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Question 1

What must the plaintiff prove in order to argue feasible alternative test for defective design?

Answer 1

That at the time of manufacture some technologically feasible and safe alternative existed

Question 2

Why are products like alcohol, firearms, and swimming pools protected from defective design?

Answer 2

Because there is no way to make them safer on account of their propensity for injury

Question 3

When would a plaintiff not have to show a reasonable alternative design when trying to prove feasible alternative test for defective product?

Answer 3

If a design would obviously and blatantly fail a risk/utility analysis

Question 4

What is the burden of proof for a plaintiff to prove a product is defective?

Answer 4

Must show it was defective when it left the defendant’s control and that there was a causal relationship to the injury

Question 5

Can a plaintiff show evidence of other accidents that happened before or after his injury as proof that a product was defective?

Answer 5

Yes, if they were materially indistinguishable from his injury and the circumstances were similar

Question 6

Can a plaintiff use circumstantial evidence and Res Ipsa to prove defective product?

Answer 6

Yes

Question 7

Does it matter that the product is no longer in the defendant’s control when a suit for defective design is brought?

Answer 7

No

Question 8

How can Res Ipsa prove product defect?

Answer 8

It can be reasonably inferred that it is more probable than not that the product was defective when it left the D’s control

Question 9

What are some ways a D can rebut a defective condition claim?

Answer 9

• by showing product is STATE-OF-THE-ART

- by showing product is UNAVOIDABLY UNSAFE

Question 10

How can a D rebut a defective condition claim by showing the product is state-of-the-art?

Answer 10

Showing it is the best product that can be manufactured, constructed, and designed and it is as safe as technologically feasible

Question 11

How can a D rebut a defective condition claim by showing the product is unavoidably unsafe?

Answer 11

If a product is dangerous, but very socially useful, it will be considered ok that the product is unavoidably unsafe because there is no way to make it safer

Question 12

If an unknowable risk becomes discoverable, when is the manufacturer liable for negligence?

Answer 12

• if the danger could have feasibly been eliminated, then due care must be used before continuing to market the product
• if the risk can’t be eliminated, then product is unavoidably unsafe and then manufacturer has to put a warning on it or discontinue distributing it if the danger outweighs the benefit
• manufacturer must take reasonable steps to warn earlier purchasers about defects that are suddenly discovered

Question 13

What is “failure to warn” as a subset of defective product?

Answer 13

If the product has potential for injury that is not obvious to users and has no warnings of the risk or instructions on how to use it safely, the seller can be liable (and defendant knew or reasonably should have known of the danger)

Question 14

What is an example of a situation where failure to warn for defective product would be applicable?

Answer 14

The need to wear safety glasses with some power tools

Question 15

Why is a product that is sold without warnings considered defective?

Answer 15

Because the foreseeable risks of harm could’ve been reduced or avoided by giving instructions or warnings

Question 16

What must a warning be in order for it to be considered effective on a product?

Answer 16

Reasonably clear and of sufficient force and intensity to convey the nature and extent of the risks to a reasonable person

Question 17

If a possible harm by a product is very severe, what kind of warning needs to be given?

Answer 17

Very specific information

Question 18

What are the things a warning must do?

Answer 18

• alert the user about the danger
• how to avoid it
• the extent of the harm that could result

Question 19

Why is the manufacturer in the best position to warn about a product?

Answer 19

Because they are the ones that designed it

Question 20

What must the danger be in “failure to warn” for defective product?

Answer 20

Something a reasonable user wouldn’t have had any reason to expect or anticipate

Question 21

Why wouldn’t you have to warn about someone not diving into a shallow pool?

Answer 21

Because you don’t have to worry about dangers that are patently obvious

Question 22

Who must the warning on a product reach?

Answer 22

The person at risk from the danger

Question 23

What are the two different ways that you can fail to warn for defective product?

Answer 23

• inadequate warning

- failure to warn

Question 24

What is considered an inadequate warning for failure to warn for defective product?

Answer 24

Warning should explain:

• a reasonably prudent use of the product
• the nature and extent of the hazard
• use direct language
• describe methods of safe usage
• advise of hazards from reasonably foreseeable misuse
• provide antidotes for misuse

Question 25

How could a warning on the product be inadequate?

Answer 25

If it doesn’t specify the risk, is inconsistent with how the product should be used, or doesn’t give the reason for the warning

Question 26

What are the two major things that a warning on a product should include?

Answer 26

A warning of the danger and instructions for use (plus if there is a safer way to use the product that isn’t obvious, that information must be given)

Question 27

Warnings on the product must be both timely and what?

Answer 27

Users must be able to understand and act on the message

Question 28

What are the things that are balanced in the inadequate warning section of defective products?

Answer 28

• dangerousness of the product
• form of its use
• intensity/form of warnings
• language/placement/font size/color
• burdens of warning
• how likely the warning will be to reach those that will use the product
• form/content considerations

Question 29

What is the form of a warning?

Answer 29

Printed label, tag, integrated material, attention catching

Question 30

What must be the content of a warning for a product?

Answer 30

It must be comprehensible to the average user and show the nature/extent of the danger to a reasonably prudent person

Question 31

When is a label/warning not adequate?

Answer 31

If the physical characteristics like size and placement are too small or obscure for a reasonable consumer to read, or doesn’t inform of pertinent hazards and use for avoidance

Question 32

What is the feasible alternative test for design defect for SPL?

Answer 32

If the foreseeable risks of harm from the product could’ve been reduced or avoided by adopting a reasonable alternative design, then the product is defective