Torts AMP Set - Products Liability

Question 1

Which of the following are possible theories of liability available to plaintiffs in products liability cases?

A Intent, strict liability, and implied fitness for a particular purpose

B Negligence, nuisance, strict liability, and express warranty

C Negligence, strict liability, and nuisance

Answer 1

A

Intent, strict liability, and implied fitness for a particular purpose are possible theories of liability in a products liability case. Plaintiffs in products liability cases may have one of five possible theories of liability available to them: (i) Intent; (ii) Negligence; (iii) Strict liability; (iv) Implied fitness for a particular purpose and warranties of merchantability; and (v) Representation theories (express warranty and misrepresentation). Nuisance is not a possible theory of liability; rather, it is a type of harm distinct from products liability. QUESTION ID: T0067A Additional Learning

Question 2

Horizontal privity is present in a products liability action when the injured plaintiff is the buyer of the product rather than a family member or bystander.
Which of the following is correct regarding horizontal privity in actions based on breach of implied warranties of merchantability and fitness?

A Most states still require horizontal privity between the plaintiff and the defendant in all implied warranty cases

B Most states extend implied warranty protection to cover any natural person who suffers a personal injury

C Most states extend implied warranty protection to cover a buyer’s family, household, and guests who suffer a personal injury

D Most states extend implied warranty protection to any person who suffers any injury

Answer 2

C

For an action based on breach of an implied warranty, most states have extended implied warranty protection to cover a buyer’s family, household, and guests who suffer personal injury. Thus, it is inaccurate to state that most states still require horizontal privity in all implied warranty cases. U.C.C. section 2-318 offers states three alternative versions on the issue of horizontal privity. Most states have adopted Alternative A, described above and with the most narrow protection. Only a few states have adopted Alternative B, which extends protection to any natural person who suffers a personal injury. Alternative C extends protection to any person who suffers any injury. QUESTION ID: T0079A Additional Learning

Question 3

To prove breach of duty in a products liability action based on negligence, the plaintiff must show:

A The product was dangerous because it departed from its intended design

B The conduct involved was below the level of care generally exercised by the defendant

C Res ipsa loquitur

D The defendant supplied a defective product

Answer 3

D

To prove breach of duty in a products liability action, the plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. Negligent conduct is demonstrated by showing that the defendant’s conduct fell below the standard of care expected of a reasonable person under like circumstances, not the level of care generally exercised by the defendant. To show negligence in a manufacturing defect case, the plaintiff may invoke res ipsa loquitur, but it is not required that the plaintiff prove res ipsa loquitur in establishing breach of duty. A plaintiff may show that a product was dangerous because it departed from its intended design to establish a manufacturing defect, but may instead show that the design itself is deficient (to establish a design defect). QUESTION ID: T0072A Additional Learning

Question 4

Which of the following is not a valid plaintiff/defendant combination in a products liability case based on negligence?

A A bystander injured by the product suing the assembler of the product

B A user of the product suing the business that repaired the product

C The purchaser of the product suing the retailer that labeled the product as its own

Answer 4

B

A user of the product suing the business that repaired the product is not a valid plaintiff/defendant combination in a products liability action. Usually, the duty of due care in this type of action arises when the defendant engages in the commercial supplying of a product. In contrast, those who repair a product owe a general duty of care, but are not usually “suppliers” for purposes of products liability cases. The purchaser of the product suing the retailer that labeled the product as its own states a valid plaintiff/defendant combination. A retailer who labels a product as the retailer’s own or assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even though the retailer is not personally negligent. A bystander injured by the product suing the assembler of the product also states a valid plaintiff/defendant combination. The duty of due care is owed to any foreseeable plaintiff—user, consumer, or bystander—and the assembler of a product is treated as a commercial supplier. QUESTION ID: T0071A Additional Learning

Question 5

t in a products liability action when the injured plaintiff, usually the buyer, is suing the party that made the sale directly to the plaintiff (e.g., the retailer).
Which of the following is true regarding the vertical privity requirements for actions based on breach of implied warranties of merchantability and fitness?

