Product Liability Flashcards
What is the focus of strict products liability?
Focus on the condition of the product, Not on D’s conduct.
Who is a proper plaintiff of strict products liability?
Any P who is a user, consumer, or bystander physically injured using defective product. No requirement of contract/privity.
Who is a proper defendant for strict products liability?
Commercial suppliers at ALL levels of the distribution chain and those in the market of selling the product - manufacturer, wholesaler, and retailer.
What is the proper context for products liability?
Generally, services alone are not enough. When both a product AND services are present, the goods/product must dominate.
Categories of defect
Manufacturing defect
Design defect
Lack of/inadequate warnings
What constitutes a manufacturing defect?
Product is manufactured in a form other than intended by manufacturer.
What must P show to prove manufacturing defect?
P must show:
Product is more dangerous than a consumer would reasonably expect when using the product in its intended manner
OR
it is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands.
What constitutes a design defect?
Made as intended by manufacturer but still presents a danger of personal injury or property damage to P because of flawed design.
What are the tests to show design defect?
Ordinary Consumer Expectation Test
Risk-Utility Balancing
What is the Ordinary Consumer Expectation Test?
Test to determine whether there is a design defect.
Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community.
What is the Risk-Utility Balancing test?
Test to determine whether there is a design defect.
Jury determines whether the danger the design threatens (cost in human injury + property damage) outweighs its utility to society.
Product will be found defective if an alternative design could have reduced the danger at about the same cost.
Strict Liability - Warnings
P is asserting a warning is inadequate. Test is reasonableness. Does the warning reasonably inform a reader of the risks of the product and how to reduce them [language, placement, size of font, clarity]
P is asserting there is no warning. Manufacturer has to warn about risks of which it knows or should know.
Consider gravity and probability of harm.
How is cause-in-fact proved in a products liability case?
Usually proven by showing that the defect that injured P was in existence at the time it left D’s control.
Potential proximate cause issues in products liability cases
Look for superseding causes which might cause the defect and break the chain of causation.
e.g. did P alter the product in an unforeseeable way?
When are damages available in a products liability case?
Damages are recoverable when there is personal injury or property damage other than to the product itself.
Where the harm is only to the product itself, can only claim breach of warranty.
Consequential/subsequent economic losses are not enough.
Defenses to products liability
MISUSE - P’s use of product is neither intended nor foreseeable.
ALTERATION - Employer removes safety devices to increase efficiency.
ASSUMPTION OF RISK - Where P has used the product with knowledge of the risk.
Product liability on negligence theory
Any foreseeable P can bring action.
Analyze conduct of each D and ask whether D acted reasonably.
Res ipsa loquitur takes place of manufacturing defect in negligence theory (e.g. toe in tobacco)
All negligence defenses apply.
Products liability on warranty theory
EXPRESS warranty exists where D makes specific representation as to the quality/nature of product which becomes a basis of the bargain.
+ any seller can make this warranty
+ can occur via advertising, during negotiations, or as a K provision
IMPLIED warranty/warranty of merchantability:
Where a merchant deals in goods of a particular kind, the sale of such goods constitutes an implied warrant that those goods will be merchantable (i.e. goods are of avg. quality for goods of that kind and are generally fit for purposes for which such goods are normally used)
Warranty of Merchantability = Fit for intended use.
+ requires privity and notice
+ can be disclaimed by contract
Requirements for product liability claim
Proper P
Proper D
Proper context for products liability (not services)
Defect
Cause-in-fact
Proximate cause
Damages
No defense
