Products Liability

Question 1

What are the possible theories of product liability?

Answer 1

(1) intentional
(2) negligence
(3) strict liability
(4) Implied warranties of merchantability and fitness for a particular person
(5) Representation

Question 2

What must a plaintiff prove in all products liability cases regardless of the theory?

Answer 2

The existence of a product defect. A product can generally be the basis for a claim if is in a defective condition unreasonably dangerous to users.

Question 3

What are the two types of product defect?

Answer 3

Manufacturing defects and design defects (including inadequate warnings)

Question 4

What are manufacturing defects?

Answer 4

When a product emerges from a manufacturing process different from the other products and more dangerous than it would have been if it had been made correctly

Question 5

What are design defects?

Answer 5

All the products of a line are made identically but have dangerous propensities as a result of mechanical features or packaging. This can include inadequate warnings (which must be clear and complete to warn of dangers not apparent to users). For drugs/medical devices, it is enough to provide a warning to the providing physician.

A product that fails to conform to applicable government safety standards, including labeling requirements, is deemed defective (compliance with safety standards is relevant but not dispositive).

Question 6

What must a plaintiff show to establish a manufacturing defect?

Answer 6

The plaintiff will prevail if they can show the product was dangerous beyond the expectation of the ordinary consumer.

Question 7

What must a plaintiff show to establish a design defect?

Answer 7

The plaintiff must show a reasonable alternative design, meaning a less dangerous modification or alternative which is economically feasible.

Question 8

What are the consequences of a product’s dangers if misused?

Answer 8

Courts require suppliers to anticipate reasonably foreseeable uses of a product, even if they are misuses.

Question 9

In products liability suits, is there a requirement of contractual privity between the plaintiff and defendant?

Answer 9

Generally no.

Question 10

What are consequences of scientifically unknowable risks?

Answer 10

Unpredictable hazards which do not become apparent until the product is marketed (usually side effects of new drugs) will not be actionable if they were impossible to anticipate.

Question 11

When is a defendant liable in a products liability action on a theory of intent?

Answer 11

A defendant is liable to victims of unsafe product if the defendant intended the consequences or knew to substantial certainty they would occur. The underling intentional tort involved is usually battery.

Question 12

What are the elements of a products liability action on a theory of negligence?

Answer 12

(1) Duty
(2) Breach
(3) Causation
(4) Damages

Question 13

Who has a duty of care to a plaintiff in products liability negligence actions?

Answer 13

Anyone who supplies a product to another owes a duty of care, including casual sellers. Usually the seller is a commercial supplier though. Suppliers include the manufacturer of a product or its component parts, assembler, wholesaler, retailer, or dealer. A retailer who labels a product as their own or assembles it from other parts is liable for the negligence of the actual manufacturer.

Question 14

What must a plaintiff show to establish breach of duty in products liability negligence actions?

Answer 14

(1) negligent conduct

(2) the supplying of a defective product by the defendant

Question 15

How does a plaintiff prove negligence in a manufacturing defect case?

Answer 15

For manufacturers, the plaintiff may invoke res ipsa loquitur. Retailers and wholesalers owe a duty of care to customers and foreseeable victims but if they buy from a reputable supplier and have no reason to believe the product is dangerous, a cursory inspection will avoid liability.

Question 16

How does a plaintiff prove negligence in a design defect?

Answer 16

Plaintiff must show that those who designed the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. Negligence is not shown if the danger becomes apparent only after the product reaches the public.

Question 17

What is the effect of an intermediary’s negligence in products liability negligence actions?

Answer 17

Intermediary’s negligent failure to discover is not a superseding cause, but if an intermediary discovers a defect and does nothing, that will cut off the liability of the originally negligent defendant.

Question 18

What damages may a plaintiff recover in products liability negligence actions?

Answer 18

Personal injury and property damage as typical for negligence. The plaintiff cannot recover under a negligence theory for pure economic loss (usually has to go to breach of warranty).

Question 19

What are the elements of products liability claims based on strict liability?

Answer 19

(1) defendant is a commercial supplier (no casual sellers may be liable, only manufacturers, retailers, assemblers, and wholesalers).
(2) who produced or sold a defective product (which has reached the consumer without substantial change in its original condition)
(3) which actually and proximately cause
(4) personal or property damage

**No element of fault or negligence need be proven and the supplier may be liable even if it had no opportunity to inspect the product

Question 20

Who may be liable in a strict liability products case?

Answer 20

Only commercial suppliers (manufacturers, retailers, assemblers, and wholesalers) may be liable but any supplier in the chain of distribution may be on the hook (like negligence)

Question 21

How does a plaintiff show causation in a strict liability for products action?

Answer 21

They must show the harm is directly caused by a defect that existed when the product left the defendant’s control. If this is difficult to trace the plaintiff may rely on a res ipsa like inference that the failure would ordinarily result from a product defect.

Question 22

What damages are recoverable on strict products liability theory?

Answer 22

Personal and property but not pure economic loss

Question 23

What presumption is associated with strict liability for defective warning labels?

Answer 23

The presumption that had warning labels been attached, that the plaintiff would have read and heeded them

Question 24

What defenses exist to strict products liability actions?

Answer 24

Comparative negligence applies
In contributory negligence jurisdictions, a plaintiff’s reasonably foreseeable misuse, failure to discover, etc.. won’t cut off liability

Question 25

Can suppliers protect themselves against strict liability or negligence actions using disclaimers?

Answer 25

Liability disclaimers are irrelevant if there has been personal injury or property damage.

Question 26

What is the implied warranty of merchantability?

Answer 26

Sales of goods by a merchant selling goods of the type in which they deal include an implied warranty that they are of a quality equal to that generally acceptable among those dealing in similar goods and generally fit for the ordinary purposes for which such goods are used.

Question 27

What is the implied warranty of fitness for a particular purpose?

Answer 27

Where a buyer has a particular purpose for which they require goods and the seller knows or has reason to know of their purpose and the buyer relies on the seller to select or furnish suitable goods, an implied warranty of fitness for such purpose will arise.

Question 28

What must a plaintiff show in a breach of warranty products case?

Answer 28

(1) Existence of implied warranty
(2) Horizontal privity (usually the buyer and their family, household and guests who suffer injury)
(3) Causation
(4) Damages (including pure economic loss)
* *No fault required

Question 29

What are the effect of disclaimers on implied warranties?

Answer 29

Effective if specific and not unconscionable. A disclaimer of liability for personal injury damages is prima facie unconscionable.

Question 30

What are the defenses to products warranty claims?

Answer 30

Assumption of risk
Comparative negligence
Notice of breach

Question 31

What are the two representation theories of products liability?

Answer 31

(1) express warranty

(2) misrepresentation of fact

Question 32

What must a plaintiff show to sue under an express warranty theory?

Answer 32

(1) an express warranty (an affirmation of fact or a promise becoming the basis of the bargain)
(2) Breach of warranty (not necessarily through fault of defendant)
(3) Causation
(4) Damages
* * no privity required
* **disclaimers functionally ineffective

Question 33

What must a plaintiff show to sue under a misrepresentation of fact theory?

Answer 33

(1) Misrepresentation of a material fact
(2) Intent to induce reliance
* ** Intent as to misrepresentation: If an intentional or negligent misrepresentation, the appropriate intent, but may sue under strict liability
(3) justifiable reliance (need not be victim’s)
(4) Causation
(5) Damages