A Vertical privity was never required in these actions

B In the past, vertical privity between the plaintiff and defendant was required, but today most courts do not require vertical privity in these actions

C In the past, courts did not require vertical privity, but today most courts require it between the plaintiff and defendant in these actions

D Courts both in the past and today require vertical privity between the plaintiff and defendant in these actions

Answer 5

B

In actions based on breach of implied warranties of merchantability and fitness, in the past, vertical privity was required, but today most courts do not require vertical privity. In the early period of warranty law, courts held strictly to the requirement of complete privity between the plaintiff and the defendant. However, a trend developed with courts finding the needed privity between remote parties on various fictions and theories (e.g., the warranty ran with the goods, or the retailer was the manufacturer’s agent). As a result, most courts no longer require vertical privity between the buyer and the manufacturer in implied warranty actions. QUESTION ID: T0079B Additional Learning

Question 6

A product has a manufacturing defect if:

A It is dangerous due to inadequate warnings on the packaging.

B An alternative design will eliminate injury during use.

C It is dangerous due to a departure from the intended design.

D A less dangerous modification to the design is possible.

Answer 6

C

A product has a manufacturing defect if it is dangerous due to a departure from its intended design. To recover under any products liability theory, the plaintiff must show that a product was “defective” when it left the defendant’s control. This “defect” requirement will be satisfied if a product has a manufacturing defect. A product has a manufacturing defect if it emerges from production different from other products and more dangerous than if it had been made the way it should have been, such that it is unreasonably dangerous. If a less dangerous modification is possible, the product is dangerous due to inadequate warnings, or an alternative design will eliminate injury during use, the product does not have a manufacturing defect but rather a design defect. When all of the products of a line are made identically according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packaging, the entire line may be found to be defective because of poor design. A product has a design defect if there is a reasonable alternative design, i.e., a less dangerous modification or alternative that was economically feasible. The court will look at several factors to determine if there is a feasible alternative, such as avoidance of injury by care in use of the product. A product may also have a design defect if it does not have clear and complete warnings of any dangers that may not be apparent to users. QUESTION ID: T0068 Additional Learning

Question 7

Which of the following may prevent establishing causation against a manufacturer in a strict products liability action?

A The failure of a retailer to take action after discovering a dangerous defect

B The destruction of the product because of its dangerous defect

C The negligent failure of a retailer to discover a dangerous defect

Answer 7

A

The failure of a retailer to take action after discovering a dangerous defect may prevent establishing causation against a manufacturer in a strict products liability action. The same concepts of proximate cause that govern negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the negligent failure of a retailer to discover a dangerous defect does not cut off the supplier’s strict liability. On the other hand, when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. Hence, the conduct of a retailer who discovered a dangerous defect and then took no action (such as alerting the manufacturer, warning the consumer, or removing the product from sale) constitutes more than ordinary foreseeable negligence and may cut off the manufacturer’s liability. The destruction of the product because of its dangerous defect does not prevent establishing actual cause. If the product has been destroyed, the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. QUESTION ID: T0077B Additional Learning

Question 8

Which of the following is correct regarding a products liability case based on intent?

A The intentional tort on which the cause of action most likely will be based is assault

B Punitive damages are available in a products liability case based on an intentional tort

C Privity becomes relevant when products liability is based on an intentional tort

D Products liability based on an intentional tort is a common cause of action

Answer 8

B

Punitive damages are available in a products liability case based on an intentional tort, in addition to compensatory damages, to the same extent as with intentional torts in general. Products liability based on an intentional tort is NOT very common. A 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. This is not often the case; other theories of liability are more common. The intentional tort on which the cause of action most likely will be based is NOT assault. If the requisite intent on the part of the defendant is established, the cause of action will most likely be based on battery. The presence or absence of privity is irrelevant where liability is based on an intentional tort. A defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur, even if the parties are not in contractual privity. QUESTION ID: T0070A Additional Learning

Question 9

Which of the following is true regarding a products liability action based on inadequate warnings?

A Inadequate warnings are analyzed like manufacturing defects.

B The plaintiff must prove that she would have followed an adequate warning.

