Products Liability

Question 1

Products Liability: Definition

Answer 1

Products liability refers to the liability of a commercial seller who supplies a defective product that causes personal injury or property damage

Question 2

Products Liability: General Notes

Answer 2

• you must show a defect was in existence when the product left D’s control
• D may be the original manufacturer, wholesaler, retailer, etc.

Question 3

Strict Liability in Tort

Answer 3

A commercial seller who places a defective product in the stream of commerce is strictly liable in tort for injuries to persons or property caused by a foreseeable use of the product.

**Fault is irrelevant

Question 4

Strict Liability in Tort: Elements

Answer 4

Foreseeable Use/Foreseeable Plaintiff

Breach/Defect

Causation

• actual
• proximate

Damages

Question 5

Breach/Defect

Answer 5

Manufacture
-product not made as manufacturer intended

Design

• made as intended; and
• foreseeable risks are avoidable by a reasonable alternative design; and
• without alternative design, product is unreasonably unsafe

Warning

• failure to warn
• *LEARNED INTERMEDIARY Exception: no duty to warn for prescription drugs where doctor is informed of the risk

Question 6

SL in Tort: Defenses

Answer 6

Contributory/Comparative is NOT a defense
-because these are fault-based defenses

Assumption of the Risk is a defense
-but rarely works

Question 7

Negligence: Prima Facie Case

Answer 7

• duty
  
  • foreseeable P
  • standard: RP manufacturer
• breach (did not act reasonably in not warning)
• actual cause (but for no warning)
• proximate cause (it is foreseeable that when no warning…)
• damages

Question 8

Negligence: Defenses

Answer 8

Comparative

AR
-knowing
-voluntary
effect=complete bar

Question 9

Implied Warranties: Merchantability

Answer 9

Goods of fair and average quality

Fit for ordinary purpose (includes absence of warning label)

Question 10

Implied Warranties: Intended Use

Answer 10

• Product must be fit for intended use; and

- Buyer must rely on seller’s recommendation

Question 11

Implied Warranties: General Notes

Answer 11

**Need Causation and Damages

Defenses:

• comparative negligence
• AR

Question 12

Express Warranty

Answer 12

Statement of fact or promise by a commercial seller creates an express warranty that becomes part of the basis of the bargain

Question 13

Express Warranty: Elements

Answer 13

1. statement of fact/promise concerning goods
2. commercial seller
3. basis of the bargain
4. causation/damages

Defenses

• CN
• AR

Question 14

Misrepresentation

Answer 14

Commercial seller is liable for material misrepresentation of fact

Question 15

Misrepresentation: Elements

Answer 15

1. material misrepresentation
2. intent to induce reliance
3. justifiable reliance
4. causation/damages

Defenses

• CN
• AR

Question 16

Intent (Battery) Theory

Answer 16

Commercial seller is liable for injuries caused by an unsafe product if D intended the consequences (NOT just the contact)

Question 17

Intent (Battery) Theory: Elements

Answer 17

-Must show D intended the consequences (substantial likelihood test)

Damages
-compensatory + punitive

Defenses (intentional tort defenses)

• defense of…
• consent

Question 18

Products Liability: Types

Answer 18

1. Strict Liability in Tort
2. Negligence
3. Implied Warranties
4. Express Warranty
5. Misrepresentation
6. Intent (Battery) Theory