Vicarious Liability, Joint Tortfeasors, & Strict Liability,

Question 1

Vicarious Liability

Answer 1

a. Vicarious Liability aka Respondeat Superior in employee or agency relationship
i. General Rule: Imposition of responsibility upon the principal for the acts of their agent with whom that principal has a special relationship

Question 2

Vicarious Liability - Statutory Framework

Answer 2

ii. Statutory framework - responsibility of parents for their children’s acts
iii. Also governed by statute - Liability of a social host - responsible for the acts of the intoxicated individuals

Question 3

Respondeat Superior (employer/employee context):

Answer 3

i. An agent/employee acting within the scope of employment, commits a negligent, willful, or reckless act that holds his principal/employer liable.
ii. Not limited to negligence torts if it’s within the scope of employment
iii. An intentional tort must not be
iv. Contract with direct employer negligence (Stand alone causes of action): liability for negligent hiring, supervision, entrustment, or retention of an employee.

Question 4

Respondeat Superior - General Standards (Bussard v. Minimed, Inc)

Answer 4

1. The doctrine of respondeat superior applies to an employee’s drive to or from work if it is foreseeable that a danger arising from or related to the employee’s work could cause harm to others during the drive.

smelling raid and then going home, while on the road gets into a car accident.

Question 5

Respondeat Superior - Frolic & Detour (O’Shea v. Welch)

Answer 5

1. An employee is acting within the scope of his employment when he is performing services for which he has been employed, or when he is doing anything which is reasonably foreseeable as being incidental to his employment.

Question 6

Frolic v. Detour

Answer 6

Whether an employee is on a frolic of his ow ( for which employer is not responsible) n or had merely taken a detour (slight deviation from employer’s purposes for convenience of employee for which employer is responsible) is a question of fact that must be resolved by the jury

A company is generally vicariously liable for the torts of a slight deviation from the duties of employment.

Question 7

Factors to determine if this is a frolic or detour

Answer 7

Employees intent
nature, time, and place of deviation
time the deviation consumed
the work for which the employee was hired for
the incidental acts expected by the employer from the employee
the freedom the employee had in his job

Question 8

Independent Contractors - General Standards (Murrell v. Goertz)

Answer 8

An individual engaged in working for a company where the company has no control over the exact manner in which the individual completes his work is an independent contractor and the company is generally not vicariously liable for his torts.

Question 9

Independent Contractors - Factors to be consider by the court

Answer 9

extent of control
distinct occupation or business
is the person supplied with tools and place of work
length of time the person is employed
method of payment (By time, job, salary)
work is part of regular business of the employer
do the parties believe they are creating a relationship of master/servant

Question 10

Non-Delegable Duties

Answer 10

Def: When a person has a non-delegable duty, the person who owes the duty remains responsible, even though some other party may have been retained to fulfill that duty here.

Example - Maloney v. Rath: 1. An individual who drives a car and employs an independent contractor to conduct maintenance on the car is liable for harm caused by the contractor’s negligence as if the driver had done the maintenance himself.

Question 11

Joint Enterprise (Popejoy v. Steinle)

Answer 11

Vicarious liability may be imposed upon those engaged in a JV.

A joint enterprise consists of an agreement between individuals to carry out a common purpose for the pecuniary interest of the individuals collectively where each individual has an equal right to control the venture.

Question 12

four elements of a joint enterprise as:

Answer 12

1. (1) an agreement, express or implied, among the members of the group;
2. (2) a common purpose to be carried out by the group;
3. (3) community of pecuniary interest in that purpose, among the members; and
4. (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Question 13

Within the Scope of Employment

Answer 13

Excluded: “going and coming” (commuting rule ) - an employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work.
Exception to the Exclusion: endangering others with risks arising from the related work. - To apply the risk arising from or related to work must be foreseeable.

The duty can be delegated to another bu the responsibility for a negligent failure remains with the owner.

Question 14

Notes - Vicarious Liability

Answer 14

may extend to willful and malicious torts of an employee as well as negligence
whether something is incidental to employment is determined by asking whether it is fairly foreseeable from the nature of the employment duties that the employee would be engaged in the act that caused the injury.

The parties agree that the decisive test for determining whether a person is an employee or an independent contractor is right to control the physical details of the work.

Question 15

Joint Tortfeasors Definition

Answer 15

simply means that the defendants both contributed to a single, indivisible injury to the plaintiff and are each fully liable for that injury.

