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Torts > Strict Liability - Products > Flashcards

Strict Liability - Products Flashcards

1
Q

Strict Products Liability

Rest. 2d 402(A)(1)

A

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate consumer, or to his property if
1. The seller is engaged in the business of selling such a product and
2. It is expected and does reach the user or consumer without substantial change in the condition which it is sold

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2
Q

Strict Products Liability

Rest. 2d 402(A)(2)

A

The rule stated in (1) applies although
1. The seller has exercised all possible care in the preparation and sale of his product and
2. The user or consumer has not bought the product from or entered into any contractual relationship with the seller

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3
Q

Strict Products Liability - Step 1

How to determine proper plaintiff

A

The party was a user of the product, consumer of the product, or a bystander

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4
Q

Strict Products Liability - Step 2

How to determine proper defendant

A
  1. Someone who is in the business of selling and part of the marketing chain
  2. Retailers are derivative defendants - if manufacturer is not liable then retailer cannot be liable
  3. If it the proper defendant is questionable, consider if inclusion of defendant is consistent with policies of strict liability
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5
Q

Strict Products Liability - Step 3 (OPTIONAL)

Assess theories that would preclude use of SPL

A
  1. Is injury caused by product or by service?
  2. Does the product injure only itself?
    * What qualifies as the product when a component part produced by a different manufacturer damages a larger whole? Tires on a new Mustang? An aftermarket spoiler on the Mustang?
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6
Q

Strict Products Liability - Step 4

Did the product leave D’s possession in a defective condition?

A
  1. State the defective condition
  2. Mostly an issue for manufacturing defect - determine the source of the defect (manufacturer, distributor, or retailer?)
    * Normally not an issue design or warning defects
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7
Q

Strict Products Liability - Step 5

Is the product defective?

A
  1. Misuse?
  2. Type of defect (discuss any that are present)?
    * Manufacturing defect
    * Design Defect
    * Warning Defect
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8
Q

Strict Products Liability - Step 5

Steps to determine misuse

A
  1. Was the product used in a reasonably foreseeable manner?
  2. If it was NOT used in a foreseeable manner, was misuse foreseeable?
    * Foreseeable, then misuse does not negate the SPL claim
    * Unforeseeable. then misuse could negate the SPL claim
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9
Q

Strict Products Liability - Step 5

What are the 2 tests for manufacturing defect?

A
  1. OCE: The ordinary consumer expectations test or
  2. Did the product differ from the manufacturer’s intended output
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10
Q

Strict Products Liability - Step 5

What are the 2 tests for assessing design defects?

A
  1. OCE: The ordinary consumer expectation test
  2. Risk/Utility Balancing factors
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11
Q

Strict Products Liability - Step 5

Test for OCE

A

The product did not perform as safely as an ordinary reasonable customer would have expected
* P must demonstrate that the product failed to perform as safely as expected when used in a foreseeable manner

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12
Q

Strict Products Liability - Step 5

Factors for the Risk/Utility Balancing Test

A
  1. Likelihood that product will cause injury
  2. Probable gravity of injury
  3. Manufacturer’s ability to eliminate the unsafe character of the product without impairing the usefulness
  4. Technological and economic feasibility of alternative designs
  5. User’s anticipated awareness of the dangers inherent in the product
  6. Utility of product as designed to user and public as a whole
  7. Availability of substitute products which would meet the same need
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13
Q

Strict Products Liability - Step 5

How to address “second collision cases”

A

When the defective design does not cause the injury but does enhance it
* Show that injuries are PxC of defective product that was unreasonably dangerous to P
* OCE is applied here - is the product more dangerous in use that the ordinary consumer would expect?

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14
Q

Strict Products Liability - Step 5

How to address design defects for Rx drugs/vaccines

A

Comment k protects Rx drugs when
1. Manufacturer should have known risk and
2. Unavoidably unsafe products - there is no reasonable alternative and
3. The product is of great social utility
(NOT exempt from manufacturing or warning defects)

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15
Q

Strict Products Liability - Step 5

What are the types of warning defects?

A
  1. Failure to warn
  2. Inadequate warning
  3. Learned intermediary theory - to whom must the warning be given
  4. Warning for allergies
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16
Q

Strict Products Liability - Step 5

How to assess failure to warn

A

Jx Split
1. Reasonableness test (knew or should have known)
2. Known or knowable
* Was the lack of warning reasonable (BPL)?

17
Q

Strict Products Liability - Step 5

How to assess Inadequate Warning

A
  1. Is the risk obvious? (if yes, no warning needed)
  2. Does the warning reasonably alert foreseeable users of significant dangers?
  3. Was the warning that was given (even with inadequate characteristics) reasonable?
18
Q

Strict Products Liability - Step 5

How to assess the reasonableness of a warning?

A
  1. The explicitness of the warning
  2. Whether the warning language is comprehensible to typical users
  3. The clarity of the warning
  4. The conspicuousness of the warning
  5. The means used to convey the warning
19
Q

Strict Products Liability - Step 6

Cause-in-Fact

A

Same as neglignce analysis
* Extra Heeding step for warning defects - would adequate warning, more likely than not, changed P’s behavior

20
Q

Strict Products Liability - Step 7

Proximate Cause

A

Same as negligence (type, manner, extent)
* Unforeseeable alterations by 3d parties can raise issues
* Misuse can raise issues

21
Q

Strict Products Liability - Step 8

Defenses

A
  1. 402A view: Assumption of risk is only defense
  2. Majority: Same defenses as negligence

Torts (11 decks)

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