Part Seven: Products Liability

Question 1

What does “products liability” refer to?

Answer 1

“products liability” –> refers to the liability of a supplier of a defective product to someone injured by the product

Question 2

What are the 5 theories of liability for products liability?

Answer 2

1. intent
2. negligence
3. strict liability*
4. implied warranties of merchantability and fitness for a particular purpose
5. representation theories (express warranty and misrepresentation)

NOTE –> if Q doesn’t specify which theory to apply, use “strict liability” bc it’s the easiest to prove

Question 3

What element are required for EVERY products liability case, regardless of theory?

Answer 3

Under EVERY theory, P must show:

1. defect
   (i) manufacturing defects
   (ii) design defects
   (iii) inadequate warnings
2. existence of defect when product left defendant’s control
   NOTE –> this will be INFERRED if product moved through normal channels of production

Question 4

What is a “manufacturing defect”?

What is a “design defect”?

What is an “inadequate warning”?

Answer 4

“manufacturing defect” –> product is different from and more dangerous than products made properly

“design defect” –> All products of same line are identical but have dangerous propensities

“inadequate warning” –> manufacturer failed to give adequate warnings as to risks involved in using the product that may not be apparent to users
NOTE –> for prescription drugs/medical devices, warnings given to physicians is usually sufficient

Question 5

What is the standard for proving a “manufacturing defect”?

Answer 5

Product failed to perform as SAFELY as an ORDINARY CONSUMER would expect.

NOTE –> also applies to defective food products

NOTE –> D must anticipate REASONABLE misuse

Question 6

What is the standard for proving a “design defect” or “inadequate warning”?

Answer 6

P must show –>

-D could have made product SAFER without SERIOUS IMPACT on PRICE or UTILITY

Question 7

With regards to proving the existence of a defect, what is the effect of compliance or non-compliance w government safety standards?

Answer 7

Non-compliance –> establishes that product was defective

Compliance –> is EVIDENCE, but not conclusive, that product is NOT defective

Question 8

Is D in products liability case responsible for unforeseeable or unknowable risks?

Answer 8

No

Question 9

What is D’s liability in products liability for “unavoidably unsafe products” ?

Answer 9

D will NOT be held liable If:

1. danger is APPARENT; AND
2. there is NO SAFER WAY to make the product

EXAMPLE –> knives

Question 10

What rules apply w regards to “products liability based on intent” ?

Who can sue?

What damages are available?

Defenses?

Answer 10

General rule –> D will be liable to ANYONE injured by an unsafe product if D:
(1) INTENDED the consequences; OR
(2) KNEW that they were substantially certain to occur
NOTE –> Not very common. But if there is intent, the most likely tort is battery.

Who can sue? –> any injured P. Privity is NOT required.

Damages? –> may collect COMPENSATORY and PUNITIVE damages

Defenses –> all intentional tort defenses

Question 11

What rules apply w regards to “products liability based on negligence” ?

To whom is duty owed?

Who can sue?

Who can be held liable?

Answer 11

General rule –> same as any negligence case. P must show:
(1) duty

(2) breach
(i) negligent conduct of D;
(ii) leading to supplying of “defective product”

(3) actual and proximate cause
(4) damages

Duty owed –> to any foreseeable P, including:

(1) users, (2) consumers, (3) bystanders
- Privity is NOT required.

Who can be held liable? --> 
General rule: Anyone who supplies product to another can be held liable. But usually applies to COMMERCIAL SUPPLIERS, including
- Manufacturers
- Wholesalers
- Retailers