the tent, but he suffers permanent muscle damage. Medical testing reveals the most likely cause of this as an allergy he had to one of the ingredients in the patch he was prescribed. Not all patches have this ingredient. About thirty five percent of the population has this allergy. It can be easily tested for. The ingredient is widely known among the medical community to trigger reactions among people with this allergy. The doctor received no specific warning about this allergic reaction from the drug company, Yao Ming’s House O’ Drugs.

As for the tent, it is found, when examined by later by skilled forensic experts, to have possessed some sort of fire resistant capability. The experts note that any kind of pressure applied to the tent might have damaged the fire resistant coating on the fabric.

Horry is, of course, debilitated by the arrow.

So, what are the products-related claims, and how would you analyze them? Use different tests that might be at issue, and compare the results.