Products Liability

Question 1

Products Liability

Answer 1

Refers to the liability of a supplier of a defective product to someone injured by the product.

Five Theories:
Intent
Negligence
Strict Liability (SL) **easiest to prove
Implied warranties of merchantability and fitness for a particular purpose
Representation (express warranty and misrepresentation)

Question 2

Proof of Liability

Answer 2

1. Defect, and
2. Existence of the defect when the product left D’s control
   * *Inferred if product moved through normal channels of bistro

Question 3

Manufacturing

Answer 3

M –> A product is different and more dangerous than the other products made, properly, in the same batch/group

P must show product failed to. perform as safely as an ordinary consumer would expect.

Question 4

Inadequate Warnings

Answer 4

• M failed to give adequate warning RE risks involved in using the product
• Risks may not be apparent to users

Prescriptions drugs & medical devices–> warnings given to learned intermediaries suffices in lieu of warning to patient

Question 5

Design Defects

Answer 5

D –> ALL products in a line are the same but have dangerous propensities

P must show D could’ve made product safer, without serious impact on. product’s price or utility.

Question 6

Non-compliance with gov’t safety standards:

Answer 6

Establishes that product is defective

compliance is evidence but not conclusive that product is not defective

Question 7

Scientifically. unknowable risks:

Answer 7

D not liable for dangers NOT foreseeable at time of marketing

Question 8

Unavoidably Unsafe Products

Answer 8

Ms not held liable for some dangerous products (ex: knives) if danger is apparent and there’s no safer way to make the product

Question 9

Privity

Answer 9

DOES NOT MATTER. if there was contractual privity b/w P and D!!!

*consistent wrong answer to watch out for

Question 10

Liability Based on Intent

• Privity
• Damages
• Defenses

Answer 10

RARE!

D liable to ANYONE injured by unsafe product IF D intended consequences or knew they were substantially certain to occur.

Privity NOT required.
Compensatory; Punitive.
Same as intentional torts.

Question 11

ANYONE who supplies the product owes a Duty of Care to:

Answer 11

ALL foreseeable Ps. Privity NOT Required!

Question 12

Breach of Duty

Answer 12

Shown by negligent conduct of D leading to supplying of a defective product.

Question 13

Proving Negligence in Manufacturing v. Design Defect Case

Answer 13

M. –> RIL if defect would not usually occur without M’s negligence.

D –> P must show D knew or should’ve known of the danger of the product as designed.

Question 14

Intermediary’s Negligence

Answer 14

Does NOT supersede M’s negligence UNLESS the conduct exceeds ordinary foreseeable negligence.

Question 15

Recovery of Damages for Negligence PL Action

Answer 15

Physical injury or property damages MUST be shown. (NO recovery if only economic loss).

Question 16

Defenses to Negligence PL Action

Answer 16

Same as Negligence

Cont. Neg
AOR

Question 17

Prima Facie case for PL based on SL

Answer 17

(ANY) Commercial supplier of a product;
Producing or selling a defective product;
Actual and proximate cause; AND
Damages

*Product MUST reach P without substantial alternation.
Privity NOT required!
*retailers may be liable even if no opportunity to inspect

Question 18

PL based on SL only applies to:

Answer 18

Products, not where product is provided incident to a service

(ex: blood during an operation)

Question 19

PL based on SL – What is a defective product

Answer 19

Product dangerous beyond the expectation of the ordinary consumer

Question 20

PL based on SL – Causation

Answer 20

Cause in fact –P must show that defect existed when product left the D’s control

• Difficulty tracing defect –> P may rely on inference that product failure would not occur absent a product defect
• P. claiming product defect due to lack of adequate warning entitled to presumption that adequate warning would’ve been read. & heeded

Prox Cause same as negligence cases

Question 21

PL based on SL – Damages

Answer 21

Physical injury or property damage MUST be shown and disclaimers are ineffective where these damages occur.
(no recovery is only economic loss)

Question 22

Defenses to PL based on SL

Answer 22

Cont. Negligence NO Defense!

AOR is a defense

Question 23

Implied Warranty of Merchantability

Answer 23

goods are of average an acceptable quality and are generally fit for the ordinary purpose for which the goods are used

Question 24

Implied Warranty of Fitness for a Particular Purpose

Answer 24

seller knows or has reason to know the particular purpose for which goods are required and that the buyer is relying on the seller’s skill and judgment in selecting goods

Question 25

Who can sue for implied warranties?

Answer 25

Buyer, family, household, and guests can sue for personal injuries

Question 26

What is a breach of implied warranties?

Answer 26

product fails to live up to either of the implied warranties

no fault necessary

Question 27

Causation for implied warranty cases

Answer 27

same as ordinary negligence

Question 28

Damages for implied warranty cases

Answer 28

Personal injury and property damages AND purely economic loss are recoverable.

*Disclaimers only upheld for economic loss.

Question 29

Defenses in implied warranty cases

Answer 29

AOR; Cont. Neg.

Failure to give notice of the breach

Question 30

Express Warranty

• who can sue
• breach
• causation
• damages
• disclaimers

Answer 30

Created when any affirmation of fact or promise concerning goods becomes part of the basis of the bargain.

Suit: ANY consumer, user, bystander can sue. If P not in privity, she didn’t have to rely on representation as long as someone did.

Breach: P only needs to show that product didn’t live up to warranty.

Causation: same as ordinary negligence

Damages: Personal injury and property damages AND purely economic loss are recoverable. *Disclaimers only upheld for economic loss.

Defenses: AOR; Cont. Neg.; Failure to give notice of the breach

Question 31

What constitutes a Misrepresentation Fact?

• causation
• damages
• defenses

Answer 31

S liable where (1) statement was of a material fact concerning quality or uses of goods and (2) S intended to induce reliance by the B in particular transaction.

*NOTE: mere puffery is insufficient
NO privity requirement

Causation: actual cause shown by reliance. Pros cause same as negligence cases.

Damages: Physical injury or property damage MUST be shown and disclaimers are ineffective where these damages occur. (no recovery is only economic loss)

Defenses: AOR NOT a defense if P entitled to rely on representation. Con. Neg. no defense unless D committed intentional misrepresentation.

Question 32

Is justifiable reliance required for misrepresentation of fact?

Answer 32

YES. Representation must’ve been a substantial factor in inducing the purchase.

Reliance can be a prior purchaser’s and not the actual victim’s.