PRODUCT LIABILITY Flashcards
What are the 5 theories available to establish products liability?
Liability of a seller of a tangible item, which because of a defect, causes injury to its purchaser, user, or bystander, can be based upon any of the following five theories: strict tort liability, negligence, warranty, misrepresentation, and intent.
What is product Strict liability?
A seller of a product is liable without fault for personal injuries caused by a defective product. Plaintiff must prove the following elements: commercial supplier, defective product, actual cause, proximate cause, and damages.
In addition to strict
products liability, what
other theories are
available for recovery
under products liability?
-Negligence
* Warranty
* Misrepresentation
* Intent
Define Commercial Supplier
A commercial supplier is one who places a product in the stream of commerce without substantial alteration and includes retailers and other nonmanufacturers, as well as the product manufacturer.
What are the three types of defects that give rise to strict
products liability? Give an example of each one.
-Manufacturing defect (example is you got a lemon for a car –all others fine but yours has unique engine issues)
-Design defect (example is all cars are designed with defective airbags so all products have the same problem)
-Warning defect (example is a pesticide can doesn’t have a warning telling consumers what to do if the pesticide contacts their skin - like wash the area)
Define Manufacturing defect
Manufacturing defect exists when a particular instance of the product is different and more dangerous than all of the others because this particular product deviated from its intended design. In other words, the product was not manufactured as intended.
Define Design defect
Design defect exists when all products of a line are the same and they all bear a feature whose design itself is defective and unreasonably dangerous; courts use the following two tests to establish a design defect:
Consumer expectation test and Risk-utility test
What are the two tests that
a court will use to evaluate
whether there is a design
defect? State the rule for
each
Consumer expectation test (what a reasonable/ordinary consumer would expect when a product is used in a reasonably foreseeable manner).
Risk utility test (weighs the risk of danger inherent in the design and the benefits of the design considering whether other feasible, cost-effective alternative designs were available).
Define Warning defect
Warning defect exists when the maker fails to give adequate warnings as to a known (or should have been known) danger in the product or in a particular use of the product that is nonobvious. Some courts use risk-utility analysis when the risk could have been reduced or avoided by reasonable instructions or warnings.
P is injured by ear drops that he
bought at ABC drugstore. Save Ears, Inc. manufactured the ear drops. P claims the ear drops were defective and his injuries resulted from the defect of the ear drops. Who can P sue to recover for strict products liability? Why?
P can sue both ABC drugstore and Save Ears, Inc. because both are considered a commercial supplier (includes both retailers and manufacturers who place a product into the stream of commerce without substantial alteration).
