Page 39 Flashcards
If a defendant fails to warn on his product, who can be liable?
Everyone in the marketing chain although indemnity is available
What are some things that are considered obvious dangers that you don’t have to warn about?
Slingshots, guns, rolling chairs, diving from heights, etc.
What is the duty to warn about foreseeable misuse?
Manufacturers must warn when the product is used in a foreseeable way in a commonly known area of conduct, even though it wasn’t the way the product is intended to be used
What is an example of a time that a manufacturer needs to warn about foreseeable misuse?
It is common and foreseeable that someone will use a kitchen chair to reach a high shelf
Manufacturers are required to anticipate what?
The environment where the product will be used and the risks of misuse in that environment
What does read and heed mean?
When a warning is given, the seller can assume it will be read and heeded
If no warning is given, does read and heed apply?
Yes, the plaintiff benefits from the assumption that had there been a warning it would’ve been read and heeded
What is the Learned Intermediary rule?
Manufacturers of prescription drugs have a duty to warn medical professionals of material risks, and the professional then must use his judgment/discretion to convey that info to the patient
If drugs are being marketed and given directly to the consumer, does the Learned Intermediary rule apply?
No, the warning must be given directly to the consumer
What is an example of when the Learned Intermediary rule would not apply?
Mass innoculations
If the seller can foresee that the warning to the immediate buyer isn’t enough to reduce risk to others, what is the duty?
The duty to warn extends to people who foreseeably would be endangered by the product, including members of the public
Would a lawnmower company have a duty to warn users of rocks that can hit bystanders?
Yes, because they could foresee that the warning to the immediate buyer wouldn’t be enough to reduce risks to likely users
If a product is sold in bulk, who must the seller warn?
The seller must warn the immediate purchaser of any risks, and then that purchaser has to warn the next purchaser (seller can rely on buyer to use the goods properly and to pass on warnings to the ultimate consumers)
If a product is likely to cause an allergic reaction in only a small portion of the population, what is the duty?
Duty to warn if the reaction would be serious or deadly (because severity of the injury is the deciding factor about duty to warn)
If a Polio vaccine infects one in 1 million people with polio, does that require a warning?
Yes, because the severity of the injury is so great
If an allergic reaction to a product is only mild, must there be a warning?
Only if a substantial number of people would likely experience it
What is the duty to warn professional or sophisticated users?
There’s no duty to warn members of the trade or profession about dangers generally known to the group
What is the rationale behind not having to warn members of a trade or profession about dangers generally known to the group?
The user’s knowledge of the product’s danger is the same as prior notice
Would you have a duty to warn farmers about agricultural equipment dangers?
Probably not, because they already know about them since they are sophisticated users of the product
If a defendant represents the product differently than it is, and injury results, is the plaintiff entitled to damages?
Yes
When is the manufacturer liable for postsale warnings?
- if the people that must be warned can be IDENTIFIED
- the warning can be COMMUNICATED
- the RISK of harm outweighs the burden of giving the warning
What is an example of a time that you would have to give a post sale warning?
If a car manufacturer later finds out about a defect, they would have to warn purchasers and dealers and remedy the defect
What is required for the causation element for defective products?
Plaintiff must show the defendant’s failure to warn was the cause in fact and proximate cause of the injury, and the product was defective when it left defendant’s control
What must be proven for actual cause for defective product?
But for the defect, the plaintiff wouldn’t have been injured, or the defect was a substantial factor in the injury
What is the best way to prove the defect was attributable to the defendant?
By showing it was in existence at the time it left defendant’s control
What is a sticky issue for causation for product defect?
Sometimes you have to prove that intermediate handlers didn’t mistreat or alter the product
If an employer takes off a safety device, and his employee is injured, can a suit go against the manufacturer?
No, that would be superseding
Is negligent handling of a product after it leaves defendant’s control considered foreseeable?
Yes, so that wouldn’t be superseding
If an intermediate handler discovered a product defect and knowingly passed it on in the stream of commerce to the plaintiff, who is responsible for the defect?
The wrongdoing shifts from the manufacturer to the handler
If a manufacturer adequately warns an intermediate handler of the dangers of a product, and that handler fails to communicate the warning to the plaintiff, who is liable?
The handler is considered the proximate cause of the injury
If a purchaser gets notice of an auto recall but doesn’t return the car for replacement, and later sells it to a third-party, and doesn’t advise of the recall, is the manufacturer still liable for the defect?
No, the original purchaser is liable to the new owner in negligence
If a doctor has knowledge of a new drug’s potential hazards, but doesn’t disclose them to the patient, who is responsible for the injury?
The doctor is the superseding cause of the injury and the manufacturer is not strictly liable except in mass immunization situations because the manufacturer has to warn the ultimate recipient
What is failure to warn for SPL?
Failing to provide information about a product can make what would’ve been a safe product a dangerous and defective one
