Torts - Product Liability

Question 1

How do you know you’re doing a product liability question?

Answer 1

There’s an issue with a product. Lol. And you want to sue the person who made it.

Question 2

Under product liability, is it always strict liability?

Answer 2

No, can be negligence or warranty breach.

Eg, if someone in chain of manufacturing didn’t do something they were supposed to do (ie, they did not exercise reasonable care or “breached duty of care”), then this is not SL, this is negligence.

Question 3

What are three types of product liability?

Answer 3

Strict
Negligent
Breach of warranty

Question 4

When is products liability strictly liable?

Answer 4

A strict liability claim under products liability requires the plaintiff to show:

1. The product was defective in manufacture, design, or failure to warn;
2. The defect existed when the product left the defendant’s control; AND
3. The defect caused the plaintiff’s injury when the product was used in a foreseeable way.

Question 5

What is company makes some sort of promise or guarantee along with a product and it does not?

Answer 5

This is a warranty. And the hypo is a “breach of warranty” question.

While there is “implied warranties”, MBE questions will usually TELL YOU about the warranty, otherwise would be too vague.

Question 6

What if you get a lemon: the product just doesn’t work or the product broke due to no fault of your own?

Answer 6

Product is defective.

Question 7

What if a food product contains a harmful ingredient?

Answer 7

The presence of a harmful ingredient is generally considered a manufacturing defect “if a reasonable consumer would not expect the food product to contain that ingredient.”

Question 8

So if product contains harmful ingredient, is producer strictly liable?

Answer 8

Yes. SL whenever “the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product . . . .”

Question 9

If store sold a defective product, are they strictly liable?

Answer 9

Yes, Strict products liability applies to all commercial sellers; even a retailer who had no control over the design and manufacture of a product may be found strictly liable if that retailer sells a defective product.

Note: could also recover on an implied warranty theory

Question 10

What if dentist is exercising reasonably due care on procedure, but uses a defective product? Are they liable for strict liability?
Liable for malpractice?

Answer 10

No, because product never left dentist’s control and was not engaged in business of selling the product.

No, because exercised due care. So not responsible at all for the use of the defective product bc exercised due care and not selling product (never left control).

Question 11

In addition to design defect, is there any other theory of liability for products with defects/harmful ingredients?

Answer 11

Could also rely on the implied warranty of merchantability to establish the U.S. companies’ liability.

Article 2 of the Uniform Commercial Code. See UCC §§ 2-102, 2-105(1). The producers are “merchant(s)” with respect to those goods (see UCC § 2-104(1)), so the contract of sale included an implied warranty of merchantability.

To be merchantable, goods must be “fit for the ordinary purposes for which such goods are used.”

Question 12

What doctrines are available to a P when P can not directly meet the causation requirement?

Answer 12

1. Market sahre liability
2. alternative liability
3. joint venture/enterprise liability

Question 13

What is market share liability?

Answer 13

“market share” liability doctrine permits the jury to apportion damages based on the market shares of manufacturers of a defective product. But virtually all courts have held that this doctrine is available only if the manufacturers’ defective products are basically interchangeable in relation to their capacity to cause harm.

eg, in defective tea MEE, the contamination varied across different teas, so could not use this theory to show causation because not idential/interchangeable.

Question 14

What is alternative liability theory?

Answer 14

“alternative liability” doctrine permits a jury to find two defendants liable when each was negligent and either could have caused the plaintiff’s injuries.

Question 15

What is joint venture/enterprise doctrine?

Answer 15

“joint venture” or “joint enterprise” doctrine allows the jury to impute one defendant’s tortious conduct to other defendants who are engaged in a common project or enterprise and who have made an explicit or implied agreement to engage in tortious conduct.

Question 16

What if failed to be merchantable before the merchants came into possession of it?

Answer 16

Merchants may not rely on the fact that the contamination took place before the product came into their hands to evade liability. In a warranty action, the only issue is whether the herbal tea was merchantable. How it came to be unmerchantable is irrelevant.

Question 17

What does product defect look like?

