Products Liability

Question 1

What are the 3 allegations of defect for products liability?

Answer 1

1) manufacturer
2) design
3) warning

Question 2

What is a seller’s duty to consumers?

Answer 2

Seller owes a general duty of care to consumers who purchase and use its products

Question 3

How is a design defect evaluated?

Answer 3

• Consumer Expectations Test

- Risk/Utility test (is there a reasonable alternative?)

Question 4

What are the 2 elements of causation in products liability?

Answer 4

• product must be linked to injury

- product must be defective when marketed

Question 5

What is the scope of liability in products liability?

Answer 5

• foreseeable use

- foreseeable user

Question 6

What is the policy behind manufacturer defects?

Answer 6

• manufacturer incurs absolute liability when he has placed an article into the market without inspection
• those who suffer from defective products are often unprepared to meet its costs

Question 7

What are the 3 elements of a manufacturer defect?

Answer 7

1) product deviated from manufacturing specifications
2) product was defective when it left the factory (P didn’t alter, used it appropriately)
3) P was injured because of the defect
* jury can make inference whether there was defect

Question 8

Which do manufacturers fight more, manufacturing or design defects? Why?

Answer 8

Design defects; forces a change in design and a recall

Question 9

What is the Consumer Expectations Test (CET)?

Answer 9

1) D sold product and it was unchanged
2) P used product in reasonably foreseeable manner and suffered harm
3) product didn’t perform as safely as a reasonable consumer would expect

Question 10

What is the “open and obvious danger” exception to the CET?

Answer 10

if a product poses an open and obvious danger (i.e. lighters), consumer cannot reasonably expect it to be completely safe (not common)

Question 11

How do advertisements affect CET?

Answer 11

they can create false consumer expectations about the safe and proper way to use the products

Question 12

What did Campbell v. GM establish about the CET? (bus lacked proper handrails)

Answer 12

• CET can use common experience to determine if product’s design was reasonable
• expert testimony not always needed

Question 13

What is the Risk/Utility Test (R/U)?

Answer 13

1) weighs the benefit of the product against the risks of harm (likelihood/gravity of potential harm, feasibility of alternate design, etc.)
2) usually requires experts
3) reasonable alternative design not required, but P brings one if possible

Question 14

What must D prove in R/U test?

Answer 14

after P proves he was injured by D’s product, D must prove benefit of product as-is outweighs risk

Question 15

What is a manufacturer’s duty to consumers regarding warnings?

Answer 15

1) to warn users of risks 2) to provide instructions for safe use

Question 16

What are the elements of a warning defect?

Answer 16

1) manufacturer failed to sufficiently warn users of risks
2) P must prove D’s product caused injury
3) P must prove adequate warning would have altered user’s behavior

Question 17

How does one determine if a warning is sufficient?

Answer 17

1) Is it explicit?
2) Is it comprehensible?
3) Is it clear?
4) Is it conspicuous?
5) How is it conveyed?

Question 18

How far does a manufacturer’s duty to warn extend?

Answer 18

if it’s foreseeable product could cause grave harm, manufacturer has duty to warn all potential users, even if it would be difficult and expensive (i.e. squash with fungicide)

Question 19

When is there a post-sale duty to warn?

Answer 19

1) if the seller reasonably should know the product poses substantial risk
2) if the seller can identify users who are unaware of the harm
3) if the warning can be effectively communicated to the user and acted on
4) if the risk of harm is sufficient to justify the burden of providing warning