Final Torts II

Question 1

Horizontal Privity

Answer 1

Who is the proper P?

Question 2

Vertical Privity

Answer 2

Who is the proper D?

Question 3

Elements of Products Negligence

Answer 3

Duty, breach, causation (actual and proximate), damages

Question 4

Possible Defenses for Products Negligence

Answer 4

Contributory, comparative, assumption of the risk

Question 5

Possible Sellers Liable for Products Negligence

Answer 5

Commercial sellers and amateur sellers

Question 6

Express Warranty Elements (4)

Answer 6

1. Assertion of fact is basis of the bargain
2. Breach
3. Causation
4. Damages

Question 7

Express Warranty Element 1 (with meaning)

Answer 7

Assertion of fact as a material representation of the product’s composition, durability, safety as the basis of the bargain that proceeds or accompanies the sale

Question 8

UCC Assumption for Express Warrant Assertion of Fact

Answer 8

UCC presumes buyer’s reliance

Question 9

Express Warranty Element 2 (with meaning)

Answer 9

Breach - product lacks the promised quality

Question 10

Express Warranty Element 3 (with meaning)

Answer 10

Causation - lack os product’s quality is causally linked to a foreseeable harm

Question 11

Express Warranty Element 4 (with meaning)

Answer 11

Damages - PI, prop damage, pure economic loss

Question 12

Express Warranty Defenses (4)

Answer 12

1. Lack of reasonable notification after discovering breach
2. Limitations of liability by D
3. Comparative negligence
4. Assumption of the risk

Question 13

Express Warranty Horizontal Privity Option 1 (from UCC 2-318)

Answer 13

Warranty extends to buyer’s immediate family, household, and guests

Question 14

Express Warranty Horizontal Privity Option 2 (from UCC 2-318)

Answer 14

Warranty extends to any natural person expected to use, consume, or be affected (covers PI)

Question 15

Express Warranty Horizontal Privity Option 3 (from UCC 2-318)

Answer 15

Most liberal - extended from Option 2 to cover non-natural person and does not require PI

Question 16

Difference between SL, Warranties, & Negligence in Products

Answer 16

SL focuses on the product
Negligence focuses on the seller’s representation
Warranties focuses on the D’s conduct

Question 17

SL Products Rstmt 2d 402(a) Elements (4)

Answer 17

1. Commercial seller
2. Defective condition is unreasonably dangerous (design, manuf., warning)
3. Causation
4. Damages

Question 18

SL Products (2nd element): Manufacturing Defect Meaning

Answer 18

Product departs from its intended design and the departure makes product more dangerous

Question 19

SL Products (2nd element): Manufacturing Defect Application

Answer 19

Compare conforming product’s design against non-conforming unit that injured P

Question 20

SL Products (4th element): Damage types

Answer 20

Physical injury, prop damage, - no economic loss unless it flows from phys. or prop. damage

Question 21

SL Products (2nd element): Design Defect Meaning

Answer 21

Design is unreasonably dangerous - seller may have to recall

Question 22

SL Products (2nd element): Design Defect 4 Approaches

Answer 22

1. Hindsight risk/utility*
2. Ordinary risk/utility*
3. Consumer expectation
4. Hybrid approach - CA

Question 23

SL Products (2nd element): Design Defect Risk Factors (9) for Hindsight and Ordinary Approaches

Answer 23

1. Usefulness and desirability of the product
2. Product’s safety aspects
3. Availability of safer substitute
4. Ability to improve (without price or usefulness change)
5. User’s ability to be careful
6. Awareness of danger
7. D’s ability to loss spread
8. State of the art
9. Availability of alt. design

Question 24

SL Products (2nd element): Design Defect - HINDSIGHT RISK/UTILITY APPROACH

Answer 24

Based on what the D knows now at the time of trial

Question 25

SL Products (2nd element): Design Defect - ORDINARY RISK/UTILITY APPROACH

Answer 25

Based on what the D knew at the time of manufacturing

Question 26

SL Products (2nd element): Design Defect - CONSUMER EXPECTATION APPROACH

Answer 26

Is the product more dangerous than an ordinary consumer would expect?

Question 27

SL Products (2nd element): Design Defect - CA HYBRID APPROACH

Answer 27

(a) failed to perform safely as consumer would expect
(OR)
(b) design proximately caused injury AND that risk > benefit