Products Liability

Question 1

product liability theories

Answer 1

PL refers to the liability of a defendant supplier of a defective product to a plaintiff injured by the product.

There are 5 theories of liability that a plaintiff may use:

• intent
• Negligence
• implied warranties of merchantability and fitness for a particular purpose
• representation theories (express warranties and misrepresentation)
• strict liability

Question 2

Exam tip #1
Product liability

Answer 2

If the question does not indicate what theory of liability the plaintiff is using, apply a strict liability theory, because that is the easiest to prove

Question 3

Elements for strict liability

Answer 3

to find liability under a strict liability theory, the plaintiff must show:

• defendant is a merchant (e.g., commercial supplier of the product)
• product is defective
• product was not substantially altered since leaving the defendant’s control
• plaintiff was making a foreseeable use of the product at the time of the injury

Question 4

only merchants/commercial suppliers can be held liable

Answer 4

any commercial supplier can be held liable

• casual sellers will not be held SL
• doesn’t extend to services (even when product is provided incident to a service… e.g., blood during an operation)
• includes commercial lessors (car rental, tool rental, etc.)
• commercial suppliers include manufacturers, wholesalers, and retailers (privity is not required – users, consumers, and bystanders can sue)

Question 5

Exam tip #2
product liability

Answer 5

• in almost all product liability actions, the fact that there was no contractual privity between the plaintiff and defendant will not prevent plaintiff from recovering
• Nevertheless, it is still a favorite wrong choice in product liability exam questions based on negligence or strict liability theories.
• remember, any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution, regardless of the absence of a contractual relationship between them

Question 6

What is a manufacturing defect?

Answer 6

A product has a MD if it rolls off the assembly line DIFFERENT FROM and MORE DANGEROUS than properly made products.

Question 7

manufacturing defect example

Answer 7

A chair is designed to have 8 bolts

One chair comes off the assembly line with only 3 bolts

That chair has a manufacturing defect

Question 8

design defects

Answer 8

When all products of a line are the same, but have dangerous propensities, they may be found to have a design defect.

Manufacturers will not be held liable for some dangerous products if the danger is apparent AND there is no safer way to make the product (knives, chainsaw, etc)

Question 9

Design defects example

Answer 9

D manufactures a stuffed bear with buttons on its chest that are a choking hazard for small children.

P can win a strict liability claim by showing that safer embroidered buttons are a feasible alternative design.

Question 10

explain the relevance of government safety standards for product liability claims

Answer 10

A product’s noncompliance with government safety standards establishes that the product is defective.

However, compliance with safety standards, including labeling requirements is evidence, but NOT CONCLUSIVE that the product is NOT defective.

Question 11

information defects

Answer 11

A product may be defective as a result of the manufacturers’ failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users.

For prescription drugs, and medical devices, warnings given to “learned intermediaries“ (for example, the prescribing physician) will usually suffice in place of warnings to the patient.

Question 12

existence of defect when product left defendants control

Answer 12

The plaintiff must show that the product has not been significantly altered since it left D’s control.

If the product moved through normal channels of distribution, it will be inferred that the product was not altered, and that the defect existed when the product left D’s control.

Question 13

misuse of product may be foreseeable

Answer 13

The plaintiff must’ve been making a foreseeable use of the product at the time of the injury.

A defendant will not be held liable for danger not foreseeable at the time of marketing.

Question 14

exam tip
foreseeable use
product liability

Answer 14

remember a foreseeable use does not mean an intended or an appropriate use

Many products are commonly used in ways that could be considered foreseeable

E.g., A chair is meant for sitting, but people frequently use chairs as stepladders

Question 15

nature of damages recoverable

Answer 15

physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Question 16

disclaimers ineffective

Answer 16

Disclaimers are irrelevant IN strict liability cases IF personal injury or property damages occur.

Question 17

Discuss a valid defense for a Defendant-Manufacturer in a strict products liability action.

Answer 17

The Defendant-Manufacturer has a defense if the RETAILER (wholesaler, distributor, basically any other intermediary) discovered the defect during the course of an inspection but failed to warn the buyer.

The manufacturer can argue that the RETAILER’S FAILURE TO TAKE ACTION after discovering a defect was not foreseeable and thus severs the manufacturer’s liability for the defect.

Question 18

Identify the elements of STRICT PRODUCTS LIABILITY.

Hint: D.P.3.

Answer 18

• D is a merchant/commercial supplier
• Product is DEFECTIVE
• Product NOT substantially altered since leaving D’s control
• P was making foreseeable use of product at time of injury

Question 19

What must P show to make D liable for a manufacturing defect?

Answer 19

• P must show that the product failed to perform as safely as an ordinary consumer would expect
• D must anticipate reasonable misuse
• also applies to defective food products

Question 20

What must the plaintiff show to trigger liability for a design defect?

Answer 20

The plaintiff usually must show that the defendant could have made the product safer without serious impact on the product’s utility or price.

Question 21

Describe the feasible alternative approach

Answer 21

feasible alternative approach comes up when the plaintiff is arguing strict products liability based on a design defect

The plaintiff usually must prove a FEASIBLE ALTERNATIVE: that the defendant could have made the product safer without serious impact on the product’s utility or price

example: embroidered buttons versus plastic buttons on a stuffed teddy bear marketed to toddlers