Bed vs DIN, Inc.

Question

DIN, Inc. manufactures and markets a variety of pneumatic nail guns, including the SN35 nail gun, which discharges 3.25-inch nails. The SN35 uses special nails designed, manufactured, and sold by DIN. Copyright 2025 Willey

The nail gun will discharge a nail only if two trigger mechanisms are activated. This safety feature means that the user must both squeeze the nail gun’s finger trigger and press the nail gun’s muzzle against a surface, activating the bottom trigger or safety. The SN35 can fire up to nine nails per second if the trigger is continuously depressed and the gun is bounced along the work surface, constantly reactivating the muzzle safety/trigger.

In June 2020, Zoo Bed decided to remodel his home, starting with the garage. Rather than rely exclusively on a hammer and nails, Bed purchased a DIN SN35 nail gun directly from the manufacturer. On July 3, 2020, Bed was using his DIN SN35 nail gun to install pieces of 2 by 4 wood lumber under the eaves of the garage. Due to the height of the eaves, he stood on tiptoe as he raised each 2 by 4 over his head. As he held the board in position with his left hand and the nail gun in his right hand, he would press the nose of the SN35 up against the board, depress the safety, and pull the finger trigger to fire the nail into the board. Copyright 2025 Willey

While installing the third board, the gun fired the first nail and then, in a phenomenon known as “double firing,” immediately discharged an unintended second nail that struck the first nail. When the second nail hit the first nail, the nail gun recoiled violently backward toward Bed, and with Bed’s finger still on the trigger, came into contact with his cheek. That contact activated the safety/trigger, causing the nail gun to fire a third nail. This third nail went through Bed’s cheekbone and into his brain.

The nail penetrated the frontal lobe of the right hemisphere of Bed’s brain, blocked a major artery, and caused extensive tissue damage. Bed was unconscious for several days and ultimately underwent multiple surgeries. He suffers permanent brain damage and is unable to perceive information from the left hemisphere of the brain. He also suffers partial paralysis of the left side of his body. Bed has undergone a radical personality change, is prone to violent outbursts, and is unable to obtain employment.

In addition, Bed’s previously warm and loving relationship with his wife and four children has been permanently altered. He can no longer live with his family and instead resides in a supervised group home for brain-injured persons.

Based on their attorney's advice, Bed and his wife sued DIN for strict product liability under §402A of the Restatement (Second) of Torts, the standard adopted by the courts in their state, alleging both design and warning defects.

During discovery, DIN, Inc. produced documents that showed the SN35 nail gun double-fired once every 15 firings. Jet Bag, a former DIN, Inc. safety engineer, left the company soon after DIN launched the SN35 nail gun. In a deposition, Bag testified that after a competitor began selling a nail gun that used 3.25-inch nails, DIN modified its existing nail gun so that it could shoot longer nails. According to the engineer's testimony, the company rushed production of the SN35 nail gun to maintain market position, without regard to safety. Over Bag's opposition, DIN did not conduct additional testing to determine if using a longer nail would increase the prevalence of double firing. Additional discovery determined that the SN35 nail gun contained the same instructions and warnings as the earlier model.

Use the FIRAC(Fact, Issue, Rule, Application and Conclusion) model to analyze the Beds' case against DIN, Inc. alleging strict product liability under §402A of the Restatement (Second) of Torts. Make sure that you

*identify and fully explain each of the elements required to satisfy Section 402A
*explain the types of defects that can be alleged in a strict product liability lawsuit, and using a risk/utility test, explain what makes manufacturing, design, or warnings defective,
*explain the standards the court uses to determine if a defect makes the product unreasonably dangerous, and
* identify and discuss any defenses that DIN might raise against the lawsuit.

Do NOT discuss whether the Beds might also have a claim against the manufacturer based on negligence or warranty theories. For the main paper, focus ONLY on strict liability under §402A.

