Products Liability Flashcards
What are the three theories of product liability?
negligence
warranty
strict products liability
What is an express warranty?
a seller is liable for a breach of express warranty if
(1) seller made a misrepresentation to the buyer of a material fact
(2) with respect to the product’s quality, performance, construction, or durability
(3) preceding or accompanying sale
What is implied warranty of merchantability?
in every sale of a product by a merchant there is an implied warranty that the product is fit for its intentional use
What is implied warranty of fitness for a particular purpose?
a buyer who relies on the knowledge/insight of a professional seller has an implied warranty that the seller will provide them with something adequately suits what they are looking for
What are the 3 kinds of strict products liability?
manufacture
design
warning
What is a manufacturing defect?
departure from the intended design even using reasonable care
(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
What is a design defect?
improper design that makes product unreasonably safe
What is the risk utility test (design defects)?
SUSCROI
(1) safety aspects of the product
(2) utility - usefulness to the public as the whole
(3) availability of a substitute product that would meet the same need and not be as unsafe
(4) use of reasonable care in the use of the product (not being stupid)
(5) reasonable alternative design - manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility
(6) obviousness of the danger’s inherent in the product
(7) insurance - manufacturer’s ability to spread the loss by setting the price of the product or by carrying liability insurance
What is the consumer expectation test?
a product is defective if it fails to satisfy this expectation of a reasonable consumer
the safety of the product is assessed not only by the intended use but also in a reasonably foreseeable way
What is a failure to warn?
defendant did not adequately warn of a particular risk that was known or knowable in light of prevailing best scientific and medical knowledge available at the time of manufacture and distribution
defendant can present state of the art - evidence of the state of the art that shows risks were not known or knowable at time of manufacture
no duty to warn of obvious dangers
What is the good bourbon rule?
just because a product’s inherent characteristics make them dangerous does not mean they are unreasonably dangerous (whiskey, butter, cigarettes)
What about failure to warn and allergies?
federal regulations require courts to impose duty to warn when a substantial number are allergic
What about failure to warn and sophisticated users?
no duty to warn sophisticated users because we presume they have the requisite knowledge and skill to use a particular product
What about failure to warn and the learned intermediary rule?
majority rule
warnings and instructions provided to a learned intermediary (especially anyone with prescribing authority) between the manufacturer and ultimate consumer
typically doctor/patient context, can be applied outside but need a person to best understand the patients’ needs and asses the risks and benefits of a particular course of treatment
What about presumption that the warning will be read and heeded?
the defendant is entitled to a presumption that the user would have read and heeded an adequate warning if one had been provided
presumption can be rebutted if the defendant can show plaintiff did not read or would not have heeded instructions
