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Torts FYLSE > Page 36 > Flashcards

Page 36 Flashcards

1
Q

If a contractor provides a defective product, can he be liable?

A

Yes, because the product is what is at issue

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2
Q

If a company has purchased the assets of a prior manufacturer without assuming its liabilities, are they liable for injuries caused by defects in the predecessor’s products?

A

No

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3
Q

If a company merges with another company and agrees to assume the seller’s liability, is the new owner liable for any defects in the previous company’s products?

A

Yes

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4
Q

Can a franchisor be liable for product defects?

A

Yes, especially when they retain some control over the franchisees’ behavior

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5
Q

When would a seller of a used product be held liable if it has a defect?

A

If he made a representation about quality, because when you buy a used product you can’t reasonably expect it to be free of defects

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6
Q

If you sell used property that has a defect that came from a modification or misuse between the original purchase and the sale, can SPL be imposed on you?

A

Yes

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7
Q

If you just sell your car, why are you not a proper defendant for an SPL suit?

A

Because SPL only applies to those regularly engaged in the business of manufacturing, selling, or leasing products, so you would just be an occasional seller

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8
Q

If you give commercial endorsement to a product, can you be liable if there’s a defect in the product?

A

No, because you didn’t put it into the stream of commerce, the most you could be liable for is negligent misrepresentation

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9
Q

If you publish an advertisement about a defective product, can you be liable for it?

A

No

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10
Q

Does SPL apply to things in their natural state like unprocessed poison mushrooms?

A

Yes

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11
Q

Can SPL come from an injury that happens because of the way a product was installed, serviced, or used?

A

No

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12
Q

If you give services and a product, how do courts figure out if SPL applies?

A

Use the dominant aspect test to see if the product is incident to the service, in which case they would be no SPL

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13
Q

Is electricity flowing through powerlines considered a product?

A

No

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14
Q

Can something involving blood be dealt with in strict product liability?

A

No, that would be in negligence

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15
Q

If you are injured by something that hasn’t yet been sold, can there be SPL?

A

No, the product must have entered the stream of commerce, so if you are injured by something that hasn’t yet been sold, the manufacture can’t be held liable for SPL

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16
Q

What is necessary to prove the defective product element for SPL?

A

Plaintiff must show the product was defective, and was a substantial factor in causing harm to a foreseeable user

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17
Q

What are the three different ways to prove a defect for defective product for SPL?

A
  • manufacturing defect
  • design defect
  • failure to warn
18
Q

What is the Quasi-Learned Hand approach to figure out if a product is defective?

A

If the defect presents a danger to the average consumer that exceeds the social utility of the product, then it is defective

19
Q

If you assemble another company’s components into your products, can the other company’s carelessness be imputed to you?

A

Yes, because your duty of care extends to all components

20
Q

Why do services not apply to SPL?

A

Because they don’t require mass production or distribution from an unknown manufacturer or seller

21
Q

If a unique SPL case does go into services, what is recovery limited to?

A

Transactions that are commercial in character instead of professional

22
Q

If there is confusion about whether a situation is a service or product for SPL, what should you do?

A

Apply the predominant purpose test

23
Q

Why is building a home considered a product?

A

Because the purpose is the new house

24
Q

If you buy a highly dangerous product from an unknown supplier, what is your duty of care?

A

You must inspect or at least warn the purchaser that the product comes from an uncertain source of supply

25
Q

If a dealer warns about a dangerous product, does that discharge his duty to warn?

A

Yes, and the contractor then has a duty to test or inspect, and if they don’t, their negligence is superseding

26
Q

If the plaintiff fails to discover a defect, can that be a defense to SPL?

A

Almost never

27
Q

What must be experienced in order to recover for SPL?

A

Personal injury or property damage other than failure of the product itself

28
Q

What is a manufacturing defect under SPL?

A

The individual unit is uniquely defective, and not shared by all units, and the product isn’t in the condition the manufacturer intended at the time it left his control

29
Q

Manufacturing defects are often seen where?

A

Assembly-line errors

30
Q

If a manufacturing defect occurs, even when all possible care was taken to make and market the product, is there still liability?

A

Yes

31
Q

There’s a duty for manufacturers to do what to their products?

A

Inspect and test

32
Q

Do the people down the chain of distribution have a duty to inspect the product for SPL?

A

Not unless the problem is so obvious that it is readily apparent, or unique facts apply like a dealer usually road tests a vehicle before selling it

33
Q

If a mattress has a spring poke someone in the back, does that count as an inherently dangerous product enough that the dealer owes a duty to inspect or test it before sale?

A

No, as long as he got it from a reputable manufacturer

34
Q

What is a design defect for strict product liability?

A

When an entire product line is defective, even though it was in the condition intended by the manufacturer, it was designed in a way that presented undue risk of harm in normal use

35
Q

What is the question to ask to determine if a product has a design defect?

A

If the product is more dangerous than would be expected by the ordinary consumer that purchased the product

36
Q

Design defect applies to what time?

A

Time of manufacture

37
Q

If crucial new info is discovered after a product is released, what do the courts usually focus on for timeframe?

A

The defendant’s conduct after the crucial info appeared

38
Q

Who is responsible for the design of a product?

A

The manufacturer

39
Q

When is there usually no strict product liability?

A

If the danger is something that couldn’t have been guarded against through human skill and foresight

40
Q

What are the three test to prove defective design for strict product liability?

A
  • consumer expectations test
  • risk utility test
  • feasible alternative test
41
Q

If you are an assembler of component parts, can you be liable for any defective parts supplied by others?

A

Yes, and the seller of the defective part is also liable

Torts FYLSE (61 decks)

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