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Torts > Products Liability > Flashcards

Products Liability Flashcards

1
Q

Theories of Recovery

A

negligence, breach of warranty, strict products liability

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2
Q

Privity of Contract (old law)

A

manuf. or seller of a product was not liable to a claimant injured unless privity of K existed (the claimant had purchased the product directly from the D)

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3
Q

Privity of K, Neg

A

if a retailer is not negligent and Neg manufacturer was not in privity (usually no remedy)

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4
Q

(privity) one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without NOTICE of its qualities is liable to …..

A

any person who suffers an injury which might have been reasonably anticipated

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5
Q

Breach of Warranty - Most common types

A

Neg. in manufacturing the product,
neg. in inspecting ot testing product,
neg in the advertising or sale of product, typically problem of failure to warn about dangerous attributes of product

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6
Q

Public Policy arguments for SL

A
  • manuf can best anticipate and guard against product hazards
  • manuf can bet assure against losses
  • SL avoids the proof problems of neg.
  • would changge the warranty of safety into a tort duty
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7
Q

a breach of warranty claim may provide recovery when

A

a product does not live up to certain requirements and loss results

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8
Q

warranty can be thought as..

A

an express or implied representation about the quality of attributes of a product

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9
Q

courts often merge breach of warranty and strict torts liability when..

A

a dangerous condition of a product results in personal injury or physical damage of property

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10
Q

if a product performs poorly resulting in economic loss, courts will treat the breach as ..

A

a commercial dispute and require compliance with UCC

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11
Q

Limitations on warranty

A
  • UCC imposes a requirement that the claimants give prompt notice of the breach to manufacturer
  • the concept of warranty seems to require that the buyer have relied on the warranty in making the purchase
  • in spite of limitations on the ability to do so, sellers may still be liable to limit or disclaim warranties
  • UCC limits privity of K
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12
Q

(SL) Section 402A, Defendant is held strictly liable when. .

A
  • D is in the business of selling the product
  • D in fact ‘sells’ the product
  • at the time D sells product, its in a defective condition
  • the defective condition renders the product unreasonably dangerous
  • the defect is the actual and proximate cause of harm to the P
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13
Q

(SL) Comment G - meaning of defective condition

A

defect has to be in the product when it leaves the seller’s hands

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14
Q

(SL) Comment I - meaning of unreasonably dangerous

A
  • more dangerous than the ordinary consumer would suspect

- not reasonably dangerous if ordinary consumer understands the harm (i.e.tabacco)

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15
Q

(SL) comment J - failure to warn

A

does the consumer understand the danger of the product?

-how to use the product safely?

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16
Q

(SL) Comment K - unavoidably safe products

A

i.e. prescription drugs

warning -> if the consumer understands the risk, they make an informed choice

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17
Q

(SL) Comment N -

A

Contributory Negligence is a defense

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18
Q

(SL) R2T on defects -

manufacturing defects -

A

a flaw in construction that causes the product to depart from its intended design

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19
Q

(SL) R2T - Design defects -

A

the products very design rendered it dangerously unsafe

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20
Q

(SL) R2T - warning defects -

A

failure to inform the user of potential dangers makes the product dangerously unsafe

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21
Q

(SL) Manufacturing defects

A
  • identify the flaw
  • prove the flaw caused the harm
  • trace the evidence of the flaw to the time of the sale of the defective product by the defendant
  • negate other sources of the flaw, such as maintenance of mistake
  • defects must be in the product when it leaves the manuf. hands
  • problem with factual issues
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22
Q

Design Defect - Consumer Contemplation Test

A

a product is defective if it is dangerous to consumer to an extent beyond what would be expected by the ordinary consumer

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23
Q

Consumer Contemplation Test is based on which comments?

A

based on comments G and I which make defect depend on product being more dangerous than the ordinary consumer would expect

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24
Q

Consumer Contemplation Test - when is a product defective?

A

if it is dangerous to an extent beyond what would be expected by the ordinary consumer

25
Q

Problems with Consumer Contemplation Test

A
  1. If danger is obvious or a warning is given, the P will loose under this theory
  2. product such as new drugs that may present a risk to a few people could be found defective under this test, even though the overall benefits of the drug are huge
  3. gives little guidance to the jury
26
Q

Risk-Utility Test

A

balances the dangers and the benefits of the product design

27
Q

Risk-Utility Test looks at

A
  • looks at the product as designed and asks whether the magnitude of the danger presented by the product is larger than the utility of the product
  • compares the actual damages presented by product not foreseeable dangers) with the actual benefit provided by the product (not that anticipated foreseeable benefits)
28
Q

Risk-Utility Test (problems with incorporating safety)

A
  1. Product may become less useful and limit the utility of product
  2. may change the product to decrease the chances of one accident while increasing the chances of another
29
Q

Risk Utility Test (factors in balance)

A
  1. utility of the product
  2. likelihood and severity of harm from product
  3. availability of substitute products
  4. manuf. ability to design out danger
  5. users ability to avoid harm by using the product carefully
  6. users awareness of the dangers because of common knowledge of warnings
  7. manuf.’s ability to spread loss
30
Q

Alternative safer design test

A

whether the danger actually avoided by proposed alternative design using available technology, would be greater than:

  • The costs of the new design, plus
  • loss of product utility from the new design, plus
  • New dangers created by the new design
31
Q

