13-1419. Unavoidably unsafe products.
There are some products which, even when properly prepared and labeled, cannot be made safe for their intended and ordinary use. Because of the nature of ingredients or natural characteristics of the products, use of these products involves substantial risk of injury, and some users will necessarily be harmed. Such products are said to be unavoidably unsafe.
Unless the product unreasonably exposes users to risk of injury, there is no liability for supplying an unavoidably unsafe product. Whether users are unreasonably exposed to risk of injury turns upon a balancing of the dangers and benefits resulting from the product's use.
Where exposure to risk of injury from use of an unavoidably unsafe product is unreasonable [and the supplier knows or in the use of ordinary care should know of the risk of injury involved], the supplier is liable for physical harm proximately caused by the product's use. The supplier's liability extends [to persons who can reasonably be expected to use the product] [and] [to persons who can reasonably be expected to be in the vicinity during the use of the product].
USE NOTES
This instruction must be given only in cases in which the generic condition of the product gives rise to the risk of injury, for example, certain chemicals and drugs. The risk arises from the nature of the product and not from inadequacies of design, manufacture or labeling. It shall be used only where the plaintiff presents sufficient evidence that the product's hazardous characteristics are of such magnitude that the product should not have been put in the channels of commerce. Applicability of the instruction is further limited by the requirement that the injury result from an intended use of the product. The bracketed phrase "and the supplier knows or in the use of ordinary care should know of the risk of injury involved" shall be used only if plaintiff's claim is in negligence.