Strict Liability:Products Liability

Question 1

What is the prima facie case forstrict products liability?

Answer 1

1) Merchant ∆ that routinely deals in this type of a product

Traps:

(i) casual seller is NOT merchant;
(ii) service provider (i.e. they offer products incidentally to services)is NOT merchant of products used;
(iii) commercial lessors ARE merchants (e.g. car rental company); (iv)every party in distribution chain IS a merchant

NOTE: Privity is not required (users, consumers and bystanders can all sue)

2) Production OR sale of a defective product
(a) Manufacturing defect: aberration/anomalyin batch from same assembly line
(b) Design defect: (i) hypothetical alternative design is (1) safer, (2) economical, AND (3) practical

NOTE: Failure to conform to a gov’t regulation is CONCLUSIVE proof of a defective design (BUT compliance with gov’t regulation is NOT conclusive evidence of a non-defective product)

NOTE: Can be LEGALLY DEFECTIVE if unreasonably dangerous

(c) Inadequate warnings defect:exists if
(i) the product has residual risks that cannot be designed out;
(ii) the consumers will not be aware of the risk; AND
(iii) the product does not have adequate warnings

3) Not altered in any way (i.e. defect existed when it left Δ’s hands)

Presumed if product moved in normal distribution chain If π buys secondhand, then he’d have to prove non-alteration

4) π’s FORESEEABLE use of the product

NOT limited to intended uses, but to foreseeable uses (e.g. chair to change lightbulb)

NOTE: products liability can be brought under OTHER theories of tort [intent, ordinary negl., warranties of merchantability/ fitness, and representation (warranties)]

Question 2

What are the 2basicstrict liability fact patterns?

Answer 2

1) Injuries Caused by WILD animals

Domestic: ONLY S/L if Δ knew of dangerous propensity; Wild: S/L for wild animals kept by Δ

NOTE: doesn’t matter if the animal is COMMON or UNCOMMON for the community

EXCEPTION: ∆ would never be strictly liable for trespasser on property (even if domestic animal has vicious propensity and the owner has knowledge)

2) Ultra-Hazardous Activities Elements:
(i)creates a foreseeable risk of serious harm, EVEN when reasonable care is exercised (i.e can’t be made safe);
(ii) uncommon activity in area where occurring
E.g. blasting/explosives; toxic chemicals; nuclear, brakes, cancer treatments

NOTE: the dangerous aspect of the activity has to be the actual/proximate cause of π’s injury for S/L to stick

Question 3

What are the 4 affirmative defenses to prima faciestrict products liability?

Answer 3

1) Contributory negl.

It is NO defense, if π failed to realize the danger

It IS a defense, if π knew appreciated the danger AND his unreasonable conduct was the very cause of the harm

2) Assumption of risk: is a GOOD defense to S/L
3) Comparative negl.: apply the same comparative negl. rules to S/L cases
4) Misuse (if unforeseeable)

Question 4

What are products liability cases based in intentional torts?

Answer 4

Not common.

Defendant will be liable to anyone injured by an unsafe product under an intent theory if he intended the consequences or knew that they were substantially certain to occur.

Question 5

What are the 5 theories of prod liability?

Answer 5

1) Intentional tort
2) Negligence
3) Strict liability
4) Implied warranties of merchantability and fitness for a particular purpose; AND
5. Representation theories (express warranty and misrepresentation).

Question 6

What are relevant factors in determining if alternative design was available?

Answer 6

1. Usefulness and desirability of the product;
2. Availability of safer alternative products;
3. The dangers of the product that have been identified by the time of trial;
4. Likelihood and probable seriousness of injury;
5. Obviousness of the danger;
6. Normal public expectation of danger (especially for established products);
7. Avoidability of injury by care in use of the product (including the role of instructions and warnings); and
8. Feasibility of eliminating the danger without seriously impairing the prod

Question 7

When does an express warranty arise?

Answer 7

When a seller or supplier makes an affirmation of fact or promise to the buyer relating to the goods in question that becomes part of the basis of the bargain.