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Torts - Complete First Year Law School > Products Liability > Flashcards

Products Liability Flashcards

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1
Q

What is Product’s Liability?

A

A commercial supplier that puts a “defective” product into the stream of commerce can be held liable under several theories of product liability.

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2
Q

Within Defective Product, what are the three types of “defective” product?

A

1) Manufacturing defect 2) Design defect 3) Inadequate warning

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3
Q

What are the two types of Manufacturing Defect?

A

1) If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect, or 2) If the product is not in the condition that the manufacturer intended it to be.

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4
Q

What is a Design Defect?

A

When all products are the same but have dangerous propensities, they may be found to have a design defect.

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5
Q

Within Design Defect, what is the Consumer Expectation Test? What is expected of the defendant?

A

Product failed to perform as safely as an ordinary consumer would expect. Expectation - Defendant must anticipate reasonable misuse.

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6
Q

Within Design Defect, what is the Reasonable Alternative Test?

A

Defendant could have made the product safe without serious impact on the products price or utility.

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7
Q

Within Design Defect, what are Scientifically Unknowable Risks?

A

Defendant will not be held liable for dangers not foreseeable at the time of marketing.

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8
Q

Within Design Defect, what is “Unavoidably unsafe products”?

A

Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product.

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9
Q

What is Inadequate Warning?

A

Product may be defective as a result of the manufacture’s failure to give adequate warnings as to the risks involved in using the product.

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10
Q

Within Inadequite Warning, must the danger not be apparent to users?

A

Yes, the danger must not be apparent to users

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11
Q

With regard to Defect’s, when must the defect have existed?

A

When the product left defendant’s control. This will be inferred if the product moved through normal channels of distribution.

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12
Q

What is Strict Product Liability?

A

An absolute duty owed by a commercial supplier not to supply a defective product that is breached by the defendant and the breach is the actual and proximate cause of plaintiff’s damages.

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13
Q

Within Strict Product Liability, what are the three types of foreseeable plaintiff’s? What is no longer required?

A

1) Users 2) Consumers 3) and Bystanders. Privity is no longer required.

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14
Q

Within Strict Product Liability, what is a Commercial Supplier?

A

Manufacturer, Wholesaler or Retailer

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15
Q

Strict Product Liability only applies to defective:

A

Products (services are not included)

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16
Q

Within Strict Product Liability, does Design Defect apply to Drug manufacturers?

A

No, not strict liability. An action against drug companies must be based on negligence liability.

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17
Q

Within Strict Product Liability, what duty is owed?

A

An absolute duty not to put a defective product into the stream of commerce

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18
Q

Within Strict Product Liability, when does a breach of the absolutely duty occur?

A

When the defendant supplies a defective product.

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19
Q

Within Strict Product Liability - Breach, is any analysis or fault required for breach?

A

No, only the supply of a defective product

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20
Q

Within Strict Product Liability, what causation is required?

A

Actual and Proximate Cause. Same analysis as Negligence.

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21
Q

Within Strict Product Liability, how are Damages analyzed?

A

Same damage analysis as negligence

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22
Q

Within Strict Product Liability, what two defenses are available?

A

1) Assumption of Risk 2) Comparative Negligence (reduction of the damages award). Contributory negligence is not a valid defense.

23
Q

What is Negligent Product Liability?

A

A reasonable duty owed by a commercial supplier not to supply a defective product that is breached by the defendant and the breach is the actual and proximate cause of plaintiff’s injury.

24
Q

Within Negligent Product Liability, what are the three types of foreseeable plaintiff’s? What is no longer required?

A

1) Users 2) Consumers 3) and Bystanders. Privity is no longer required.

25
Q

Within Negligent Product Liability, what is a Commercial Supplier?

A

Manufacturer, Wholesaler or Retailer

26
Q

Within Negligent Product Liability, what two types of duties exist?

A

1) Manufacture’s duty 2) Dealer’s duty

27
Q

Within Negligent Product Liability, what are the two elements of Manufacturer’s duty?

A

1) Must use reasonable care in design of product 2) must reasonably inspect product before it leaves manufacturer’s control

28
Q

Within Negligent Product Liability - Manufacturer’s duty, will superior skill or training be considered?

