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
Can res ipsa apply?
Allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence.
What are the three ways a product is defective?
Manufacturing defect
Design defect
Failure to warn defect
What is a manufacturing defect
Manufacturing defect
-> product does not conform to D’s own specifications
What is a design defect? What are the two tests used?
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
What is a failure-to-warn defect?
Failure-to-warn defect
-> foreseeable risk of harm,
-> not obvious to ordinary user of product,
AND
-> risks could have been reduced or avoided with reasonable instructions or warnings
What is the 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
-> manufacturer knows drug/device will be dispensed without personal intervention or evaluation of a healthcare provider,
OR
-> in the case of birth control pills
Who must the plaintiff and defendants be in a strict products liability suit?
What if the D is in the business of selling both the product and services?
Generally group of Ds not S/L?
What about retail distributor of a prescription drug/device?
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, (e.g. restaurant liable for food) not if product is only used
-> hospital not generally liable as a distributor of defective implants
Generally not S/L
-> casual sellers,
-> auctioneers,
-> P’s employer,
AND
-> service providers generally not S/L
Retail distributor of a prescription drug/device
-> S/L for manufacturing defects
OR
-> harm that arose due to failure to exercise reasonable care
What are the damages under strict product liability?
Can you recover pure economic loss?
What is “market share” liability?
Types of damages
-> personal 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
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
Unforeseeable intervening causes
Is compliance with governmental safety standards conclusive evidence the product is not defective?
Compliance with governmental safety standards
-> not conclusive evidence that product is not defective, but may be considered
What is the state-of-the art standards?
Is it accepted in all states?
What types of defective claims is it not allowed in?
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.
When is the statute of limitations start counting down with regards to a defective product?
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
Who are the warranties against with regards to products?
What are the two types of implied warranties?
What is an express warranty?
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
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 three privity alternatives for being able to sue under an implied warranty (aka standing under an implied warranty)?
-> aka majority view
-> aka minority view
-> aka minority view extended
There are privity requirements for implied warranties
Alternative A (majority)
-> allows a member of the buyer’s family/household to recover for personal injury
-> CAN NOT recover for property damage or pure economic loss
Alternative B (minority)
-> anyone reasonably expected to use, consume, or be affected by the product may recover for personal injury only
Alternative C (minority)
-> alternative B + recovery for property damage and economic loss
Damages
-> personal injury/ property damage; pure economic loss
What damages can be recovered through breach of implied warranty?
Damages
-> personal injury
-> property damage
-> pure economic loss (ONLY UNDER WARRANTIES NOT STRICT PRODUCTS LIABILITY)
Are disclaimers on consumer goods and express warranties allowed?
Are comparative fault and contributory negligence defenses under breaches of warranties?
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
Under which warranty does misuse bar recovery for?
Misuse - prevents recovery under the implied warranty of merchantability when product is warranted to be fit for ordinary purposes (majority)
How does the statute of limitations impact claims related to breaches of warranties?
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”
When is a person liable for malpractice?
When they deviate from the professional standard of care of their profession.
Under a product’s liability suit based on negligence, what does the P need to prove?
When will an intervening cause or event that contributed to P’s harm not cutoff D’s liability?
P needs to prove that D’s failure to use reasonable care caused P’s harm.
Act or event was reasonable foreseeable
-> includes a negligent intervening cause
