Products Liability Flashcards
Strict Products Liability
Strict liability is imposed upon 1) a commercial seller who distributes a 2) defective product that is unreasonably dangerous AND 3) causes harm to the P. 4) the product must reach the user in the condition in which it is sold. Thus, the defect must have existed when it left the D’s control.
1) There are three types of defects 1) manufacturing defects or production flaws 2) design defects AND 3) inadequate warnings.
Commercial Sellers
Strict liability is imposed upon any commercial seller in the chain of distribution. A commercial seller is one who is in the business of either selling or distributing the goods. Sellers in the chain of distribution include manufacturers, wholesalers, retailers, and even lessors. Causal sellers, those who do and regularly sell goods of the kind, are NOT strictly liable for a defective product.
Indemnity
A non-negligent retailer who satisfies a judgment for the P has a right of indemnity or full reimbursement against the manufacturer.
Manufacturing Defects (Production Flaw)
A manufacturing defect or production flaw is a physical departure from a products intended design. Examples include a can of tuna that contains a piece of glass or when the brakes fail on a new care. In essence, the product is NOT the condition that the manufacturer intended.
1) For manufacturing defects, most courts use the consumer expectation test.
Consumer Expectations Test
Under the consumer expectations test, a product is defective if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer. Such expectations are often influenced by how products are portrayed and marketed.
Failure to Warn (Inadequate Warning)
A product may be defective if the seller has failed to warn of any known risks associated with the product that are not readily apparent to the user. If no harm is foreseeable, then no warning is due. But if a small number of people would suffer “serious harm”, reasonableness requires a warning, just as it does when a large number of people are at a risk for less significant harm.
1) A warning must contain facts necessary to permit reasonable persons to understand the danger involved. A warning may be inadequate if it does NOT specify the risk the product presents or does not give any reason for the warning. Thus, a warning must be of sufficient force and intensity to convey the nature and extent of the risks.
Learned Intermediary Doctrine
Under the learned intermediary doctrine, a prescription drug manufacturer satisfies its duty to warn by informing the doctor who prescribes the drug of the foreseeable risks of harm. If the doctor fails to inform the patient of the risks, the patient has a (negligence) claim against the doctor, but not against the manufacturer of the drug.
1) The rational is that the doctor is in a position to better understand the significance of the risks involved and its final and only decision-maker about the choice of drug. Therefore, it is up to the doctor to assess the relative advantages and disadvantages of prescribing a certain drug for his patient.
Design Defect
A design defect occurs when the entire line of products is designed in such a way that they present an unreasonable risk of harm. For design defects, courts now require the plaintiff to show a reasonable alternative design.
Reasonable Alternative Design
Under this test, a product has a design defect when the foreseeable risks of harm could have been reduced or avoided by the adoption of a reasonable alternative design. The P must prove that the product could have been made safer without impairing its usefulness or imposing undue costs.
1) Courts consider the likelihood and magnitude of harm. A risk has a low probability of occurrence might nevertheless represent a defect if the harm threatened is devastating.
Express Warranty
An express warranty may be created by any statement of fact by the seller which is made part of the basis of the bargain. The purpose of the law of express warranty is to determine what it is that the seller has in essence agreed to sell.
1) For breach of an express warranty, the buyer does NOT need to prove that she relied on the statement for it to be part of the contract.
Misrepresentation
A commercial seller is liable for any physical harm caused by making a misrepresentation concerning the character or quality of a product. Unlike an express warranty where reliance is presumed the must prove that the she relied on the representation.
Implied Warranty of Merchantability
The implied warranty of merchantability assures that goods sold by a merchant are fit for the ordinary purposes for which they are used. This means the goods must do what is normally expected of them Essentially, an implied warranty claim suggests that the manufacturer has implicitly contracted to provide a reasonably safe product.
Compliance with a Regulation
Generally regulations are intended to provide a minimum level of safety. Evidence that the D complied with a regulation is admissible to show that the product is not defective, but it is not conclusive. Therefore, a product can be found defective even when the manufacturer has complied with a regulation.
Foreseeable Misuse
A manufacturer must make its products safe for any foreseeable misuse. A foreseeable misuse is NOT a misuse at all and does NOT bar the P’s claim. Thus, a product must be safe for any intended use, including any foreseeable misuse. Of course, if the misuse is unforeseeable, the manufacturer is NOT liable.
