Products Liability

Question 1

What are the legal theories that can be applied to products liability?

Answer 1

• strict product liability
• negligenc theory for product liability
• breach of warranty teory for products liability

Question 2

What is strict products liability in torts?**********

Answer 2

• focus on the condition of the product that the D has put into the market
• not looking at D’s conduct

Question 3

What are the elements of strict product liability?

Answer 3

1. Proper P
2. Proper D
3. Proper Context for strict products liability
4. Defect
5. Cause-infact
6. Proximate cause
7. Damages
8. Defenses

Question 4

How to determine if there is a proper P for strict product liabilty?

Answer 4

Any:

• user
• consumer
• bystander

suffering physical injury

NOTE - no requirement of purchase, privity of K or contractual relationship to recover

Question 5

How to determine if there is a proper D for strict product liability?*************

Answer 5

Anyone who is in the

• marketing chain and i
• n the business of dealing with this product
• Meaning - The wholesaler, retailer
  
  • cannot be sued - the occassional seller

Ask yourself - Can they spread the cost? Would suing them bring about safer products?

Question 6

How do you determine whether this is the proper context for strict products liabilty?

Answer 6

• you have to be dealing with a product
• If both service & product
  
  • determine which predominates:
    
    • Product - apply strict PL
    • Service no strict PL, P has to prove fault

Question 7

How to determine if there is a defect?****************

Answer 7

Three types:

1. manufacturing defects
2. Design defects
3. Warning defects

Question 8

What are manufacturing defects

Answer 8

• Arises when a product comes out in a condition that was not intended by the manufacturer
• P has to show:
  
  • the product is more dangerous than the ordinary consumer would expect when using the products in its intended or foreseeable manner
  • the product is not in a condition not intended by the manufacturer AND
  • the defect existed @ the time D put that product in the mkting chain

Question 9

What is a design defect?

Answer 9

• The enitre product line is claimed to be defective
• TEST
  
  • Ordinary consumer Expectation Test
  • Risk Utility Balancing Test
• NOTE - some products are exempt from being found defective
  
  • i.e. - vaccines, prescription drugs

Question 10

What is the ordinary consumer expectation test?

Answer 10

The product is defective b/c it is more dangerous than the ordinary consumer would expect when using the product in it sintended or foreseeable manner

PROBLEM

Ordinary consumer may not have the sophistication to understand the mess up of the design

Question 11

What is the risk utility balancing test?

Answer 11

• The risk of the product aas designed outweighs the utility of the product as designed
• Look @:
  
  • the likelihood of harm
  • gravity of the harm
  • compare against that available, feasibility & impact of alternative design
• Generally unless P can show that there was some safer design they may lose
• Some jurisdiction imput knowledge of the defect
• Differs from negligence
  
  • SPL - Anyone in the mkting chain
  • Negligence - show if each D

Question 12

What are warning defects?

Answer 12

The plaintiff is asserting

1. There is a warning & it is inadequate OR
   
   • does the warning reasonably inform the reader of significant risk
     
     • language
     • placement
     • size of font
2. There should of been a warning
   
   • manufacturer has to warn about risks it knows or should know
   • gravity & probability of harm

Question 13

What is the rule for cause in fact of SPL?

Answer 13

• P needs to show:
  
  • but-for the defect, P would not have been injured AND
  • to the extent mkt share liability arises it may well be in the context of a defective product

Question 14

How to determine proximate cause for SPL?

Answer 14

• Look for superceding causes
  
  • Look for situations where a 3rd pty discovers the defect
• Warnings:
  
  • Learned intermediary Doctrine
    
    • if manufacturer passes off a warnig to a dr & the dr doe snot pass it on to the patient, the dr is a superceding cause

Question 15

When does damages apply in SPL?

Answer 15

Applies where there is:

• personal injury or
• property damage to property other than the product itself

Damage to the product:

• if harm only to the product itself w/potentially consequential economic loss
• only claim available is one of breach of warranty
• NO negligence claim or SPL claim

Question 16

What defenses are there to SPL?

Answer 16

• Misuse
• Alteration
• Assumption of the risk

Question 17

When does misuse arise (defense)?

Answer 17

• When P uses the product in a manner that is neither intended nor foreseeable
• Thus P not entitle to recover due to misuse

Question 18

When does the defnse of alteration arise?

Answer 18

• When a 3rd pty unforeseeably changes a product
  
  • i.e. - employers remove saftey devices from machines
• no liability

Question 19

When does the defense of assumption of the risk arise?

Answer 19

Comparative fault is no defense, only assumption of the risk is a defense.

Question 20

What is the negligence theory for product liabilty?

Answer 20

• any foreseeable P is entitled to bring an action
• analyze the conduct of each D
  
  • was the conduct reasonable
• think about res ipsa loquitur takes the place of a manufacturer defect
• Use negligence defenses
  
  • comparative fault would be the assumption

NOTE - SPL talks about the defective product not the conduct

Question 21

What is the breach of warranty theory for product liability?

Answer 21

• Express
  
  • where the Δ makes a specific representation as to the quality of the product that becomes the basis of the bargain
    
    • applies to anyone
• Implied
  
  • Warranty of Merchantability - only applies to merchants
    
    • that the product is fit for its intended use
    • privity & notice requirements
    • can be disclaimed
• NOTE - use this claim were the harm is to the product itself (this will be only claim)

Question 22

What should you focus on in a product liability question?

Answer 22

• focus on the relevant legal theory
  
  • SPL - defects
  • Negligence - reasonableness & conduct
  • Breach of Warranty - privity & transaction of the transfer of goods