Products Liability Flashcards
Not a category of tort liability or a degree of fault for tortious conduct, i.e, intentional, reckless, negligent, or strict liability
Rather concerns a set of operative facts where a person and/or a person’s personal property is injured/damaged by a defective product.
Products Liability
Defined
Only direct customer of manufacturer or retailer could recover for product-related harm, i.e., privity was required
Customer either had to prove intentional, reckless or negligent conduct by party from whom purchased (tort theory) or breach of warranty given by said party (contract)
Example: P purchases a product from retailer; p could only sue retailer, not manufacturer; If found liable, retailer then could sue manufacturer
Products Liability
Common Law
A seller who places a defective product into commerce, knowing that it is to be used without inspection, will be liable without proof of a specific duty to plaintiff or proof of breach.
Recognition of Strict Liability
Intentional Battery Strict Liability Recklessness, Gross Negligence Negligence Misrepresentation Express Warranties Implied Warranties Enterprise Liability
COAs for Defective Products
Liability to anyone injured by a defective product if defendant intended consequences or was substantially certain they would occur. Privity is not required.
Intentional Battery
Liability imposed on those who profited from making and selling defective product. Privity is not required.
Enterprise Liability
One who sells a product
In commerce
In a defective condition (3 Types) unreasonably dangerous to user or consumer or to his property
When used as intended
Which is the actual and proximate cause of harm
Resulting in actual damages to person or property other than product alone
NOTE: Generally dispenses with a showing of privity, duty, and breach.
Strict Liability
Elements under ReS §402A
One (or more) products fail to follow manufacturer’s specifications so as to be unreasonably dangerous
Product departs from intended design even though all possible care was exercised in preparing and marketing product AND
Product reaches consumer without substantial change in condition in which it is sold
Defective Condition
Manufacturing Defect:
When all products are made identically according to specifications so as to be unreasonably dangerous
Defective Condition
Design Defect:
Warnings which fail to specify risk, fail to provide reason for warning, or fail to reach intended consumer
- P must establish but for inadequate warning injury would not have suffered
- Seller entitled to presumption that consumer will read an adequate warning
- An adequate warning still must be conspicuous
- Even where adequate warning, P may still argue that warning was defectively designed
Defective Condition
Inadequate Warnings:
Seller is responsible for ensuring safe delivery, including proper packaging, necessary sterilization, and other precautions
Burden on P that product in a defective condition at time that it left hands of seller
Defective Condition
Manufacturing Defect:
NOTEs
Plaintiff has burden of showing that product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner and defect is not obvious
Design Defect:
Consumer Expectation Test (2nd ReS)
Plaintiff has burden of showing that the foreseeable risk of harm posed by product could have been reduced or avoided by adoption of a reasonable alternative design by manufacturer and that the omission of the alternative design renders the product not reasonably safe.
- Split of authority whether P also must show proof of alternative design, and if so, how such proof must be established
- Split of authority as to who has burden of showing benefits of design outweigh risks or vice versa
Design Defect:
Risk Utility Test (3rd ReS)
Warnings may be required after the sale when product later reveals a defect not known a time of sale.
Post Sale Warnings:
Dangerous to ordinary consumer with knowledge common to community
Unreasonably Dangerous
One who is engaged in business of selling or distributing product, e.g., manufacturer, retailer, installer, assemblers, wholesalers,
- Includes a long term lease of a product
- Split of authority on used products and real estate
Case by case analysis whether product or service
- Blood shield laws make provision of blood a service (blood Transfusions)
- Generally does not include occasional sales, sellers of real property, providers of professional services, where product is incidental to provision of services
Non-manufacturing seller (retailer, distributor, wholesaler) may be entitled to indemnification up the chain
Product Seller In Commerce
Duty to a foreseeable plaintiff
Exclusive control over product
Unreasonable care which is the cause in fact and proximate cause
Actual damages to person or to property beyond just damage to defective product
Negligence
Elements
Products Liability
Problem of foreseeability
Establishing exclusive control
Obtaining proof of negligence/Res Ipsa Loquitur
But, may have to rely on negligence if not a seller in commerce
Difficulty in Proving Liability
Negligence
A _________________ of a material fact about product resulting in physical injuries or property damage
misrepresentation
For Intentional, D must have intended to induce reliance of a particular P or a class of persons to which P belongs
For Strict Liability to apply P must only establish misrepresentation and justifiable reliance
For Negligence to apply, P need only show that a reasonable D should have known misrepresentation to be false when making it.
Intentional v. Strict Liability v. Negligent Misrepresentation
No ____________ if statement does not influence transaction and there is justifiable reliance
misrepresentation
Oral or written affirmation of fact or promise that becomes part of basis of bargain.
Most courts hold privity irrelevant.
Disclaimer of warranty only effective to extent it can be read consistently with express warranty made.
Fault irrelevant once failure shown
Express Contractual Warranties
Merchantability
Fitness for a Particular Purpose
Types of
UCC Implied Warranties
Goods are of an equal quality acceptable to those who deal in similar goods.
Merchantability: UCC Implied Warranties
Seller knows or has reason to know buyer’s particular purpose and that buyer is relying on seller’s skill or judgment to select or furnish suitable goods.
Fitness for a Particular Purpose: UCC Implied Warranties
Defendant liable as long as failure is shown – fault is irrelevant
Privity generally not required where family members
Disclaimers are narrowly construed
Contractual limitations on personal injury damages generally unconscionable
UCC Implied Warranties
Should defectiveness of product be judged at time product placed on market or at time of trial
State of the Art Defense
Generally, federal contractors are immune from liability if they were provided precise specifications, their work conforms with specifications, and they warn of known dangers.
Government Contractor Defense:
A State cause of action may be pre-empted where federal law expressly prohibits action or where state law is in actual conflict with federal law.
Federal Preemption
Product is deemed defective in design or warnings if fails to comply with applicable government safety standards.
Compliance with same is evidence but not conclusive that is not defective
Compliance with Government Safety Statutes Regulations
Where misuse is not objectively foreseeable.
Abnormal use of product
Where P voluntarily and willingly encountered a known risk, uses a product that knows is broken or will lock
Where P voluntarily modifies product in an unforeseeable manner, e.g., circumventing or removing safety features
Assumption of Risk:
Today, majority rule allows for ____________ _________, i.e., misuse or assumption of risk will not be a complete bar; P’s carelessness will be a factor only
comparative negligence
Misuse of product also applies to
Disclaimers & Notice of Breach
Generally, irrelevant in strict liability and negligence if personal injury or property damage has occurred
Disclaimers
