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Torts 2 > Products Liability > Flashcards

Products Liability Flashcards

1
Q

What are the three kinds of defects?

A

Manufacturing, design, and warning

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2
Q

What are the two tests used for defective design?

A
  1. Consumer expectations test

2. Risk Utility test

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3
Q

Basic 402A Principle: This is the first/broadest layer of rule material

A

“Strict” liability for physical harm to P or P’s property caused by defective condition of a product which renders it unreasonably dangerous if D sold product in that condition and D is engaged in the business of selling such products.

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4
Q

402A: Second layer of rule material

A
  1. Identify what type of defect is at issue.
  2. If there is more than one, do one at a time, and complete the analysis of the first one before turning to the second one.
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5
Q

402A: Third layer of rule material

A
  1. Work through the analytic steps for the type of defect you are analyzing.
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6
Q

Analytic step: Manufacturing defect

A
  1. Define “manufacturing defect”
  2. If the product has objective specifications, departure from those specifications can directly prove the existence of a manufacturing defect.
  3. Otherwise, consider whether the evidence permits the trier of fact to rule out causes other than MDs.
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7
Q

Manufacturing Defects: Definition

A

The product departed from its intended design.

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8
Q

Analytic Steps: Design Defect

A
  1. Use either the consumer expectations or the risk utility test.
  2. Assess whether the DD was the cause in fact of P’s injuries.
  3. Remember that the RUFs are FACTORS, some of which have RE material.
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9
Q

Analytic Steps: Warning Defect

A
  1. Assess whether there was a duty to warn.
  2. If yes, was there a warning?
  3. If there was a warning, was it adequate?
  4. If there was a duty to warn and there was either no warning or an arguably inadequate warning, was the inadequate warning the cause in fact of P’s injuries?
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10
Q

Evidence that a product miscarries or malfunctions is sufficient to show a manufacturing defect when:

A
  1. Either expert testimony or common exp teaches that under the circumstances, the malfunction is probably inconsistent with a poorly made product.
  2. Think about new tire blowing out and causing injury after being inflated to normal pressure for the first time.
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11
Q

If the product has been subjected to a number of forces that would cause a well-made product to malfunction . . .

A
  1. The inference of a product defect is weakened and could potentially be eliminated.
  2. P must show a malfunction; AND
  3. Must also negate the probability that other forces caused the malfunction.
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12
Q

402A Restatement: Consumer Expectation Test

A
  1. The article sold must be dangerous
  2. To an extent beyond that which would be contemplated by the ordinary consumer who purchases it
  3. With the ordinary knowledge common to the community as to its characteristics
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13
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): All Factors

A
  1. The usefulness and desirability of the product. Its utility to the user and the to the public as a whole
  2. The safety aspects of the product. The likelihood that it will cause injury, and the probably seriousness of the injury.
  3. The availability of a substitute product which would meet the same need and not be as unsafe
  4. The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility
  5. The user’s ability to avoid danger by the exercise of care and the use of the product.
  6. The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, OR of the existence of suitable warnings or instructions.

AND

  1. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
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14
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): Factor 1

A
  1. The usefulness and desirability of the product.

2. Its utility to the user and to the public as a whole.

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15
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): Factor 2

A
  1. The safety aspects of the product.
  2. The likelihood that it will cause injury, AND
  3. The probable seriousness of the injury.
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16
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): Factor 3

A
  1. The availability of a substitute product which would meet the same need and not be as unsafe.
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17
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): Factor 4

A
  1. The manufacturer’s ability to eliminate the unsafe character of the product;
  2. Without impairing its usefulness; OR
  3. Making it too expensive to maintain its utility.
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18
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): Factor 5

A

The user’s ability to

  1. Avoid danger by the exercise of care; AND
  2. The use of the product.
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19
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): Factor 6

A
  1. The user’s anticipated awareness of the dangers inherent in the product AND their availability because general public knowledge of the obvious condition of the product; OR
  2. Of the existence of suitable warnings or instructions
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20
Q

The Risk/Benefit or Risk/Utility Test (Wade Factors Version): Factor 7

A

The feasibility, on the part of the manufacturer, of spreading the loss by:

  1. Setting the price of the product; OR
  2. Carrying liability insurance
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21
Q

“State of the Art” Doctrine

A
  1. For either the CE or RU analysis, the focus is on the PRODUCT. NOT the manufacturer’s behavior.
  2. But advertising and the manufacturer’s representations can be relevant to both consumer expectations and RU factors 5 & 6.
  3. And the manufacturer’s design decisions for its products are a part of the analysis.
22
Q

State of the Art Doctrine: Majority Approach

A
  1. Judge manufacturer’s decisions from the point of view at the time the product was manufactured.
  2. NOT at the time of trial.
  3. Foresight test, not hindsight test.
23
Q

State of the Art Doctrine: Design alternatives must be . . .

A
  1. Available at the time of manufacture; AND

2. Must be reasonable.

24
Q

Food Cases: Foreign Natural Test

A

Food is unfit for ordinary purposes if object is found in the food that does not occur naturally.

Minority Approach

25
Q

Food Cases: Reasonable Expectations Test

A

Food is unfit for ordinary purposes if it:

  1. Contains substances which cause injury; AND
  2. Which the consumer would not reasonably expect to find in the product;
  3. Even if those substances are natural.

Majority Approach

26
Q

Comment k: Unavoidably Unsafe Products

A
  1. Used primarily for pharmaceutical products.

