Products Liability

Question 1

What is the general definition of product liability?

Answer 1

Product liability refers to the legal responsibility of manufacturers, distributors, suppliers, or retailers for injuries or damages caused by defective or dangerous products.

Question 2

Under what circumstances does product liability apply?

Answer 2

When a product causes harm to consumers or others, product liability attaches when a product is found to be:
(1) defectively designed,
(2) defectively manufactured, or
(3) lacks adequate warnings.

Question 3

When is a seller liable for breach of express warranty?

Answer 3

Seller:
(1) made a representation to the buyer of a material fact;
(2) concerning the product’s quality, performance, construction, or durability
(3) preceding or accompanying the sale.

Question 4

What is an implied warranty?

Answer 4

Implicit representation that product was:
(1) safe for the general purpose for which the product is used;
(2) all products have an implied warranty that they are reasonably suitable for use

Question 5

What is an Implied Warranty of Merchantability?

Answer 5

A representation that the product is (1) within the ordinary description of like goods and (2) is fit and may be safely used for its intended purpose.

Question 6

What is an Implied Warranty of Fitness?

Answer 6

Representation that a product is suitable for a particular purpose and (1) the buyer relies on the seller’s skill and judgment to select or furnish suitable good and (2) the seller had reason to know the buyer’s purpose and that the buyer was relying on the seller’s skill or judgment.

Question 7

What are the elements of a strict liability claim relating to products?

Answer 7

(1) The product was defective (and unreasonably dangerous)
(2) the product defect was the factual and proximate cause of the harm
(3) The product was defective when it left the defendant’s possession and control.

Question 8

What is a manufacturing defect for purposes of strict product liability?

Answer 8

(1) Defendant manufactured and sold a product which at the time it was sold was in a defective condition unreasonably dangerous to the consumer
(2) The product was expected to and did reach the ultimate consumer without substantial change in the condition it was in at the time it was sold
(3) Defective condition proximately caused harm

Question 9

What is a design defect for purposes of strict liability?

Answer 9

When the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distribution or a predecessor in the commercial chain of distribution and the omission of the alternative design renders the product not reasonably safe.

Question 10

What is a warning defect for purposes of strict liability?

Answer 10

Inadequate instructions or warnings when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller/manufacturer and the omission of the instructions/warnings renders the product not reasonably safe.

Question 11

What is the Risk-Utility Test?

Answer 11

SIRLOAF:
S-Seriousness and likelihood of injury
I-Insurance Feasibility
R-Reasonable Alternate Design
L-Loss of Utility
O-Obvious Dangers
A-Avoidability by User
F-Functionality & Usefulness

Question 12

S in SIRLOAF

Answer 12

Seriousness and Likelihood of Injury:
Likelihood of harm and the probable severity of injury

Question 13

I in SIRLOAF

Answer 13

Insurance Feasibility: Feasibility for the manufacturer to carry liability insurance

Question 14

R in SIRLOAF

Answer 14

Reasonable Alternate Design: Availability of a safer, reasonable alternative design

Question 15

L in SIRLOAF

Answer 15

Loss of Utility: Ability to eliminate the unsafe aspect without degrading utility

Question 16

O in SIRLOAF

Answer 16

Obvious Dangers: User’s anticipated awareness of inherent dangers, warnings, or public knowledge

Question 17

A in SIRLOAF

Answer 17

Avoidability of User: User’s ability to avoid danger through reasonable care.

Question 18

F in SIRLOAF

Answer 18

Functionality and Usefulness: Usefulness and desirability of the product to the public or specific user.

Question 19

Warnings must do what three things?

Answer 19

(1) Inform average users about any risks of harm with using the product in a reasonably foreseeable manner
(2) Inform foreseeable users of the existence, nature & scope of the risk with foreseeable use
(3) Be formatted and positioned so that the average product user will likely pay attention to the warning & understand it.

Question 20

What does State of the Art mean in products liability?

Answer 20

Evidence that shows the risks were unknown or knowable by the application of scientific knowledge available at the time of manufacture.

Question 21

Does the manufacturer have a duty to warn about obvious dangers?

Answer 21

No. No duty exists to warn about obvious and generally known risks. (Lighters have risk of causing fires).

Question 22

What is the Good Bourbon Rule?

Answer 22

Just because a product’s inherent characteristics make it dangerous does not mean it are unreasonably dangerous (Whiskey, butter & cigarettes)

Question 23

What is the Learned Intermediary Rule?

Answer 23

Providing warnings and instructions to a learned intermediary (especially anyone with prescribing authority) is sufficient between the manufacturer and the ultimate consumer; need not be provided directly to the consumer.

Question 24

Is there a duty to warn a sophisticated user?

Answer 24

No, because we presume sophisticated users have the requisite knowledge and skill to use a particular product.

Question 25

Is there a duty to warn about allergies?

Answer 25

Yes. Federal regulations and courts impose a duty to warn when a substantial number of people are allergic to a product.

Question 26

Are used goods subject to strict liability claims?

Answer 26

No–only new products are subject to strict liability (maybe regular negligence?)

Question 27

What are the common defenses for strict products liability?

Answer 27

(1) Comparative Fault
(2) Assumption of Risk
(3) Abnormal Handling

Question 28

Are manufacturers strictly liable when a product is subject to abnormal handling?

Answer 28

Generally, no. A product is not defective when it is safe for normal handling and consumption if the injury results from abnormal handling and the seller is not liable.

Question 29

Does an unintended use have to be reasonably foreseeable by the manufacturer?

Answer 29

Yes. A manufacturer is not liable for injuries resulting from abnormal or unintended use if such use was not “reasonably foreseeable.” Common practice is important.