Products Liability / Strict Liability Flashcards
Basic elements in Products Liability Claim
Basics/Shape of the claim:
- P suffers Injury (Physical harm to person, property, or something other than product)
- Product sold by D (Tangible personal property distributed for use or consumption)
- D is commercial seller (Manufacturer, distributor, retailer)
- Product was DEFECTIVE (at time of sale; i.e. - manufacturing, design, or FTW defect
- Defect actually and proximately caused the injury
Risk/Utility Test (Who has burden of proof?)
One of the two tests assessing design defect. Answers the question: does risk posed outweigh the products utility?
Burden of proof: In NY, D has burden to prove that utility outweighs the risk/inherent danger; I.e. - use expert testimony to show that designing a safer product was not feasible. In other states, P may have burden to prove (depends state to state).
Wade Factors
Used in assessing a products utility in risk/utility test. The factors are:
- Utility to public as a whole
- Utility to individual
- Likelihood of injury
- Possibility of safer design while maintaining reasonable function/price
- Degree of awareness of potential danger that could be attributed to individual user
- Manufacturer’s ability to spread out cost of safety-related design changes (can they charge other people for it?)
Consumer Expectations Test
Used in assessing a the defective nature of a product’s design. A product is defective under this test when the design renders it more dangerous than an ordinary consumer would expect it to be.
This test is only used for basic, ordinary products and assesses what ordinary consumers might think about them; NO expert testimony.
Execution of test: compare the product to the prototype in an ordinary consumer’s mind. Plaintiff may argue the basic nature of the product; defendants may argue that expert testimony is needed
Manufacturing Defect
Another way a product can be defective in a products liability claim. Here, the product diverges from manufacturer’s own specs; could be one product or many .
Test: compare with product that actually meets those specs or exemplar product
Failure to Warn (Basic Rule)
Product is considered defective due to inadequate warning or an omission of a warning.
Basic Rule:
- The seller
- Fails to warn
- Members of those classes/persons who should be warned
- Of the relative risks associated with product
- In an adequate manner
Heeding Presumption
Some states have heeding presumption laws where when a plaintiff shows the absence of an adequate warning, the court will presume that the plaintiff would have in fact heeded the warning if the defendant would have provided one.
Learned Intermediary Rule
Who needs to receive the warning from the manufacturer? The consumer? Or the intermediary?
The learned intermediary can take that warning and tailor it for the specific user, so they are the appropraite party to be warned under this rule.
Learned intermediary is relevant in FTW claim in proving actual cause/but-for test (But/for the intermediary’s FTW, the injury would not have happened).
Joint/Several Liability
Multiple D in the same action for the same harm; intent to act together not required and actions do not have to occur at the same time. P can go after multiple D for some combination of the the whole amount of the judgment.
Triggers:
- Concert of action
- Vicarious Liability (Not two tortfeasors, just one direct TF and another D who shares responsibility for public policy reasons)
- Indivisible Injury
Unnamed/Unknown Defendant cannot recover damages
What is “state of the art” evidence? Is it admissible in FTW claims?
SOTA evidence is medical or scientific knowledge available to the defendant at the time of manufacture, design, sale of the product.
FTW is NOT about reasonableness (I.e. - duty, negligence etc…), but instead about whether manufacturer knew or should have known of a risk and simply failed to warn about it. Therefore, State of the Art evidence IS admissable.
Strict Liability: Types of Activities (3)
Activities where party is liable regardless of intentionality or party’s state of mind at the time:
- Trespass
- Nuisance
- Ultra-hazardous Activities
Trespass
D intentionally touches land that is owned or possessed by P
You are guilty of trespass if you :
- intend to touch the land and
- you touch the land
Does NOT require harm
Nuisance
Elements:
- D engages in conduct
- Causes
- Continuing/ongoing and unreasonable
- Interference
- With use and enjoyment of property
- In which P has possessory interest
Other considerations:
- Super fact driven (varies case by case)
- Policy is highly relevant
- Temporal sequence taken into account (but not dispositive)
Ultrahazardous (Abnormally Dangerous) Activities
Key issue = does the activity fit the description of “abnormally dangerous” and is there a physical harm; If so… there is STRICT LIABILITY; Care taken along the way does not matter.
Intervening act of 3rd party relieves D of SL ONLY when act was unforeseeable in relation to the extraordinary risk created by the activity; IE – you must anticipate what could go wrong and take necessary precautions.
Factors:
- High degree of risk
- Likelihood of harm
- Inability to eliminate risk through reasonable care
- Is it a common activity to engage in?
- Inappropriateness of location
- Balance with value to community
Recoverable Damages in Trespass
- Harm to property
- Nominal Damages
- Punitive
- Lost use of property
- Harm to person (if connected to the trespass)