C Warnings of dangers must be made directly to the consumer of the product.

D A warning may be held inadequate even though it complies with government labeling requirements.

Answer 9

D

A warning may be held inadequate even though it complies with government labeling requirements. A product’s compliance with applicable government safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. Furthermore, federal labeling requirements do not preempt state products liability law on defective warnings. Inadequate warnings are analyzed like DESIGN defects rather than manufacturing defects. Courts will look at whether more effective warnings were feasible. While ordinarily warnings must be directed to consumers, under the “learned intermediary” rule, warnings of dangers need not be made directly to the patient as to prescription drugs and medical devices; a warning to the prescribing physician usually will suffice. A plaintiff suing on the basis of an inadequate warning does not have to present proof that she would have followed an adequate warning; she may rely on a presumption to that effect. QUESTION ID: T0080 Additional Learning

Question 10

In a jurisdiction applying traditional contributory negligence rules to a strict products liability action, a plaintiff’s __________ is a defense

A Failure to guard against a defect

B Assumption of the risk

C Failure to discover a defect

D Reasonably foreseeable misuse

Answer 10

B

In a jurisdiction applying traditional contributory negligence rules to a strict products liability action, a plaintiff’s assumption of the risk is a defense. Where a plaintiff’s misuse was reasonably foreseeable, ordinary contributory negligence is not a defense in a strict products liability action. The same result occurs where the plaintiff merely failed to discover the defect or guard against its existence. In contrast, other types of unreasonable conduct, such as voluntarily and unreasonably encountering a known risk (i.e., assumption of the risk) are defenses. QUESTION ID: T0076A Additional Learning

Question 11

Which of the following is correct regarding a products liability case based in negligence?

A A plaintiff’s contributory negligence is not a defense in a jurisdiction applying comparative negligence

B A plaintiff may recover solely for economic losses

C An intermediary’s negligent failure to discover a defect will not cut off the defendant’s liability

Answer 11

C

An intermediary’s negligent failure to discover a defect will not cut off the defendant’s liability; the defendant whose original negligence created the defect will be held liable along with the intermediary. (However, when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause and cuts off the defendant’s liability.) In a products liability case based in negligence, a plaintiff may NOT recover solely for economic losses. A plaintiff may recover for personal injury and property damages as under the usual negligence analysis. However, if the plaintiff suffers only economic loss, most courts do not permit recovery under a negligence theory. Furthermore, in a products liability action based in negligence, a plaintiff’s contributory negligence IS a defense in a jurisdiction applying comparative negligence. The standard negligence defenses are applicable to any products liability case predicated on negligence. Thus, in a comparative negligence state, a plaintiff’s contributory negligence may be used to reduce his recovery in an action against a negligent supplier of defective chattels. QUESTION ID: T0073B Additional Learning

Question 12

For a products liability action based on strict tort liability:

A The defendant may be liable even without a chance to inspect the defective product

B The defendant will not be liable if an intermediary negligently failed to discover the defect after it left the defendant’s control

C The plaintiff must prove that the defendant was at fault in selling or producing a defective product

Answer 12

A

In a strict products liability action, a defendant may be liable even if there was no chance to inspect the defective product. Thus, in contrast to a negligence action, a retailer in a strict liability action may be liable for a manufacturing or design defect simply because it was a commercial supplier of a defective product. For a strict products liability action, the plaintiff need NOT prove that the defendant was at fault in selling or producing a defective product, only that the product was in fact “defective.” The defendant WILL be liable if an intermediary negligently failed to discover the defect after it left the defendant’s control. An intermediary’s negligence is not a superseding cause under proximate cause rules. QUESTION ID: T0078A Additional Learning

Question 13

In the latter states, it is a complete defense that the plaintiff was injured from the defective product by __________.

