Products Liability Flashcards
Restatement (Second) of Torts § 402A - Strict Liability
(1) One who sells any product in a DEFECTIVE condition UNREASONABLY DANGEROUS to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product (aka, MERCHANT), and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) STICT LIABILITY-The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation
with the seller.
When is a product defective?
A product is defective when, at the time of sale or distribution, it contains a (1) MANUFACTURING defect, is (2) defective in DESIGN, or is (3) defective because of inadequate instructions or WARNINGS.
“Seller”
◦ Must be in the business of it
◦ No need for formal monetary transaction (ex. restaurant is a seller of free water)
◦ Doctors not usually considered sellers
‣ If what you are buying is primarily a “service” and not a “product,” they are not considered a seller (ex. hairdresser)
“Consumer/User”
‣ Don’t take it too literally
‣ Includes grocery shopper walking down aisle and gets cut by exploding bottle
‣ Some statutes say “those who can be foreseeably injured”
‣ Must be INJURED to recover
“Product”
◦ Food/drink are products
◦ Houses are not products (Consumers are not as vulnerable when the purchase houses, they have time to thoroughly inspect them)
“Used goods”
Cannot sue in strict liability UNLESS the seller has done something to make the buyers believe it is “as good as new”
Economic Loss Rule
Cannot recover merely for the harm to the product itself (“standalone economic harm”), should sue for contract breach of implied warranty of merchantability instead
When does a common-place product have a design defect?
Ordinary Consumer Expectation Test
Product is defective in design if it fails to perform as safely as an ORDINARY CONSUMER would expect (not an acceptable test when it is a complex or highly specialized product where the ordinary consumer will likely not have knowledge/expectation of the safety)
What’s the other test for design defects?
Excessive Preventable Danger/Risk-Utility Test
Product is defective in design if the RISK of danger inherent in the challenged design OUTWEIGHS the BENEFIT of the design, “excessive preventable danger”
Reasonable Alternative Design Test (restatement 3rd test)
A product is defective in design when a reasonable alternative design could have been adopted at the time of sale that would have reduced or avoided the foreseeable risks of harm posed by the product, and the omission of the alternative design renders the product not reasonably safe.”
- Expert testimony is enough to show this
Burden of Proof
Plaintiff bears burden of proof everywhere but CA
Misuse of Product
Manufacturer’s duty to design with foreseeable misuse in mind
When is a manufacturer liable for information/warning defects?
A warning need only be sufficient to appraise the ordinary consumer the danger- clear and specific. (reasonable under the circumstances; NO DUTY TO WARN OF OBVIOUS RISKS)
Pharmaceutical Warnings?
Manufacturer has a duty to warn the user of any potential side-effects
The duty to warn moves up the chain
Learned intermediary Rule
As long as the manufacturer provides an appropriate warning to the learned intermediary, they have absolved themselves of risk (exception to manufacturer duty to warn)