Answer 17

Left factory defective, or someone in the chain messed up the product, and then it made its way to someone in the business of selling, then sold to a foreseeable user, then the user used it in manner intended to be used:

STRICT PRODUCT LIABILITY for defective products

Question 18

How will you know products defective in fact pattern?

Answer 18

2 ways:

1. sometimes they’ll tell you
2. sometimes they’ll show someone who gets a product and it just doesn’t work or just breaks and no indication it was user’s fault bc using in manner normally used for (so sort of implied here, but pretty straightforward still)

Question 19

If I buy a car and then my friends use the car, can they sue car maker for defective product?

Answer 19

Yes.

Question 20

If someone stole my car, can they sue car maker for defective product?

Answer 20

NO. not a foreseeable user.

Question 21

What if I make a thousand phone calls in one day, is that a foreseeable use of phone?

Answer 21

Yes. using it for what it’s supposed to be used for.

Question 22

What if I use phone to pry something open?

Answer 22

No, not using it in manner intended.

Question 23

A defect in manufacture requires the plaintiff to show that the product…

Answer 23

1. Deviated from its intended design; AND
2. Fails to conform to the manufacturer’s own design.

Question 24

There are two tests for a defect in design…

Answer 24

Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
Under the risk-utility test, the plaintiff must show that the product’s risks
outweigh its benefits AND that there is a reasonable alternative design.

Question 25

Is a company liable if their product is defective if it fails to include a feasible safety device that would prevent injuries foreseeably incurred in ordinary use?

Answer 25

Yes. A plaintiff can prove that a product’s design is defective by pointing out a reasonable alternative design that offers a better balance of costs and benefits. Usually this better balance means that the alternative design is safer without being significantly more expensive or less useful than the design the defendant used.

Question 26

If a product is unreasonably dangerous and the company warns the consumer about the dangers, can they escape liability for harms caused by their products?

Answer 26

No, if a product is unreasonably dangerous, its maker is not saved from liability either by a warning or by the consumer’s free choice in selecting the product — a manufacturer is obliged to take all reasonable, cost-effective steps to make the product safe.

Question 27

A failure to warn defect requires the plaintiff to show…

Answer 27

1. The plaintiff was NOT warned of the risks regarding the use of the product;
2. The risks are NOT obvious to an ordinary user; AND
3. The designer/manufacturer was in fact aware of such risks.

Question 28

What liability is owed for failure to warn?

Answer 28

Strict liability.

Question 29

What is the scope of products liability?

Answer 29

Plaintiffs. Any person foreseeably injured by a defective product (e.g., purchasers, other users, bystanders, etc.) may pursue a products liability claim.

Defendants. A strict liability claim under products liability may ONLY be brought against a merchant (i.e., a person or entity who routinely deals in goods of the type) who is in the chain of distribution (e.g., manufacturer ⇨ wholesaler ⇨ retailer).

Question 30

If toy company licenses from engineer and sells to little girl, and design defect caused by engineer’s design harms little girl, can little girl recover from toy company (who had no knowledge of design defect)?

Answer 30

Yes. Under strict liability, the toy company could be liable as long as the product was dangerously defective when it left the toy company’s control, the toy company was in the business of selling the product, and the product didn’t substantially change between the toy company and the girl.
The toy company can then seek indemnity from engineer.

Note, however, that for negligence, toy company would not be held liable…only liable for their own negligence.

Question 31

Mostly they will say strict product liability, how else might they phrase it?

Answer 31

“Strict liability in tort” is usually strict product liability.

However, if talking about abnormally dangerous situation, they may also phrase is as “strict liability in tort.”

Question 32

What defenses do companies have for strict product liability?

Answer 32

Assumption of risk.

P used it in unintended manner.

Question 33

MBE Tip

Answer 33

Some answers will be about product strict liability, and one answer will say “John wins” and the other one will say “John wins because the company failed to exercise reasonable care.”

Which one is correct?

“John wins.” because defective products deal with SL; “reasonable care” is duty owed in negligence and has NOTHING to do with products liability unless facts indicate otherwise.