Strict / Product Liability

Question 1

strict liability elements and def

Answer 1

1. unusual act 2. causation of harm Notwithstanding the innocence of the ∆ we should hold him liable anyway because of the condemnation of the result

Question 2

strict liability carnis test

Answer 2

non-natural use of land

Question 3

strict liability 2nd restatement abnormally dangerous

Answer 3

a. High degree of risk to person or land b. Harm results will be great c. Inability to eliminate the risk by reasonable care d. Not a common usage e. Inappropriateness of the activity at the place f. Value to community *Any one of these not sufficient, several necessary for strict liability.

Question 4

strict liability 3rd restatement abnormally dangerous

Answer 4

1.Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors 2.Is not one of common usage

Question 5

products liability elements

Answer 5

1. P injured 2. A sold the product 3. A is a commercial seller of such products 4. At the time it was sold, it was in defective condition 5. The defect was an actual and proximate cause of Ps injury

Question 6

products liability 2nd restatement

Answer 6

1. 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: a. The seller is engaged in the business of selling the product, and b .It is expected to and does reach the user or consumer without substantial change in the condition which it is sold 2.The rule stated in subsection (1) applies although a. The seller has exercised all possible care in the preparation and sale of the product, and b.The user or consumer has not bought the product from or entered into any contractual relation with the seller

Question 7

products liability 3rd restatement

Answer 7

One is engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm caused by the defect

Question 8

traynor reasons for strict product liability

Answer 8

a. Manufacturers owe consumers to be vigilant of product safety b. Manufacturers are best situated to take precautions (deterrence) c. Manufacturers can spread costs of accidental injuries d. Marketing the product is enough don’t need negligence e. Victim’s entitlement doesn’t depend on nature of conduct that caused it f. Analysis of disparities in power in litigation g. More open and direct law structure is preferable

Question 9

implied warranty of merchantablilty

Answer 9

promise that the goods are safe and fit for ordinary use

Question 10

express warranty

Answer 10

verbal, written, formal promise

Question 11

manufacturing defect

Answer 11

diverges from the manufacturers own specifications for the product

Question 12

design defect - factors juries consider

Answer 12

Factors that help juries decide if there was a design defect 1. Significance of risks of physical injury posed by particular design 2. How ordinary consumers would expect product to function 3. Whether there is feasible, safer, affordable alterative

Question 13

design defect - risk utility

Answer 13

– utility of product outweighs its inherent danger 1. utility as a whole 2. utility to an individual user 3. likelihood the product will cause injury 4. Availability of a safer design 5. Possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced 6. Degree of awareness of the products potential danger that can be reasonably attributed to the injured user 7. Manufacturers ability to spread the costs of any safety related design changes

Question 14

design defect consumer expectations

Answer 14

defective a product must be dangerous to an extent beyond which would be ordinarily contemplated by the ordinary consumer

Question 15

failure to warn and protect

Answer 15

defective for a lack of adequate warnings when safety requires that the product be sold with a warning mislabeled product would apply

Question 16

failure to warn and protect - learned intermediary doctrine

Answer 16

warning doesn’t have to go directly to the consumer, Manufacturer discharges the duty to warn by warning the doctorate and not the ultimate consumers because the doctor is better suited to decide what to do with the warning EXCEPT: birth control and when advertising right to consumer

Question 17

overpromotion

Answer 17

1. motus 2. justice department - drug companies cannot advertise for off label prescribing