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
1.contributory,
2.comparative, or
3.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
is used by a defendent to demonstrate that his alleged negligent beahvior was unreasonable, given the available scientific knowledget existing at the time the product was sold or produced
state of the art defense
requirements for proving strict product liability
- one who sells an any product in a defective condition, unreasonable danggerous to the user or consumer or his family is sibject to liability for physical harm, thereby caused to the ultimate user or consumer, or to this property, if
a. the seller is engaged int he business of selling such a product, and
b. it is expected to and does reach the consumer or user without substantial change in the condition in which it was sold - the rule stated in subsection (1) applies although
a. the seller has exercised all possible care in the preparation and sale of his product, and
b. the user or consumer has not bought the product from or entered into anh contractual relation with the seller
liability under which courts may hold the manufacturer, distributor, or retailer liable for any reasonably foreseeable injured party
strict product liability
strict product liability focuses on the product thus duty is irrelevant
manufacturer, distributor, or retailer to any reasonable foreseeabel injured party may be held liable
to succeed in a strict liability action, the plaintiff must prove 3 things
- the product was defective when sold
- the product was so defective that the product was unreasonably dangerous
- the product was the cause of the plaintiffs injury
plaintiffs usually prove that a defect exists by means of
(1) experts who testify as to the type of flaw in the product that led to the plaintiffs injury and or
(2) evidence of the circumstances surrounding the accident that would lead the jury to infer that the accident must have been caused by a defect in the product
2 tests to determine when a product is so defective as to be unreasonably dangeroud
- consumer expectations test
- feasible alternatives test (risk utility test)
did the product meet the standards that would be expected by the resonable consumer
consumer expectations test
the court focuses on the usefulness and safety of the design and compares it to an alternative design
feasible alternatives test
defenses to negligence based product liability claim
product misuse, assumption of the risk, and the lapse of time under statutes of limitations and statutes of repose
state of the art is never used
is a guarantee or a binding promise regarding a product
warranty
breach of warrany
stems from contract theory than tort theory
2 types of warranties
- express
- implied
any description of goods physical nature or its use, either in general or specific circumstances, that becomes part of a contract
express warranty
to establish a claim for breach of express warranty, the plaintiff must show that
(1) the representation was the basis of the bargain and
(2) there was a breach of trhe representation
the particular goods would be accepted by others who deal in similar goods
merchantability
the goods are fit for the purpose for which they are sold and used
implied warranty of merchantability
6 conditions for a good to be merchantable
- pass without objection in the trade under the contract description
- in the case of fungible goods, be of fair average quality within the description
- be fit for the ordinary purposes for which such goods are used
- run, within the variations permitted by the agreement of even kind, quality, and quantity within each unit and among all units involved
- be adequately contained, packaged, and labeled as the agreement may require
- conform to teh promises of affirmations of fact made on the container or label, if any
when a customer purchases a product for a particular purpose and the seller is aware of this purpose
implied warranty of fitness for a particular purpose
to succeed on a claim for breach of implied warranty of fitness for a particular purose the plaintiff would need to show
- knowledge the seller had knowledge of the customers epcific purpose
- reliance- the customer relied on the sellers skill and judgement
under implied warranty of merchantiability the selle rmust be the merchant of the goods involved
under implied warranty of fitness applies to a sale of goods, regardless of whether the seller qualifies as a mercahnt
Product liability theory which holds that, when it is impossible to identify the manufacturer of a particular product that caused harm, the plaintiff may sue all manufacturers of the product, with liability apportioned among them on the basis of each one’s market share.
market share theory
courts using the market share thoery generally require the plaintiff prove that
- all defendants are tortfeasors
- the allegedly harmful products are identical and share the same defective qualities
- the plaintiff is unable to identify which defendants caused her injury, through no fault of her own
- the manufacturers of substantially all the defective products in the relevant area and during the relevant time aare names as defendants
