Products Liability

Question 1

What is the manufacturer’s liability in negligence?

Answer 1

Manufacturers are liable for the finished product, even if they didn’t make all of the parts. They have a duty to inspect the product.

Question 2

Who can be liable in the chain of commerce?

Answer 2

Everyone in the chain of commerce can be liable. No privity of contract since the final consumer is the foreseeable user.

Question 3

What constitutes a breach of express warranty?

Answer 3

Seller is liable for breach of express warranty if:
1. Seller made a representation of a material fact.
2. Fact regarded product’s quality, performance, construction, or durability.
3. Before or at the point of sale.
4. Consumer relied on the fact
5. The falsity of the fact proximately caused injury

Question 4

What is a breach of implied warranty?

Answer 4

When a manufacturer introduces a product into the stream of commerce, there is an implied warning that the product is reasonably safe for intended use.

Question 5

What is strict products liability?

Answer 5

If you sell or distribute a defective product, you are liable for injuries without intent or lack of reasonable care.

Question 6

What are the elements of a manufacturing defect?

Answer 6

1. D manufactured and sold a product which was defective at the time of sale.
2. Product was expected to and did reach the user without substantial change.
3. Defective condition proximately caused harm.

Question 7

What test is used to determine whether a design is defective?

Answer 7

Risk-utility analysis

Question 8

What are the factors of the risk-utility analysis test?

Answer 8

Risk Utility Analysis - RAW SLAM:
R: Reasonable alternative design
A: Ability to eliminate risk without reducing utility
W: Worth/Utility
S: Severity and likelihood of injury
L: Learned ability to avoid injury
A: Anticipated awareness of risk by the user
M: Money and insurance.

Question 9

What constitutes a failure to adequately warn?

Answer 9

Product fails to warn of foreseeable risks of harm that could have been reduced or avoided through a warning.

Question 10

What are the elements of failure to adequately warn?

Answer 10

1. Warn average users about risks of harm.
2. Warn users about the severity of the harm (death).
3. Formatted and positioned for the average user to notice and understand.

Question 11

What is the analysis for failure to adequately warn?

Answer 11

1. Is the danger foreseeable?
2. If it is obvious, no duty to warn (jury question).
3. Was the warning adequate?
4. Was it there?
5. Was it obscured?
6. Was it emphasized?

Question 12

Does a manufacturer have to warn of obvious inherent dangers?

Answer 12

No. There is no duty to warn that fire is hot or guns shoot bullets

Question 13

What is the Good Burbon Rule?

Answer 13

A product is not defective if the danger it poses is why the product is used (guns, butter, booze, cigarettes)

Question 14

What is the state of the art defense?

Answer 14

If industry customs and scientists know of the risk, it is foreseeable. If they don’t, the risk is unknown to anyone.

Question 15

What is the significance of design improvement?

Answer 15

The fact that the design was improved is NOT evidence that the design was defective. This rule would disincentivize manufacturers to improve safety.

Question 16

What can circumstantial evidence indicate?

Answer 16

Circumstantial evidence can be used (safe products of this nature don’t regularly maim people).

Question 17

What does violation of a statute indicate?

Answer 17

Violation of a statute is evidence that a product is defective.

Question 18

What is a defense against product liability?

Answer 18

If P misuses a product in a way that the manufacturer could not foresee, they cannot recover.

Question 19

What happens if P uses a product recklessly?

Answer 19

If P doesn’t misuse a product but uses it recklessly, they may still recover under a comparative negligence standard.

Question 20

Are sellers of secondhand goods liable?

Answer 20

Sellers of secondhand goods are not liable because liability does not make the chain of manufacturing safer.

Question 21

Are hospitals liable for defective products?

Answer 21

Hospitals are not sellers of the products used in providing medical care. Unless the hospital negligently uses Temu pacemakers, they are not liable if the pacemaker is defective.

Question 22

Do drug manufacturers have a duty to warn people in doctor’s offices?

Answer 22

No. A manufacturer is not liable if they pass the warnings onto a learned intermediary (doctor)