Products Liability (PL) Flashcards
29 Torts II Concepts
What is PL and what is included?
PL = products causing injury
Products Liability (PL) includes not only negligence claims but also claims based on warranty and strict products liability.
Framework = 3 Theories
- Negligence (typically plead in combo w/ other 2)
- Breach of Warranty/Misrepresentation
- Strict Products Liability (2nd & 3rd Restatement)
What is the Breach of Warranty Theory?
Manufacturers may expressly warrant a product by advertising or other representations while….
Retailers may, by specifying the product, impliedly warrant fitness for particular purposes.
What is Warranty of Merchantability?
Manufacturers, distributors, and retailers impliedly warrant a product’s merchantability - meaning…
its fitness for an intended purpose.
What is a Warranty Disclaimer?
Merchants may disclaim some warranties but…
MERCHANTS MAY NOT DISCLAIM
- Warranty of Merchantability
- Warranty protecting against personal injury.
What is the Economic-Loss Doctrine?
The Economic-Loss Doctrine may also limit recovery of economic losses where ther is no physical impact or injury.
What is Strict Products Liability?
Merchants who sell products in a defective condition - unreasonably dangerous to users - are liable for resultant injury.
What tests do courts employ to determine if a product is defective?
Risk-Utility Test and Consumer-Expectation Test
What is the Risk-Utility Test?
A risk-utility test determines what is “UNREASONABLY DANGEROUS” for purposes of strict products liability.
- Usefulness & desirability
- Safet aspects of the product
- availability of substitute product
- manufacturer’s ability to eliminate unsafe character
- user’s ability to avoid danger (care w/ use of product)
- user’s anticipated awareness of inherent dangers
- feasability (manufacturer’s)
What is the Consumer-Expectation Test?
A consumer-expectation test determines what the “ordinary consumer” might expect for purposes of strict products liability.
What does the 3rd Restatement say about Strict Products Liability?
3rd Restatment’s approach is to classify defects as either design, manufacturing, or warning.
How does the 3rd Restatement classify manufacturing defects?
A manufacturing defect exists when at the time of manufacture the product departs from its design.
How does the 3rd Restatment classify design defects?
Design-defect claims depend on showing that the product is not reasonably safe as designed and are likely determined by risk-utility and consumer-expectation tests.
*Design-defect claims may require showing an alternative feasible design at the time of manufacture.
What does the 3rd Restatement say about Failure to Warn?
Failure to Warn claims depend on showing that the omission of a warning made the product unreasonably dangerous.
What are Open and Obvious Risks?
Generally, there doesn’t need to be a warning for obvious risks. Courts will recognize and open and obvious defense.
What is Adequacy of Warning?
Warnings must be adequate, generally meaning that they should describe the hazard, injury risk, and means of avoiding the risk.
What is the parallel between Failure to Warn and Causation?
Causation in Failure to Warn Cases:
Most jurisdictions will presume that the injured user would have read and heeded a warning.
What are Sophisticated Users & Learned Intermediaries?
In Failure to Warn cases, courts will also consider the user’s sophistication AND whether there were any learned intermediaries who should have given warnings.
How does strict products liability work in the Chain of Distribution?
All merchants within the chain of distribution bear the same liability to the injured user as the manufacturer, as do suppliers of defective parts.
How does strict prouducts liability work for One-Time Resellers?
Strict Products Liability does not extend to one-time resellers of used products.
How does indemnity work in Strict Products Liability?
Entities in the Chain of Distribution typically indemnify one another, shifting products liability to the responsible party.
What is Subsequent Remediaal Re-Design?
Subsequent remedial changes in design defects are generally inadmissable except to prove disputed feasability.
What are Products Liability Defenses?
Comparative Negligence Defense, Assumption of Risk Defense, Time Defenses, Worker’s Compensation Exclusive Remedy, Product Misuse Defense, Federal Pre-emption, Product-Related Services and Liability.
What is the Comparative Negligence Defense?
Comparable negligence is an available defense to products-liability claims in a majority of jurisdictions.
What is the Assumption of Risk Defense?
Assumption of Risk is another products liability defense available in some jurisdictions.
What are the Time Defenses?
The Statute of Limitations (SOL) and Statue of Repose (SOR) are comon products liability defenses.
What is the Worker’s Compensation Exclusive Remedy?
Exclusive Remedy provisions of worker’s compensation acts may bar claims against involved employers but not manufacturers of the injury-causing product.
What is the Product Misuse Defense?
Just as it sounds. This is a comon defense, although manufacturers may have to anticipate foreseeable misuses.
What is Federal Pre-Emption?
Federal Pre-emption is another possible defense, where state tort law contradicts federal statute or regulation.
What are Product-Related Services and is there liability?
Generally, no products liability for services which do not involve products as their essential activity. Human tissue & writings are generally not considered to be products, and there are varying rules on whether animals are products.
