Products Liability

Question 1

What is products liability?

Answer 1

Products liability refers to the liability of a supplier of a defective product to someone injured by the product.

Question 2

What are the five theories of products liability?

Answer 2

(i) Intent
(ii) Negligence
(iii) Strict Liability
(iv) Implied warranties of merchantability and fitness for a particular purpose, and
(v) Representation theories (express warranty and misrepresentation)

Question 3

What are the common elements to products liability?

Answer 3

(i) A defect, and

(ii) existence of the defect when the product left defendant’s control

Question 4

What are the three types of defects?

Answer 4

1) Manufacturing defects
2) Design defects
3) Inadequate warnings

Question 5

What is a manufacturing defect?

Answer 5

If a product emerges from manufacturing different and more dangerous than the products that were made properly, it has a manufacturing defect

Question 6

What is a design defect?

Answer 6

When all products of a line are the same but have dangerous propensities, they may be found to have a design defect

Question 7

When is there an inadequate warning?

Answer 7

When, as a result of the manufacturer’s failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users.

Question 8

How do you prove a manufacturing defect?

Answer 8

If plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse).

Also applies to food products.

Question 9

How do you prove a design defect?

Answer 9

Plaintiff must show that the defendant could have made the product safer, without serious impact on the product’s price or utility

Question 10

What if a product fails to comply with government safety standards?

Answer 10

A product’s noncompliance with gov’t safety standards establishes that it was defective.

Question 11

What if a product complies with gov’t safety standards?

Answer 11

It is evidence, but not conclusive that the product is not defective.

Question 12

Is a defendant liable for dangers not foreseeable at the time of marketing?

Answer 12

No, these are “scientifically unknowable risks”

Question 13

What if a product is dangerous, apparently dangerous, and there is no safer way to make the product, will the defendant be liable?

Answer 13

No, these are “unavoidably unsafe products”

Think knives.

Question 14

EXAM TIP

Answer 14

PRIVITY is a wrong choice in products liability questions

Question 15

What is products liability based on intent?

Answer 15

Where defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. Very uncommon, if intent is present the likely tort is battery.

Question 16

Is privity required?

Answer 16

No.

Question 17

Who can sue for liability based in negligence?

Answer 17

Any foreseeable plaintiff, privity is no longer required. This includes: users, consumers, and bystanders.

Question 18

What needs to be shown for breach of duty, in liability based on negligence?

Answer 18

(i) negligent conduct of defendant leading to

(ii) the supplying of a defective product

Question 19

For liability based on strict liability what is the prima facie case?

Answer 19

(i) A strict liability owed by a commercial supplier of a product;
(ii) production or sale of a defective product;
(iii) actual and proximate cause; and
(iv) damages

Question 20

What must be shown in terms of causation for liability based in strict liability?

Answer 20

That the defect existed when it left defendant’s control. Also that the product reached the plaintiff without substantial alteration.

Question 21

Does strict liability apply to services?

Answer 21

No. Even where a product is provided incident to a service, there is no strict liability.

Question 22

What are defenses to strict products liability?

Answer 22

Contributory negligence and comparative negligence.

Question 23

What is the effect of a disclaimer on products liability?

Answer 23

In a negligence or strict liability case, they are irrelevant if personal injury occurs.

Question 24

What is the implied warranty of merchantability?

Answer 24

Whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used.

Question 25

What is the implied warranty of fitness for a particular purpose?

Answer 25

When the seller knows or has reason to know the particular purpose for which the goods are required and the buyer is relying on the seller’s skill and judgment in selecting the goods.

Question 26

Who can sue on the basis of implied warranties?

Answer 26

Most courts no longer require vertical privity. Most states have adopted a narrow view of horizontal privity requirement, in which the buyer, family, household, and guests can sue for personal injuries.

Question 27

Is proof of fault necessary in a breach of an implied warranty?

Answer 27

No.

Question 28

What damages may you receive from breaches of implied warranties?

Answer 28

Personal injury and property damages, and purely economic loss.

Question 29

What defenses are available in breach of implied warranties cases?

Answer 29

assumption of risk, contributory negligence, failure to give notice of breach is a defense under the UCC.

Question 30

What are the two representation theories?

Answer 30

1) Express warranty

2) Misrepresentation of fact

Question 31

What is an express warranty?

Answer 31

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.

Question 32

When is a seller liable for misrepresentation of fact?

Answer 32

Where:

(i) the statement was of a material fact concerning quality or uses of goods (mere puffery is insufficient); and
(ii) the seller intended to induce reliance by the buyer in a particular transaction.

Liability is usually based in strict liability but may be from intentional or negligent misrepresentations.

Need justifiable reliance