Torts - Strict/Products Flashcards
Products Strict Liability
(1) D in business of selling or distributing products
(2) D sells/distributes defective products
(3) Defect exists at time or sale
(4) Defect causes harm
Manufacturing Defect
Product departs from intended design
Design Defect
Risk Utility
(1) there is an “inherently unreasonable” risk because the risk of harm is significant and
(2) there is little or no utility to the product.
Alt. Design
(1) Reasonable & feasible alt design that is
(2) Economically Feasible and
(3) safer
Warning/Marketing Defect
(1) Knows or has reason to know
(2) Product is likely to be dangerous
(3) has NO reason to believe that users will realize its dangerous
(4) fails to warn of the dangerous condition
Products Duty
(1) To make or maintain products carefully
(2) Owed when D KNOWS that in the event of negligence, product is reasonably probable to cause injury
(3) Duty owed to immediate purchaser and to all other persons whom the manu FORESEEABLE knows will use without inspection
Warranties
(1) Express
(2) Implied Warranty of Merchantability
(3) Implied Warranty of Fitness for Particular Purpose
Express Warranty
(1) D makes PROMISES/AFFIRMATIONS about product
(2) Plaintiff RELIES on promises/affirmations to purchase
(3) Promises/affirmations are NOT fulfilled
(4) HARM as a result of failure
Implied Warranty of Merchantability
Applies when product is sold by merchant who deals in goods of that kind.
(1) fair average quality
(2) fit for the ordinary purposes for which such products are used,
(3) adequately packaged or labeled,
(4) conform to the promises or affirmations made on the container or label, if any
Implied Warranty of Fitness for Particular Purpose
(1) Seller knows or should know of the particular or special needs of the buyer AT the time of sale and
(2) Recommends product with that knowledge
Strict Liability Product Defenses
YES Comparative negligence and assumption of risk
NO Contributory and reasonably foreseeable misuse of products
Strict - Animals
(1) Owned wild animal
(2) Caused harm to P of a kind typically due to wildness of animal
Strict - Abnormally Dangerous Activity
(1) Carrying on of an abnormally dangerous activity
- High degree of risk or harm
- Gravity of the harm
- Inability to eliminate the risk by using reasonable care
(2) Which causes harm
(3) The risk of which make the activity abnormally dangerous
