Products Liability (PL)

Question 1

What is PL and what is included?

Answer 1

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

1. Negligence (typically plead in combo w/ other 2)
2. Breach of Warranty/Misrepresentation
3. Strict Products Liability (2nd & 3rd Restatement)

Question 2

What is the Breach of Warranty Theory?

Answer 2

Manufacturers may expressly warrant a product by advertising or other representations while….

Retailers may, by specifying the product, impliedly warrant fitness for particular purposes.

Question 3

What is Warranty of Merchantability?

Answer 3

Manufacturers, distributors, and retailers impliedly warrant a product’s merchantability - meaning…

its fitness for an intended purpose.

Question 4

What is a Warranty Disclaimer?

Answer 4

Merchants may disclaim some warranties but…

MERCHANTS MAY NOT DISCLAIM

1. Warranty of Merchantability
2. Warranty protecting against personal injury.

Question 5

What is the Economic-Loss Doctrine?

Answer 5

The Economic-Loss Doctrine may also limit recovery of economic losses where ther is no physical impact or injury.

Question 6

What is Strict Products Liability?

Answer 6

Merchants who sell products in a defective condition - unreasonably dangerous to users - are liable for resultant injury.

Question 7

What tests do courts employ to determine if a product is defective?

Answer 7

Risk-Utility Test and Consumer-Expectation Test

Question 8

What is the Risk-Utility Test?

Answer 8

A risk-utility test determines what is “UNREASONABLY DANGEROUS” for purposes of strict products liability.

1. Usefulness & desirability
2. Safet aspects of the product
3. availability of substitute product
4. manufacturer’s ability to eliminate unsafe character
5. user’s ability to avoid danger (care w/ use of product)
6. user’s anticipated awareness of inherent dangers
7. feasability (manufacturer’s)

Question 9

What is the Consumer-Expectation Test?

Answer 9

A consumer-expectation test determines what the “ordinary consumer” might expect for purposes of strict products liability.

Question 10

What does the 3rd Restatement say about Strict Products Liability?

Answer 10

3rd Restatment’s approach is to classify defects as either design, manufacturing, or warning.

Question 11

How does the 3rd Restatement classify manufacturing defects?

Answer 11

A manufacturing defect exists when at the time of manufacture the product departs from its design.

Question 12

How does the 3rd Restatment classify design defects?

Answer 12

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.

Question 13

What does the 3rd Restatement say about Failure to Warn?

Answer 13

Failure to Warn claims depend on showing that the omission of a warning made the product unreasonably dangerous.

Question 14

What are Open and Obvious Risks?

Answer 14

Generally, there doesn’t need to be a warning for obvious risks. Courts will recognize and open and obvious defense.

Question 15

What is Adequacy of Warning?

Answer 15

Warnings must be adequate, generally meaning that they should describe the hazard, injury risk, and means of avoiding the risk.

Question 16

What is the parallel between Failure to Warn and Causation?

Answer 16

Causation in Failure to Warn Cases:

Most jurisdictions will presume that the injured user would have read and heeded a warning.

Question 17

What are Sophisticated Users & Learned Intermediaries?

Answer 17

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.

Question 18

How does strict products liability work in the Chain of Distribution?

Answer 18

All merchants within the chain of distribution bear the same liability to the injured user as the manufacturer, as do suppliers of defective parts.

Question 19

How does strict prouducts liability work for One-Time Resellers?

Answer 19

Strict Products Liability does not extend to one-time resellers of used products.

Question 20

How does indemnity work in Strict Products Liability?

Answer 20

Entities in the Chain of Distribution typically indemnify one another, shifting products liability to the responsible party.

Question 21

What is Subsequent Remediaal Re-Design?

Answer 21

Subsequent remedial changes in design defects are generally inadmissable except to prove disputed feasability.

Question 22

What are Products Liability Defenses?

Answer 22

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.

Question 23

What is the Comparative Negligence Defense?

Answer 23

Comparable negligence is an available defense to products-liability claims in a majority of jurisdictions.

Question 24

What is the Assumption of Risk Defense?

Answer 24

Assumption of Risk is another products liability defense available in some jurisdictions.

Question 25

What are the Time Defenses?

Answer 25

The Statute of Limitations (SOL) and Statue of Repose (SOR) are comon products liability defenses.

Question 26

What is the Worker’s Compensation Exclusive Remedy?

Answer 26

Exclusive Remedy provisions of worker’s compensation acts may bar claims against involved employers but not manufacturers of the injury-causing product.

Question 27

What is the Product Misuse Defense?

Answer 27

Just as it sounds. This is a comon defense, although manufacturers may have to anticipate foreseeable misuses.

Question 28

What is Federal Pre-Emption?

Answer 28

Federal Pre-emption is another possible defense, where state tort law contradicts federal statute or regulation.

Question 29

What are Product-Related Services and is there liability?

Answer 29

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.