A unreasonably failing to guard against a potential defect

B unreasonably failing to discover that the product was defective

C misusing the product in a foreseeable manner

D unreasonably using the product knowing that it was defective

Answer 13

D

It is a complete defense if the plaintiff was injured by unreasonably using the product knowing that it was defective. In a strict products liability action in a state applying contributory negligence rules, unreasonable conduct, such as voluntarily and unreasonably encountering a known risk (i.e., assumption of risk), is a complete defense. Misusing the product in a foreseeable manner is not a defense. Ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff’s misuse was reasonably foreseeable. Unreasonably failing to discover a defect or guard against a potential defect is not a defense. In a strict products liability action in states following contributory negligence rules, ordinary contributory negligence is not a defense where the plaintiff merely failed to discover the defect or guard against its existence. QUESTION ID: T0076 Additional Learning

Question 14

Which of the following would not be a commercial supplier of a defective product in a products liability case based on strict liability?

A A restaurant that served spoiled meat.

BA used car dealer that sold a defective reconditioned car.

C A hospital that transfused infected blood.

D A movie theater that sold moldy candy.

Answer 14

C

A hospital that transfused infected blood would not be considered a commercial supplier for a products liability action based on strict liability in tort. To establish a prima facie case based on strict liability, it must be proved that the defendant was a commercial supplier. A commercial supplier may be distinguished from a party like a casual seller (e.g., a homemaker selling jam to a neighbor). Thus, the defendant must be a manufacturer, retailer, assembler, or wholesaler. The defendant also must supply a product, rather than primarily perform a service. Providing a transfusion of infected blood is treated by most courts as the rendition of a service. A movie theater that sold moldy candy would be considered a commercial supplier for a products liability action based on strict liability. Even though the movie theater is not primarily in the business of selling candy, it is a retail supplier of those products and thus would be considered a commercial supplier. Used car dealers that sell reconditioned cars are considered commercial suppliers for products liability purposes. The original car manufacturer could also be held strictly liable, depending on the cause of the damages, if the car reached the consumer without being substantially altered from the condition in which it was supplied originally. A restaurant that serves spoiled meat will be considered a commercial supplier for a products liability case based on strict liability. Strict liability is imposed on one who supplies a product, as opposed to one primarily performing a service, and courts treat restaurants as suppliers of products. QUESTION ID: T0074 Additional Learning

Question 15

Potential defendants in a products liability case based on negligence include all of the following except:

A wholesalers

B parts manufacturers

C assemblers

D service technicians

Answer 15

D

Service technicians are not potential defendants in a products liability case based on negligence. To establish a prima facie case for negligence in a products liability case, the plaintiff must prove that the defendant owes her a legal duty. Usually, the duty of due care arises when the defendant engages in the commercial supplying of a product. In contrast, those who repair a product owe a general duty of care, but are not usually “suppliers” for purposes of products liability cases. Wholesalers, assemblers, and parts manufacturers are considered commercial suppliers and therefore potential defendants in a products liability case. “Suppliers” include the manufacturer of a product or a component part thereof, assemblers, wholesalers, retailers, and used car dealers who sell reconditioned or rebuilt cars. QUESTION ID: T0071 Additional Learning

Question 16

Which of the following is not a potential defendant in a products liability action based on strict tort liability?

A A seller of reconditioned goods

B An assembler

C A casual seller

D A commercial lessor

Answer 16

C

A casual seller is not a commercial supplier, and therefore not a potential defendant for purposes of products liability based on strict tort liability. Only commercial suppliers are liable in a strict products liability action. A commercial supplier includes a manufacturer, retailer, assembler, or wholesaler. In addition, most courts have expanded strict liability to include mass producers of new homes, commercial lessors, and sellers of used products that have been reconditioned or rebuilt. QUESTION ID: T0074B Additional Learning

Question 17

Which of the following is correct in a products liability action based on inadequate warnings?

