Products Liability

Question 1

Define Product

Answer 1

A product is tangible personal property distributed for use or consumption.

Question 2

Define used product (pursuant to product liability law)

Answer 2

A used product is a product that is commercially sold or otherwise distributed to a buyer NOT in the commercial chain of distribution and used for some period of time.

Question 3

Define Manufacturing Defect

Answer 3

A product contains a manufacturing defect when it disappoints consumer expectations by straying from its intended design.

Question 4

What are the two manufacturing defects in food?

Answer 4

1. Foreign/Natural Distinction: Strict Liability only allowed if the defect is foreign to the food product
2. Consumer Expectation: would the reasonable consumer expect the defect

Question 5

What about when you can’t point to a specific defect/product was destroyed? Res Ipsa (manufacturing defect)

Answer 5

It may be inferred that the harm sustained by the P was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that caused harm to the P:

1. Was of a kind that ordinarily occurs as the result of a product defect, AND
2. Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution

Question 6

List the elements of Restatement (2d) of Torts § 402A

Answer 6

1. The defendant was in the business of selling the products
2. The defendant sold or otherwise supplied the product in question
3. The product was expected to and did reach the plaintiff without substantial change (i.e., the product was defective when it left the defendant’s hands)
4. The product’s defect was the cause of the plaintiff’s physical harm

Question 7

Define Design Defect

Answer 7

A product contains a design defect when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe.

Question 8

List the 7 factors of the Dean Wade Risk/Utility Test used to determine whether a product’s design is unreasonable (i.e., defective)

Answer 8

1. The usefulness and desirability of the product
2. Probability and magnitude of potential injury
3. Availability of substitutes
4. Manufacturer’s ability to eliminate the unsafe character
5. User’s ability to avoid the danger
6. User’s awareness of the danger
7. Manufacturer’s ability to spread the loss

Question 9

Define Warning Defect

Answer 9

A product contains a warning defect when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of the instructions or warnings renders the product nor reasonably safe.

Question 10

What makes a warning inadequate/unreasonable?

Answer 10

1. Warning not displayed in such a way as to reasonably catch the attention of the persons expected to use the product
2. Warning fails to fairly apprise a reasonable user of the nature and extent of the danger
3. Warning fails to instruct the user as to how to use the product in such a way as to avoid the danger

Question 11

Was there a rebuttable presumption?

Answer 11

In warning cases there is a presumption that if a warning had been given, it would have been read and headed

Question 12

Allergic Reaction

Answer 12

• Warning required when the harm causing ingredient is one to which a substantial number of persons are allergic.
• It is not enough to show the P suffered a reaction.
• The more severe the harm, the more justifiable is the conclusion that the number of persons at risk need not be large to be considered “substantial” so as to require a warning.

Question 13

Learned Intermediary Rule - Warning Defect

Answer 13

The learned intermediary rule provides that a prescription drug manufacturer has a duty to warn the prescribing physician of its product and it is the physician’s duty to convey that warning to the patient. This rule applies to prescription drugs, as well as medical devices and bodily implants that are usually accompanied by medical advice and supervision.

Question 14

List the 3 exceptions to the learned intermediary rule

Answer 14

1. Mass inoculations and other instances of unsupervised dispensation of prescription drugs
2. Birth control prescriptions and devices
3. When prescription drugs are advertised directly to the consumer

Question 15

Exceptions to Duty to Warn

Answer 15

Sophisticated Users

Open and Obvious

Question 16

Plaintiff’s Fault as a Defense

Answer 16

A P’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the P combines with the product defect to cause the harm and the P’s conduct fails to conform to generally applicable rules establishing appropriate standards of care (majority)

Assumption of Risk (some jurisdictions)

Question 17

A contractor providing military equipment to the federal government can not be held liable under state tort law for injuries caused by a defective product when: (Defense)

Answer 17

1. The United States approved reasonably precise specifications;
2. The equipment conformed to those specifications; and
3. The supplier warned the U.S. about the dangers in the use of the product that were known to the supplier but not to the U.S.

Question 18

Affirmative Defense of Preemption (Defense)

Answer 18

Express Preemption

federal Preemption

Question 19

Greenman Factors

Answer 19

1. Product was defective
2. The P was unaware of the defect
3. P used product for its intended use
4. The P sustained injury from using the product