Question 16

Liability & Joinder of Defendants - General Standards (Bierczynski v. Rogers)

Answer 16

1. Rule: Participation in a car race on a public highway is an act of concurrent negligence and both racers may be held liable for any injury to a non-racer resulting therefrom.

Question 17

Joint & Several Liability

Answer 17

a. Act in concert or common enterprise
b. Two or more Defendant’s with common duty; and
c. Two or more Defendant’s engaged in independent act of negligence that cause one harm (few states)

Any of the parties can be responsible to pay the entire amount

Question 18

Several Liability

Answer 18

When defendant is only responsible for amount of damages corresponding to their apportioned amount of fault.

Question 19

Proportionate Liability (Coney v. JLG Industries, Inc.)

Answer 19

a. Illinois created Proportionate severely liability - responsible for more than 25% then you are jointly and severely liable. If it’s below, then you’re only responsible for your part.
b. Other states have different percentages

Question 20

Comparative Negligence

Answer 20

1. Apportions fault/ responsibility for damages based on jury apportionment of fault.
   a. Often obviates joint and several liability - when two independent acts of negligence cause one harm.

Don’t need to hold someone responsible for more than what they are responsible for.

Question 21

Notes on Joint & Several Liability

Answer 21

Joinder is permitted when defendants acted in concert, independently to cause harm, and even independently to cause the different harm.

A court’s adoption of the comparative negligence doctrine does not change the possibility of Joint & Several Liability

Question 22

Coney v. J.L.G. Industries, Inc.

Answer 22

1. In a strict-products-liability claim, responsibility for an injury may be allocated between the plaintiff and the defendants using the comparative-negligence doctrine and among the defendants using joint and several liability.

Question 23

Bartlett v. New Mexico Welding Supply, Inc.

Answer 23

1. In this case, in using the term “joint and several liability,” we mean that either of two persons whose concurrent negligence contributed to cause plaintiffs’ injury and damage may be held liable for the entire amount of the damage caused by them.
2. under the common law rule, either the defendant or the unknown driver could be held liable for the damage caused by their combined negligence.
3. Joint and several liability does not apply in a pure comparative negligence system.

Question 24

Contribution

Answer 24

1. Classic contribution
   a. Recover portion of costs
2. Contribution is money paid by one D to another for their share of damages

Any joint tortfeasor who pays more than his share of the P’s damages may seek contribution (Partial reimbursement) from other joint tortfeasors

Question 25

Indemnity

Answer 25

1. Vicarious liability allows the employer to seek full reimbursement of cost
2. Can go after the full cost and cost of fees

As a specific type of contribution, indemnity arises in the context of vicarious liability, and it allows the principal in that vicarious liability relationship.
to be indemnified, an individual must be completely without fault and be held derivatively or vicariously liable for the tort of another.

Question 26

Contribution & Indemnity - General Standards (Knell v. Feltman)

Answer 26

When a tort is committed unintentionally by two or more individuals, contribution should be enforced.

Question 27

Contribution & Indemnity - Impact on Nonsettling Parties (Slocum v. Donahue)

Answer 27

1. To be indemnified, an individual must be completely without fault and be held derivatively or vicariously liable for the tort of another.

Question 28

Notes on Joint Tortfeasors

Answer 28

There is a prohibition against intentional wrong doers seeking contribution
the principal who’s recovering via indemnification will recover full costs for the damages he paid to P and for trial expenses, not just his relative piece of the negligence.
Non-immune tortfeasors cannot collect contribition from immune tortfeasors.

Multiple tortfeasors cases, D may file cross-claim or separate action for contribution from other Ds.

Under Mass. Contribution statute, D who has settled with P is exempt from contribution claim of non-settling D. - That is if the settlement was fair and reasonable.

Question 29

Strict Liability - Animals - Trespassing Animals

Answer 29

a. The kinds of animals for whose trespasses or intrusions their owner would be liable were limited, and they had a definite barnyard pattern. They included cattle, horses, sheep, hogs, and goats, as well as such common errant fowl as turkeys, Chickens, and Pigeons.
b. An owner of livestock or other animal that intrude on another person’s land is subject to strict liability for physical injury caused by the intrusion
i. Does not apply to dogs or cats
ii. One bite rule. - vicious tendencies can occur without a bite
iii. Must be relationship between consequences and known tendencies.

