TORTS Flashcards
PRODUCTS LIABILITY
There are five theories of liability upon which to base a products liability claim. Here, the facts give rise to the following 5 theories:
- Strict Liability
- Negligence
- Implied Warranties
- Misrepresentation
- Intent
Products Liability - Strict Liability
Has the following 4 elements:
- Commercial Supplier
- Production or Sale of Defective Product
- Causation
- Damages
Strict Liability - Commercial Supplier
An entity that regularly deals in the manufacturing and/or distribution of a product and places it in the stream of commerce.
Strict Liability - Production or Sale of a Defective Product
There are 3 types of defects: 1) manufacturing, 2) design, and 3) inadequate warning. Here, the facts give rise to an analysis of the following __ defects:
Strict Liability - Production or Sale of Defective Product
Manufacturing Defect
Exists when a product emerges from manufacturing different from and more dangerous than the properly made products. D will be liable if P can show that the product failed to perform as an ordinary consumer would expect it to.
- This test applies to defective food products.
Strict Products Liability - Production or Sale of Defective Product
Design Defect
Exists when all products have dangerous propensities because of poor design. Plaintiff must prove that a safer product was economically feasible without serious impact on the price or utility at the time of production.
Strict Liability - Production or Sale of Defective Product
Inadequate Warning
Defect results from the manufacturer’s failure to give adequate warnings as to the risks involved in the product. The risk cannot be apparent to the user. There is a presumption that adequate warnings would have been read and followed.
Strict Products Liability - Causation
Actual Cause – the defect must have existed when it left defendant’s control. A substantial alteration in the condition of the product after it left D’s control may negate actual cause.
Proximate Cause – the foreseeable causal chain of events between D’s act or omission and P’s harm.
Strict Products Liability - Damages
Plaintiff must prove that she sustained damages in the form physical injury.
Products Liability Defenses
Here, the facts give rise to an analysis of the following defenses:
Contributory Negligence / Comparative Negligence – when a plaintiff’s unreasonably conduct contributed to his injuries, the defendant may have a complete defense of contributory negligence. In some jurisdictions that follow comparative negligence, courts apportion fault between the plaintiff and defendant and reduce plaintiff’s damages in a comparative fashion (pure) or will completely bar plaintiff’s recovery if she is found to be more at fault than defendant (partial). Plaintiffs are also held to the standard of a reasonably prudent person.
Mitigation – all plaintiffs must takes reasonable steps to mitigate their damages.
Assumption of the Risk – a plaintiff who knowingly and voluntarily assumed the risk of injury from defendant’s conduct is barred from recovery. For the undertaking to be voluntary, there must be another reasonable course of action available to P.
Products Liability - Negligence Theory
Has the following four elements:
- Duty
- Breach of Duty
- Causation
- Damages
Negligence Theory of Products Liability - Duty
A manufacturer has a duty to supply safe products to all foreseeable plaintiffs. There is no requirement for contractual privity so the duty extends to all users, consumers, and bystanders. The standard of care is a reasonable manufacturer under same or similar circumstances.
Negligence Theory of Products Liability - Breach of Duty
Occurs where the negligent conduct by D leads to the supplying of a defective product. P must show that there were enough facts to put a reasonable manufacturer on notice of the dangers of placing the product in the stream of commerce as designed.
Negligence Theory of Products Liability - Causation & Damages
The elements of actual cause, proximate cause, and damages are analyzed the same as in the strict products liability action above.
Products Liability - Implied Warranty of Merchantibility
When a merchant sells a product, there is an implied warranty that the goods are generally fit for the ordinary purposes for which they are to be used. The following elements must be met:
- Breach – occurs when the product fails to perform as an ordinary consumer would expect it to.
- Causation - The elements of actual cause and proximate cause are analyzed the same as in the strict products liability action above.
- Damages – Plaintiff may recover for personal injury, property damage, and purely economic loss.
Products Liability - Implied Warranty of Fitness of Purpose
P mus prove:
1) seller knew or had reason to know the particular purpose for which buyer is purchasing;
2) buyer relied on seller’s skill or judgment in selecting the goods; and
3) the product failed to live up to that warranty.
Products Liability - Representation Theories
Misrepresentation
Exists when the manufacturer misrepresents a material fact about the product, intended to induce reliance, and the plaintiff relies on it.
The elements of actual cause, proximate cause, and damages are analyzed the same as in the strict products liability action above.
Defenses – Here, the facts give rise to an analysis of the same defenses discussed supra under strict liability (Contributory Negligence / Comparative Negligence; Mitigation). NO Assumption of the Risk
Products Liability - Representation Theories
Express Warranty
Arises when a seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes the basis of the bargain.
The elements of actual cause, proximate cause, and damages are analyzed the same as in the strict products liability action above.
Defenses – Here, the facts give rise to an analysis of the same defenses discussed supra under strict liability (Contributory Negligence / Comparative Negligence; Mitigation). NO Assumption of the Risk
Products Liability - Intent
Exists where defendant intended the consequence or knew that they were **substantially certain to occur. **
DEFAMATION
Defamantion is a defamatory statement of or concerning the plaintiff, published to a third party that causes damages to plaintiff.
Defamation - Defamatory Statement
- A defamatory statement is one that tends to lower plaintiff’s reputation in the community.
- A defamatory statement generally must be a statement of fact to be actionable. However, a statement of opinion may be actionable if it appears to be based on specific facts and an express allegation of those facts would be defamatory. Whether a statement is based on fact or opinion depends on the circumstances and the nature of the words.
Defamation - Of or Concerning P
Statement must identify plaintiff to a reasonable reader/listener.
Defamation - Publication to a 3rd Party
Publication can be intentional or negligent (intent to publish).
Defamation - Damages
P’s damage depends on whether statement is libel or slander.
Libel – P does not need to allege special damages for cases involving libel (written defamation).
- TV and radio broadcasts included
Slander Per Se – P does not need to allege special damages for cases involving slander per se, spoken statements that either:
- concerns and adversely reflects on P’s business or professional reputation;
- imputes unchastity to a woman;
- accuses P of committing a crime of moral turpitude;
- claims that P has a venereal disease.
Slander – Special damages (specific economic loss) must be alleged in cases involving regular slander.
