The two most common causes of action alleged, and by far the two most common to be tried are strict liability and negligence. Each requires proof of different elements and, despite their similarities, one theory or the other will typically prove more likely to result in judgment in any particular case. While it is entirely possible and quite common to proceed to trial on both theories, 1 there are also advantages to deciding which theory is stronger in your case and proceeding to trial only on that theory. 2 Both negligence and strict liability causes of action can claim flaws in design, flaws in manufacturing or flaws caused by inadequate warnings (“marketing flaws”).
The elements of a cause of action for negligence are:
(1) A duty of care owed by the defendant to the user of a product or a foreseeable bystander.
(2) Breach of that duty, meaning that the defendant’s conduct falls below the applicable standard of care for the activity in which he is engaged.3
(3) Injury to the plaintiff that was caused by the breach.
In the products liability context, the breach of duty is likely to be one of the following: failure to design a safe product, failure to manufacture a safe product, failure to safely market a product (including both a failure to warn of dangers involved in using the product and advertising the product as capable of performing in ways it cannot safely perform), failure to inspect a product for dangerous conditions, and failure to test or adequately test the product for defects.
In practice, of course, the bare elements of the cause of action of negligence must translate into actual allegations in a complaint. With the Rules of Civil Procedure requiring only the ultimate facts, your own philosophy will dictate the extent to which you want to detail the specific facts of your case in a products liability complaint; however, there are certain minimum allegations that should be made to state a cause of action in negligence in a products liability case. At a minimum, a complaint should allege the following general and specific allegations:
1. The action is for damages in an amount over the minimum required to trigger the court’s jurisdiction.
2. Who the parties are and, if they are not Florida residents, the basis for personal jurisdiction.4
3. The product that is the subject of the case.
4. The defendant’s relationship to the product. This relationship e.g. designer, manufacturer, distributor or seller, establishes the standard of care to which the defendant will be held
Allegations Specific to the Negligence Count:
5. The defendants is in the business of designing, manufacturing, distributing and/or selling the product at issue.
6. The defendant’s role in placing the product in commerce created a foreseeable zone of risk thereby creating a duty for the defendant to take reasonable precautions to prevent the harm.
7. The defendant breached its duty by failing to design, manufacture, distribute and/or sell a product that was safe when used in a reasonable and foreseeable manner. Another way of saying the defendant sold a product with a defect.
8. The plaintiff’s use of the product was reasonable and foreseeable to the defendant.
9. That the defendant knew or should have known about the defect in the product. Jackson v. H.L. Bouton Co., Inc., 630 So.2d 1173 (Fla. 1st DCA 1994).
10. The defect existed at the time the defendant parted with the product.
11. The plaintiffs injuries were proximately caused by the defect in the product and the defect in the product resulted from the defendant’s failure to use due care.
12. The plaintiff suffered damages as a result of the defect.5
While both negligence and strict liability cases involve injuries caused by a defect in a product, a negligence action focuses on the defendants lack of due care in manufacturing or selling the defective product and strict liability focuses only on the defect. As one court expressed it, in negligence cases, the plaintiff must impugn the defendant and in strict liability cases, the plaintiff must impugn the product. Cassisi v. Maytag Company, 36 So.2d 1140 at 1145 (Fla. 1st DCA 1981).
II. STRICT LIABILTY
The doctrine of strict liability is most succinctly stated in the RESTATEMENT (SECOND) OF TORTS §402A (American Law Institute 1965):
(1) 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 consume, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has used all possible care in the preparation and sale of the product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Subsections (2)(a) and (b) obviously distinguish strict liability as a cause of action completely separate from negligence and breach of warranty actions which had, prior to the creation of strict liability, been the only means of recourse for injuries caused by dangerous products.
Florida joined the many other states that recognized the doctrine of strict liability in 1976 with the issuance of the Florida Supreme Court’s decision in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976). As the Second RESTATEMENT states, the seller of a defective product can be liable regardless of whether it exercised all possible care.
