Products Liability

Question 1

PL under Negligence

Answer 1

1. Duty—reasonable care owed to any foreseeable P by commercial manufacturer/distributor/retailer/seller
2. Breach—failure to exercise reasonable care in inspection/sale of product (i.e., defect would have been discovered if D wasn’t negligent)
3. Causation—factual & proximate
4. Damages—actual injury/property damage, not pure economic loss
5. Defenses—contributory/comparative negligence and A/R

Question 2

PL under Strict liability

Answer 2

1. Elements
   • Product was defective (in manufacture, design, or failure to warn)
   • Defect existed when it left D’s control
   • Defect caused P’s injury when used in a reasonably foreseeable way
2. Defective product (res ipsa may apply)
   • Manufacturing defect—product does not conform to D’s own specifications
   • Design defect
   o Consumer expectation test—dangerous beyond expectation of ordinary consumer
   o Risk-utility test—risks > benefits and reasonable alternative design (economically feasible) available; failure to use that design rendered product unreasonably safe
   • Failure-to-warn defect
   o (i) Foreseeable risk of harm, (ii) not obvious to ordinary user of product, and (iii) risks could have been reduced or avoided w/ reasonable instructions or warnings
   o Learned-intermediary rule—manufacturer of prescription drug typically satisfies duty to warn by warning prescribing physician of problems with the drug, unless (i) manufacturer knows drug will be dispensed without personal intervention or evaluation of a healthcare provider, or (ii) in the case of birth control pills.
3. Plaintiff—not required to be in privity of contract; anyone foreseeably injured may recover
4. Defendants—must be in the business of selling (includes manufacturer, distributor, and retail seller)
   • If D provides both products and services, generally liable if product is consumed, not if product is only used (i.e., hospital not generally liable as a distributor of implants)
   • Casual sellers and auctioneers generally not S/L
5. Damages—personal injury or property damage, pure economic loss must be brought under warranty action
6. Defenses
   • Comparative fault—P’s negligence reduces recovery as will A/R (majority)
   • Contributory negligence—P’s negligence not a defense if P misused product in reasonably foreseeable way or negligently failed to discover defect
   • A/R—complete bar to recovery in contributory-negligence jurisdictions; in most comparative-fault jurisdictions A/R only reduces recovery
   • Unforeseeable misuse, alteration, or modification by the user precludes (most contributory-negligence states) or reduces (most comparative-fault states) recovery
   • Compliance with governmental safety standards—not conclusive evidence that product is not defective, but may be considered
   • State-of-the-art standard—product conforms with level of scientific/technological/safety knowledge existing and reasonably feasible when product was distributed; compliance with state-of-the-art standard will only bar recovery in some states; n/a to manufacturing defect claims
   • Statute of limitations—begins to run against P with personal injury when P discovers, or should discover w/ reasonable care, his injury and its connection to the product

Question 3

PL under Implied warranty

Answer 3

Merchantability—product is generally acceptable and reasonably fit for ordinary purpose

Fitness—product fit for particular purpose; seller must know purpose and buyer must rely on seller’s skill or judgment in supplying product

Privity requirements
o Alternative A (majority)—allows only purchaser or member of his family/household to recover for personal injury (not property damage or pure economic loss)
o Alternative B—anyone reasonably expected to use, consume, or be affected by the product may recover for personal injury
o Alternative C—Alternative B + recovery for property damage and economic loss

Damages—personal injury; property damage; pure economic loss

Question 4

PL under Express warranty

Answer 4

Affirmation of fact or a promise about product; part of the basis of bargain. Seller liable for any breach of express warranty, regardless of fault.

Question 5

PL defenses

Answer 5

1. Disclaimers
   o Consumer goods—limitation of consequential damages for personal injury is unconscionable
   o Express warranties—valid only if consistent with warranty (usually not)
2. Comparative fault and A/R—same as in S/L claims
3. Contributory negligence—not a bar except when it overlaps A/R
4. Misuse—prevents recovery under the implied warranty of merchantability when the product is warranted to be fit for ordinary purposes (majority)
5. Claim generally fails if P fails to provide seller with notice of breach of warranty within the statutorily required time period or “a reasonable period of time”