A

Yes

29
Q

Within Negligent Product Liability, what is a Dealer’s duty?

A

Must reasonably inspect product before it leaves dealer’s control.

30
Q

Within Negligent Product Liability - Dealer’s duty, what type of inspection is reasonable when dealer is buying from a reputable supplier?

A

A cursory inspection will be reasonable

31
Q

Within Negligent Product Liability - Dealer’s duty, what two things are required when dealer is buying from a non-reputable supplier?

A

1) Make a reasonable inspection 2) warn plaintiff that product might be defective

32
Q

Within Negligent Product Liability, what are the two types of breach?

A

1) Manufacturing defect 2) Design defect or Lack of Adequate Warning

33
Q

Within Negligent Product Liability, what is usually involved with a Manufacturing defect?

A

Res Ipsa Loquitur

34
Q

Within Negligent Product Liability, what is usually involved with a Design defect or Lack of Adequate Warning?

A

Supplier knew (or should have known) of defect and didn’t warn and/or make safe.

35
Q

Within Negligent Product Liability, what causation is required?

A

Actual and Proximate cause. Same analysis as Negligence.

36
Q

Within Negligent Product Liability, how are Damages analyzed?

A

Same analysis as Negligence.

37
Q

Within Negligent Product Liability, what three defenses are available?

A

1) Assumption of Risk 2) Comparative Negligence (reduction of the damages award) 3) Contributory negligence. All valid.

38
Q

What is Intentional Torts Product Liability?

A

Commercial supplier supplies a defective product with the desire (or knowledge with substantial certainty) that it will cause plaintiff a harmful or offensive contact.

39
Q

Is Intentional Torts Product Liability usually based on a battery theory and also very rare?

A

Yes

40
Q

Within Implied Warranty, what is an Implied Warranty of Merchantability?

A

If goods are sold by a merchant who deals in those types of goods, then there is an implied warranty that the goods are generally fit for the ordinary purposes for which the goods are to be used.

41
Q

Within Implied Warranty, what is an Implied Warranty of Fitness for a Particular Purpose?

A

When there is an implied warranty that goods are fit for a particular purpose

42
Q

Within Implied Warranty, what are the two elements of Implied Warranty of Fitness for a Particular Purpose?

A

1) When seller knows (or has reason to know) the particular purpose for which the goods are required, and 2) the buyer is relying on the seller’s skill or judgement to select or furnish suitable goods

43
Q

Within Implied Warranty, who is in Privity (a proper plaintiff) in most states?

A

1) All buyer’s 2) most states extend protection to buyer’s family, household and guest who suffer personal injury.

44
Q

Within Implied Warranty, how is Privity (a proper plaintiff) extended in some states?

A

Protection is extended to any person who suffers personal injury

45
Q

Within Implied Warranty, how is Privity (a proper plaintiff) extended further in a few states?

A

Protection is extended to any person who suffers any injury

46
Q

Within Implied Warranty, how must Disclaimers be written?

A

Must be specific and narrowly construed

47
Q

Within Implied Warranty, what limitations are placed on disclaimers?

A

Limitations on personal injury damage are not enforceable

48
Q

Within Implied Warranty, what causation is required?

A

Actual and Proximate cause. Same analysis as Negligence.

49
Q

Within Implied Warranty, how are Damages analyzed?

A

Same analysis as Negligence.

50
Q

Within Implied Warranty, what two defenses are available?

A

1) Assumption of Risk 2) Comparative Negligence (reduction of the damages award). Contributory negligence is not a valid defense.

51
Q

What are the two elements of Express Warranty/Misrepresentation?

A

1) Must be communicated to plaintiff in writing, or orally, or by use of sample or model 2) Must be an affirmation of fact or promise to the buyer, related to the goods, that becomes part of the basis of the bargain.

52
Q

Within Express Warranty/Misrepresentation, is Privity required?

A

No

53
Q

Within Express Warranty/Misrepresentation, When are disclaimers valid?

A

If they can be read consistently with any express warranties made.

54
Q

What are the six areas of Products Liability?

A

1) Defective Product 2) Strict Product Liability 3) Negligent Product Liability 4) Intentional Torts Product Liability 5) Implied Warranty 6) Express Warranty/Misrepresentation

Torts - Complete First Year Law School (13 decks)

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