Products Liability Flashcards
Proper Plaintiff in Strict Products Liability
Any Consumer, User, or Bystander who suffers injury
Focus of Strict Product Liability in Tort
Focus on the Condition of the Product Put in the Market
Proper Defendant in Strict Product Liability
Anyone in the marketing Chain and in the business of dealing with the product.
Does not include - occasional sellers
Retailers and commercial lessors in Strict Product Liability
Subject to SL for defects in new goods that they sell or lease.
There is a split whether a retailer of used goods is subject to strict liability for defects in those goods.
Occasional or one time sellers and Strict Liability
Not proper D’s for SL
not in a position to further the goals of SL - safer products and cost spreading.
Proper context for strict liability
There needs to be a product.
Where there is a provision of both product and services, whether SL applies is determined by what is the predominant purpose.
Where product predominates, provider of service may be determined to be in the marketing chain and is a proper defendant. If service predominates, provider can be sued in negligence but is not a proper D for Strict Product liability.
Types of Defects
Product is in a defective condition unreasonably dangerous.
- Manufacturing Defects
- Design Defects
- Warning Defects
manufacturing defects
manufactured in a manner other than intended.
P must show that defect existed when product left D’s control and it was in a condition not intended by the manufacturer or unreasonably dangerous.
Design Defect
manufactured as intended but presents a danger
3 tests will decide whether defect will invoke strict liability
- Consumer Expectation Test
- Risk-Utility Balancing Test
- Hindsight-Negligence Test
Consumer Expectation Test
A product is unreasonably dangerous defective condition when
more dangerous than is contemplated by
the ordinary consumer purchasing it.
If a foreseeable purchaser would not have expected it to present the danger resulting in injury
Risk-Utility Balancing Test
Where the threat of injury and property damage
outweigh its social utility
focus on the time the product was introduced into the market.
Test balances the likelihood, nature, and severity of the injuries
against the usefulness of the product
considering the availability and cost of safer alternative designs
Hindsight-Negligence Test
A product is defective if a reasonable person, knowing the danger it presented, would not have placed it in the stream of commerce.
Imposes constructive knowledge on the part of D, whether or not he had actual knowledge, or reasonably could have known it.
Defective Warnings
A product is dangerously defective not accompanied by adequate warnings.
A defective warning is present if it fails to
- sufficiently describe the danger,
- fails to mention all of the dangers, or
- is inconsistent with the instructions for use of the product.
Elements of Absence of Warning
- Mfg knew or reasonably should have known the danger presented.
- Failed to take precautions a RP would to adequately warn
The Defective Warning will be sufficient to impose strict liabiliy
Obviously Dangerous Products
Where a product is obviously dangerous that a warning is considered unnecessary - sharp knife
Allergic or Adverse Reactions
Warning Lables
Severity of the Reaction v Number of people affected
few reactions but reaction threatens death or serious illness = warning
many people experience a mild reaction = warning.
Cause in Fact - Strict Products Liability
- Defect existed when it left D’s control - not altered or mistreated
- Injury was caused by the defect and was a substantial factor in bringing about the injury
- Warning Defect Claims - P would not have been injured by the product had there been a proper or adequate warning. Some jurisdictions employ a ‘heeding presumption’ which shifts the burden do D to prove that an adequate warning would not have made a difference
Proximate cause in Strict Product Liability
Applies same principles as negligence save for the negligent handling of 3rd parties which are deemed foreseeable.
D will be relieved of strict liability where an intervening force is the sole proximate cause of P’s injuries - where the injury would not have been suffered but for the superseding or intervening force.
3rd party criminal or intentionally tortious conduct is seen as an unforeseeable intervening force that relieves D’s wrongdoing unless the defect increased the risk that a 3rd party would engage in such conduct.
Defenses for Strict Product Liability - List
Misuse
Contributory Negligence
Comparative Negligence
Misuse
If P uses a product in a manner neither intended nor foreseeable, he has misused it and it cannot be defective
Contributory Negligence and Strict Product Liability
If plaintiff knew of the defect, comprehended the risks posed, and voluntarily elected to expose himself - assumption of risk - is a defense to strict product liability.
