New New Flashcards
Mfr. Defect
-Prod deviates from intended design
-P must show
—- evidence of specific defect
Or
—- prod did not perform as intended and
—- exclude other causes not attributable to D
Of above proved res ipsa
Mfr. Defect 3D
- injury caused by defect
- defect exist at time of sale
- of a kind ordinary result of defect
- injury not solely caused by something else
Design defect
Barker
Majority
Consumer expectations
-more dangerous than ordinary consumer expects when used in intended or reasonably foreseeable manner(misuse)
Or
- in light of relevant facts design risks > design benefits.
Factors
- Likelihood (frequency)
- Gravity (magnitude)
- Feasibility (possible and attainable)
- Costs of alternative
- Adverse consequences of alternative
Design defect
R3d
- in light of relevant facts design risks > design benefits.
Factors
- Likelihood (frequency)
- Gravity (magnitude)
- Feasibility (possible and attainable)
- Costs of alternative
- Adverse consequences of alternative
P must show alternative design
Design defect
Consumer expectation
Maryland
Consumer expectations
-more dangerous than ordinary consumer expects when used in intended or reasonably foreseeable manner
Design defect
CA
Consumer expectations
-more dangerous than ordinary consumer expects when used in intended or reasonably foreseeable manner
Or
- in light of relevant factors design risks > design benefits.
Factors
- Likelihood (frequency)
- Gravity (magnitude)
- Feasibility (possible and attainable)
- Costs of alternative
- Adverse consequences of alternative
Burden
P shows injury proximately caused by design D must prove design benefits and risks
Design defect
Drug
Drugs and devices
Not reasonably safe if
Foreseeable risk of harm > foreseeable therapeutic benefit
i.e. knowing of risk healthcare provider would not have prescribed it.
Defenses
Comparative fault - P neg.
Linegar Tradeoff - open obvious defect vs. function
State of the Art - at time of mfr. probative only
Patent Defect - affects consumer expectations
Learned Intermediary - Dr adequately warned
Assumption of the risk - knowing and voluntary
Preemption - Fed law>state law
Product liability
Types
Mfr
Design
Warning
Product liability
Black letter law
Injury to person or property
Commercial seller
Defect caused
Warning functions
Informed choice
Teach to use safer
Warning
Majority
CA
D will be liable if prod could have been safest with a warning but lacked a proper warning which creates unreasonable risk to consumers.
Only covers risks mfr knew or should have know. Post market duty to warn. No hindsight.
Warning
Minority
D will be liable if prod could have been safest with a warning but lacked a proper warning which creates unreasonable risk to consumers
Assumed D was aware of all risks
Allowed hindsight
Learned Intermediary
Drug mfr no duty to warn patient only duty to warn Dr.
Super minority
Learned intermediary does not apply to BC
