Products Liability Flashcards

Question

Damages for Express Warranty Important issue for pure economic loss that you cannot obtain in tort actions

Answer 1

personal injury; property damage; pure economic loss Pure Economic Loss: Under warranty action, you can sue for pure economic loss alone where you do not have physical or property damage. Where negligence will fail you, express warranty will not. This is not available in a tort action. A complaint can also assert multiple causes of actions.

Answer 2

Protected Ps - (horizontal privity issues) UCC 2-318 provides 3 alternatives indicating who can sue on the warranty and what kind of damages s/he can get Defendants liable (verticle privity issue) UCC limits liability to merchants (commercial sellers) but many jurisdictions expand liability to all sellers

Answer 3

1. Lack of reasonable notification Within a rsbl time of discovering breach, P must notify seller or suit barred 2. Limitations of liability by D – must be rsbl, consistent with the warranty, not unconscionable (D may not disclaim an express warranty) 3. Comparative negligence 4. Assumption of the risk

Answer 4

Merchant (commercial seller); Sells a good not fit for ordinary purposes [breach]; Failure of implied warranty causes Damages (pers injury; ppty damage; pure econ loss)

Answer 5

You do not need an expert, just pick up a brochure, product lacked a particular bargain, like shattered glass. As a lawyer you can look at brochure or advertisement and know so this proves express warranty claim as it lacked a particular quality that was promised. Than here is a medical report that shows the injuries to the client. b. However if arguing carelessness in the manufacturing process, you will need a product engineering person who can carefully access what the manufacturing process was. c. If you are claiming negligence in the way warnings, or instructions were designed, you might need an expert to talk about how careful warnings are constructed, how to get the users attention, how to use plain language of what the problem is.

Answer 6

1. Commercial seller (merchant) who sells a product 2. Defective condition that is unrsbly dangerous a.) Manufacturing defects b.) Design defects c.) Warning and instruction defects 3. Causation – actual and proximate 4. Physical injury and property damage to user/consumer

Answer 7

Commercial Seller that sells product (do not call them “merchants” under this theory) 1. A Defendant in the business or regularly dealing w/ the product that injured the P a. Example: Retailer, manufacturer, component part maker, etc. b. NOTE: Does not apply to amateur sellers (e.g. grandma that sells jam) b. Proper Plaintiff: The user or consumer. (that is more limited). (this could also be a client who is injured by a hairdresser while blowing their hair, or passenger in a vehicle)

Answer 8

a.) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised…. b.) is defective in design when the foreseeable risks of harm…could have been reduced or avoided by the adoption of a reasonable alternative design…and the omission…renders the product not reasonably safe c.) is defective because of inadequate warnings or instructions when the foreseeable risks of harm… could have been reduced or avoided by the provision of reasonable warnings or instructions….

Answer 9

a. To assess a manufacturing defect, one compares the product’s design against the allegedly non-conforming unit of the product, which injured the plaintiff.

Answer 10

Second element: Defective condition that is unreasonably dangerous Design defects – 4 Rules 1. Hindsight risk/utility 2. Ordinary risk/utility 3. Consumer expectations 4. Hybrid approach (California approach) Four Rules to Prove Design Defects * Mnemonic: "HRU, ORU, CE, HA" (Hindsight Risk/Utility, Ordinary Risk/Utility, Consumer Expectations, Hybrid Approach) * Explanation: This covers the four rules: Hindsight Risk/Utility, Ordinary Risk/Utility, Consumer Expectations, and the Hybrid Approach. i. Hindsight Risk/Utility (Dean Keaton) * Mnemonic: "Not Followed JD" * Explanation: Reminds you that this approach is not really followed by any jurisdiction. ii. Ordinary Risk/Utility (Dean Wade) * Mnemonic for 7 Factors: "Use Safe Subs, Improve, Avoid, Aware, Spread" * Explanation: This mnemonic helps remember the seven factors: Usefulness, Safety, Substitute, Improvement, Avoidance, Awareness, and Spreading the cost. b. Consumer Expectations (GASP Test) * Mnemonic: "ConExp GASP" * Explanation: Stands for Consumer Expectations and the GASP test, which is less frequently tested. c. Hybrid Approach * Mnemonic: "HybApp Rare" * Explanation: Indicates that the Hybrid Approach is rarely tested.

