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torts > Product Liability > Flashcards

Product Liability Flashcards

1
Q

What is a manufacturing defect?

A

When a product departs from it’s intended design, even if all possible care was exercised in preparation and marketing.

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2
Q

What is a design defect?

A

When the design is inherently unreasonable.

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3
Q

What is a warning defect?

A

When a warning is required to reduce the risk of a product.

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4
Q

What are the elements of a manufacturing defect?

A
  1. There is a defect.
  2. Product was defective when it left defendant’s control.
  3. There must be actual harm.
  4. Defect was cause-in-fact/proximate cause of injury.
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5
Q

What test(s) do we use for a manufacturing defect?

A

Consumer Expectation Test

Foreign natural doctrine applies if in a minority doctrine.

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6
Q

What test(s) do we use for a design defect?

A
  1. Consumer Expectation Test
  2. §402A Test: Risk-Utility Analysis (with hindsight from the analysis).

-Defendant has burden of proving the utility outweighs the risks.

-Can’t have comparative fault under a §402A Test.

  1. Reasonable Alternative Design Test

-Must show there is a safer, reasonable, and feasible alternative design that’s existence outweighs the current utility and burden of the current design .

  1. Restatement (3d) which is just negligence.
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7
Q

What test(s) do we use for a warning defect?

A

1a. Was the risk and type of harm foreseeable?

1b. Would an adequate warning reduce the risk?

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8
Q

Is there a post-sale duty to warn?

A

If the manufacturer discovers a defect, they have a post-sale duty to warn.

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9
Q

Can you recover for strict economic harm for product liability?

A

No, you cannot recover for strict economic harm for product liability.

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10
Q

Does product liability cover sellers who sell defective products?

A

Yes, sellers who sell defective products as part of their business.

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11
Q

Does product liability apply to all sellers?

A

No, product liability does not apply to casual sellers (e.g., an Etsy store, a lemonade stand).

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12
Q

Is privity required for product liability?

A

No, privity is not required for product liability.

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13
Q

What does the Restatement (2d) say for Manufacturing Defects?

A

The product is dangerous to the extent it departs beyond that which would be contemplated by ordinary customer (even if producer could not discover impurity, liability is appropriate).

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14
Q

What does the Restatement (3d) say for Manufacturing Defects?

A

Product is defective if it departs from intended design, even though all possible care was exercised.

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15
Q

What are the elements of a manufacturing defect claim?

A
  1. Product was defective.
  2. Defect existed when it left the defendant’s control.
  3. Product was an actual and legal cause of harm.
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16
Q

How do you prove the defect existed when it left the defendant’s control?

A

Res Ipsa

  1. Event is of a kind that ordinarily occurs because of product defect.
  2. Event was not a result of causes other than product defect.
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17
Q

Who has the burden of proof for a Manufacturing Defect Claim?

A

The plaintiff has the burden to prove a manufacturing defect.

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18
Q

What is the Foreign Natural Doctrine?

A

If the injury is natural to the preparation served, foreign natural substances (e.g., chicken bones in a chicken breast) should be reasonably expected.

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19
Q

Does Foreign Natural Doctrine still apply?

A

The consumer’s reasonable expectation test is the test of defectiveness and therefore, the Foreign Natural Doctrine is likely unsound.

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20
Q

What are the elements of a Design Defect?

A
  1. Design is actually flawed (restatement 2d., 402(a), RAD, Restatement 3d.)

2.) Actual Harm

3.) factual and Proximate cause of the injury.

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21
Q

What is the Reasonable Alternative Design (RAD) Test?

A
  1. No shifting of the burden to Defendant.
  2. Plaintiff today must show a reasonable alternative design (Restatement (3d) Majority Rule).
  3. The foreseeable risk of harm posed by the product could have been reduced or avoided by the option of the RAD by the seller and the omission of the instructions/warning rendered the product not reasonably safe.

3a. The test is a huge barrier, because you need expert testimony to prove RAD.

