Chapter 10 book (Products liability Flashcards
product liability law is based primarily on
tort law
3 commonly used theories of recovery in product liabiity cases
- negligence
- strict product liability
- breach of warranty
while a plaintiff must establish different elements under each of the product liability cases, the plaintiff must generally show 2 common elements
- that the product is defective
- that the defect existed when the product left the defendents control
a defect in an individual product that makes the product more dangerous than other, identical products
manufacturing defect
a defect is found in all products of a particular designa nd renders them dangerous
design defect
a defect that arises when a potentially dangerous product is not labeled to indicate that it can be dangerous
failure to provide adequate warnings
a product may be defective bc of a
- manufactuing defect
- design defect
- inadequate warnings
to win a case based on negligence, the plaintiff must prove the four elements of negligence
- the defendent manufacturer or seller owed a duty of care to the plaintiff
- the defendent breached that duty of care by supplying a defective product
- this breach of duty casued the plaintiffs injury
- the plaintiff suffered actual injury
being a party to a contract
being in privity of contract
foreseeable plaintiffs include
- users
- consumers
- bystanders
foreseeable plaintiffs can bring a case against
- retailers
- wholesalers
- manufacturers
to bring a successful case based on negligenct failure to warn, the plaintiff must demonstrate
the defendent knew or should have known that without a warning, the product would be dangerous in its ordinary use, or any reasonably foreseeable use, yet the defendent still failed to provide a warning
- some courts use what test to determine negligence in such cases
- and how do they find the answer
- balancing test
- they weigh the degree of danger to be avoided with the ease of warning
a users knowledge of certain dangers is equivalent to notice
- acts as a complete defense to failure to warn claims
sophisticated user defense
a doctrine that allows a judge or jury to infer duty and breach of duty from the fact that a defendent violated a statute that was desgiend to prevent the type of harm that the plaintiff incurred
negligence per se
what kind of damages are recoverable in negligence based product liability cases
- compensatory damages
- punitive damages
are those designed to make the plaintiff whole again: they recover items such as medical bills, lost wages, and compensation for pain and suffering
what kind of damages?
compensatory damages
are meant to punish the defendant for extremely harmful conduct, the amount of this damage awarded is determined by the wealth of the defendant and the maliciousness of the action
punitive damages
defense for when the plaintiffs own failure to act reasonably contributed to the plaintiffs own harm
contributory, comparative, or modified comparative neglignence
in a state that allows ____ negligence defense, proof of any negligence by the plaintiff is an absolute bar to recovery
contributory negligence defense
in a state where the defense of ______ negligence is allowed, the plaintiff can recover for only that portion of the harm attributable to the defendants negligence
pure comparative negligence
in a _____ negligence state, the plaintiff can recover the percentage of harm caused by the defendent as long as the jury finds the plaintiffs negligence responsible for less than 50 percent of the harm
modified comparative negligence
this defense arises when a consumer knows that a defect exists but still proceeds unreasonably to make sure of the product, creating a situation in which the consumer has voluntarily assumed the risk of injury from the defect and thus cannot recover
assumption of the risk
when a defendent raises the defense of product _____, the defendent is really arguing that the harm was caused not by the defendants negligence but by the plaintiffs fiailure to properly use the product
misuse