Question 30

Strict Liability - Animals - Abnormally Dangerous

Answer 30

Strict liability is imposed if the owner knows of the dog’s abnormally dangerous tendencies and if harm ensue from the dangerous tendency

Question 31

Strict Liability - Animals - Wild Animals

Answer 31

Strict Liability imposed for injuries connected with the wild characteristics of the animals.
the possessor doesn’t have to be the owner of the animals.

d. The majority American position has followed the rule of strict liability in regard to wild animals not native to the area.
e. Some courts have applied a negligence standard rather than strict liability with regard to the liability of persons who display wild animals to the public.
f. The trend is more pronounced with regard to public zoos, although some of those decisions are based on the fact that the legislature authorized the activity.

Question 32

Strict Liability - Animals - Domesticated Animals

Answer 32

a. South Carolina applies strict liability through case law. All other jurisdictions follow the common law rule: if the owner knows or has reason to know (scienter) that a domestic animal has vicious propensities, this is sufficient to classify that animal with wild ones and thus to impose strict liability.

b. This is often referred to as the “one bite rule.” Note, however, that although the scienter requirement can be proved by a previous bite, it also can be proved by other means.

Question 33

Rest. Ch. 15 § 21 - Intrusion of Livestock or Other Animals

Answer 33

An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion.

Question 34

Rest. Ch. 15 § 22 - Wild Animals

Answer 34

(a) An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal.
(b) A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal injury.

Question 35

Rest. Ch. 15 § 23 - Abnormally Dangerous Animals

Answer 35

a. An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal’s category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency.

Question 36

Abnormally Dangerous Activities - Classic Case (Rylands v. Fletcher)

Answer 36

A person who disrupts the natural state of real property by lawfully bringing something onto his land that, if it escapes, is capable of doing harm, is strictly liable for any harm occurring as a natural consequence of the escape.

Question 37

Abnormally Dangerous Activities - Factors for Consideration (Miller v. Civil Constructors)

Answer 37

1. Operating a firing range for target practice and the use of firearms at a firing range are not ultrahazardous activities.
2. Adopted 2nd Rest. - abnormally dangerous - depends on nature of location where activity takes place.
3. Strict liability should not be imposed because they do not meet the 2nd rest. §520 factors
   a. Common
   b. Has social utility because of police officers
4. You only need one factor not all six factors
   a. One of the more important ones is
   i. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care.

Question 38

Abnormally Dangerous Activities - Examples (Spano v. Perini Corp)

Answer 38

1. Even without a showing of negligence, strict liability may be imposed for damage resulting from the performance of ultrahazardous or abnormally dangerous activities such as blasting.
2. Blasting is 1st Rest. ultra hazardous - category of activities - involving harm to persons, land, or chattels (no matter where you are) or 2nd Rest. - abnormally dangerous - depends on nature of location where activity takes place. 3rd Rest. - activity that creates a foreseeable and highly reasonable risk location is relevant but not determinative
   a. Know difference of 1st and 2nd restatement

Question 39

Abnormally Dangerous Activities - Modern Variations – Ultrahazardous v. Abnormally Dangerous (Indiana Harbor Belt R.R. v. American Cyanamid Co.)

Answer 39

Shipping hazardous chemicals by rail through metropolitan areas is not an abnormally dangerous activity.

Question 40

Abnormally Dangerous Activities - 2nd Rest. Ch. 2 § 520

Answer 40

1. A person who creates a substantial risk of severe harm to others while acting for his or her own fain should bear the cost of that activity
   a. Factors under 2nd Rest § 520:
   i. Existence of. High degree of harm to person, land, chattels (high L)
   ii. Great likelihood that harm will results (High P)
   iii. Inability to eliminate risk by exercise of reasonable care (NO B)
   iv. Activity is not a matter of common usage
   v. Inappropriateness of the activity to the place where it is carried on.
   vi. Value to the community outweighed by dangerous attributes

Question 41

3rd Rest. Ch. 15, § 20 - Abnormally Dangerous Activities

Answer 41

1. (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
2. (b) An activity is abnormally dangerous if:
   a. (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
   b. (2) the activity is not one of common usage.

Question 42

Limitations on Strict Liability - Type of Harm (Foster v. Preston Mill Co.)

