Product Liability Flashcards
What is a manufacturing defect?
When a product departs from it’s intended design, even if all possible care was exercised in preparation and marketing.
What is a design defect?
When the design is inherently unreasonable.
What is a warning defect?
When a warning is required to reduce the risk of a product.
What are the elements of a manufacturing defect?
- There is a defect.
- Product was defective when it left defendant’s control.
- There must be actual harm.
- Defect was cause-in-fact/proximate cause of injury.
What test(s) do we use for a manufacturing defect?
Consumer Expectation Test
Foreign natural doctrine applies if in a minority doctrine.
What test(s) do we use for a design defect?
- Consumer Expectation Test
- §402A Test: Risk-Utility Analysis (with hindsight from the analysis).
-Defendant has burden of proving the utility outweighs the risks.
-Can’t have comparative fault under a §402A Test.
- Reasonable Alternative Design Test
-Must show there is a safer, reasonable, and feasible alternative design that’s existence outweighs the current utility and burden of the current design .
- Restatement (3d) which is just negligence.
What test(s) do we use for a warning defect?
1a. Was the risk and type of harm foreseeable?
1b. Would an adequate warning reduce the risk?
Is there a post-sale duty to warn?
If the manufacturer discovers a defect, they have a post-sale duty to warn.
Can you recover for strict economic harm for product liability?
No, you cannot recover for strict economic harm for product liability.
Does product liability cover sellers who sell defective products?
Yes, sellers who sell defective products as part of their business.
Does product liability apply to all sellers?
No, product liability does not apply to casual sellers (e.g., an Etsy store, a lemonade stand).
Is privity required for product liability?
No, privity is not required for product liability.
What does the Restatement (2d) say for Manufacturing Defects?
The product is dangerous to the extent it departs beyond that which would be contemplated by ordinary customer (even if producer could not discover impurity, liability is appropriate).
What does the Restatement (3d) say for Manufacturing Defects?
Product is defective if it departs from intended design, even though all possible care was exercised.
What are the elements of a manufacturing defect claim?
- Product was defective.
- Defect existed when it left the defendant’s control.
- Product was an actual and legal cause of harm.
How do you prove the defect existed when it left the defendant’s control?
Res Ipsa
- Event is of a kind that ordinarily occurs because of product defect.
- Event was not a result of causes other than product defect.
Who has the burden of proof for a Manufacturing Defect Claim?
The plaintiff has the burden to prove a manufacturing defect.
What is the Foreign Natural Doctrine?
If the injury is natural to the preparation served, foreign natural substances (e.g., chicken bones in a chicken breast) should be reasonably expected.
Does Foreign Natural Doctrine still apply?
The consumer’s reasonable expectation test is the test of defectiveness and therefore, the Foreign Natural Doctrine is likely unsound.
What are the elements of a Design Defect?
- Design is actually flawed (restatement 2d., 402(a), RAD, Restatement 3d.)
2.) Actual Harm
3.) factual and Proximate cause of the injury.
What is the Reasonable Alternative Design (RAD) Test?
- No shifting of the burden to Defendant.
- Plaintiff today must show a reasonable alternative design (Restatement (3d) Majority Rule).
- The foreseeable risk of harm posed by the product could have been reduced or avoided by the option of the RAD by the seller and the omission of the instructions/warning rendered the product not reasonably safe.
3a. The test is a huge barrier, because you need expert testimony to prove RAD.
- Plaintiff has to prove RAD:
4a. Safer (the design must reduce the risk of injury).
4b. Alternative
4c. Feasible (the design must be available economically and technologically).
4d. Economical (the design must be reasonable cost-wise).
4e. Utility
4f. Risk Utility Analysis (is longevity the same? Maintenance? Aesthetic?)
What are exceptions to the RAD Test?
- Jurisdiction does not use RAD.
- Legislation requires whatever piece of the design is missing.
- Very simple design – common knowledge (pen).
- Manifestly unreasonable design (wheel).
What were prior tests? For design defect
- Consumer Expectation Test (Restatement (2d) § 402(A).
- Hindsight Test.
- Risk-Utility Balancing (Restatement (3d)).
- Manifestly unreasonable design
What are the elements of the Hindsight Test?
- More dangerous than ordinary consumer would expect.
- The benefits of challenged design do not outweigh the risks.