  1. Plaintiff has to prove RAD:

4a. Safer (the design must reduce the risk of injury).

4b. Alternative

4c. Feasible (the design must be available economically and technologically).

4d. Economical (the design must be reasonable cost-wise).

4e. Utility

4f. Risk Utility Analysis (is longevity the same? Maintenance? Aesthetic?)

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22
Q

What are exceptions to the RAD Test?

A
  1. Jurisdiction does not use RAD.
  2. Legislation requires whatever piece of the design is missing.
  3. Very simple design – common knowledge (pen).
  4. Manifestly unreasonable design (wheel).
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23
Q

What were prior tests? For design defect

A
  1. Consumer Expectation Test (Restatement (2d) § 402(A).
  2. Hindsight Test.
  3. Risk-Utility Balancing (Restatement (3d)).
  4. Manifestly unreasonable design
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24
Q

What are the elements of the Hindsight Test?

A
  1. More dangerous than ordinary consumer would expect.
  2. The benefits of challenged design do not outweigh the risks.
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25
Q

What else is important to know about the Hindsight Test?

A
  1. It modified the Consumer Expectation Test.
  2. It exceeds Carroll Towing, because the court focuses on actual danger, not just foreseeable danger.
  3. Product may be found defective even if it satisfied Consumer Expectation Test, if through “hindsight” the jury determines that the product embodies excessive preventable danger.
  4. Foreseeability isn’t required.
26
Q

What are the elements of Risk-Utility Balancing (Restatement (3d))?

A
  1. Product failed to perform as safely as ordinary consumers would expect.
  2. Proximate cause.
  3. The benefits of challenged design do not outweighs the risks.
27
Q

How does Risk-Utility Balancing work (Restatement (3d))

A
  1. Risk-Utility Balancing is like negligence.
  2. The burden is on the defendant to justify the design.

d. Plaintiff must show that design caused harm.

28
Q

Do manifestly unreasonable designs require a RAD analysis?

A

No, manifestly unreasonable designs do not require a RAD analysis.

29
Q

What is an example of a manifestly unreasonable design?

A

Bullets are an example of a manifestly unreasonable design, because there is no reasonable alternative design.

30
Q

What makes a design manifestly unreasonable?

A

The product must be dangerous to be functional.

31
Q

What does the Restatement (3d) say about Point of Sale or On-Product Warnings?

A

A product becomes defective when the products foreseeable risks of harm could have been reduced or avoided by the provision of a reasonable warning and the omission of such warning renders the product “not reasonably safe.”

32
Q

What information may be necessary to make a product reasonable safe?

A
  1. Directions for use
  2. Warnings
  3. Some combination of both.
33
Q

When do you have a duty to give a reasonable warning?

A

You have a duty to give reasonable warning whenever there is a duty warn.

34
Q

What does it mean to have a reasonable warning?

A

You have a duty to provide information about risk sand severity of risks and safety measures available to mitigate those risks.

35
Q

Do manufacturers need to warn of all risks?

A

Manufacturers only need to foreseeable major and unknown risks.

Manufacturers do not need to warn of known or minor risks.

36
Q

What does the Restatement (3d) say about Warning Defect?

A
  1. No duty exists to warn of dangerous that are obvious or should be obvious.
  2. Product can be defective even when its “obviousness” is apparent and obvious when there is no proper warning.
  3. There are two purposes of warning:

3a: Object is dangerous.

3b: Danger can be avoided.

37
Q

How is adequacy of warning determined?

A
  1. Explicitness
  2. Comprehensibility
  3. Clarity

3a: Do you need a picture?

3b: Is there a consistent message or is it inconsistent?

  1. Conspicuousness

4a: Where it located?

4b: Can people see it?

  1. Means to Warn

5a: Sticker on box? Something else?

38
Q

What is a learned intermediary?

A

Someone between the manufacturer and the end user who has knowledge of the danger and can tell the end user about the dangers (e.g., a pharmacist).