A A product’s compliance with government labeling requirements for warnings is conclusive evidence that a product is not defective

B The plaintiff may rely on a presumption that an adequate warning would have been read and heeded

C State products liability law is preempted by federal labeling requirements for warnings

Answer 17

B

In a products liability action based on inadequate warnings, the plaintiff may rely on a presumption that an adequate warning would have been read and heeded as a means of showing actual cause. A product’s compliance with government labeling requirements for warnings is NOT conclusive evidence that a product is not defective; it merely acts as evidence that it is not defective, but the plaintiff may present evidence to the contrary. Furthermore, state products liability law is NOT preempted by federal labeling requirements for warnings. A product may comply with federal labeling requirements but still be defective due to inadequate warnings. QUESTION ID: T0080B Additional Learning

Question 18

In a products liability action based on strict liability, a commercial supplier may avoid liability for injuries caused by a defective product if:

A A subsequent supplier in the distribution chain could have discovered the defect but failed to do so

B The defect arose after the product left the supplier’s control

C The supplier made a reasonable inspection of the product but did not discover the defect

D The supplier had no opportunity to inspect the product before selling it

Answer 18

B

A commercial supplier may avoid liability for injuries caused by a defective product if the defect arose after the product left the supplier’s control. To establish actual cause in a products liability action, the plaintiff must trace the harm to a defect in the product that existed when the product left the defendant’s control. The fact that a subsequent supplier could have discovered the defect but failed to do so would not enable an earlier supplier (such as the manufacturer) to avoid liability; that typically would be considered ordinary foreseeable negligence, which does not cut off the manufacturer’s liability. Also, the fact that the supplier made a reasonable inspection of the product but did not discover the defect or had no opportunity to inspect the product before selling it is no defense; in contrast to a negligence action, a retailer in a strict liability action may be liable for a manufacturing or design defect simply because it was a commercial supplier of a defective product. QUESTION ID: T0078B Additional Learning

Question 19

Which of the following is a potential defendant in a products liability action based on strict tort liability?

A A gardening enthusiast who sold a basket of tomatoes to a neighbor

B A hardware store that leased a defective power tool

C A hospital that transfused infected blood

Answer 19

B

A hardware store that leased a defective power tool is a potential defendant in a products liability action based on strict tort liability. Only commercial suppliers are liable in a strict products liability action. A commercial supplier includes a manufacturer, retailer, assembler, or wholesaler. In addition, most courts have expanded strict liability to include mass producers of new homes, commercial lessors (such as the hardware store here), and sellers of used products that have been reconditioned or rebuilt. A commercial supplier is not a casual seller (such as a gardening enthusiast who sold a basket of tomatoes to a neighbor). Also, the defendant must supply a product, rather than primarily perform a service. A hospital’s providing a transfusion of infected blood is treated by most courts as the rendition of a service. QUESTION ID: T0074A Additional Learning

Question 20

In a strict products liability action based on breach of an implied warranty, which of the following U.C.C. alternatives have most states applied to the issue of horizontal privity?

A Implied warranty protection extends to any person who suffers any injury.

B The U.C.C. is silent on the issue of horizontal privity.

C Implied warranty protection extends to a buyer’s family, household, and guests who suffer personal injury.

D Implied warranty protection extends to any natural person who suffers personal injury.

Answer 20

C

In a strict products liability action based on an implied warranty, with regard to the issue of horizontal privity, most states extend implied warranty protection to a buyer’s family, household, and guests who suffer personal injury. Section 2-318 of the Uniform Commercial Code offers states three alternate versions on the issue of horizontal privity. The alternative here, Alternative A, has been adopted by most states and is the narrowest modification of the privity requirement. Most states do NOT extend implied warranty protection to any natural person who suffers personal injury or to any person who suffers any injury. These alternatives, Alternative B and C respectively, are broader modifications of the privity requirement than Alternative A and have not been adopted by most states. Unlike with vertical privity, on which the U.C.C. remains silent, the U.C.C. is not silent on the issue of horizontal privity. As stated above, U.C.C. section 2-318 offers states three alternative versions on the issue of horizontal privity. QUESTION ID: T0079 Additional Learning

Question 21

Which of the following is not a possible theory of liability in a products liability case?

A Misrepresentation

B Implied warranty of merchantability

C Nuisance

D Intent

Answer 21

C

Nuisance is not a possible theory of liability available to a plaintiff in a products liability case. A nuisance is a type of harm—an invasion of private property rights or public rights by tortious conduct that falls into the usual categories of tort liability, such as negligence, intent, or strict liability. Intent, implied warranty of merchantability, and misrepresentation are all possible theories of liability available to a plaintiff in a products liability case. There are five possible theories:1. Intent (not very common);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 ID: T0067 Additional Learning

Question 22

A products liability action based on strict liability __________.

