Products Liability (Module 13)

Question 1

Theories of Liability for Product Liability

Answer 1

1) negligence
2) UCC claim (warranties of merchantibility/fitness for partic purpose)
3) misrepresentation/fraud
4) strict liability

Note: regardless of which theory, actual and proximate cause must be proved

Question 2

Elements of a SL Product Liability Claim

Answer 2

1) D is a merchant
- applies to everyone in distro chain
- no casual sellers
- commercial lessor (rental car company) is a merchant

2) Product is defective (manufacturing, design, info)

3) Product not significantly altered since leaving D’s control
- if moved through normal distro chain will be assumed no issue

4) P was making FOS use of the product
- many misuses still FOS (standing on a chair is a fos misuse even though not intended use)

5) the defect was the actual and proximate cause of the injury

Note: disclaimers are ineffective in SL cases if personal/property injury occurs

Question 3

Design/Manufacturing/Information Defects

Answer 3

Manufacturing Defect - differs from others on same assembly line; P must show that product failed to perform as ordinary consumer would expect

Design Defect - P must show that alternative design would be:
1) safer
2) practical
3) economically feasible

Information Defect - for warning/instructions to be adequate must be:
1) prominent
2) comprehensible
3) provide info about mitigating risk

Question 4

Product Liability Claim Based on Negligence

Answer 4

Negligent conduct that results in the supplying of a defective product
- Same elements as a p.f. neg case (plaintiff has the burden of proof in showing they were owed a duty and D did not behave the way a reasonable manufacturer would have given the circumstances, and fx+px cx)
- P can use RIL if defect is not something that would have occurred without manufacturer’s negligence

Very difficult to hold retailers/wholesalers liable for negligence bc a cursory inspection will satisfy their duty, unless they exceed fos neg

Any FOS P can sue; physical injury/property damage must be shown; disclaimers ineffective

Question 5

Product Liability Claim Based on UCC Theory (Implied Warranty Of Merchantibility)

Answer 5

Who can be sued: merchant dealing in the kind of goods sold

Fault: good wasn’t acceptable/fit for ordinary purposes

Who can sue: Buyer, family, household, and guests

Cause: Still have to prove actual/pxcx

Damages: Personal injury, property damages, AND economic loss are all recoverable

Question 6

Product Liability Claim Based on UCC Theory (Implied Warranty Of Fit for Partic Purpose)

Answer 6

Who can be sued: any seller of goods

Fault: good wasn’t acceptable/fit for the purpose the seller knew the buyer wanted it for/buyer justifiably relied on them

Who can sue: Buyer, family, household, and guests

Cause: Still have to prove actual/pxcx

Damages: Personal injury, property damages, AND economic loss are all recoverable

Question 7

Product Liability Claim Based on Representation Theory

Answer 7

1) Express Warranty
- Who can sue: any consumer, user, bystander
- Fault: just need to show product didn’t live up to the warranty
- Cause: still have to prove factual/pxcx
-Damages: ersonal injury, property damages, AND economic lossess are all recoverable

2) Misrepresentation of Fact
- statement was of a material fact concerning quality/uses (mere puffery doesn’t count)
- seller intended to induce reliance by the buyer
- justifiable reliance is required (the misrep was a substantial factor in the purchase)
- assumption of risk is not a defense if P relied on the representation

Question 8

Affirmative Defenses to Strict Liability

Answer 8

Contributory Negligence is not a defense if P failed to realize the danger
Contributory negligence is a defense if:
- P knew of the danger and
- their unrxble conduct was the very cause of the injury from the abnormally dangerous activity, wild animal, or defective product (particularly good defense for SL)

Many states will apply comparative neg (use this on the test unless otherwise stated)