Answer 42

1. Imposition of strict liability due to an ultrahazardous activity is limited to consequences from the activity that result from the risk that makes the activity ultrahazardous.
2. Doesn’t have to be a physical invasion from the blasting.
3. Strict liability for abnormally dangerous activity which make the activity dangerous
4. Public policy reasonable limits so only extend to certain consequences
5. Doctrine of strict liability is not applicable to the facts of the case
6. Under strict liability, P may recover only for the type of harm that makes the activity ultrahazardous (or abnormally dangerous) and this subject to strict liability.

Question 43

Limitations on Strict Liability - Unforeseeable Event (Golden v. Amory)

Answer 43

1. Strict liability will not be imposed where the harm results from an act of God that the defendant had no reason to anticipate.
2. Proximate cause is loosened in strict liability
3. P cannot recover in a strict liability case if the harm was caused by an unforeseeable event, e.g. Force Majeure - act of god

Question 44

Limitations on Strict Liability - Contributory Negligence (Sandy v. Bushey)

Answer 44

1. An individual is strictly liable for keeping an animal that he knows has vicious tendencies unless the plaintiff voluntarily or unnecessarily puts himself in the way of the animal.
2. Had to know of the vicious tendencies/ propensities
3. Kept the horse, VP, and knew and told about VP
4. D argued Contributory negligence was the issue and Maine affirms
5. Contributory Negligence in Strict Liability - is not a defense in strict liability
6. However, assumption of the risk can be a defense
7. Contributory Negligence is just a defense to some risk

Question 45

Activity level justification for strict liability

Answer 45

Transporting hazardous chemicals by rail through metropolitan areas is not an abnormally dangerous activity.

Question 46

Product Liability - Warranty

Answer 46

an assurance or promise of quality

Question 47

Express Warranty

Answer 47

based on affirmations of fact or promises about the goods made by the seller and relied on by buyer, including descriptions of the goods and samples or models.

Question 48

Implied warranty of merchantability

Answer 48

that the goods conform to a reasonable buyer’s expectations

Question 49

Implied warranty of fitness for a particular purpose

Answer 49

applies if the seller knows or should know of the purpose the buyer would use the goods for (reliance by buyer on seller’s judgement).

Question 50

Pro-consumer Aspect

Answer 50

a. Warranty liability is strict, not fault-based seller promises a produce of good quality; care is irrelevant

Question 51

Pro-Seller Aspects

Answer 51

a. Contractual duty: privity often required
b. Seller can sometimes disclaim warranties (“as is”)
c. Consumer may be required to give timely notice of breach and opportunity to cure as condition of brining suit.

Question 52

Strict Liability – Section 402A - Special Liability of Seller of Product for Physical Harm to User or Consumer

Answer 52

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

Question 53

General Principles (Greenman v. Yuba Power Products, Inc.)

Answer 53

1. By placing a product on the market, a manufacturer becomes strictly liable for a defect in the product that causes injury to the ultimate user of the product.

Question 54

402A (Notes)

Answer 54

1. Section 402A literally has swept the country. Only a few jurisdictions do not recognize a cause of action for strict liability for personal injury caused by a product and those jurisdictions use breach of implied warranty of merchantability in a comparable fashion.
2. Whether the liability rests upon negligence, warranty, or strict liability in tort, it applies to all types of products. Whatever limitations there may once have been as to food and drink, intimate bodily use, “inherent danger,” or a high degree of danger, all have gone by the boards. The product is not even limited to those used by human beings; such things as animal feed and veterinary medication that may foreseeably cause harm only to property are within the liability.

Question 55

Beyond § 402A (Notes)

Answer 55

1. The first type of defect, and the focus of the drafters of § 402A, is a manufacturing defect. Such a defect occurs when a product that injures a person does so because there is a flaw that is not in the general product line. It is a failure in quality control.
2. The second type, which is very different, is a defect attributable to failure of design. Here, an entire product line is challenged. The singular definition provided little or no guidelines to courts as to how liability should be imposed: Should fault be a basis?
3. The third type is a defect due to failure to warn about risks associated with use of the product. Restatement (Second) did not separate this type of defect in its “Black Letter” rule, but did address it separately in comment j, suggesting a fault predicate for failure to warn.

