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Advocate thata manufacturer has a responsibility to lessen the risk of a harmful product.

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Product liability lawsuits brought on thenegligencetheory discussed inChapter 7usually allege that the seller or manufacturer breached a duty to the plaintiff by failing to eliminate a reasonably foreseeable risk of harm associated with the product. Such cases typically involve one or more of the following claims: (1) negligentmanufactureof the goods (including improper materials and packaging), (2) negligentinspection, (3) negligent failure to provideadequate warnings, and (4) negligentdesign.

Negligent ManufactureNegligence claims alleging the manufacturer's improper assembly, materials, or packaging often encounter obstacles because the evidence needed to prove a breach of duty is under the defendant's control. However, modern discovery rules and the doctrine ofres ipsa loquiturmay help plaintiffs establish a breach in such situations.³

Negligent InspectionManufacturers have a duty to inspect their products for defects that form a reasonably foreseeable risk of harm, if such an inspection would be practicable and effective. As noted above,res ipsa loquiturand modern discovery rules may help plaintiffs prove their case against the manufacturer.

Most courts have held that intermediaries such as retailers and wholesalers have a duty to inspect the goods they sell only when they have actual knowledge or reason to know of a defect. In addition, such parties generally have no duty to inspect if inspection would be unduly difficult, burdensome, or time-consuming. Unless the product defect is obvious, for example, middlemen usually are not liable for failing to inspect goods sold in the manufacturer's original packages or containers.

On the other hand, sellers that prepare, install, or repair the goods they sell ordinarily have a duty to inspect those goods. Examples include restaurants, automobile dealers, and installers of household products. In general, the scope of the inspection need only be consistent with the preparation, installation, or repair work performed. It is unlikely, therefore, that such sellers must unearth hidden or latent defects.

If there is a duty to inspect and the inspection reveals a defect, further duties may arise. For example, a manufacturer or other seller may be required not to sell the product in its defective state, or at least to give a suitable warning. TheWilkecase, which appears in this chapter's later section on implied warranty disclaimers, also deals with a seller's presale duty to inspect goods (in that case, a used car) and potential negligence liability for a breach of that duty.

Negligent Failure to WarnSellers and manufacturers often have a duty to give an appropriate warning when their products pose a reasonably foreseeable risk of harm. In determining whether there was a duty to warn and whether the defendant's warning was adequate, however, courts often consider other factors besides the reasonable foreseeability of the risk. These include themagnitude or severityof the likely harm, theease or difficulty of providing an appropriate warning, and the likelyeffectiveness of a warning. Many courts, moreover, hold there is no duty to warn if the risk isopen and obvious.