Negligence Fact Pattern 2
operates a tanning salon. Meg is one of his customers. The salon uses tanning beds that are equipped with ultraviolet lights above and below the customer. These lights are automatically regulated to control radiation exposure. Meg visited the salon and, while lying upon one of the tanning beds, fell asleep. The automatic regulator became stuck at maximum intensity. Meg was severely burned by the radiation. Meg wishes to sue for her injuries.
Who may she sue and based on which tort theories? Please make sure to provide definitions of the torts and explain whether she may be successful or not under each tort theory. Lastly, what types of damages could she recover?
The issues in this fact patter are (1) whether a design or manufacturing defect was the proximate cause of Meg’s injuries? (2) Whether there was negligence on the part of the tanning salon which contributed to Meg’s injuries? (3) Whether Meg’s act of falling asleep in the tanning bed was a contributing factor in her injuries? Because of the issues identified in this fact pattern, our discussion will involve the products liability tort, the negligence tort and a possible defense to a cause of action for negligence which in this case is contributory negligence.
The rules governing our issues are:
- Product liability – Products liability places strict liability for the seller or manufacturer of a defectively manufactured product which causes injury to the end user. 
- Negligence – To prevail in a cause of action for negligence, the plaintiff must prove that: (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff sustained damages. 
- Contributory negligence – to be used as a defense in negligence cases, to prevail the defendant needs to prove that the plaintiff’s own negligence contributed to his or her injuries. 
In examining the products liability issue. We consider the fact that because of a malfunctioning regulator, Meg was subject to excessive ultraviolet radiation which caused Meg to suffer severe burns to her body. Because it is likely that the defect was a product of a faulty design or manufacturing process, Meg would have a right to sue the manufacturer of the defective radiation regulator. Meg would also have the right to sue anyone in the distribution chain of the tanning bed who knew or should have known that the regulator was defective.  Because products liability claims can be based on negligence, strict liability, or breach of warranty of fitness depending on the jurisdiction within which the claim is based,  if the defective radiation regulator was due to a design or manufacturer’s defect, negligence in some aspect of insuring the product’s safety in bring the product to market, or a breach in the warranty of fitness, Meg would likely prevail in her cause of action. The damages Meg could recover would be compensatory damages such as medical expenses, lost income, and pain and suffering. 
In a negligence cause of action against the tanning salon, Meg would prevail if she could prove that the injuries sustained could have been avoided if not for the negligence of the tanning salon in failing to perform the necessary maintenance of the tanning bed which might have revealed that the radiation regulator was defective. The damages Meg could recover would be compensatory damages such as medical expenses, lost income, and pain and suffering.
If the jurisdiction allowed the contributory negligence defense to be asserted, the tanning salon, might claim that Meg’s own negligence was a contributory factor in the causation of her injuries. The tanning salon might argue that Meg had a duty to remain awake and alert in order to take any action required to remove herself from any situation which may have exposed her to harm. They might continue to argue that when Meg fell asleep, she failed in this duty to herself and had it not been for falling asleep, she would have sensed the onset of the radiation burns and could have acted to mitigate the extent of her injuries. I say this with the caveat that this defense is not relevant in the strict liability, products liability COA. It is only relevant in the negligence cause of action discussed (Supra).
 Cathy J. Okrent & William R. Buckley, Torts and personal injury law 329-330 (5th ed. 2015).
 Id. at 21.
 Id. at 129.
 Okrent, 329.
 Inc. US Legal, USLegal Civil Causes of Action – Products Liability Law and Legal Definition | USLegal, Inc., https://definitions.uslegal.com/c/civil-causes-of-action-products-liability/ (last visited Apr 29, 2017).
 Okrent, 53.