chapter 3 Flashcards
Are product liability civil or criminal and when are they most used?
civil and most commonly used in lawsuits involving unsafe products
What are the 4 causes of action in a product liability lawsuit?
strict product liability, negligence, misrepresentation or fraud, and breach of warranties
What is required in all product liability cases
here must be some proof of a design, manufacturing, or warning defect or that a product is dangerous.
What does the plaintiff usually want out of a product liability case?
Money!
What does a strict product liability case involve
harm caused by an inherently dangerous, defective, or unreasonably unsafe consumer product.
What is needed to prove a strict liability case? What is not needed as proof that is required in negligence?
If a person or property is injured by the product no further proof is necessary. Unlike negligence, causation is not a necessary element of proof in a strict product liability case.
What four elements are required to prove the tort of negligence in product liability?
- That there was a duty of care owed by the defendant to the plaintiff;
- that someone in the chain of distribution breached the duty of care owed to a reasonable person;
- that because of the breach the plaintiff suffered harm;
- that the breach was the foreseeable and proximate cause of the harm resulting from the breach, as there was nothing that intervened and could be blamed for the harm from the product.
The plaintiff must prove which party was negligent.
What kind of action is misrepresentation usually?
Misrepresentation is generally a tort action, although misrepresentation may also be alleged in a contract or warranty count.
If the misrepresentation is based on a careless act or an accident, what must the plaintiff prove?
Then a plaintiff must prove the elements necessary for negligence, in addition to the misrepresentation
When is the misrepresentation tort based on fraud?
if the misrepresentation was intentional or reckless, such as failure to recall a defective product from the market with knowledge that the product is defective and is harming people
To prove fraudulent misrepresentation, what must a plaintiff show? Hint (there are 3)
- That the defendant knew or was reckless in discovering or disclosing potential material information about the product that would be important to a consumer when deciding to purchase the product.
- The consumer must reasonably rely on the defendant’s statements or material representations in deciding to buy or lease the product.
- And this choice must result in personal or property harm because the consumer relied on the representations in deciding to purchase or lease a defective product or in following fraudulent instructions in using the product.
When is there a breach of warranty?
When one of the following doesn’t happen…
that the product must meet normal market standards expected of such products.
The products must do what they are expected to do. The products should not cause injuries.
When a product does not meet the standard for similar products in the marketplace
A lawsuit may also arise due to the breach of an express warranty that may be provided in writing, by verbal statements, or in promotional materials.
What are defenses in product liability
the injured person misused the product, despite the fact that the manufacturer provided clear instructions on how to use the product and warned of potential dangers
Assumption of risk
Comparative and contributory negligence could be used to defend a negligence cause of action
What is Assumption of risk
that the person claiming harm from a defective product was fairly warned of the dangers associated with the product and decided to purchase or use the product despite the warnings. Thus, such person assumed any risk or harm and cannot blame those in the distribution chain.
What is Contributory negligence
a common law defense that bars all liability if the plaintiff contributed in any way to the alleged injury caused by a product