2. Protects sellers of products that cannot be designed more safely.

27
Q

Comment k: Unavoidably Unsafe Products: Reasoning

A
  1. There are some products that have dangers associated with their use even though they are used as intended.
  2. Sellers should not be held strictly liable for any unfortunate consequences attending their use.
28
Q

Comment k: Unavoidably Unsafe Products: Majority Approach

A

Products may be deemed unavoidably unsafe ONLY IF;

  1. The court concludes the product was intended to provide an exceptionally important benefit; AND
  2. The risk posed was substantial AND unavoidable when distributed.
29
Q

Comment k: Unavoidably Unsafe Products: Minority Approach

A

Across the broad application of comment k to all FDA approved pharmaceuticals, and maybe FDA approved medical devices.

30
Q

Warnings: General Rule

A

The general rule is that the manufacturer must warn the user of risks associated with a product.

Burke:
Obvious Rule:
1. Ordinarily noticed and appreciated by those expected to use it.
2. What the mass of users know and understand
3. So long as some members of the class are unaware, there might well be a duty to warn.

Liriano:

  1. Warning can inform you of alternatives. Potentially safer way.
  2. When you create the “very risk” of what’s happening, generally, you have causation.
31
Q

Warnings: If a P proves that D failed to give a warning needed to make a product safe, AND that safe warning would have been on the product’s label or on instructions that came with the product: Can we assume the P would have read the warning if it had been provided?

A
  1. Unless P would have read, understood, or heeded the warning, failure to warn cannot be the cause of P’s harm.
  2. BUT most jurisdictions use a “heeding presumption,” and “presume” the P would have read, understood, AND heeded the warning.
  3. The presumption is rebuttable.
32
Q

Assessing Warning Defects: Substantively inadequate IF . . .

A
  1. It omits necessary info.

2. Must provide complete disclosure of existence AND extent of risk.

33
Q

Assessing Warning Defects: Procedurally inadequate IF . . .

A

Poorly presented:

  1. Be designed so that it can reasonably be expected to catch consumer’s attention;
  2. Be comprehensible and give fair indication of specific risks;
  3. Be of an intensity justified by magnitude of risk.
34
Q

Learned Intermediary Rule: Pharmaceuticals

A
  1. An exception to the general rule that the manufacturer must warn the user of the risks associated with the use of the product.
  2. The manufacturer’s duty is to adequately warn the physician of known risks.
  3. Duty to warn is on doctors, not patients.
35
Q

The question in a Learned Intermediary Rule case involving pharmaceuticals is . . .

A

Whether the warning given was a reasonable warning by a manufacturer to a learned intermediary.

36
Q

What are the available defenses for a products liability case?

A
  1. Misuse
  2. Assumption of the Risk
  3. Highly Reckless Conduct: In PA.
37
Q

Defenses: Misuse: Hughes

A
  1. P uses a product in a way that D could not foresee.

2. Not about reasonableness, but whether D could foresee the product being used in a particular way.

38
Q

Defenses: Misuse factors

A

Depending on the facts, evidence of the P’s unforeseeable misuse may tend to show that:

  1. The product is not defective at all; OR
  2. The defective product was not a proximate cause of harm; OR
  3. The P was chargeable with comparative fault.
39
Q

Defenses: AOR

A

D must show that the buyer knew of a defect and yet voluntarily AND unreasonably proceeded to use the product.

P Discovered defect, is aware if it, proceeds anyway.

40
Q

Defenses: AOR: P is not at fault for . . .

A
  1. Failing to discover the defect in the product; OR
  2. To guard against the possibility of its existence.
  3. If the danger is latent then it is not known as a danger in the AOR sense.
41
Q

Defenses: AOR: If a danger is latent then . . .

A

It is not a known danger in the AOR sense.

42
Q

Defenses: HRC

A

D must prove that the use was so extraordinary and unforeseeable as to constitute a superseding cause of P’s injury.

  1. Some AOR may turn out upon analysis to be an obscure way of saying that the product was not defective or that a superseding cause insulates the manufacturer from liability. Dobbs
43
Q

P must always . . .

A

Prove the defective product was the cause in fact of P’s injury.

44
Q

Defenses: HRC: D’s burden

A
  1. If you assert it, it’s your burden.
  2. Would P nonetheless be injured despite any alleged defect; OR
  3. Is so extraordinary and unforeseeable as to constitute a superseding cause.
45
Q

Warnings: Liriano Rule Material

A
  1. Warning can inform you of alternatives. Potentially safer way.
  2. When you create the “very risk” of what’s happening, generally, you have causation.
46
Q

Warnings: Burke “Obvious Rule”

A
  1. Ordinarily noticed and appreciated by those expected to use it.
  2. What the mass of users know and understand
  3. So long as some members of the class are unaware, there might well be a duty to warn.
47
Q

Steps to Analyzing a Warning Claim

A
  1. Is there a duty to warm?
    a. Generally yes
    b. But not if the danger is obvious. (But what is obvious?)
    c. Remember the functions of warnings. (Liriano)
  2. If yes, the next step is whether a warning was supplied.
  3. If yes, assess the adequacy of the warning.
    a. Keep the heeding presumption in mind.
  4. If warning is arguably inadequate, the next issue is causation.
48
Q

Reasonable Alternative Design (RAD)

A

Best evidence is pointing to similar products on the market with a safer design

49
Q

Design Defects: A product’s defect is related to . . .

A

its condition, not its intrinsic function.

50
Q

Design Defects: A product is unreasonably dangerous per se if . . .

A

a reasonable person would conclude that the danger of the product, whether foreseeable or not, outweighs its utility.

51
Q

Two ways to prove defective design

A
  1. By showing that the product’s danger is unknowable and unacceptable to the average consumer (CET); OR
  2. That a reasonable person would conclude that the probability and gravity of the harm caused by the product outweigh the burden or cost of taking precautions (RUS/RBT)

Torts 2 (2 decks)

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