Products Liability - The Choice Between Contract and Tort - Mar. 22 Flashcards
When does the core product liability suit arise? (Feldman)
The core product liability suit arises when (1) a manufacturer sells a defective product to a distributor who (2) resells it to a consumer who (3) is injured in the
course of using the product and (4) sues the manufacturer of the defective product.
What was the privity of contract phase of product liability law? (Feldman)
The product manufacturer is not liable to anyone who is not “in privity of contract” with the manufacturer. This is the traditional regime. This regime reflects classical law’s preference for contract over tort whenever possible. (Defended in the MacPherson dissent)
What was the negligence liability phase of product liability law? (Feldman)
The manufacturer is liable in tort if the defect is attributable to its negligence. The negligence regime reflects the rise of “reasonable foreseeability of harm” as the touchstone of duty. It also reflects the conclusion that contract law is ill-suited to mass production and distribution. (Cardozo’s majority opinion in MacPherson)
What was the warranty phase of product liability law (Contract)? (Feldman)
The manufacture is liable for breach of an implied
warranty running to the consumer and to foreseeable victims. Liability under this regime is strict: lack of fitness for ordinary use triggers liability
no matter how careful the manufacturer may have been. This regime of “contract” is so regulated that it resembles a tort regime of non-delegable duty. (Henningsen)
What is the strict tort liability phase of product liability law (Contract)? (Feldman)
The manufacture is strictly liable in tort for injuries caused by its defective products. (Escola)
Is there a tort claim if a defect does not cause physical injury to persons or other property? (Feldman)
No. Liability for pure economic loss and damage to the product itself continues to be controlled by contract principles.
What is the basic logic of the pure economic loss rule? (Feldman)
The basic logic of the pure economic loss rule is that contract law protects economic expectancies while tort accident law protects against harm in the form of physical injury.
