Products Liability

Question 1

What is Products Liability?

Answer 1

Refers to the liability that arises from harm caused by a commercial product

Question 2

Does products liability apply to sales or services? Hybrid cases?

Answer 2

1. PLD only applies to defective goods, not services
2. Hybrid cases: involving goods and services: If service, then negligence law applies. If product, can use all product liability theories

Question 3

What are Duties of Manufacturers?

Answer 3

1. Duty to care to users beyond immediate purchasers
2. Duty to inspect
3. Foreseeable Dangers
4. Products likely to be used by Third Parties
5. Manufacturers responsibility for finished products
6. Rejection of Privity Rule

Question 4

How can claims against sellers of used products be brought?

Answer 4

Can be brought under negligence or express warranty, but NOT under Strict Liability

-Injured party can sue the original seller under SL

Question 5

What does the Injured Party need to show to prove Strict Liability under Products liability against the original seller?

Answer 5

Plaintiff must be able to show that the injury causing defect was present when the product was originally sold

Question 6

What is a Warranty?

Answer 6

Warranties are promises made by a Seller or Manufacturer regarding the condition, quality, or functionality of a product

Question 7

What are Manufacturers responsible for under Express Warranties?

Answer 7

Manufacturers are responsible for the accuracy of their representations about their products, even if they were made indirectly

Question 8

What are Implied Warranties of Merchantability for Manufacturers?

Answer 8

Ensures product is fit for their own ordinary use, even if manufacturer/seller didn’t explicitly state it in the contract

Question 9

What are Void Clauses?

Answer 9

Any contractual clauses that attempt to limit or exercise the warranty are void if they violate public policy

Question 10

Is Notice required by the Buyer to the Seller under Warranty?

Answer 10

YES: it is required so that the seller can potentially fix the problem on their products BUT
Not required in tort claims: The notice requirement does not apply to strict liability claims, where liability is based on product defects rather than breach of warranty

By putting a product on the market, then one is implying a warranty that the product will safely do the job in which it was built

Question 11

Are Defendants Other Than Manufacturers Liable ?

Answer 11

Yes, Anyone engaged in the business of selling or otherwise distributing products can be held liable in cause of action for products liability

Question 12

Which Defendants Other Than Manufacturers are the Exceptions under Liability? (2)

Answer 12

1. Dealers of Used Products
2. Service Providers

Question 13

When are Dealers of Used Products not liable under Strict Liability?

Answer 13

Retailers that are outside the original producing and marketing chain of the product

Question 14

When are Service Providers considered Strictly Liable?

Answer 14

For injuries caused by unreasonably dangerous defective product ONLY if Defendant is engaged in the business in selling the product

Question 15

Who has the burden of proving liability under Defendants Other than Manufacturers?

Answer 15

The Plaintiff has the burden of proof

Question 16

What must Plaintiff’s demonstrate for Defendants other than Manufacturers? (2)

Answer 16

1. The Non-Manufacturer played a role in causing the defect OR
2. The Seller had a duty to inspect and failed to do so

Question 17

What are the Three Product Defects?

Answer 17

1. Manufacturing Defects
2. Design Defects
3. Warning Defects

Question 18

What is a Manufacturing Defect?

Answer 18

When one product in the line is defective (not all of them), Strict Liability applies

Question 19

What Must Plaintiff’s Prove under Manufacturing Defects? (3)

Answer 19

1. Product did not conform to the Manufacturers Design
2. The defect existed at the time of the purchase
3. The defect originated during the manufacturing process

Question 20

What if there is absence of showing a specific flaw in Manufacturing Defect, can Plaintiff still recover? (2)

Answer 20

YES: if Plaintiff can show
1. Circumstantial Evidence that product didn’t perform as intended AND
2. Excluding all other causes for products failure that aren’t linked to Defendant (which means it could have been them)

Question 21

What are the Two Tests under the Icky Food Cases?

Answer 21

1. Consumer Expectation Test
2. Foreign v. Natural Test

Question 22

What is the Consumer Expectation Test? (MAJORITY)

Answer 22

Is the object one that the biter-into would reasonably expect?

Question 23

What is the Foreign Natural Test?

Answer 23

Is the object naturally part of the food? If YES, then NO liability

Question 24

What can establish liability if other possible causes are ruled out under an Icky Food Test?

Answer 24

Circumstance evidence can still establish liability and the evidence is sufficient

Question 25

What is a Design Defect?

Answer 25

All the products in the product line are the same and they are ALL defective

Question 26

What does Plaintiff have to prove in a Design Defect case?

Answer 26

That the overall design of the product is defective, making the product more inherently dangerous

Question 27

What are the Two Tests under Design Defect cases?

Answer 27

1. Risk-Utility Test 2. Consumer Expectation Test

Question 28

What is the Risk Utility Test under Design Defect? (MAJORITY)

Answer 28

Balances the benefits of the design against the inherent risks of the design

Question 29

What would Plaintiff need to show in order to recover under a Design Defect case? (2)

Answer 29

1. Alternative design would have prevented/reduced risk without impairing utility AND 2. Safer alternative was technologically and economically feasible

Question 30

What are Factors to consider under the Risk Utility Approach for Design Defect? (7)

Answer 30

1. Usefulness and desirability of the product 2. Likelihood of serious injury 3. Seriousness of potential injury 4. Availability of a substitute 5. Manufacturers ability to eliminate the risk without impairing usefulness 6. Users ability to avoid danger by exercising reasonable care 7. Users awareness of the dangers because of generally accepted public knowledge about the product

Question 31

What is the Consumer Expectation Test under Design Defects?

Answer 31

A product is defective if it is dangerous to an extent beyond what a reasonable consumer would expect

Question 32

What do courts look to under Products Misuse in a Design Defect case? (3)

Answer 32

1. Whether the misuse was foreseeable 2. Whether risks (misuse) outweigh benefits 3. The Foreseeable misuse cannot be guarded against

Question 33

What is a Warning Defect?

Answer 33

Product is defective because of inadequate instructions or warnings when harm could’ve been reduced or avoided by the provisions

Question 34

When does a Duty to Warn Arise under Warning Defects? (3)

Answer 34

1. Defendant has actual or constructive knowledge of the danger (knowable risks) 2. Defendant has no reason to believe that consumers would know of the danger 3. Defendant doesn’t exercise reasonable care to warn

Question 35

Manufacturer has NO DUTY to warn of material risk associated with the use of a product if the risk: (3)

Answer 35

1. Is obvious, or should be obvious to a reasonably product user 2. Is or should be a matter of common knowledge to a person in the same or similar position as the person whose injury or death the claim is based 3. Comparative negligence applies: if consumer doesn’t read the warning, or fails to head the warning properly

Question 36

What is Misuse under Warning Defects?

Answer 36

Defendant must warn of dangers presented not only by intended use, but also reasonably foreseeable misuse (considering marketing of the product)

Question 37

What is the Learned Intermediary Rule under Prescription Drugs? (2)

Answer 37

Learned Intermediary Rule: Exempts drug manufacturers from liability for failing to warn about risks the product creates when: 1. The physician (learned intermediary) is responsible for warning the patient 2. The physician is in the best position to tailor warnings to individuals patients

Question 38

Post Sale Duty to Warn: Warning Defects A Reasonable person in the sellers position would provide a warning after the time of sale if: (4)

Answer 38

1. The seller knows or reasonably should know that product poses a substantial risk of harm to persons or property 2. Those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm 3. A warning can be effectively communicated to and acted on by those to whom a warning might be provided 4. The risk of harm is sufficiently great to justify the burden of providing a warning