A Requires privity

B Does not require proof of damages

C Permits recovery of solely economic loss

D Does not require proof of negligence

Answer 22

D

In a products liability action based on strict liability, the element of negligence need not be proved. Thus, in contrast to a negligence action, a retailer in a strict liability action may be liable for a manufacturing or design defect simply because it was a commercial supplier of a defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it. The products liability prima facie case based on either negligence or strict liability requires proof of damages for recovery. As with a products liability action based on negligence, one based on strict liability does NOT require privity. A majority of courts extend strict liability to any supplier in the chain of distribution and extend the protection not only to buyers but also to the buyer’s family, guests, friends, and employees, along with foreseeable bystanders. Neither products liability cases based on negligence nor those based on strict liability permit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages. Economic loss cannot be the sole damage claim. QUESTION ID: T0075A Additional Learning

Question 23

When a product emerges from production different from other products and more dangerous than if it had been made the way it should have been, it has __________.

A A design defect

B An inadequate warning

C A manufacturing defect

Question 24

Like a nuisance action, a products liability action may be based on various theories of liability
Which of the following list possible theories of liability for a products liability claim?

A Strict liability, negligence, and implied warranties of merchantability and fitness for a particular purpose

B Intent, express warranty, and nuisance per se

C Nuisance, negligence, and strict liability

Answer 24

A

Strict liability, negligence, and implied warranties of merchantability and fitness for a particular purpose are three of the five theories of liability for products liability. The other two are intent and express warranty. Nuisance (per se or otherwise) is not a possible theory of liability for products liability. QUESTION ID: T0067B Additional Learning

Question 25

Which of the following is not correct with regard to a products liability action based on inadequate warnings?

A A warning may be inadequate even if it complies with government labeling requirements

B Inadequate warnings are analyzed as a type of design defect

C Warnings of dangers must always be made directly to the consumer

D A product must have clear warnings for any unapparent dangers

Answer 25

C

While ordinarily warnings must be directed to consumers, under the “learned intermediary” rule, warnings of dangers need not be made directly to the patient as to prescription drugs and medical devices; a warning to the prescribing physician usually will suffice. With regard to inadequate warnings in a products liability action, a product must have clear and complete warnings of any dangers that may not be apparent to users. Inadequate warnings are analyzed like design defects, not like manufacturing defects. Courts will look at whether more effective warnings were feasible. A warning may be held inadequate even though it complies with government labeling requirements. A product’s compliance with applicable government safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. Furthermore, federal labeling requirements do not preempt state products liability law on defective warnings. QUESTION ID: T0080A Additional Learning

Question 26

In contrast to products liability cases based on negligence, those based on strict liability do not:

A Require that suppliers have an opportunity to inspect.

B Impose liability when an intermediary negligently failed to discover the defect.

C Require an injured bystander to be foreseeable.

D Prohibit recovery of solely economic losses.

Question 27

In a products liability case based in negligence, a plaintiff may recover _________.

A Only damages for economic losses

B Personal injury damages, property damages, and damages for economic losses

C Personal injury and property damages

D Only personal injury damages

Answer 27

C

In a products liability case based in negligence, a plaintiff may recover personal injury and property damages as under the usual negligence analysis. If the plaintiff’s complaint is only that the product does not work as well as expected or requires repairs (i.e., no personal injury or property damages), most courts do not permit recovery of damages for economic losses under a negligence theory; the plaintiff must bring an action for breach of warranty. Thus, only personal injury damages or only damages for economic loss are incorrect. QUESTION ID: T0073A Additional Learning

Question 28

A products liability action based on __________ arises when the product seller knows that harm is substantially certain to occur to the buyer from using the defective product

A Intent

B Negligence

C Strict liability

D Breach of warranty

Answer 28

A

A products liability action based on intent arises when the product seller knows that harm is substantially certain to occur to the buyer from using the defective product; this establishes the requisite intent for the intentional tort of battery. Products liability cases may be based on negligence, strict liability, and breach of warranty, but these actions are defined differently and do not require the product seller to know that harm is substantially certain to occur. QUESTION ID: T0070B Additional Learning

Question 29

Which of the following will preclude recovery in a products liability action based on negligence?