Question 56

Potential Products Liability Defendants

Answer 56

1. 3rd Rest. Ch. 6 § 1 (p. 294)
   a. One engaged in business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.
2. The retailer must be in the regular business of selling the product at issue.
3. Defendants are not:
   a. Casual Sellers
   b. Second hand sellers
4. Sellers of services (generally) not covered by strict liability
   a. i.e. hairdresser using a dye that’s defective; oil change for the car - service or product of oil being put in. - Courts address these by asking which is the predominant test of the transaction
5. Commercial seller - strict liability more than the casual

Question 57

Product Liability - 3rd Rest - Product Defect

Answer 57

Liability for sellers or distributors for harms to persons or property caused by a defect in product if:
1. Manufacturing defect
2. Design defect and risks foreseeable, could have been avoided or reduced by alternative design and omissions render product not reasonably safe
3. Inadequate instructions or warnings, and foreseeable risks posed by lack of could have been reduced by instructions/warning and omission renders product not reasonable safe

Question 58

Manufacturing Defect

Answer 58

Strict liability for defects that exist bc of a failure in maufcaturing. Defect must have existed at the time the seller or distributor sold the product and the seller must be in business of selling

2nd Rest. says the product must be unreasonably dangerous.

Question 59

R3d § 1.Liability of Commercial Seller or Distributor for Harm Caused by Defective Products

Answer 59

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

Question 60

R3d § 42. Categories of Product Defect

Answer 60

1. A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
   a. (a)contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
   b. (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
   c. (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Question 61

Manufacturing Defects (Rix v. General Motors Corp.)

Answer 61

1. Someone who manufactures and sells a product in a defective condition unreasonably dangerous to the consumer is strictly liable for the harm caused by the product under a manufacturing-defect theory if (1) the seller is engaged in the business of selling that type of product, and (2) the product reaches the consumer without substantial change in condition.
2. Entirely reasonable behavior won’t prevent liability, a one in million error still leads to liability
3. Defect - How normal copies of the items behave - must deviate from how it’s supposed to act/be

Question 62

Manufacturing Defects (Rix v. General Motors Corp.) - Takeaways

Answer 62

a. Definition:
i. The product was in defective condition and unreasonably dangerous for its intended use by the consumer.
1. Such defect existed when the product left the defendant’s control
2. Occurs when product departs from it’s original design
3. Defect was the proximate cause of the P’s injuries
a. Scope of the risk (foreseeability)
b. P did nothing to contribute to the harm
b. What you need to claim vs proving what actually cause the defect:
i. Do not need to show what caused the defect; need to show departure from design.
c. Why do we put that burden on the Defendant?
i. Have more knowledge
ii. Best position
iii. Economic - lowest cost avoided - can fix it up front and avoid the injury in the first place.

Question 63

Design Defect Under 2nd Rest.

Answer 63

Unreasonably dangerous products, utility test (negligent design choices) or consumer expectations test or a combination of the two

Question 64

Design Defect - Prentis v. Yale Mfg. Co..

Answer 64

In a products-liability action against a manufacturer based on a defective-design theory, a jury needs to be instructed only on a unified theory of negligent design.

Question 65

Flawed Production Line

Answer 65

Called upon to apply this standard for effectiveness - look at what was supposed to be done and determine was it done or not? Should it have made a different decision when designing the product/item.

Question 66

Risk/utility analysis

Answer 66

product is deemed defective if a reasonable person who conclude that the magnitude of the risk of harm, as it proved to be at the time of trial, outweighed the benefits of the way the product was designed and marketed.
a. Risk faced by manufacturer v. utility of the design
b. Inviting the jury to decide whether design choices exposed the consumer to greater risks than it should have.
c. Just a negligence test - merely a detailed version of learned hand
i. Cost and benefit vs. the risk
ii. Damages from intended uses (foreseeable uses of the product), activity levels (than duty of car) and encourage use of the product and not how the defendant acted so like strict liability for manufacture defects..

Question 67

Reasonable Alternative Design

Answer 67

a. Most jurisdictions require that the plaintiff prove the existence of a reasonable alternative design in order to prove design defect.
b. See also Restatement (Third) of Torts: Products Liability § 2(b) (1998) (product “is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design
c. Plaintiff bared the burden of proof. Something wrong with the product line.

Question 68

Consumer Expectations Test for Design Defect.

