Products Liability

Question 1

What are the three types of actions under products liability?

Answer 1

1) Negligence 2) Warranty 3) Strict Liability

Question 2

What are the three types of product defects?

Answer 2

1) Manufacturing 2) Design 3) Warning

Question 3

What are the exceptions to the doctrine of privity

Answer 3

Thomas v. Winchester: Dandelions, belladonna, and “imminent and danger” MacPherson v. Buick: Wooden wheels and defining a “thing of danger”

Question 4

What is Express Warranty?

Answer 4

Affirmation of fact or promise or promise Description of the goods

Question 5

What is the Implied Warranty of Merchantability?

Answer 5

The goods are fit for the ordinary purposes for which such goods are used. This is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind

Question 6

What is the Implied Warranty: Fitness for particular purpose?

Answer 6

Seller has reason to know a) Buyer needs goods for a particular purpose and b) Buyer is relying on the seller’s skill or judgment to choose suitable goods This gives rise to warranty that goods will be fit for that particular purpose unless excluded or modified

Question 7

How do you exclude an implied warranty of merchantability?

Answer 7

The language must mention merchantability and in case of a writing must be conspicuous Does not have to be in writing

Question 8

How do you exclude an implied warranty of fitness for a particular purpose?

Answer 8

The exclusion MUST be in writing AND conspicuous But “as is” (or the like) excludes ALL implied warranties

Question 9

What is the general rule of strict products liability?

Answer 9

One who sells any product in a defective condition unreasonably dangerous to the user/consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer

a) Seller is engaged in the business of selling such products
b) Product is expected to and does reach the user or consumer without substantial change in the condition in which it was sold Seller exercised all possible care

Question 10

Who has the burden of proof that the product was in a defective condition at the time it left the hands of the particular seller?

Answer 10

Injured plaintiff

Question 11

Can an implied warranty of fitness for a particular purpose be excluded orally?

Answer 11

an implied warranty of fitness for a particular purpose can only be excluded if it is in writing. (See UCC 2-316(2).)

Question 12

Does a disclaimer of an implied warranty of merchantability must “merchantability,?”

Answer 12

Yes, a disclaimer of an implied warranty of merchantability must mention “merchantability,” but it does not need to be in writing. (See UCC 2-316(2).)

Question 13

What does it mean to be “unreasonably dangerous?”

Answer 13

It must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

Question 14

When is a product defective?

Answer 14

When at the time of sale or distribution, it contains a manufacturing defect, is defective in desisgn, or is defecive because of inadequate instructions or warnings

Question 15

When does a product contain a manufacturing defect?

Answer 15

A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation adn marketing of the product

Question 16

When does a product contain a design defect?

Answer 16

A 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 by the seller or other distributor, or predecessor in the commercial chain of distribution, & the omission of the alternative design renders the product not reasonably safe

Question 17

When does a product have a warnings defect?

Answer 17

The foreseeable risks of harm could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller

Question 18

What is the manufacturing defect test?

Answer 18

Deviation-from-the-norm test

Ask? Did the allegedly defective product differ from the manufacturer’s intended result?

Question 19

What two tests could be used to determine a design defect?

Answer 19

Consumer-contemplation test

Risk-benefit test

Question 20

What is the consumer -contemplation test?

Answer 20

This is when the product hs failed to perform as safely as an ordinary consumer would expect when used in an intended OR reasonably foreseeable manner

Question 21

What are the factors of the risk-benefit test?

Answer 21

1) Gravity of the danger posed by the design
2) Likelihood that such danger will occur
3) Mechanical feasibility of a safer alternative design
4) Financial cost of an improved design
5) Adverse consequences to the product and the consumer that would result from an alternative design
6) User’s anticipated awareness of inherent dangers and their avoidability from public knowledge of its obvious condition, or from warnings or instructions
7) Expectations of the ordinary consumer

Question 22

What must a plaintiff prove in a design defect claim?

Answer 22

1) Plaintiff must prove safer alternative design (as an element)

• Prevented or significantly reduced the risk of injury WITHOUT substantially impariring product’s utility
• Economically feasible AND technologically feasible at the time of the sale

2) Plaintiff must ALSO prove that the risk OUTWEIGHS the utility of design under the risk-utility test

Question 23

What is the Learned Intermediary Doctrine?

Answer 23

This is an exception to the general duty to warn end users of dangers inherent in a product

This doctrine assumes that a manufacturer MAY reasonably rely upon the doctor to give the patient warnings about the side effects

• A drug manufacturer must warn the doctor - the doctor must then notify the patient for informed consent

Question 24

What is the safer alternative design? (majority approach)

Answer 24

• Would have prevented or significantly reduced the risk of injury WITHOUT substantially impairing product’s utility
• Both economically feasible AND techonologically feasible at the timeof the sale

Question 25

What must the plaintiff prove in a failure to warn action?

Answer 25

1) A risk of harm is inherent in the product or may arise from the intended or reasonably anticipated use of the product
2) The product supplier actually knew or should have reasonably foreseen the risk of harm at the time the product was marketed
3) The product must possess a marketing defect
4) The absence of a warning or instructions renders the product unreasonably dangerous to the user or consumer of the product
5) The existence of a causal nexus between the failure to warn or instruct and the user’s injury

Question 26

What is the presumption of read-and-heed?

Answer 26

Enables the plaintiff to prove causal nexus using presumptin that plaintiff would have read and followed proper warnings had they been provided

Question 27

When is “one” liable for selling a used product?

Answer 27

Majority rule: Commercial sellers of used products are not subject to strict liability

Exception:

If a defective used product is sold, Seller is liable for harm to persons or property caused by the defect if the defect:

a) arises from the seller’s failure to exercise reasonable care
b) is a manufacturing defect & the seller’s marketing of the product would cause a reasonable person in the position of the buyer to expect the used product to present no greater risk of defect than if the product were new
c) Used product remanufactured by the seller or a predecessor in the commercial chain of distribution of the used product

Question 28

What is the definition of a used product?

Answer 28

A used product is a product that, prior to the timeof sale or other distribution referred to is comeercially sold or otherwise distributed to a buyer not in the commercial chain of distribution and used for some period of time