Arya Stark purchased a knee brace directly from the manufacturer, Lannister Industries.  Arya bought the brace so that could keep her knee stable while practicing her sword fighting.  The knee brace, which was sold for the low cost of $7.75, came with instructions on how to use it, which included the language, “Do not use this knee brace when making sudden, choppy movements.”  Arya, who believed herself to be a very fluid sword fighter, knew she would not make any jerky movements while practicing sword fighting.

Arya did not examine the knee brace carefully, so she did not notice that the knee brace is designed to slip all the way down the leg when sudden movements are made.  Two weeks after purchasing the knee brace, Arya was practicing her sword fighting when her father, Ned Stark, the most honorable man alive, unexpectedly knocked on her door.   She jerked suddenly, startled by the door, and the knee brace fell off her leg.  She tripped over the knee brace getting to the door and broke her leg in two places, requiring several surgeries.  Because of the injury, Arya would never be strong enough to sword fight again.

Arya sued Lannister Industries for compensatory damages.  Discuss the possible claims that Arya could assert, how the court would analyze those claims, and what affirmative defense Lannister Industries could use to defend against Arya’s claims.  Also discuss what damages Arya could be awarded if any of the claims succeed, and how a court will calculate those damages.

Answer Key:

• Product defect
  • Arya’s use of the product was not intended, but it may have been foreseeable. A manufacturer like Lannister Industries is responsible for all foreseeable uses of a product.  People buy knee braces for stability and are likely to make choppy movements.
  • Design defect: This is a design defect, not a manufacturing defect, because each model of the knee brace contained this possible defect. For design defect, we would likely use the risk-benefit test unless a consumer had expectations about how the knee brace would perform.  Given the warning, it would be tough for plaintiff to claim that the device functioned worse than her ordinary expectations, because she was warned against using the product when making sudden, jerky movements.
    • Under the risk-benefit test, courts will compare the utility and desirability of a product to its risks, and especially look at whether there is a reasonable alternative design. Courts will examine the Ortho   Consumer expectations and warnings is factor in determining whether a product performs unreasonably or defectively.  Because the product did tell consumers about its deficiencies, that is one factor that militates against defect.  In addition, the price of the product is relatively low, so a court would examine how much more cost would be added to make the product safer.  On the other hand, a knee brace that slips off one’s leg doesn’t seem like a great product, even if Lannister Industries warned of the risk.  There is likely a reasonable design that is safer that does not add much extra cost.  If the product is defective, the defect caused her injury.
  • Warning defect: Lanniser Industries could also be held liable under a warning defect theory.
    • Although there was a warning against using the product when making jerky motions, the warning did not specify the consequences, nor was the warning particularly dire or bold. Courts will examine whether the warning was adequate by looking at factors such as the method of warning –whether the manufacturer warned of the consequences and scope of the danger – and the way in which the warning was communicated.  A court like Hood might find this warning adequate, because it was clear (although not as strongly worded or visible in many places as Hood), but other courts will not.  There was no bold language or evidence of communication of the scope of the danger and the consequences of using the product incorrectly.
    • The court will also consider causation. The lack of a warning has to have caused the injury.  For but-for causation, the court may use a “heeding presumption,” that Arya would have followed the warning if she understood the danger – or at least would have been on the lookout for falling over the knee brace.  Defendant can introduce evidence that Arya wouldn’t have followed a more explicit warning, since she didn’t follow the warning as given, and that but for a better warning, she would still be injured.  Proximate cause is likely met if but for causation is met because the type of injury, physical damage to the leg, is foreseeable, if factual and proximate causation are met.

• Affirmative defense: Comparative Negligence
  • The failure to guard against or discover a defect will not count as comparative negligence, or the burden of defective products will be borne by plaintiff.
  • Still, plaintiff failed to exercise due care by practicing sword fighting using a knee brace, when jerky movements might occur during sword fighting. Compare to Sanchez – both plaintiffs acted negligently, but not because they failed to discover a defect.   This was unreasonable but foreseeable behavior, so we compare the negligence.

• Damages
  • Arya will be awarded compensatory damages.
    • She will get pecuniary damages, for past and future medical expenses, like the surgeries, and lost wages – to the extent her injury prevents her from doing her day job (or whatever her day job would be calculated to be, if she isn’t working yet).
    • She will also get pain and suffering, since she is consciously aware of her pain.
    • Some courts will award Arya loss of enjoyment damages. Arya takes great pleasure in her sword fighting and no longer has the capacity to engage in this behavior.  This is a hedonic loss of enjoyment that Arya experiences in addition to pain and suffering – although some courts keep it part of the same inquiry as in McDougald.
  • A jury will apportion responsibility and deduct plaintiff’s portion from her award. The jury will compare each claim – design defect and failure to warn – to Arya’s negligence.