Products Liability

Question 1

General

Answer 1

General Principle - produce is defective

Means to bring Suit:

1. Negligence
2. Strict Liability
3. Contract/Warranty cause of action

Negligence - must show duty, breach, causation, and damages; P must show that particular D was negligent and not that the product was defective

modern trend eliminates negligence cause of action and warranty cause of action

Question 2

Strict Liability - General

Answer 2

General Info - anyone in the business of selling a product that is defective can be liable (e.g, manufacturer, distributor, seller)

Elements - P must show

1. product was defective (i.e., manufacture, ddesign, or failure to warn)
2. the defect existed at the time the product left the D’s control;
3. the defect caused teh plaintiff’s injury

Inference of Defect - sometimes difficult to prove that defect caused the harm; courts often provide jury instruction regarding circumstantial evidence

OHIO - automatically attaches to commercial manufacturer but not supplier

Question 3

Strict Prod. Liability - Manufacturing Defect

Answer 3

Rule - if product deviates from the intended design and that deviation makes it more dangerous and causes the harm, then D is liable even if D acted reasonably.

Question 4

Strict Prod. Liability - Design Defect

Answer 4

Two Tests:

Consumer Expectation Test - product is defective in design if it is less safe than contemplated by the ordinary consumer

Note - traditional test

Risk Utility Test - product is defective in design if it could have been made safer by additional safety features;

OHIO - uses this, but consumer expectation is a factor in weighing

Note - P must prove there are alternative designs that are reasonable, feasible, and more safe that would have made the product safer

Question 5

Strict Prod. Liability - Failure to Warn

Answer 5

Rule - product fails to warn if there were foreseeable risks of harm that are not obvious to the ordinary user whose risk could have been reduced or avoided with proper instruction

Prescription Drugs - usees the “Learned Intermediary” Rule

Learned Intermediary Rule - manufacturer does not have a duty to warn the consumer directly, but satisfies that duty by warning the the doctor who prescribes the drug UNLESS manufacturer is aware that the drug will be given to the consumer without the personal intervention of a health care provider.

Question 6

Strict Prod. Liability - P + D

Answer 6

Plaintiffs - anyone forseeably injured by a defective product including purchasers, subsequent ursers, and bystanders

Note - need not be in prvitiy of contract with the defendant

Defendants - must be in the business of selling the product including manufacturer, distrubtor, and retailer

Casual Seller - not liable for defective product (e.g, dad selling lawn mower to neighbor, not responsible for defective product)

Question 7

Strict Prod. Liability - Damages

Answer 7

General - can recover personal injury or property daamge

Economic Loss - cannot be brought under strict liability, only under warranty

Question 8

Strict Prod. Liability - Defenses

Answer 8

1. Comparative Fault Juris - P’s own negligence reduces recovery

2. Product Misuse or Modification

Comparative Fault - misuse or modification reduces recovery

Contributory Neg. - unforeseeable misue will bar recovery

3. Contributory Neg. Juris - not a defense to strict products liability action if P negligent in failing to discover the defect BUT is a defense if P unreasonably proceeded in the face of a known defect.

4. Assumption of Risk - complete bar to recoer if P knowingly and willingly accepted a risk

5. Substantial Change in Product - intervening cause that cuts off liabilty

6. Compliance with Government Standards - compliance with standards is evidence, but not dispositive evdience that the product was not defective

State Cause of action will be preempted by Federal Law if:

a. congress explicity indicated that shit should be preempted in the statute;
b. congress has comprehensively regulated the field
c. it would be impossible for the manufacturer to comply with both the federal reg and state law

7. State of the Art Defense - manufacturer may instroduce evdience about the level of scientific and technical knowledge at the time the product was manufacturer or distributed though this is not a complete defense

8. Disclaimers or Limitations by Seller - does not invalidate a valid products liability claim

Question 9

Warranties

Answer 9

1. Express Warranty - affirmative guarantee of product’s safety
2. Implied Warranty - warranty of merchantability and warranty of fitness
3. Contract Claim - may frame as a breach of implied warranty
4. Disclaimer - manufacturers can disclaim warranties but cannot discalim implied warranty of merchantiability as it runs to damge for personal injury
5. Defenses - same as products liabilty; P must provide notice of the breach