Products Liability

Question 2

How do you know you’re doing a product liability question?

Answer 2

There’s an issue with a product. Lol. And you want to sue the person who made it.

Question 3

Under product liability, is it always strict liability?

Answer 3

No, can be negligence or warranty breach.

Eg, if someone in chain of manufacturing didn’t do something they were supposed to do (ie, they did not exercise reasonable care or “breached duty of care”), then this is not SL, this is negligence.

Question 4

When is products liability strictly liable?

Answer 4

A strict liability claim under products liability requires the plaintiff to show:

1. The product was defective in manufacture, design, or failure to warn;
2. The defect existed when the product left the defendant’s control; AND
3. The defect caused the plaintiff’s injury when the product was used in a foreseeable way.

Question 5

What is company makes some sort of promise or guarantee along with a product and it does not?

Answer 5

This is a warranty. And the hypo is a “breach of warranty” question.

While there is “implied warranties”, MBE questions will usually TELL YOU about the warranty, otherwise would be too vague.

Question 6

What are three types of product liability?

Answer 6

Strict
Negligent
Breach of warranty

Question 7

What if you get a lemon: the product just doesn’t work or the product broke due to no fault of your own?

Answer 7

Product is defective.

Question 8

What does product defect look like?

Answer 8

Left factory defective, or someone in the chain messed up the product, and then it made its way to someone in the business of selling, then sold to a foreseeable user, then the user used it in manner intended to be used:

STRICT PRODUCT LIABILITY for defective products

Question 9

How will you know products defective in fact pattern?

Answer 9

2 ways:

1. sometimes they’ll tell you
2. sometimes they’ll show someone who gets a product and it just doesn’t work or just breaks and no indication it was user’s fault bc using in manner normally used for (so sort of implied here, but pretty straightforward still)

Question 10

If I buy a car and then my friends use the car, can they sue car maker for defective product?

Answer 10

Yes.

Question 11

If someone stole my car, can they sue car maker for defective product?

Answer 11

NO. not a foreseeable user.

Question 12

A defect in manufacture requires the plaintiff to show that the product…

Answer 12

1. Deviated from its intended design; AND
2. Fails to conform to the manufacturer’s own design.

Question 13

What if I make a thousand phone calls in one day, is that a foreseeable use of phone?

Answer 13

Yes. using it for what it’s supposed to be used for.

Question 14

What if I use phone to pry something open?

Answer 14

No, not using it in manner intended.

Question 15

There are two tests for a defect in design…

Answer 15

Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
Under the risk-utility test, the plaintiff must show that the product’s risks
outweigh its benefits AND that there is a reasonable alternative design.

Question 16

A failure to warn defect requires the plaintiff to show…

Answer 16

1. The plaintiff was NOT warned of the risks regarding the use of the product;
2. The risks are NOT obvious to an ordinary user; AND
3. The designer/manufacturer was in fact aware of such risks.

Question 17

What liability is owed for failure to warn?

Answer 17

Strict liability.

Question 18

What is the scope of products liability?

Answer 18

Plaintiffs. Any person foreseeably injured by a defective product (e.g., purchasers, other users, bystanders, etc.) may pursue a products liability claim.

Defendants. A strict liability claim under products liability may ONLY be brought against a merchant (i.e., a person or entity who routinely deals in goods of the type) who is in the chain of distribution (e.g., manufacturer ⇨ wholesaler ⇨ retailer).

Question 19

Mostly they will say strict product liability, how else might they phrase it?

Answer 19

“Strict liability in tort” is usually strict product liability.

However, if talking about abnormally dangerous situation, they may also phrase is as “strict liability in tort.”

Question 20

What defenses do companies have for strict product liability?

Answer 20

Assumption of risk.

P used it in unintended manner.

Question 21

MBE TipSome answers will be about product strict liability, and one answer will say “John wins” and the other one will say “John wins because the company failed to exercise reasonable care.”

Which one is correct?

Answer 21

“John wins.” because defective products deal with SL; “reasonable care” is duty owed in negligence and has NOTHING to do with products liability unless facts indicate otherwise.