Answer 68

a. Some jurisdictions use only the consumer expectations test for design defect cases.
b. Fails under conditions in which an average use would have expectations Depends on the ordinary customers
c. whether product is defective depends on expectations of ordinary consumer, not expectations of injured bystander

Question 69

Consumer Expectation Test for Design Test

Answer 69

Reasonable consumer
Consumer expectations is a factor in risk-utility balancing

Question 70

Design Defect Notes

Answer 70

5. Goal: To encourage the making of safe products
6. State of the Art - is a possible defense.
7. Fault principles introduced - provides structure that gets adopted by the restatement.
8. Drug manufactures are weighing the harm with the benefits - reasonable healthcare providers would never prescribe drugs.
9. Applicability to food - strict liability to foreign objects in food. Natural objects apply negligence.

Question 71

Applicability to Prescription Drugs and Medical Devices

Answer 71

Most jurisdiction declined to apply true strict liability to the design of prescription drugs.

Whether use strict liability or negligent standard drug manufactures have to weigh foreseeable risk of harm, whether that’s sufficiently great in relation to the therapeutic benefit that might offered by the medication

Question 72

Applicability to Food

Answer 72

Regardless of whether the injury-producing substances is foreign or natural, strict liability will lie if the consumer of the product would not reasonably have expected to find the substances in the product.

Question 73

State of Art

Answer 73

1. A key issue in design liability cases whether a defendant can avoid liability by showing a compliance with the “state of the art” at time the product was made.
2. Concept:
   a. Sometimes the term is confused with evidence of compliance with “industry customs,” which is introduced to show the defendant’s reasonableness or to rebut allegations of product defect.
   b. The better use of the term is as a label for the requirement for the best scientific and medical technology that is practically and economically feasible at the time the product was made or marketed.
3. The product thus is evaluated in light of knowledge and technology available at the time of manufacture rather than at the time of trial.

Question 74

Failure to Warn/Instruct Product Liability

Answer 74

Courts generally will require showing that D knew or should have known of risks.

If D did not know or should have known of the risks and did not warn customers, and this caused P’s Injury = Strict Liability

a. No need to warn of obvious, generally known risks
b. No need to warn sophisticated users
i. Sophisticated users - employee of the gas company or trained HVAC Techs
1. No duty to warn - similar logic to obvious risk.
c. Warning a learned intermediary, not ultimate use, often suffices
i. Learned intermediaries
1. In pharma companies marketing to a doctors office they have an obligation to warn the doctors office not the patient - intermediary is to pass off the warning.
d. Includes obligation to warn of allergies and hypersensitivities if affect many.

Question 75

Information Defect

Answer 75

The D must warn against dangers that are not apparent to consumers - includes dangers due to foreseeable misues.
2. Information defect - State of the Art - plays into failure to warn

Question 76

Adequate warning doctrine

Answer 76

a. Contain information necessary to permit a reasonable person to avoid the danger, that is sufficiently forceful and clear.

Question 77

Heeding presumption

Answer 77

Courts presume that a warning had been heeded (read and paid attention to) if its given and the burden on defendant to show that the warning was not the case.

Question 78

Warnings (Anderson v. Owens-Corning Fiberglas Corp.)

Answer 78

In a strict products-liability action based on the failure to warn of the risk of harm, actual or constructive knowledge of the potential risk or danger is a component of strict liability.

Question 79

General Rule - notes

Answer 79

Sellers have the duty to use reasonable care and undertaking, repair to all of those who would foreseeably harmed of the products that they’re selling.

Whether the dealer knew or could have known of the flaw relied on for its reputation for quality, or had any ability to test or inspect for defects, is irrelevant.
1. Seek contribution
2. Seek indemnification right under vicarious liability

Question 80

Product Liability notes

Answer 80

product liability only applies to product not service. If they are combined seek the dominant one.

Question 81

Category Liability and products such as whiskey

Answer 81

Products whose inherent characteristics made them dangerous were not to be considered “unreasonably dangerous”
e.g., whiskey, tobacco, butter

Question 82

Allergic reactions and hypersensitivities

Answer 82

Most jurisdictions impose a duty to warn if the ingredients is one which a substantial number of person are allergic
Some courts will consider the severity of the harm.

Question 83

Warning Notes:

Answer 83

Defendants can’t be held responsible for things they didn’t know.

No need to warn of obvious, generally known risks
no need to warn sophisticated users
Warning a learned intermediary, not ultimate user, ofter suffices