1st Assenssment

Question 1

Strict liability (prima facie)

Answer 1

1. Nature of defendant’s activity imposes an absolute duty to make safe
2. dangerous aspect of activity was the actual and proximate cause of plaintiff’s injury
3. plaintiff suffered damage to person or property

Question 2

Products liability

Answer 2

Liability of a supplier of a defective product to someone injured by product.

1) D sold product
2) Defect - design, manufacture, or warning
3) Caused P’s injuries
4) Existence of defect when product left D’s control

ELEMENTS for Action: (1) duty; (2) breach; (3) actual and proximate cause; and (4) damages

NOTES:

• Duty comes from being a commercial supplier
• Privity is not required
• Breach is established through negligent conduct by defendant leading to a defective product
• Focus is the product not the conduct

Question 3

** Products liability: 3 Types of Defects can sue for under strict liability **

Answer 3

1. Manufacturing
2. Design
3. Inadequate warnings

Question 4

Manufacturing defect

Answer 4

Defendant will be liable if plaintiff can show that the product failed to perform as safely as ordinary consumer would expect. (Food also)

1. more dangerous than the ordinary consumer would expect when using the products in its intended or foreseeable manner
2. not in a condition not intended by the manufacturer AND
3. defect existed @ when product left D’s control in the mkting chain

• 1 product in the line
• manufactured in a manner other than intended.
• D must anticipate reasonable misuse

Question 5

Design Defect - (2 Tests)

Answer 5

1. Consumer Expectation Test

2. Risk-Utility Balancing Test

Question 6

Inadequate Warnings

Answer 6

A product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users.

• For drugs and medical devices, warnings given to “learned intermediaries” (like prescribing physician) will usually suffice. Exception when the product is marketed directly to the public

Question 7

Who can be a Plaintiff in Strict Products Liability?

Answer 7

Any Consumer, User, or Bystander who suffers injury

Question 8

Who can be a Defendant in Strict Product Liability?

Answer 8

Anyone in the marketing Chain and in the business of dealing with the product.

Does not include - occasional sellers

Question 9

Consumer Expectation Test

Answer 9

The product failed to perform as safely as an ordinary consumer would expect when used in an INTENDED or REASONABLY FORESEEABLE manner

Question 10

Risk-Utility Test

Answer 10

Test balances the likelihood, nature, and severity of the injuries against the usefulness of the product considering the availability and cost of safer alternative designs

Considerations :
- Usefulness + Desirability of product: to user + society

• Risk of injury - likelihood + seriousness
• Ability to avoid injury w/ reasonable care
• Obviousness of Risk + Avoidably bc of obviousness, warnings or instructions
• Availability of safer products that meet the same need
• Safer design alternatives available w/o impairing usefulness or making it too expensive
• Spreading of risk by raising price

Question 11

Obviously Dangerous Products

Answer 11

Where a product is obviously dangerous that a warning is considered unnecessary - sharp knife

i. An ordinary person can see the danger
ii. Appreciated by those that would use the product

Question 12

Allergic or Adverse Reactions

Warning Lables

Answer 12

Severity of the Reaction v Number of people affected

• few reactions but reaction threatens death or serious illness = needs warning
• many people experience a mild reaction = needs warning.

Question 13

What are warning defects?

Answer 13

1. There is a warning and it is inadequate OR
   does the warning reasonably inform the reader of significant risk :language, placement, size of font
2. There should of been a warning- manufacturer has to warn about risks it knows or should know , gravity and probability of harm

Question 14

What defenses are there to SPL?

Answer 14

1. Misuse
2. Alteration
3. Assumption of the risk

Question 15

Product Liability - 3 Theories of Liability

Answer 15

(i) Negligence;
(ii) Strict liability;
(iii) Warranty theories -
Express warranty and
Implied warranty (Implied warranties of merchantability and fitness for a particular purpose)

Question 16

RULE Manufacturing Defects

Answer 16

RULE: Liable if the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design.

Question 17

RULE Design Defects (RAD)

Answer 17

RULE: Liable if plaintiff can show risks could have been reduced by a reasonable alternative design–that a less dangerous modification or alternative was economically feasible.

Question 18

Implied Warranties of Merchantability

Answer 18

RULE: A merchant deals in a certain good, and means that goods are of generally acceptable quality and fit for ordinary purposes for which such goods are used.

