PRODUCTS LIABILITY

Question 1

THEORIES OF LIABILITY

Answer 1

intent, negligence, strict liability, implied warranties of merchantability and fitness for a particular purpose, representation theories. (express warranties and misrepresentation)

Question 2

Existence of a defect

Answer 2

plaintiff must show that the product was defective when it left the control of the defendant.

Question 3

Existence of a defect: manufacturing defects

Answer 3

product emerges from the manufacturing process different from other products and more dangerous than other products than if it had been made the way it should have been. Product may be so unreasonably dangerous as to be defective because of manufacturing process.
- proved by showing that the product was dangerous beyond expectation of the ordinary consumer.

Question 4

existence of a defect- design defect

Answer 4

all products on a line are made identically according to the specifications but have dangerous propensities- entire line may be found defective because of poor design.
- inadequate warning may be analyzed as part of a design defect .
- proved by showing that a less dangerous modification or alternative was economically feasible.
courts consider under the more feasible approach:
1. usefulness and desirability of the product
2. availability of a safer alternative
3. the dangers of the product that have been identified by the time of the trial.
4. likelihood and probable serious injury
5. obviousness of the danger
6. normal public expectation of danger
7. avoidability of injury by care in use of the product.

Question 5

COMMON DEFECT PROBLEMS: MISUSE

Answer 5

suppliers are to anticipate reasonably foreseeable uses even if they are misuses of the product.

Question 6

LIABILITY BASED ON INTENT

Answer 6

liable to anyone injured by an unsafe product if the D intended the consequences or knew that they were substantially certain to occur:

• will be based on battery if there is a tort involved
• privity not required
• punitive damages are available along with compensatory
• same defenses as with intentional torts

Question 7

LIABILITY BASED ON NEGLIGENCE

Answer 7

duty owed- anyone who supplies a product to another owes a duty. retailer who labels a manufacturers products as own or assembles from manufacturer components is liable of manufacturer’s negligence. Privity is not required
breach- P must show negligent conduct leading to the supplying of a “defective product.”
1. manufacturing defect case: plaintiff must invoke res ipsa loquitor if the error is something that does not usually occur without the negligence of the manufacturer
- dealer need only make a cursory inspection of item if there is no reason to suspect a manufacturer defect.
2. in design defect: must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice (not shown if the defect is apparent only after the item has reached the public)
actual and proximate cause- intermediary’s negligent failure to discover a defect is not a superseding cause and the defendant whose original negligence created the defect will be held liable along with the intermediary.
damages- personal injury and property damage
Defenses- same as standard negligence case

Question 8

LIABILITY BASED ON STRICT TORT LIABILITY

Answer 8

must show that D is a commercial supplier
produced or sold a defective product
Product was not substantially altered
defective product was the actual and proximate cause
- actual cause: must trace the harm suffered to a defect in the product that existed when the product left the defendant’s control. (may rely on inference that product failure would only occur from a defect if it is difficult to trace control)
proximate cause: same as general negligence and strict liability
damages to person or property: same as negligence actions
Defenses:
- contributory negligence states: no a defense where plaintiff merely failed to discover the defect or guard against its existence
-comparative negligence: same application as general negligence
- disclaimers are irrelevant if personal injury or property damage has occurred.

Question 9

IMPLIED WARRANTS OF MERCHANTABILITY AND FITNESS

Answer 9

proof of fault required
UCC apply to sale of goods and the lease of goods
implied warranty that goods are merchantable (generally acceptable quality and generally fit for the ordinary purposes that they are used for.) when a merchant deals in a certain type of good.

Question 10

IMPLIED WARRANTS OF MERCHANTABILITY AND FITNESS

Answer 10

arises when the seller knows or has reason to know:
1. the particular purpose for which the goods are required; and
2. that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods
vertical privity not required
horizontal privity- implied warranty to buyer’s family, household and guests
disclaimers: must be specific, contractual limitations on personal injury damages are unconscionable.
Defenses: assumption of risk:
- assumption of risk when warranty is over
- contributory negligence- unreasonable conduct after discovery bars recovery
comparative negligence: same as strict liability
Notice of breach: buyer to give the seller notice within a reasonable time after the buyer discovers or should have discovered the breach.