Despite the Third District’s apparent reliance on RESTATEMENT (THIRD) of Torts in at two products liability cases (Schemann-Gonzales v. Saber Manufacturing, 816 So.2d 1133 (Fla. 4th DCA 2002) and Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA 2012), the Florida Supreme court has not abandoned the Second Restatement. There are significant differences between the Second and Third Restatements that make the Third Restatement more challenging for Plaintiffs. For example, the Second Restatement defines a defective product as one which is “dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” 6 This is commonly referred to as the “consumer expectations” test. The RESTATEMENT (THIRD) of Torts states that a product is defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and its omission renders the product not reasonably safe.” This is commonly referred to as the “risk/benefit test” which not only requires the plaintiff to show that the risks inherent in the product outweigh the benefits of the product, but also requires the plaintiff to prove that an economically and technologically feasible alternative design was available at the time the product was manufactured. However, as recently as August 2005, the Eleventh Federal Circuit confirmed that Florida is still a RESTATEMENT (SECOND) state.7 As such, a products liability compliant should not allege the elements of proof required by the RESTATEMENT (THIRD).
The elements of a cause of action for strict liability under Florida law are:
(1) A defect was present in a “product” at the time the defendant parted with possession.8
(2) The defect caused the plaintiff’s injury
(3) The plaintiff sustained damages as a result of the defect., including . . . The elements of a cause of action for strict liability could be translated into the following general and specific allegations:
1. The action is for damages in an amount over the minimum required to trigger the court’s jurisdictional.
2. Who the parties are and, if they are not Florida residents, the basis for personal jurisdiction.
3. The product that is the subject of the case.
4. The product was manufactured for profit and placed into the stream of commerce for sale to the public.
5. The plaintiff was injured by the product.
Allegations specific to a Strict Liability Count:
6. The defendant is engaged in the business of designing, manufacturing, selling (whichever applies) the product at issue.
7. The product was defective and unreasonably dangerous when used.9
8. The defect in the product was the legal cause of plaintiff’s injuries.
9. Plaintiff sustained damages as a result of the defect.10
 Baione v. Owens-Illinois, 599 So.2d 1377 (Fla. 2nd DCA 1991)(When a set of facts will support a theory of common law negligence and strict liability, plaintiff is entitled to proceed on either theory or both).  Unfortunately, the term “defect” has common connotations that may not be consistent with the legal definition of that term. Jurors often begin with a pre-conceived notion that only a manufacturing flaw can cause “defect”, and therefore, if you have strong facts supporting your negligence cause of action, you may decide that it would be easier to proceed on that cause of action than to try to overcome this hurdle in a design defect case.  A standard of care for a manufacture is that of a reasonably prudent manufacturer. Since a manufacturer will typically possess expert knowledge about the product he manufacturers, a product manufacturer is held to the standard of an expert in the particular field of the product. See eg. Advance Chemical Company v. Harter, 478 So.2d 444 (Fla. 1st DCA 1985).  The easiest way to craft sufficient jurisdictional allegations is to track the language of Florida’s Long Arm Statute, F.S. 48.193. See Paragraph 5 of the attached complaint for jurisdictional allegations that track the language of the F.S. 48.193.  The complaint should spell out the different elements of damages being sought. A later article in this series will discuss appropriate elements of damages in a products liability action.  RESTATEMENT (SECOND) of Torts §402A, Comment (i).  Tran v. Toyota, 420 F.3d 1310 (11th Cir. 2005).  To qualify as a product for purposes of strict liability, an item must have been manufactured for profit and placed into the stream of commerce for sale to the public. Edward M. Chadbourne, Inc. v. Vaughn, 491 So.2d 551 (Fla. 1986).  The term “defective condition unreasonably dangerous to the user” in RESTATEMENT (SECOND) 402A has caused some so claim that “defective” and “unreasonably dangerous” are two separate elements that must be independently proven. In Cassisi v. Maytag Company, 396 So.2d 1140 (Fla. 1st DCA 1981) the court indicated that these terms were redundant.  Although Plaintiffs often anticipate the defense that a product was not in the same condition at the time at the time of the accident as it was when it left the manufacturer or seller, this fact is not an essential element to as cause of action for strict products liability. See, Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859 (Fla. 5th DCA 1996). The Cintron v. Osmose decision is also instructive on the amount of detail and specificity required to state a cause of action for negligence and strict products liability.
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