Strict Liability - Products Liability (Negligence and Warranties) Flashcards
What are the possible theories of recovery under products liability?
1) Negligence;
2) Warranties;
3) Strict Liability.
What are the contractual duties pursuant to negligence?
1) Products Liability;
2) Misrepresentation or fraud;
3) Contractual Agreements;
4) Malpractice.
What are the three approaches the Court uses in determining whether to allow the plaintiff to sue and recover under tort law rather than contract law?
1) Allow the plaintiff to choose the venue and cause of action;
2) The court determines the cause of action and the plaintiff decides the venue;
3) Misfeasance v. Nonfeasance - The court looks to determine whether the defendant’s failure to honor the contract provision results in misfeasance (action) or nonfeasance (inaction).
What is misfeasance?
What is nonfeasance?
Misfeasance - Active misconduct that works a positive injury to others - If the defendant’s actions constitute misfeasance, then the court will usually go for tort law;
Nonfeasance - Inaction or failure to take steps to protect plaintiffs from harm - If the defendant’s actions constitute nonfeasance, then it would be a contract action rather than a tort action.
What is privity?
Privity is the connection or relationship which exists between two or more contracting parties.
Why did the court hold that Buick owed Macpherson a duty of care pursuant to tort law, without privity?
Under Tort law, Buick owed a duty of care to plaintiff when:
1) It created a thing of danger and Buick was aware of the danger;
2) Buick had knowledge that the product would be used by persons other than the initial purchaser;
3) Buick had knowledge that the product would be used without any new or additional testing by the purchaser.
What is a warranty?
(1) A promise or agreement by the seller than an article sold has certain qualities or that the seller has good title hereto; (2) A statement of fact respecting the quality or character of goods sold, maybe by the seller to induce the sale, and relied on by the buyer.
What is an expressed warranty?
A promise, ancillary to an underlying sales agreement, which is included in the written or oral terms of the agreement under which the promisor assures the quality, description, or performance of the goods.
According to Baxter v. Ford, is privity of contract required to sue pursuant to strict liability for an expressed warranty? Was Ford liable for what was written in their pamphlet?
No. Privity of contract is not necessary to sue for strict liability on an expressed warranty.
Yes. Because the consumer would have to rely on the statements and had no way to test the statements themselves, Ford was liable for them.
What is an implied warranty?
A promise arising by operation of law, that something which is sold shall be merchantable and fit for the purpose for which the seller has reason to know that it is required.
What is the rule regarding an implied warranty of fitness for a particular purpose found in henningsen v. Bloomfield?
When a manufacturer puts a new product into the stream of commerce and promotes its purchase, an implied warranty that the product is fit for a particular purpose will follow it into the hands of the ultimate purchaser.
