Products Liability

Question 1

PL based on Negligence Elements:

Answer 1

Pl must show:
1) Duty
2) Breach
3) Actual Cause
4) Proximate Cause
5) Damages

Question 2

PL Manufacturing Negligence: A df manf’r has a duty to manufacture products w/ R care with to

Answer 2

to any foreseeable Pl

Question 3

PL Manufacturing Negligence: Who can sue? Original purchaser? 2nd hand purchaser?

Answer 3

any foreseeable PL bc privity is no longer required

Question 4

PL Manufacturing Negligence: Who can be held Liable?

Answer 4

Commercial suppliers ex- Manufacturers, wholesalers, and Retailers

Retailers and Wholesalers are harder to get because they can satisfy duty through cursory inspection

Question 5

PL Negligence: Breach of Duty; Df manf’r breaches their duty to any forseeable pl when they

Answer 5

engage in NEGLIGENT CONDUCT leading to the supplying of defective product to pl.

Question 6

PL Negligence: Causation of Intermediary

Answer 6

Intermediary’s (retailer, wholesaler) negligent failure to discover defect, does not supersede the original manufacturer’s negligence UNLESS intermediary’s conduct exceeds ordinary foreseeable negligence

Question 7

Damages

Answer 7

-Physical injury
-Property damage

NO SOLE ECONOMIC LOSS AVAILABLE

Question 8

Manufacturing Negligence “Dangerous” product: a product is reasonably expected to be dangerous if

Answer 8

(1) negligently made and
(2) the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists to the consumer/ end user

Question 9

Is privity of K is required to maintain a civil action for negligent manufacturing of a product after MacPhearson?

Answer 9

No, MacPhearson (1) eliminated privity element to maintain negl tort suit against manufacturer and (2) created manufacturer’s duty to inspect and test any purchased components of a product

Question 10

Duty of care is breached and Manufacturing Negligence arises to ultimate purchaser when:

Answer 10

1. Nature of the product must be likely to place life and limb in danger if negligently made; Knowledge must be probable not merely possible
2. Must be knowledge in the usual course of events. The danger will be shared by the people other than the buyer

Question 11

T/F Product Safety law seeks to prevent product related accidents and injuries BEFORE they occur

Answer 11

True

Question 12

T/F Products Liability law involves the PRIVATE litigation of product related accidents AFTER they’ve occurred

Answer 12

True

Question 13

T/F The Courts have never required privity of contract in a negligence action between a manufacturer and a consumer

Answer 13

False

Question 14

T/F Negligent design is the failure to use the care that a reasonably careful designer would use under like circumstances

Answer 14

True

Question 15

T/F Judicial evaluation of negligent design never involves risk-utility

Answer 15

False

Question 16

T/F Compliance with statutory standard is ALWAYS conclusive evidence of due care

Answer 16

False

Question 17

T/F Compliance with government rules ALWAYS creates a presumption that the product is not defective

Answer 17

False

Question 18

T/F In a negligence P/L case, the risk of injury has to weighed against the cost of avoiding it

Answer 18

True; FL looks at both consumer expectation test and R/U test

Question 19

T/F A seller of a product is required to warn of its dangers if it has knowledge of the risks

Answer 19

True

Question 20

T/F Fraudulent Misrepresentation is an intentional tort

Answer 20

True

Question 21

Fraudulent Misrepresentation requires privity of contract between the litigants

Answer 21

False

Question 22

T/F Comparative Negligence is a defense to a fraudulent misrepresentation case

Answer 22

False;

Question 23

T/F The existence of a legal duty is an element of negligence action for a defective product

Answer 23

True

Question 24

T/F Negligence is the failure to use the care that a reasonably careful manufacturer would use under like circumstances

Answer 24

True

Question 25

MacPhearson removed the requirement of privity (of Manf’r thru consumer) in negligence action for P/L

Answer 25

True

Question 26

T/F Under MacPhearson, “The more probable the danger, the greater the need of caution”

Answer 26

True

Question 27

T/F Failure to comply with governmental standards is CONCLUSIVE evd that a product was negligently designed

Answer 27

False

Question 28

T/F Fraudulent misrepresentation requires proof that the Df made a stmt known to be false with intent to mislead

Answer 28

True

Question 29

T/F Fraudulent Misrepresentation requires a negligent stmt of material facts

Answer 29

False

Question 30

T/F Negligent misrepresentation involves a false stmt of material fact that the speaker should have known to be true

Answer 30

True

Question 31

T/F both Fraudulent Misrepresentation and Negligent Misrepresentation require detrimental reliance by the Pl

Answer 31

True

Question 32

T/F An express warranty must become part of the basis of the bargain

Answer 32

True

Question 33

T/F A warranty is an express or implied promise about the nature of a product placed into the stream of commerce

Answer 33

True

Question 34

T/F A writing is a required element of an express warranty

Answer 34

False

Question 35

T/F Only a merchant can be responsible for an implied warranty of merchantability

Answer 35

True

Question 36

T/F Under 402A, a product must be unreasonably dangerous for Strict Liability to apply

Answer 36

True

Question 37

T/F Privity of K between PL and Manf’r DF is an element of a claim for negligent manufacturing

Answer 37

False

Question 38

T/F A statute of repose creates a cutoff date for L AFTER the product is sold to the consumer

Answer 38

True

Question 39

T/F A State of the Art defense looks at the State of the Art at the time of the accident

Answer 39

False

Question 40

T/F To prove design defect the 3rd Rstmt requires Pl to demonstrate a reasonable alternative product design

Answer 40

True

Question 41

T/F Under 402A, the product must have a defective cond’t AND be unreasonably dangerous when it is placed on the market

Answer 41

True

Question 42

Negligence

T/F Pl MUST prove negligence in a strict liability action under 402A

Answer 42

FALSE

Question 43

design defect

What test can design defect in Strict Liability cases be evaluated?

Answer 43

Risk-Utility Test

(FL R/U and consumer expectation test

Question 44

design defect

Strict Liability design defect elements

Answer 44

• A defect that caused the product to be unreasonably dangerous
• ????
• ???

Question 45

design defect

T/F One element of S/L design defect is that the product must become part of the basis of the bargain

Answer 45

False

basis of the bargain is a required element for warranty claims

Question 46

warning defect

Strict Liability warning defect elements

Answer 46

• whether the product warning was inadequate
• the inadequacy of the warning caused the PL’s injury
• ????

Question 47

The Consumer Expectation test imposes liability on the seller of a product if:

Answer 47

The product is in a defective condt unreasonably dangerous to the user

Question 48

design defect

Under the 3rd Rstmt, A product contains contains a design defect when

Answer 48

foreseeable risk could be reduced by a reasonable alternative design

Question 49

What is Restatement (Second) of Torts § 402A

Answer 49

A provision in which a df is subject to strict liability for injuries caused by an unreasonably dangerous defective product
**only if **
the Df is engaged in the business of selling the product.