Question 22

If toy company licenses from engineer and sells to little girl, and design defect caused by engineer’s design harms little girl, can little girl recover from toy company (who had no knowledge of design defect)?

Answer 22

Yes. Under strict liability, the toy company could be liable as long as the product was dangerously defective when it left the toy company’s control, the toy company was in the business of selling the product, and the product didn’t substantially change between the toy company and the girl.
The toy company can then seek indemnity from engineer.

Note, however, that for negligence, toy company would not be held liable…only liable for their own negligence.

Question 23

What if a food product contains a harmful ingredient?

Answer 23

The presence of a harmful ingredient is generally considered a manufacturing defect “if a reasonable consumer would not expect the food product to contain that ingredient.”

Question 24

So if product contains harmful ingredient, is producer strictly liable?

Answer 24

Yes. SL whenever “the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product . . . .”

Question 25

In addition to design defect, is there any other theory of liability for products with defects/harmful ingredients?

Answer 25

Could also rely on the implied warranty of merchantability to establish the U.S. companies’ liability.

Article 2 of the Uniform Commercial Code. See UCC §§ 2-102, 2-105(1). The producers are “merchant(s)” with respect to those goods (see UCC § 2-104(1)), so the contract of sale included an implied warranty of merchantability.

To be merchantable, goods must be “fit for the ordinary purposes for which such goods are used.”

Question 26

What if failed to be merchantable before the merchants came into possession of it?

Answer 26

Merchants may not rely on the fact that the contamination took place before the product came into their hands to evade liability. In a warranty action, the only issue is whether the herbal tea was merchantable. How it came to be unmerchantable is irrelevant.

Question 27

What doctrines are available to a P when P can not directly meet the causation requirement?

Answer 27

1. Market sahre liability
2. alternative liability
3. joint venture/enterprise liability

Question 28

What is market share liability?

Answer 28

“market share” liability doctrine permits the jury to apportion damages based on the market shares of manufacturers of a defective product. But virtually all courts have held that this doctrine is available only if the manufacturers’ defective products are basically interchangeable in relation to their capacity to cause harm.

eg, in defective tea MEE, the contamination varied across different teas, so could not use this theory to show causation because not idential/interchangeable.

Question 29

What is alternative liability theory?

Answer 29

“alternative liability” doctrine permits a jury to find two defendants liable when each was negligent and either could have caused the plaintiff’s injuries.

Question 30

What is joint venture/enterprise doctrine?

Answer 30

“joint venture” or “joint enterprise” doctrine allows the jury to impute one defendant’s tortious conduct to other defendants who are engaged in a common project or enterprise and who have made an explicit or implied agreement to engage in tortious conduct.

Question 31

If store sold a defective product, are they strictly liable?

Answer 31

Yes, Strict products liability applies to all commercial sellers; even a retailer who had no control over the design and manufacture of a product may be found strictly liable if that retailer sells a defective product.

Note: could also recover on an implied warranty theory

Question 32

What if dentist is exercising reasonably due care on procedure, but uses a defective product? Are they liable for strict liability?
Liable for malpractice?

Answer 32

No, because product never left dentist’s control and was not engaged in business of selling the product.

No, because exercised due care. So not responsible at all for the use of the defective product bc exercised due care and not selling product (never left control).

Question 33

Is a company liable if their product is defective if it fails to include a feasible safety device that would prevent injuries foreseeably incurred in ordinary use?

Answer 33

Yes. A plaintiff can prove that a product’s design is defective by pointing out a reasonable alternative design that offers a better balance of costs and benefits. Usually this better balance means that the alternative design is safer without being significantly more expensive or less useful than the design the defendant used.

Question 34

If a product is unreasonably dangerous and the company warns the consumer about the dangers, can they escape liability for harms caused by their products?

Answer 34

No, if a product is unreasonably dangerous, its maker is not saved from liability either by a warning or by the consumer’s free choice in selecting the product — a manufacturer is obliged to take all reasonable, cost-effective steps to make the product safe.