Page 35 Flashcards
Essentially warranty disclaimers do what?
Attempt to avoid or eliminate the warranty altogether
Can an express warranty be disclaimed?
No
If a seller wants to use a warranty disclaimer, he must do what?
Carefully follow the disclosure and conspicuousness protocols of the UCC and merchantability must be specifically mentioned in the disclaimer
What does the UCC say for warranty disclaimers being conspicuous?
Must be written so a reasonable person should have noticed it and must be direct like “no warranties extend beyond the description on the face hereof”
If a disclaimer is not sufficiently conspicuous, but the buyer had actual knowledge of it, does that obviate the objective standard of conspicuousness?
Yes
Can there be a post sale disclaimer of warranty?
No, because there has been no meeting of the minds
What are words that must be used in order to disclaim a warranty?
- as is
- with all faults
- as they stand
What is strict product liability, or strict liability in tort?
Anyone that sells any product in a defective condition unreasonably dangerous to the user, consumer, or his property is strictly liable regardless of intent
A manufacturer is strictly liable in tort when what?
Something he puts on the market, knowing it will be used without inspection for defect, proves to have a defect that harms a human being
Who is liable under strict product liability?
Anyone involved in the commercial distribution of products including manufacturers, wholesalers, retailers, those in the regular business of selling products
What defines a defective product?
The consumer’s reasonable expectations
What is the rationale behind strict product liability?
Because there is a serious risk from putting a defective product into the stream of commerce, there should be maximum protection for human life and safety, and the defendant manufacturer is better able to distribute the risk of loss than an innocent customer
What must the P prove to recover for strict product liability?
There was a defect in the product attributable to the manufacturer or supplier and the defect caused the injury
How must the defect in strict product liability have arisen?
During the normal or foreseeable use of the product
What are manufacturers required to foresee in strict product liability and then what must they do?
A certain amount of misuse or carelessness by customers, so they must warn of any dangers that could be created by the misuse
If it is foreseeable that a buyer will modify a project in a dangerous way, what is the supplier responsible for?
The harm caused if the product invited such a modification
Do highly unusual (bizarre or unexpected) reactions to a product make it defective?
No
If a reaction to a product is shared by a significant number of potential users, what does the manufacturer have to do?
Guard against the risk by changing the product, warning of its danger, or suggesting ways for using it safely
What is the rule about there being a known risk to potential users for product liability?
If there is a known risk to any number of potential users, regardless of how small, the manufacturer has a duty to warn, and if they don’t, then the product can be defective
What is the definition of a defective product?
If it would be harmful in normal use to a reasonable number of people
If a product injures one person, does that mean it is defective?
No, it has to be harmful to a reasonable number of people
If one person is injured by a product, can he prove that the product is defective?
Yes, by showing his adverse reaction was not a one in 1 million situation
Product liability applies to the product and to what?
Its packaging
If a car has an accident caused by a defect when the car goes 110 mph, can the manufacturer say driving that fast wasn’t foreseeable use so they shouldn’t be liable?
No, because the car was built to go that fast, so it was foreseeable that someone would drive that fast
If a product fails under emergency conditions, does that mean it has a design defect?
Yes, because those emergency conditions are foreseeable in normal use
If the danger of the product wasn’t foreseeable at the time the product is manufactured, can the manufacturer still be liable for strict product liability?
Most courts would limit this
If a delicious smelling glue was on the market for 30 years, and then suddenly government research said it was dangerous, would the company be strictly liable in strict product liability?
Not unless the company knew before the study, but if they continue to market the product after the research they would be strictly liable unless adequate warnings were given
What are the three major regularly tested rules of strict product liability?
- D must be a COMMERCIAL SUPPLIER of the product
- product must be defective at TIME OF SALE
- CONTRIBUTORY negligence is NOT a defense
Does strict product liability apply to a secondhand seller of an item at a garage sale?
No, because the defendant must be a commercial supplier of the product
What are the elements of strict product liability?
- proper parties
- defective product
- causation
- damages
- absence of defenses
What is included under proper parties for strict product liability?
Proper plaintiff and proper defendant
What is a proper plaintiff in a strict product liability situation?
- buyer
- user
- bystander
- friend
- guest
- employee
- family
- passenger
- rescuer
What is a bystander for strict product liability?
Someone that is injured by a defective product being used by someone else
How is a rescuer a proper plaintiff for strict product liability?
If you try to rescue a third person endangered by a defective product, you can recover because danger invites rescue, so you have the same rights as the person imperilled
How are warranty disclaimers a defense to breach of warranty?
The seller can display warranties and limit remedies if done expressly in writing and readily apparent to the buyer
Is the law settled on rescuers being proper parties for strict product liability?
No, so make sure you talk about that on an essay
Who is considered a proper defendant for strict products liability?
Any party that puts the product into the stream of commerce (anyone part of the marketing chain and in the business of dealing with the product)
What are some examples of proper defendants for strict product liability?
manufacturers, retailers, assemblers, wholesalers, franchisors, distributors, lessors, bailors
Are rebuilders or reconditioners of used goods subject to strict liability for injuries caused by defects in those goods?
Yes
Are sellers of massmarketed new residences liable for defects under strict product liability?
Yes
If you sell a home you didn’t construct, are you liable for strict product liability?
No
If you provide services, are you liable for strict product liability?
No, even if goods are supplied with the services because those are just incidental to rendition of the service
Are restaurants considered sellers of goods?
Yes
What types of places are considered services and not subject to strict product liability even if they use defective products?
- doctors (defective meds)
- hairdressers (defective dye)
- blood banks (defective blood)