Answer 11

Impute knowledge of risks = useful aspects of product to D using knowledge available at time of trial

Answer 12

Ordinary risks/utility (Dean Wade) P must prove that the hazards associated with the product outweigh the individual + societal benefits of the product as designed. - knowledge base is at the time the product is marketed.

Answer 13

pp. 286 UT): 1. Usefulness + desirability of the product 2. Safety aspects of the product (likelihood & severity of injury) Probability and Magnitude of the potential injury associated with the product as designed 3. Availability of safer substitute product. i. Some JDs treat this factor as a stand alone element that P must prove in her PF case 4. Ability to improve product’s safety w/o impairing its usefulness or making it too expensive 5. User’s ability to avoid injury through careful use 6. Awareness of danger due to knowledge/warnings/instructions 7. Feasibility of D spreading cost of liability of product or improving safety of design i. If D can get liability insurance to ensure against the lawsuits of the kind – Ps favor ii. If D could take the costs of accidenta and spread that costly by increasing the price of the product – does the D have the ability to spread the cost? – Ps favor iii. Usually hard for D because you have a merchant that is usually in this deadling and has insurance as a policy. iv. Spreading the loss – almost a given that they will be able to. v. Able to tweak price to save someone + the loss of accidenta is not only on the company vi. Almost always in favor of the P.

Answer 14

Whether the dangerous aspect of the product violates the reasonable expectation of an ordinary adult consumer - GASP test.

Answer 15

The 7 Risk-Utility Factors – rules 1 and 2 1. Usefulness & desireability of the product 2. Safety aspects of the product (likelihood & severity of injury) 3. Availability of safer substitute product 4. Ability to improve product’s safety without impairing its usefulness or making it too expensive 5. User’s ability to avoid risk by being careful when using product 6. Awareness of danger due to general knowledge or warnings 7. Feasibility of D spreading loss, getting insurance

Answer 16

Design defect – rule 3 Consumer expectations – Does the product violate the expectations of an ordinary consumer – is it more dangerous than an ordinary consumer would expect?

Answer 17

Hybrid approach- Product has design defect if: P shows product failed to perform as safely as an ordinary consumer would expect; or 2. P shows product’s design proximately caused injury and D fails to prove benefits outweigh risk

Answer 18

Rule: P must show that manufacturer knew or should have known of the risks associated with product. Rule for other Ds: P must show that retailer knew or had reason to know of the risks. Considered a lesser standard.

Answer 19

Warning defects – some sub-rules State of the art relevant to “knowability” Obvious hazards – no need to warn Sophisticated users – no need to warn Learned Intermediary rule Post-sale duty to warn

Answer 20

Actual (but for) AND w/o substantial change Assuming the _____ was defectively designed, did the product reach the user or consumer without substantial change, and was the defect the actual and proximate cause of the plaintiffs harm? Ask if a misuse will defeat proximate causation. If misuse is forseeable then causation will not be defeated.

Answer 21

The defect identified in the second element must be the actual & proximate cause of P’s injury The defect must have existed when the product left the D’s control (We saw this with respect to manufacturing defects in the Rix case)

Answer 22

Comparative fault is a defense in most jurisdictions (reduces recovery) Assumption of the risk may bar suit Unforeseeable misuse may bar suit

Answer 23

To succeed in establishing a implied assumption of risk defense, the defendant would need to demonstrate that the plaintiff voluntarily assumed a known risk. (case by case analysis)

Answer 24

A plaintiffs negligence may be used to reduce damages in a strict products liability in tort action

Answer 25

Misuse of a product is only a defense if the misuse is foreseeable.

Answer 26

Physical injury and property damage to user/consumer Pure economic loss not available Physical injury damages available Property damages available (harm to product itself not always considered property damage) Economic loss that flows from physical injury or property damages is available