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