Restatement (Second) of Torts § 402A establishes the doctrine of strict liability for defective products. It states that a seller of a product in a defective condition that is unreasonably dangerous to the user or consumer is strictly liable for harm caused by the defect, even if the seller exercised all possible care in the preparation and sale of the product. The key elements are:

1. The seller must be engaged in the business of selling the product.

2. The product must be in a defective condition unreasonably dangerous to the user or consumer.

3. The defect must exist at the time it leaves the seller’s control.

4. The product must be expected to reach the user without substantial change.

5. The defect must be the proximate cause of the injury.

Answer 1

FIRAC Analysis of Bed v. DIN, Inc. under §402A of the Restatement (Second) of Torts

Fact: Zoo Bed purchased a DIN SN35 nail gun, which has a safety mechanism that requires two triggers to be activated before firing. During use, the gun double-fired, causing a nail to penetrate Bed’s cheekbone and enter his brain, resulting in severe injuries and permanent damage. Bed and his wife sued DIN alleging strict product liability, claiming both design and warning defects. Discovery revealed that the SN35 double-fired once every 15 times and that DIN had rushed production without additional safety testing after modifying the product to shoot longer nails.

Issue: Is DIN, Inc. strictly liable under §402A for injuries sustained by Bed due to alleged defects in the SN35 nail gun?

Rule: Under §402A of the Restatement (Second) of Torts, a seller is strictly liable for harm caused by a product that is in a defective condition unreasonably dangerous to the user if the following elements are met:

1. The seller must be engaged in the business of selling the product.
2. The product must be in a defective condition unreasonably dangerous to the user or consumer.
3. The defect must exist at the time it leaves the seller’s control.
4. The product must be expected to reach the user without substantial change.
5. The defect must be the proximate cause of the injury.

Application:

1. Seller Engaged in Business: DIN, Inc. is in the business of manufacturing and selling nail guns, meeting the first element.

2. Defective Condition Unreasonably Dangerous: The SN35 nail gun’s propensity to double-fire may constitute a design defect. A design defect occurs when the product is designed in a way that makes it unreasonably dangerous, which can be assessed using the risk-utility test. Under this test, a product is deemed defective if the risks of harm outweigh its utility. Given the double-firing issue, which the former safety engineer testified occurred frequently, the risk of serious injury from this design flaw outweighs the utility of using the nail gun to hastily complete remodeling work, indicating a design defect.

3. Defect Exists at Time of Sale: The reports of double firing occurring once every 15 firings suggest that this defect would have been present at the time the product left DIN’s control.

4. Expected to Reach User Without Substantial Change: The SN35 nail gun was used in the same condition as sold, satisfying the fourth element.

5. Proximate Cause of Injury: The injury resulted directly from the nail gun’s defect (double firing) and the sequence of events that led to the nail penetrating Bed’s brain, satisfying the cause of injury requirement.

Given these applications, Bed can argue that DIN is liable for the injuries sustained due to the defective design of the nail gun.

Conclusion: Given the facts and analysis under §402A, Bed has a strong case for strict product liability against DIN, Inc. The evidence of frequent double firing and the rushed development of the product without adequate safety testing make it likely that the court would find the SN35 nail gun's design to be unreasonably dangerous.

Potential Defenses: DIN, Inc. may raise several defenses:

1. Contributory or Comparative Negligence: Depending on the jurisdiction, DIN may argue that Bed used the product improperly or failed to follow safety instructions, thereby contributing to his injuries. However, because the gun malfunctioned, this defense may not absolve DIN.

2. Assumption of Risk: DIN might argue that Bed should have anticipated the risks of using a nail gun based on the nature of the tool. However, this defense is less likely since consumers generally expect products to work safely as designed.

3. State-of-the-Art Defense: DIN could assert that the product met current industry standards and that no additional safety measures were generally required. However, with evidence of the engineer's testimony regarding rushed production and inadequate testing, this defense may also be weak.

Ultimately, the strength of DIN's defenses will depend on the specific facts of the case and the jurisdiction's approach to strict liability.