Products Liability

Question 0

Proper Plaintiff in Strict Products Liability

Answer 0

Any Consumer, User, or Bystander who suffers injury

Question 1

Focus of Strict Product Liability in Tort

Answer 1

Focus on the Condition of the Product Put in the Market

Question 2

Proper Defendant in Strict Product Liability

Answer 2

Anyone in the marketing Chain and in the business of dealing with the product.

Does not include - occasional sellers

Question 3

Retailers and commercial lessors in Strict Product Liability

Answer 3

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.

Question 4

Occasional or one time sellers and Strict Liability

Answer 4

Not proper D’s for SL

not in a position to further the goals of SL - safer products and cost spreading.

Question 5

Proper context for strict liability

Answer 5

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.

Question 6

Types of Defects

Answer 6

Product is in a defective condition unreasonably dangerous.

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

Question 7

manufacturing defects

Answer 7

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.

Question 8

Design Defect

Answer 8

manufactured as intended but presents a danger

3 tests will decide whether defect will invoke strict liability

1. Consumer Expectation Test
2. Risk-Utility Balancing Test
3. Hindsight-Negligence Test

Question 9

Consumer Expectation Test

Answer 9

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

Question 10

Risk-Utility Balancing Test

Answer 10

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

Question 11

Hindsight-Negligence Test

Answer 11

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.

Question 12

Defective Warnings

Answer 12

A product is dangerously defective not accompanied by adequate warnings.

A defective warning is present if it fails to

1. sufficiently describe the danger,
2. fails to mention all of the dangers, or
3. is inconsistent with the instructions for use of the product.

Question 13

Elements of Absence of Warning

Answer 13

1. Mfg knew or reasonably should have known the danger presented.
2. Failed to take precautions a RP would to adequately warn

The Defective Warning will be sufficient to impose strict liabiliy

Question 14

Obviously Dangerous Products

Answer 14

Where a product is obviously dangerous that a warning is considered unnecessary - sharp knife

Question 15

Allergic or Adverse Reactions

Warning Lables

Answer 15

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.

Question 16

Cause in Fact - Strict Products Liability

Answer 16

1. Defect existed when it left D’s control - not altered or mistreated
2. Injury was caused by the defect and was a substantial factor in bringing about the injury
3. 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

Question 17

Proximate cause in Strict Product Liability

Answer 17

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.

Question 18

Defenses for Strict Product Liability - List

Answer 18

Misuse
Contributory Negligence
Comparative Negligence

Question 19

Misuse

Answer 19

If P uses a product in a manner neither intended nor foreseeable, he has misused it and it cannot be defective

Question 20

Contributory Negligence and Strict Product Liability

Answer 20

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.

Question 21

products liability on a negligence theory

Answer 21

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

Question 22

Examples of proper defendants in negligence theory of product liability

Answer 22

D is a seller of used goods
D is a repairer of used goods
D is leasing real property
D is providing services
Franchisors

Question 23

breach of duty in product liability on negligence theory

Answer 23

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.

Question 24

Failure to inspect packaged goods from a reputable manufacturer

Answer 24

It is generally NOT a breach of due care to fail to inspect packaged goods from a reputable manufacturer or distributor

Question 25

inspection of packaged goods from a previously unknown or questionable source

Answer 25

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.

Question 26

Cause in Fact and Proximate cause in product liability on negligence theory

Answer 26

Principles of Actual and legal causation which govern negligence generally apply to products liability where negligence is the theory

Question 27

Damages in product liability on negligence theory

Answer 27

assessed according to the same principles as Strict Liability

Question 28

Defenses to Product Liability on Negligence Theory

Answer 28

Same as Negligence

Question 29

Product Liability on Warranty Theory

Answer 29

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

Question 30

Express Warranty

Answer 30

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

Question 31

Privity

Answer 31

The relationship of the last commercial seller in the chain of distribution and the injured plaintiff. May extend to:

1. members of the purchasers family or household or guests of the purchaser if they suffered injury
2. natural persons who may reasonably be expected to use, consumer, or be affected by the goods, if they suffer injury; and
3. any person who may reasonably be expected to use, consume, or be affected by the goods.

Question 32

damages recoverable in breach of warranty

Answer 32

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

Question 33

Implied Warranty for Fitness for a Particular Purpose

Answer 33

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

Question 34

Defenses to Products Liability on Warranty Theory - List

Answer 34

Disclaimer
Failure to notify seller
Contributory and Comparative Negligence
Assumption of risk

Question 35

Disclaimer of Warranties defense

Answer 35

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

Question 36

Failure to notify seller - defense

Answer 36

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

Question 37

Contributory and Comparative Negligence Defenses to Product Liability on Warranty Theory

Answer 37

Defenses are available similar to strict liability in tort

Question 38

Assumption of Risk Defense to Product Liability on Warranty Theory

Answer 38

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

Question 39

8 elements of Strict Product Liability in Tort

Answer 39

1. Proper Plaintiff
2. Proper Defendant
3. Proper Context
4. Defect
5. Cause in Fact
6. Proximate Cause
7. Damages
8. Absence of Defenses

Question 39

Products where there can be no design defects

Answer 39

Products that possess extraordinary social utility. Products may be inherently dangerous but their utility far outweighs the risks and cannot be made safer.

Vaccines

Question 40

Damages and Strict Product Liability

Answer 40

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.