Products Liability Flashcards
What are the elements of negligence under products liability?
Duty -> reasonable care owed to any foreseeable P by commercial manufacturer
Breach -> failure to exercise reasonable care in inspection/sale of product (defect would have been discovered if D was not negligent)
Causation -> factual & proximate
Damages -> actual injury/property damage, not pure economic loss
Defenses -> contributory/comparative negligence and A/R
What are the elements of strict liability for products liability?
Product was defective (in manufacture, design, or failure to warn)
Defect existed when it left D’s control
Defect caused P’s injury when the product was used in a reasonably foreseeable way or used in an unreasonable way that was still foreseeable
What is a defective product?
Res ipsa may apply
-> allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence.
Manufacturing defect -> product does not conform for D’s own specifications
Design defect
-> consumer expectation test - dangerous beyond expectation of ordinary consumer
-> Risk-utility test - benefits and reasonable alternative design (economically feasible) available; failure to use that design rendered product unreasonably unsafe
Failure-to-warn defect
-> (i) foreseeable risk of harm, (ii) not obvious to ordinary user of product, and (iii) risks could have been reduced or avoided with reasonable instructions or warnings
-> learned-intermediary rule - manufacturer of prescription drug or medical device typically satisfies duty to warn by warning prescribing physician of problems with the drug/device, UNLESS (i) manufacturer knows drug/device will be dispensed without personal intervention or evaluation of a healthcare provider, or (ii) in the case of birth control pills
Who must the plaintiff and defendants be in a strict products liability suit?
Plaintiff -> not required to be privity of contract, anyone foreseeably injured may recover
Defendant - must be in business of selling (includes manufacturer, distributor, and retail seller)
-> if D provides both products and services, generally liable if product is consumed, not if product is only used (hospital not generally liable as a distributor of defective implants)
-> casual sellers, auctioneers, P’s employer, and service providers generally not S/L
-> retail distributors of a prescription drug/device may be liable for own negligence, but only S/L for manufacturing defects
What are the damages under strict product liability?
Personally injury or property damage, pure economic loss must be brought under warranty action
“Market share” liability -> for fungible defective products produced by multiple manufacturers, jury can apportion damages based on manufacturer’s market share
What are the defenses to strict products liability?
Comparative fault -> P’s negligence reduces recovery as will A/R (majority)
Contributory negligence -> P’s negligence not a defense if P misused product in reasonably foreseeable way or negligently failed to discover defect
A/R -> complete bar to recovery in contributory-negligence jurisdictions; in most comparative-fault jurisdictions A/R only reduces recovery
Unforeseeable -> misuse, alteration, or modification by the user precludes (most contributory-negligence states) or reduces (most comparative-fault states) recovery
Compliance with governmental safety standards -> not conclusive evidence that product is not defective, but may be considered
State-of-the-art standard -> product conforms with level of scientific, technological, safety knowledge existing and reasonably feasible when product was distributed; compliance with state-of-the-art standard will only bar recovery in some states; n/a to manufacturing defect claims.
Statute of limitations -> begins to run against P with personal injury when P discovers, or should discover with reasonable care, his injury and its connection to the product
Unforeseeable intervening causes
What warranties exist under products liability?
Warranties against seller, manufacturer, and distributor of product
Implied warranties
-> merchantability - product is generally acceptable and reasonably fit for ordinary purpose
-> fitness - product fit for particular purpose; seller must know purpose and buyer must rely on seller’s skill or judgment in supplying product
There are privity requirements for implied warranties
-> alternative A (majority) - allows a member of the buyer’s family/household to recover for personal injury (not property damage or pure economic loss)
-> alternative B - anyone reasonably expected to use, consume, or be affected by the product may recover for personal injury only
-> alternative C - alternative B + recovery for property damage and economic loss
Damages -> personal injury/ property damage; pure economic loss
Express warranties
-> affirmation of fact or a promisee about product, part of the basis of bargain
-> seller liable for any breach of express warranty, regardless of fault
What are the defenses to the warranties under products liability?
Disclaimers
-> consumer goods - limitation of consequential damages for persona injury is unconscionable
-> express warranties - valid only if consistent with warranty (usually not)
Comparative fault and A/R - same as in S/L claims
Contributory negligence - not a bar except when it overlaps with A/R
Misuse - prevents recovery under the implied warranty of merchantability when product is warranted to be fit for ordinary purposes (majority)
Claim generally fails if P fails to provide seller with notice of breach of warranty within the statutorily required time period or a “reasonable period of time”