Continued use of a knowingly defective product is not voluntary when no practicable alternative is available.
If product was altered subsequently in an unforeseeable manner by someone in the chain of distribution or a 3rd party, courts will relieve mfg of liability.
products liability on a negligence theory
any foreseeable P is entitled to bring an action
Conduct of each defendant is analyzed as to reasonableness
RiL takes the place of manufacturing defect in a negligence theory
Negligence defenses apply
Examples of proper defendants in negligence theory of product liability
D is a seller of used goods D is a repairer of used goods D is leasing real property D is providing services Franchisors
breach of duty in product liability on negligence theory
proof that a product is defective does not automatically establish that each D in the chain of distribution breached a duty. P must establish that each D failed to exercise due care.
Failure to inspect packaged goods from a reputable manufacturer
It is generally NOT a breach of due care to fail to inspect packaged goods from a reputable manufacturer or distributor
inspection of packaged goods from a previously unknown or questionable source
an unreasonable failure to inspect such products may be a breach of duty of due care. In addition failure to inspect products where D had received complaints or otherwise became aware of concerns.
Once D becomes aware of a defect, subsequent failures to find the defect or take reasonable precautions is judged on the reasonable person standard.
Cause in Fact and Proximate cause in product liability on negligence theory
Principles of Actual and legal causation which govern negligence generally apply to products liability where negligence is the theory
Damages in product liability on negligence theory
assessed according to the same principles as Strict Liability
Defenses to Product Liability on Negligence Theory
Same as Negligence
Product Liability on Warranty Theory
Liability arises out of the fact that a product is not as represented. That it breaches a warranty that is expressed or implied. P must establish that a warranty existed as to the product and that the product does not conform to the warranty
Express Warranty
D made representations as to the nature or quality of the product.
Advertising, during negotiations for the purchase, or as a provision of the contract of sale
Privity
The relationship of the last commercial seller in the chain of distribution and the injured plaintiff. May extend to:
- members of the purchasers family or household or guests of the purchaser if they suffered injury
- natural persons who may reasonably be expected to use, consumer, or be affected by the goods, if they suffer injury; and
- any person who may reasonably be expected to use, consume, or be affected by the goods.
damages recoverable in breach of warranty
governed by the same principles applicable to strict liability in tort except pure economic losses are recoverable and P must be in privity with D
Implied Warranty for Fitness for a Particular Purpose
D knows P is purchasing goods for a particular purpose; and
P is relying on D’s skill or judgement to furnish appropriate goods
The sale of such goods will constitute an implied warranty that they will be fit for P’s purpose
Defenses to Products Liability on Warranty Theory - List
Disclaimer
Failure to notify seller
Contributory and Comparative Negligence
Assumption of risk
Disclaimer of Warranties defense
Warranties may be limited or disclaimed by a sufficiently conspicuous writing except:
may not limit remedies available for breach of warranty so as to exclude recovery for personal injuries where consumer goods are involved.
Items sold ‘as-is’ often implies seller is disclaiming any warranties, express or implied.
Seller who gives a warranty to a consumer in writing may not thereby disclaim any implied warranties
Failure to notify seller - defense
P-buyer must notify a D-seller of a breach of warranty within a reasonable period of time after the buyer discovers or should have discovered it.
Not often applied to bystanders who suffer personal injury
Contributory and Comparative Negligence Defenses to Product Liability on Warranty Theory
Defenses are available similar to strict liability in tort
Assumption of Risk Defense to Product Liability on Warranty Theory
If P voluntarily and unreasonably continues to use a product after he discovers it is not fit for the purpose purchased or not of merchantable quality, D is exonerated from liability for personal injuries or property damages suffered by P
8 elements of Strict Product Liability in Tort
- Proper Plaintiff
- Proper Defendant
- Proper Context
- Defect
- Cause in Fact
- Proximate Cause
- Damages
- Absence of Defenses
Products where there can be no design defects
Products that possess extraordinary social utility. Products may be inherently dangerous but their utility far outweighs the risks and cannot be made safer.
Vaccines
Damages and Strict Product Liability
There must be damages to person or property.
When damage is only to product itself, P can only recover in a breach of warranty action but not in negligence or strict product liability.
