Products Liability

Question 1

Theories of Liaiblity

Answer 1

• intent
• negligence
• implied warranties of merchantability and fitness for a particular purpose
• representation theories (implied warranty of misrepresentation)
• strict liability (not in VA)

Question 2

Elements for Strict Liability

Answer 2

• Defendant is a merchant
• product is defective
• product was not substantially altered since leaving defendant’s control
• plaintiff was making foreseeable use of the product at the time of the injury

no damages for economic loss

disclaimers are irrelevant

Question 3

Manufacturing Defect
(plaintiff must prove for strict liability)

Answer 3

Plaintiff must prove that the product failed to perform as safely as an ordinary consumer would expect

Question 4

Design defect
(plaintiff must prove for strict liability)

Answer 4

Plaintiff must prove the defendant could have made the product safer, wihtout serious impact on the products utility or price
(“feasible alternative”)

Question 5

Information defect

Answer 5

failure to give adequate warnings as to the risks involved in using the product that might not be apparent to users

Question 6

Products liability based on negligence

Answer 6

• proved the same as any “standard” negligence case
• any foreseeable plaintiff can sue (privity not required)
• disclaimers are ineffective
• physical injury or property damage must be shown (economic damages not recoverable)

Question 7

Implied Warranties of Merchantability and Fitness Basis

Answer 7

Merchantability: whether goods are of the average acceptable quality and generally fit for ordinary use

Fitness for particular purpose: seller knows buyer’s purpose, and buyer relies on seller’s skill and judgement in selecting goods

• horizontal privity required (buyer, family, household, and guests) - lack of privity is no defense in VA
• breach: product fails to live up to the above standards (plaintiff does not have to prove fault)
• actual and proximate cause same as ordinary negligence cases
• Damages: personal injury, property, and economic
• defenses: assumption of the risk and contributory negligence

Question 8

Express Warranty basis

Answer 8

Any affirmation of fact or promise concerning goods that becomes part of the basis for bargain

• no privity required
• Breach: product did not live up to warranty (no fault needed)
• causation, damages, defenses, same as implied warranties
• disclaimers only effective if consistent with warranty (unlikely)

Question 9

Misrepresentation of Fact basis

Answer 9

• statement was of material fact concerning quality or use of goods
• seller intended to induce reliance

justifiable reliance is required (actual cause)
privity is not required
proximate cause same as strict liability
Assumption of the risk is not a defense
Contributory negligence is a defense