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Seeking Model Answers for July 2007 California Bar Exam - Torts

Manufacturer designed and manufactured a “Cold Drink Blender,” which it sold through retail stores throughout the country. The Cold Drink Blender consists of three components: a base that houses the motor, a glass container for liquids with mixing blades inside on the bottom, and a removable cover for the container to prevent liquids from overflowing during mixing. A manufacturer’s brochure that came with the Cold Drink Blender states that it is “perfect for making all of your favorite cold drinks, like mixed fruit drinks and milk shakes, and it even crushes ice to make frozen drinks like daiquiris and piña coladas,” and cautioned, “Do not fill beyond 2 inches of the top.” Retailer sold one of the Cold Drink Blenders to Consumer. One day, Consumer was following a recipe for vegetable soup that called for thickening the soup by liquefying the vegetables. After deciding to use her Cold Drink Blender for this purpose, Consumer filled the glass container to the top with hot soup, placed it on the base, put the cover on top, and turned the blender on the highest speed. The high speed rotation of the mixing blades forced the contents to the top of the container, pushed off the cover, and splashed hot soup all over Consumer, who was severely burned by the hot soup.
Consumer filed a lawsuit against Manufacturer and Retailer, pleading claims for strict products liability and negligence. In her complaint, Consumer stated that the Cold Drink Blender was not equipped with a cover that locked onto the top of the container in such a way as to prevent it from coming off during operation and that the failure to equip the blender with this safety feature was a cause of her injuries. Manufacturer moved to dismiss the complaint against it on the following grounds:

(1) Consumer’s injury was caused by her own misuse of the Cold
Drink Blender which, as implied by its name, was intended for mixing only cold substances.

(2) Consumer’s injury was caused by her own lack of care, as she overfilled the Cold Drink Blender and operated it at high speed.

(3) The design of the Cold Drink Blender was not defective since It complied with design standards set forth in federal regulations promulgated by the federal Consumer Products Safety Commission, which do not require any locking mechanism. Retailer moved to dismiss the complaint against it on the following ground:

(4) Retailer played no part in the manufacture of the Cold Drink
Blender and therefore should not be held responsible for a defect in its design.

How should the court rule on each ground of both motions to dismiss? Discuss Category: CA - California Bar Exam

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Essay 2 (2007 July California Bar Exam Model Answer):
TORTS / CIVIL PROCEDURE
Answer Provided by Barperfect
Written by Steve Liosi, Esq., Former Chapman Law Faculty Tutor

(1): Was Consumer’s misuse of the Cold Drink Blender foreseeable?

Whether Consumer’s misuse was indeed foreseeable is likely, from a procedural standpoint, a question for the jury to decide. The mere allegation of such will not result in a motion to dismiss being granted.

That said, since the product itself contained no explicit warnings to not use with hot beverages, it is entirely foreseeable that a user would use the product to mix a hot beverage. In the mind’s of most, a blender is a blender. Without an explicit direction to limit use to only cold beverages, using the product to mix a hot beverage is certainly foreseeable – tantamount to someone using a kitchen chair to reach an item in the upward reaches of one’s kitchen. As such, the motion to dismiss will likely be denied.

Can a product’s name serve as an adequate warning?
Manufacturer likely will not be able to rely on the product’s name, in and of itself, to fulfill its duty of placing a product in the stream of commerce with an adequate warning. More explicit and conspicuous warnings would be required, and none exist – there is no mention of any warning on the product itself that suggests use should be strictly limited to cold beverages. Again, the motion to dismiss will likely be denied.

(2): Did Consumer cause her own injury?

Even if Consumer was found to have contributed to her own injuries, that, in and of itself, would not be sufficient grounds for a dismissal to be granted. The only impact of Consumer’s contributory negligence would be to lessen her recovery.

Consumer was likely injured due to a variety of reasons (see supra), not solely by her alleged lack of due care. True, Consumer filled the container to the top, but the warning about not filling “beyond 2 inches of the top” was not affixed to the product itself – it was instead included in a separate brochure. A warning included in a separate brochure only (and nowhere else) will likely not be deemed sufficient. Moreover, the hot soup splashed all over Consumer, presumably because the container did not have a top that could be locked in place during use. Whether Consumer’s injury was caused by her lack of due care is likely a question of fact for the jury to decide. Manufacturer’s mere allegation will likely not result in a dismissal being granted.

(3): Is the Cold Drink Blender defective?

A product is either defective or it is not defective. It does not matter that locking mechanisms are not required by federal law. In fact, this product is likely defective since it had improper warnings (see supra). As such, there will be no dismissal granted on this particular ground since the product will likely be found defective, despite the federal Consumer Products Safety Commission design standards.

(4): Will Retailer’s motion to dismiss be granted simply because Retailer played no part in the manufacture of the Cold Drink Blender?

Retailer will be liable simply because it placed the product in the stream of commerce. Playing no part in the manufacture of the product is irrelevant. Retailer can still be found strictly liable since the Cold Drink Blender will likely be found defective (see supra).