A The plaintiff was a bystander who was not using the product.

B The defendant only assembled the product from component parts manufactured by others.

C An intermediary negligently failed to discover the defect.

D The plaintiff suffered only economic loss.

Answer 29

D

If a plaintiff suffers only economic loss, then she will be prohibited from bringing a products liability action based on negligence. Under the usual negligence analysis, the plaintiff may recover for personal injuries and property damages. But if the plaintiff only suffers economic loss, like the product does not work as well as expected or requires repairs, she will not be permitted to recover under a negligence theory and will need to bring an action for breach of warranty. If an intermediary negligently fails to discover a defect, this will not prevent a products liability action based on negligence. The intermediary’s failure is not a superseding cause in this instance, and the defendant who originally created the defect by his negligence will be held liable along with the intermediary. The intermediary’s conduct, however, will become a superseding cause if it was more than ordinary foreseeable negligence. A defendant who assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even though the assembler is not personally negligent. The fact that the plaintiff was a bystander who was not using the product will not prevent a products liability action based on negligence. The lack of contractual privity between the parties is not a defense. The duty of due care is owed to any foreseeable plaintiff, such as a user, consumer, or bystander. QUESTION ID: T0073 Additional Learning

Question 30

How is an action for breach of express warranty different from an action for breach of the implied warranty of merchantability?

A Privity is required in express warranty actions

B The warranty need not be made by a merchant dealing in the type of goods sold

C Purely economic losses are recoverable only in express warranty actions

Answer 30

B

Unlike in an action for breach of the implied warranty of merchantability, an action for breach of express warranty does not require that the warranty be made by a merchant dealing in the type of goods sold. The warranty may apply to any sale of goods. Privity is NOT required in express warranty actions. Although U.C.C. section 2-318 declares that its privity alternatives apply to express as well as implied warranties, most courts have held privity to be irrelevant in express warranty cases. Purely economic losses are recoverable in BOTH express warranty actions and implied warranty actions (unlike the rule for products liability actions based on negligence or strict liability). QUESTION ID: T0081B Additional Learning

Question 31

Which of the following is correct regarding duty of care in a products liability case based in negligence?

A A retailer that labels a product as its own is liable for the manufacturer’s negligence

B Those who commercially repair a product owe a duty of care as commercial suppliers of the product
Incorrect

C The duty of care is owed only to those in privity with the defendant

Answer 31

A

For the duty of care in a products liability case based in negligence, a retailer that labels a product as its own is liable for the manufacturer’s negligence, even though the retailer was not personally negligent. Those who commercially repair a product do NOT owe a duty of care as commercial suppliers of the product. In the usual case, the duty of due care arises when the defendant engages in the affirmative conduct associated with being a commercial supplier of products. Those who repair a product owe a general duty of care, but are not usually suppliers for purposes of products liability cases. The duty of care is NOT owed only to those in privity with the defendant. The duty of due care is owed to any foreseeable plaintiff, such as a user, consumer, or bystander. QUESTION ID: T0071B Additional Learning

Question 32

For a products liability case based on intent:

A Privity is not required.

B Punitive damages are not available.

C Causation is not relevant.

D Consent is not a defense.

Answer 32

A

Privity is not required for a products liability case based on intent. Whether the parties to the suit are in contractual privity with each other is irrelevant for a products liability action based on an intentional tort. A defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur. Punitive damages are available for a products liability case based on intent. As with other intentional torts, punitive damages are available if the defendant acted with malice. Most courts hold that consent is a defense for a products liability case based on intent. The usual defenses available in intentional tort cases, such as consent, are available here. However, negligence defenses like contributory negligence and assumption of risk are not applicable. Causation is relevant for a products liability case based on intent. Causation is one of the necessary elements to establish a prima facie case for an intentional tort. QUESTION ID: T0070 Additional Learning