Talon-G is a rat poison made by ICI Americas and sold only to professional pest control companies. The poison was registered by the EPA and packaged in a container with EPA-approved labeling that displayed warnings cautioning users to keep it out of the reach of children, that it might be harmful or fatal if swallowed, and to store it in its original container in a location inaccessible to children. ICI could have—but didn’t—make the poison safer by adding an emetic that would cause any human ingesting it to immediately vomit, thereby expelling the poison (rats do not have a vomit reflex). Alternatively, ICI could have added bitrex, an aversive agent used in a variety of products since the late1970s that makes the poison taste bad to children but would not keep rats from eating it.
(a) Assume that an exterminator stores leftover Talon-G in an unmarked container. A nine year-old child finds and eats the poison, thinking it is candy. Several days later, the child dies. On what basis might the child’s family bring a lawsuit?
(b) What defenses might be raised?