Products Liability Flashcards
What are the 3 allegations of defect for products liability?
1) manufacturer
2) design
3) warning
What is a seller’s duty to consumers?
Seller owes a general duty of care to consumers who purchase and use its products
How is a design defect evaluated?
- Consumer Expectations Test
- Risk/Utility test (is there a reasonable alternative?)
What are the 2 elements of causation in products liability?
- product must be linked to injury
- product must be defective when marketed
What is the scope of liability in products liability?
- foreseeable use
- foreseeable user
What is the policy behind manufacturer defects?
- 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
What are the 3 elements of a manufacturer defect?
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
Which do manufacturers fight more, manufacturing or design defects? Why?
Design defects; forces a change in design and a recall
What is the Consumer Expectations Test (CET)?
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
What is the “open and obvious danger” exception to the CET?
if a product poses an open and obvious danger (i.e. lighters), consumer cannot reasonably expect it to be completely safe (not common)
How do advertisements affect CET?
they can create false consumer expectations about the safe and proper way to use the products
What did Campbell v. GM establish about the CET? (bus lacked proper handrails)
- CET can use common experience to determine if product’s design was reasonable
- expert testimony not always needed
What is the Risk/Utility Test (R/U)?
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
What must D prove in R/U test?
after P proves he was injured by D’s product, D must prove benefit of product as-is outweighs risk
What is a manufacturer’s duty to consumers regarding warnings?
1) to warn users of risks 2) to provide instructions for safe use
What are the elements of a warning defect?
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
How does one determine if a warning is sufficient?
1) Is it explicit?
2) Is it comprehensible?
3) Is it clear?
4) Is it conspicuous?
5) How is it conveyed?
How far does a manufacturer’s duty to warn extend?
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)
When is there a post-sale duty to warn?
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
