Product Liability Essay Flashcards
SL PL
Attack Plan
1) Strict Products Liability (“SPL”)
2) Negligence (“NPL”)
3) Warranties
* a) Express Warranty
* b) Implied Warranties
* i) of Merchantability
* ii) of Fitness
4) Misrepresentation
5) Intent
SL PL
Strict Products Liability
RS: A commercial seller who places a product in the stream of commerce may be strictly liable in tort for injuries caused by a defective product.
In order to prevail in an SPL cause of action, plaintiff must show the defendant is a commercial supplier of a product, the D produced or sold a product that was defective when it left the defendant’s control, actual and proximate causation, and damages to person or property.
SL PL
Commercial Supplier
RS: **A commercial seller may be liable for supplying unsafe products. **
Commercial suppliers include manufacturers, wholesalers, assemblers, and retailers.
A: Here, (now establish that defendant is a commercial seller who placed goods in the stream of commerce).
(Notes—casual seller will not be held strictly liable.
Also, SPL only applies to products and NOT services.)
- Whether or not contractual privity exists between the plaintiff and defendant will not prevent plaintiff from recovering, because any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of a contractual relationship between them.
SL PL
Production or Sale of a Product that Was Defective When It Left Defendant’s Control
The P need not prove that the D was at fault in selling or producing a defective product—only that the product was defective when it left the defendant’s control.
Types of defects are manufacturing defect, design defect, and information defect (which includes inadequate warning).
In analyzing whether a product is defective, courts have required suppliers to anticipate reasonably foreseeable uses even if they are “misuses” of a product.
*Headnote and IRAC the type of defect(s) at issue.
SL PL
Manufacturing Defect
RS: If a product emerges from manufacturing different from and more dangerous than the products made properly, it has a manufacturing defect.
One way to prove a manufacturing defect is with the Consumer Expectation Test.
The consumer expectation test says D will be liable if P can show that the product failed to perform as safely as an ordinary consumer would expect (D must anticipate reasonable use).
Here, . . .
SL PL
Design Defect
In a design defect case, all of the products of a line are made identically according to manufacturing specifications but are in a defective condition unreasonably dangerous to users because of their mechanical features or packaging.
For a design defect, plaintiff will use the Feasible Alternative Test to establish the existence of a design defect.
Under the Feasible Alternative Test, plaintiff must show that the D could have made the product safer, without serious impact on the product’s price or utility.
Factors that a court will consider under the feasible alternative test include: (i) usefulness and desirability of the product; (ii) availability of safer alternative products; (iii) dangers of the product that have been identified by the time of trial; (iv) likelihood and probable seriousness of the injury; (v) obviousness of the danger; (vi) normal public expectation of danger; (vii) avoidability of injury by care in the use of the product; and (viii) feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive.
Here, . .
SL PL
Information Defect
Information Defect
A product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risk involved in using the product. As to warnings, a product may be defective if it does not have clear and complete warnings of any dangers that may not be apparent to users. For liability to attach, the danger must not be apparent to users.
Government Safety Standards
A product’s noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence—but not conclusive—that the product is not defective.
Here, . . .
SL PL
Actual Cause
To show actual cause, plaintiff must show that the defect existed when the product left defendant’s control.
Any substantial alteration in the condition of the product after it left the defendant’s control may negate actual cause.
Here, . . .
SL PL
Proximate Cause
The type of injury must have been foreseeable at the time the product was placed in the stream of commerce. Defendant will not be held liable for dangers not foreseeable at the time of marketing.
Here, . . .
SL PL
Damages
Here, . . .
In conclusion, . . .
SL PL
Defenses
Assumption of the Risk
Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant’s act. Plaintiff must have known of the risk and voluntarily proceeded in the face of the risk.
Here, . . .
Contributory/Comparative Negligence
Contributory negligence is not a recognized defense to strict products liability in many jurisdictions. Hence, it is no defense that the plaintiff failed to discover the defect or guard against its existence, or that the plaintiff engaged in a reasonably foreseeable misuse of the product.
On the other hand, other types of unreasonable conduct, such as voluntarily and unreasonably encountering a known risk (i.e., assumption of risk), can be raised as a defense.
Modernly, most jurisdictions follow either partial or pure comparative negligence.
NPL
Negligence
In order for plaintiff to prevail in a products liability cause of action based on negligence, plaintiff must show duty, breach, actual and proximate causation, and damages.
NPL
Duty
A duty of care is owed to all foreseeable plaintiffs.
A foreseeable plaintiff is anyone in the zone of danger (majority view). Users of products, bystanders, and consumers of the product are all foreseeable plaintiffs.
Privity with the defendant is no longer required.
Here, . . . P [was] a foreseeable [user/bystander/consumer].
Foreseeable plaintiffs are owed a standard of care of that of a reasonably prudent product supplier.
Here, the requisite standard of care is that of a reasonably prudent (fill in the blank, ex: manufacturing company).
Breach
Breach is shown by negligent conduct of defendant leading to the supplying of a defective product.
To establish that a manufacturer’s negligence resulted in a design defect, the plaintiff must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice of the dangers of marketing the product as designed.
Here, . . .
Causation
Actual Causation
See above.
Proximate Causation
Use above rule and analysis.
Add: A wholesaler’s/intermediary negligent failure to discover a defect does not supersede the original manufacturer’s negligence unless the wholesaler’s conduct exceeds ordinary foreseeable negligence.
Here, . . .
