The Plaintiff, then 18 years old, was boating with friends on Lake Austin in the summer of 2005. He had just returned to the boat from wakeboarding when the tow rope fell in the water. When the Plaintiff jumped back in the water at the rear of the boat to retrieve the line, his friend and 18-year-old driver put the boat in reverse. The boat’s propeller caught the top of the Plaintiff’s leg and twisted it around, causing extensive blood loss and eventual loss of his leg. See local news coverage of the accident here .

The Plaintiff filed suit against the parent company of Sea Ray Boats, alleging that the boat should have been equipped with safety devices, such as guards or covers, to prevent the plaintiff from becoming entangled or stuck. However, the U.S. marine industry reportedly has fought the idea installing prop guards on motors because no design has ever been proven safe or effective for maneuvering boats. The U.S. Coast Guard has agreed, and has consistently refused to order boat and engine builders to install prop guards.

Apparently, though, this Texas jury didn’t buy it. It found both the Plaintiff and the driver (who was not named a defendant) of the boat each to be 17% negligent, and the defendant 66% negligent and responsible for the injury. Its award of damages included $200,000 for past physical pain and anguish, $200,000 for future physical pain and mental anguish, and $100,000 for disfigurement.

The decision has naturally drawn harsh criticism from the industry, which points out the common-sense factor at work here and the fact that all motors are “emblazoned” with pronounced warnings. It likens the facts on this case to the infamous McDonald’s hot coffee suit. This case, which Brunswick Corp has said it intends to appeal, may be one to watch, as it surely will have a profound effect on the boating industry.

While Kim Gentry was shopping at Petco Animal Supplies, Inc., she picked up a York Peppermint Pattie that was for sale and bit into it. I know what you are all thinking: Yes, it is another issue that candy is sold at Petco and that people eat it in the store. After Ms. Gentry discovered that there was larvae inside the candy, she was treated for food poisoning. Since the event, she had undergone psychological counseling. Gentry filed a lawsuit against the manufacturer, The Hershey Company; the distributor, Liberty Distribution, L.L.C.; and the retailer, Petco, for strict liability, breach of implied and express warranties, negligence, and negligence se.

On Petco’s motion for summary judgment, the Court agreed with Petco on Gentry’s negligence per se claim as Gentry did not point to any statutory provision other than those under the Federal Food, Drug, and Cosmetic Act and Tennessee Food, Drug, and Cosmetic Act, which have been held to have no private action attached. The Court also found that Petco was not liable for strict liability because the applicable statute in Tennessee only permits a strict liability action against a seller when the seller is also the manufacturer or when the manufacturer cannot be located or is insolvent.

This case again shows the importance of expert testimony, as the use of expert testimony was instrumental in absolving Hershey and Liberty from strict product liability. As a result of this decision, Ms. Gentry will be able to present her case on implied warranty and negligence to a jury.

Apple wins, always. In Birdsong v. Apple, Inc., No. 08-16641, 2009 WL 5125776 (9th Cir. Dec. 30, 2009) [PDF], the Ninth Circuit affirmed the dismissal of a complaint alleging that Apple’s iPods are defective because it is possible to listen to music at an unsafe volume, and, therefore, they pose an “unreasonable risk of noise-induced hearing loss.”

The plaintiffs planned to represent a nationwide class of iPod users, but the Court rebuffed the plaintiffs’ two main arguments. First, the Court stated that the plaintiffs had alleged no facts that could support a breach of the implied warranty of merchantability. Second, plaintiffs had no standing to assert a claim under California’s unfair competition law.

The plaintiffs alleged that the iPod could be made safer, by the use of some noise-reduction technology or software that could relay the volume in decibels to the iPod user. Simply because a product could be used in a risky manner, however, is not enough to prevail on a warranty of merchantability claim. Put simply, the iPod performs exactly as intended, and there is no breach of the warranty of merchantability.

In addition, the plaintiffs’ claims under the unfair competition law were not supported by an injury, and, therefore, plaintiffs had no standing to assert their claims. First, the plaintiffs did not claim any actual hearing loss as a result of their iPod use, ostensibly because they were not, at any time, actually injured by their iPod. Neither did they assert that such harm was “actual or imminent.” The court observed as follows:

[T]he plaintiffs’ third amended complaint reveals the conjectural and hypothetical nature of the alleged injury as the plaintiffs merely assert that some iPods have the “capability” of producing unsafe levels of sound and that consumers “may” listen to their iPods at unsafe levels combined with an “ability” to listen for long periods of time.

Id. Finally, plaintiffs’ contention that the iPods’ lack of safety diminished their value to the plaintiffs could not satisfy the injury-in-fact requirement, and the Court noted the plaintiffs’ admission that “Apple provided a warning against listening to music at loud volumes.”

What remains to be seen is where a similar case could go if there were actual injury. Such an injury could support an unfair competition claim as well as additional negligence claims.