Product intended to be used by adults, a risk of child use

A

a. must prove the design was reasonably dangerous
b. have design against foreseeable kinds of misuse
c. look at risk-utility factors to prove whether or not product was designed is unreasonably dangerous

32
Q

Manuf. defenses against products intended to be used by adults, used by children

A
  1. consumer preference - utility is lost with child-proof mechanism
  2. users should be aware there is a likelihood child will get a hold of it
33
Q

Prescription Drugs

A

SL liability under failure to warn, unless drug is unavoidably dangerous

34
Q

Public policy consideration for Prescription Drugs

A
  1. stifling innovation and deterring development of new drugs
  2. the role of FDA in drug testing and approval
  3. price increases
  4. lack of availabilty of some drugs
35
Q

Design v warning

A
  • Under comment K the duty of the manuf is to warn about the dangers that are known or should have been known about
  • R3T: narrow definition of defective design
36
Q

Learned intermediaries

A
  1. manuf must give warnings to physician
  2. the duty is on physician to inform patients of the risks and benefits of the new drug under the informed consent doctrine
37
Q

Learned intermediaries EXCEPTION

A

manuf knows no physician will be involved the warning must be given directly to patient

38
Q

Failure to warn (SL)

A
  1. manuf knew or should have known ahout the hazard AND

2. Failed to take precautions in marketing the product to warn users or consumers about the product

39
Q

warning must be

A

adequate to inform the public about danger

40
Q

what triggers duty to warn

A
  1. if the danger is obvious or well known to the public there is no reason to warn
  2. warnings are required for HIDDEN dangers such as the possibility of allergic reactions
  3. required where necessary for safe and proper use of the product
  4. required for reasons of personal automony and consent when dealing with risks of prescription drugs and similar beneficial but risky products
41
Q

Read & Heed, would warning have avoided accident?

A
  1. P is usually given the benefit of a presumption that a proper warning would have been read and heeded and thus the accident would have been avoided
  2. the presumption is rebuttable, ex. by showing the P ignored other warnings that were provided
42
Q

Adequacy of warning, warning must be

A
  1. AVAILABLE to the actual user
  2. UNDERSTANDABLE to the actual user
  3. SUFFICIENTLY PROMINENT to attract users notice
  4. SUFFICIENTLY URGENT GIVEN the gravity of the risk
43
Q

Other Ds, if consumer does not have any recourse they may go after . . .

A

the retailer who had nothing to do with the product quality or safety, the retailer sues the manuf.
- makes retailers deal with reputable suppliers

44
Q

402a, ‘one who sells’ a product . .

A

in a defective condition is liable.

- must be in business of selling

45
Q

R3T Seller of used products is liable

A
  1. when negligent
  2. for manuf defect in MARKETING would lead consumer to expect product was as safe as new (i.e. lexus pre-owned certified vehicles)
  3. where seller MANUFACTURES the product
  4. where product VIOLATES A SAFETY STATUTE or regulation applicable to the used product
46
Q

lessors of chattels get the same considerations as. . .

A

sellers of used goods.

- intermediate sellers might have an indemnity claim against manuf if they are held liable and pay damages

47
Q

are providers of services covered by SL?

A

No, even though they may yse a product to perform services.
- transaction for professional services is not subject to SL even though the prof may incidentally make use of products in rendering services

48
Q

SL for a transaction that is essentially the sale of product with some service component if

A

the product is defective.

49
Q

does SL apply to learned professionals?

A

NO, Professional standard of care applies, not SL for defective products.
i.e. Suing a dr for defective prosthetic leg. Cant be sued under SL, must use prof. Sd. of care

50
Q

Problem of Economic Loss

A

Designed to deal with disappointing performance of the product (losses assinged by K, parties can assign the risk of bargaining)

51
Q

Theories of Recovery for Economic Loss

A
  1. personal injury to user or consumer, or physical damage to other property
    - Neg, SL, breach of W
  2. Economic loss resulting from failure of product to perform asa expected
    - breach of W
  3. economic loss resulting from physical damage to the product itself
    - breach of W
52
Q

Defenses

A
  1. traditional SL rule
    - contributory neg.is not a defense
    - assumption of risk is a complete bar
53
Q

402A, Comment N (defenses)

A
  • contributory negligence consists merely in a failure to discover the defect or to guard against the possibility of its existence is NOT a defense
  • assump of risk is a defense
54
Q

is P’s recovery reduced for conduct failing to use due care for ones safety?

A

YES

55
Q

why should Ps conduct be considered in SL case?

A

to give the P incentive to do something to avoid the accident. Although it undercuts safer products

56
Q

Unforeseeable Product misuse. Comment H

A

product is not defective if it is safe for normal use

57
Q

why doesnt unforseeable misuse of a product result in SL?

A

misuse of product leading to an injury does not result in SL because the product is not defective

58
Q

Foreseeable product misuse

A
  • imposes on the manuf. a duty to protect the user
  • manuf has duty to design the product to avoid harm from the misuse
  • manuf may have the duty to warn agasint misuse
59
Q

When is Ps conduct relevant?

A
  1. duty/breach - was the product defective or was it outcome of misuse?
  2. prox. cause - was the conduct of P so unforeseeable as to excuse the D from liability?
  3. affirmative defenses - should the lack of casre of the P reduce or bar recovery?

Torts (1 decks)

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