Product Liability

Question 1

Products liability

Answer 1

3 types (All Strict liability)

1)Manufacturing Defect
a. A process in the manufacturing unintentionally made the product defective

2)Design Defect
a. The way the product was designed was defective and unreasonably dangerous

3)Failure to warn
a. The failure to warn about the hazard associated with the product that rendered it unreasonably dangerous
i. Pharmaceuticals mass torts

Question 2

Litigating Manufacturing defect

Answer 2

Sue everyone, the store, distributor all the way to the manufacturer.

Sue up the chain

Question 3

Product liability in terms of stream of commerce

Answer 3

1. Negligence
   a. Too many parties involved in manufacturing
   **b. It is hard to prove negligence
   c. Negligence alone would not help incentivize products to be safe.
   d. Before workers comp, if you were injured, you had to sue your employer for negligence. After instituting workers comp (strict liability), injury rates dropped.

**2. Contract-based theories
a. Implied warranty of merchantability (still valid, doesn’t always work)
i. Idea that whatever you buy is fit for the purpose of which you buy it. It will do what the product is intended to do. (for example, Temu purchase that arrives and just doesn’t work) [Temu Doctrine]
ii. It doesn’t stretch to injury problems

**b. Express warranty (still valid)
i. The seller says this product is fit for this particular purpose. They have superior knowledge of the product, and it doesn’t work within its purpose.

c. Privity Problem
i. In commercial issues, you run into this right away. If you buy from a retailor instead of a manufacturer.

Question 4

How does the court get around the privity of contract?

Answer 4

They use foreseeability

a) If you make something that is reasonably dangerous; and,
b) It was foreseeable that someone would use the product and be injured by it
c) You have a duty

Question 5

Companies are strictly liable for abnormally dangerous activities when:

Answer 5

a) If the thing you are making in ordinary use is abnormally dangerous
b) It is possible to use almost anything in a way that will make it dangerous if defective.

Question 6

Manufacturing Defect:

Answer 6

If the defective part was isolated it is a manufacturing defect

Question 7

Design Defect

Answer 7

If the object in plurality is defective there was a design defect.

Question 8

Failure to warn

Answer 8

Failure to warn about the hazard associated with the product that rendered it unreasonably dangerous

Question 9

Suing stores for food products

Answer 9

They reasonably should be able to take some risk because of the law and economics. The court doesn’t want you to be unable to recover.

Question 10

The least cost avoider

Answer 10

The concept puts liability on the manufacturer. Because of this, you can take the claim up the chain of commerce. Sue the store up to the manufacturer.

Question 11

Proximity of manufacturer liability

Answer 11

If it was defective when it left the factory and arrived unaltered then you can hold the manufacturer liable

Question 12

Exclusive control

Answer 12

Problem would not occur but for negligence of controller.

Question 13

A products liability claim for manufacturing defects requires proof of the following elements:

Answer 13

1. the product was in a defective condition, (unreasonably dangerous to the user or consumer)
2. At the time it left Ds hands
3. Reached consumer without change
4. Caused harm

Question 14

Damages to a child

Answer 14

Damages to a child have higher settlements because they have to pay for the entire life that is now altered because of the product. .

Question 15

Whether strict liability applies when the product has been altered?

Answer 15

No

Question 16

Failure To Warn

Because there was no warning on the package, of the choking hazard of marshmallows does this make them liable for the choking?

Answer 16

Yes.

Question 17

Defective design test

Answer 17

It is important to note that strict liability focuses on the product in question, not on the conduct of the manufacturer.

Question 18

Proof of Defect

Answer 18

negligence actions offer four avenues for the plaintiff to pursue
(1) negligent manufacturing,
(2) negligent design, (3) failure to adequately test and/or inspect prior to production, and
(4) failure to warn of dangerous propensities that were either known, or should have been known, by the manufacturer.

Question 19

Defense of: misuse of product

Answer 19

Lack of foreseeability is the defendant’s key to successfully invoking misuse as a defense to a products liability action

Misuse involves a product being used by a consumer in an unforeseeable and unintended manner, and which use causes injury to the plaintiff

Question 20

Categories of Product Defect

Answer 20

1. contain a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

2.is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

3. is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Question 21

Defenses to strict liability

Answer 21

1. Contributory negligence/ comparative negligence
2. Assumption of risk: This is complicated, it may just reduce damages, but it can defeat the claim completely if there is an assumption of risk is that the item was not defective. Its not actually defective.
3. If it is open or obvious then you have a defense to a products liability claim
4. Unforeseeable misuse
5. Alterations to product
6. Learned intermediary, when a drug is a mediated by a doctor, the duty falls upon the doctor, you do not have to warn the consumer. (This is narrow and only applies to doctors)

Question 22

Learned intermediary

Answer 22

Medical only, a drug is a mediated by a doctor, the duty falls upon the doctor, you do not have to warn the consumer.

Question 23

Ordinary consumer expectations test

Answer 23

1. the manufacturer’s product failed to perform as safely as an ordinary consumer would expect,
2. the defect existed when the product left the manufacturer’s possession,
3. the defect was a “legal cause” of plaintiff’s “enhanced injury,” and
4. the product was used in a reasonably foreseeable manner.

Question 24

Alternate to ordinary consumer expectations test

Answer 24

expert testimony

Question 25

Alternate design available test SIMPLE

Answer 25

IS there a product that is:

a. More safe
b. Feasible
c. Cost-effective
d. Benefit
e. Compromising product

ARE THE TRADEOFFS WORTH IT. Gun armor. Different uses may not all be the same.

Question 26

Open and obvious defense

Question 27

“Reasonably safe” test
“Crashworthiness doctrine”

Answer 27

Used around motorcycles. They are classified as abnormally dangerous.

You can sue the manufacturer for injuries that are worse than they otherwise would be due

Question 28

Alternate design test LONG

Answer 28

1. Could be safe
2. But it would not serve the same purpose
3. In safety tradeoffs, you have to weigh compliance
4. You have to weigh the additional safety factors “tradeoffs”

Question 29

How to prove a product liability claim or Proving a manufacturing or design defect:

Answer 29

Product was defective (unreasonably dangerous)
2. At the time it left D’s hands
3. Reached consumer w/out change
4. Caused harm