• promise that the vehicle will do what it is supposed to do: drive

Question 19

Implied Warranties of Fitness for a Particular Purpose

Answer 19

RULE: Exists when seller knows or has reason to know:

(1) The seller knows particular purpose for which the goods are required; and
(2) buyer relies on sellers skill/judgement to furnish suitable goods

Question 20

Express Warranties

Answer 20

RULE: Arises when a seller makes an affirmation of fact to buyer relating to the goods as part of the bargain.
- Doesn’t matter if they are doing the best they could still need to uphold to what they said

Question 21

What are the 3 ways to sue someone for products liability

Answer 21

1. Negligence
2. Warranty
3. Strict Liability

Question 22

What is a DEFENSE to design defect?

Answer 22

If the product was “state-of-the-art,” best science could find -refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed

Question 23

What is a DEFENSE to manufacturing defect?

Answer 23

if the product was altered after it left

Question 24

Explain the government/contractor defense in products liability

Answer 24

Can’t get you for design defect if you built it for the US and followed their specifications, make sure and warn properly

Question 25

When can the FDA

pre-empt a design defect?

Answer 25

If the product has gone through pre-market approval,

Question 26

What can you still sue on by a product approved by the FDA?

Answer 26

1. Manufacturing defect
2. Express warranty
3. Failure to warn (if not up on the scientific knowledge)

Question 27

5 products liability DEFENSES

Answer 27

1. Comparative
2. Assumption of the risk for “open and obvious” and misuse
3. Government/contractor
4. Alteration (for manufacturing defect)
5. “State-of-the-art” (for design defect)

Question 28

**2 Ways to Assess Warning Defects **

Answer 28

1. Substantively - content
   Fails to sufficiently describe the danger, mention all of the dangers, inconsistent with the
   instructions for use
2. Procedurally - how presented, font, color, size

Question 29

Food Defects

Answer 29

1) Foreign Substance Test
Test = Only applicable if the substance is a piece of glass, wire, or other substance “foreign” to the food.

2) Consumer Expectation “Natural” Substance Test
Test = not what the consumer reasonably expected it to be found in food - like a bone or crab shell

Question 30

Drug Warnings Rules

Answer 30

1. Only have to give full warning to “learned intermediary” or doctor b/c he will be better able to evaluate the risks for your specific case
2. If directly marketed to the public, then full warnings required to consumer

Question 31

Restatement 402A - liability of seller

Answer 31

1) One who sells any product in defective condition unreasonably dangerous to consumer or his property is subject to liability for physical harm caused to consumer if:
a) Seller is engaged in business of selling such a product
AND
b) It is expected to and does reach users or consumer w/o substantial change in condition it was sold

Question 32

**Restatement (Second) Section 402A, comment i:

Assessing Defectiveness: Consumer Expectation Test **

Answer 32

“The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

Question 33

iii. Comment k: unavoidably safe products (prescription drugs)

Answer 33

1) Warning - if the consumer understands the risk, they can then make an informed choice
2) impose liability on a drug manufacturer only if it failed to warn of a defect of which it knew or should have known.
3) “in the present state of human knowledge”
“quite incapable of being made safe for their intended and ordinary use”
“such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous”
Ex: Rabies Vaccine

Question 34

Crashworthiness

Answer 34

• Theory is that the defective design of the vehicle enhanced plaintiff’s injuries.
• Is a vehicle defective if it isn’t designed to minimize injury to occupants ?
• No bc intended purpose of an automobile is not its participation in a crash but for conveyance
• NO duty to passengers in other vehicle
• When difficult to apportion injuries between person who caused crash and the manufacturer, Jury can allocate fault between manufacturer and plaintiff when

Question 35

Res Ipsa Loquitur as it applies to Product Liability

Answer 35

When product didn’t behave in usual way - manufacturer has to prove that someone tampered with it or it’s assumed it left their hands defective

Question 36

Breach of Express Warranty

(2 kinds)

Answer 36

1. Advertisement claims

2. Labeling claims

Question 37

Claims against Retailer

Answer 37

1. Implied Warranty of Merchantability

2. Implied Fitness for Purpose

Question 38

P has a need, asks retailer to fill it - product fails. What claim ?

Answer 38

Implied fitness for particular purpose - then also apply Warranty of merchantability