39
Q

What is a sophisticated user?

A

An end user who has knowledge of the risks (e.g., a psychiatrist prescribed fluoxetine).

40
Q

Do you have to give a warning to learned intermediaries and sophisticated users?

A

If it is foreseeable that learned intermediaries or sophisticated users won’t know of the dangers or will pass it on without a proper warning, manufacturers may be liable.

41
Q

What does the Restatement (2d) say about Post-Sale Warnings?

A

Duty to give a prompt warning when latent defect becomes known to the manufacturer if the defect makes the product hazardous to life?

42
Q

What is required under the Restatement (2d) for a post-sale warning?

A
  1. Defect must have existed at the point of manufacture.
  2. Obligation only to warn (not to recall).
  3. States tend to expand liability.
43
Q

What does the Restatement (3d) say about Post-Sale Warnings?

A

Duty to give a warning when a reasonable person in the seller’s position would have done so. If enough danger exists and the benefit is large enough, there could be a duty.

This duty is only to warn; there is no duty to recall a product or retrofit a product.

The only time liability exists for failure to recall a product or retrofit is if a statute requires the manufacturer to do so or the manufacturer voluntarily undertakes a recall.

44
Q

What are common defenses to Product Liability?

A
  1. Contributory/Comparative Fault
  2. Unforeseeable Use
  3. Pre-Emption
45
Q

When is contributory/comparative fault allowed as a defense to Product Liability?

A
  1. Discovered Perils
  2. In states that follow the Restatement allowing Assumption of the Risk (Majority Rule).
46
Q

When is contributory/comparative fault not allowed?

A
  1. Undiscovered Perils
  2. In states where comparative fault is not a defense (Minority Rule)
47
Q

Is Misuse an example of an Unforeseeable Use?

A

No, Misuse is not a defense to Product Liability on its own, but if the way it was misued was unforeseeable, then that could be a defense.

48
Q

Is non-compliance with a statute relevant for product liability?

A

Yes, it if it pertains to Design and Warning Defects.

49
Q

How does non-compliance with a statute work for design and warning defects?

A

Non-compliance with a statute renders a product defective if the injury is the type of harm and Plaintiff is in the class of persons protected by the statute?

50
Q

Does complying with statutes shield from products liability?

A

No, compliance with a statute merely sets the floor.

You can be compliant with the statute and still be liable.

51
Q

Are manufacturers liable for well-known dangers?

A

No, manufacturers are not liable for well-known dangers.

52
Q

What are examples of well-known dangers?

A
  1. The risks are known and generally understood
  2. The products are inherently unsafe
  3. The products are for common consumption
53
Q

What are the types of preemption?

A
  1. Express
  2. Implicit
54
Q

What are the types of implicit preemption?

A
  1. Field Preemption
  2. Conflict Preemption
55
Q

What are some of the ways a field can be preempted?

A
  1. Federal law is so pervasive that one can infer that Congress left no room for state law.
  2. Federal interest is so dominant that one must assume Congress didn’t want states to regulate.
  3. Goals sought and obligations imposed indicate a purpose to exclude state regulation.
56
Q

Who is within the scope of product liability?

A
  1. Distributors
  2. Custom Fabricators
  3. Retailers
  4. Wholesalers
  5. Competent Manufacturers
  6. Sellers of used goods
  7. Builders and sellers of real property
57
Q

Who is not within the scope of product liability?

A
  1. Occasional sellers
  2. Landlords
58
Q

Are pure services subject to product liability?

A

Services are not products and thus not subject to product liability.

59
Q

Are hybrid transactions (involving both the transfer of goods and services) subject to product liability?

A

Yes, a hybrid transaction (e.g., a beauty salon) is subject to product liability.

60
Q

Are medical professionals (e.g., doctors, pharmacists, etc.) subject to strict liability?

A

Medical professionals are not subject to strict liability for defects in products approved by the FDA.

torts (6 decks)

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