Product Liability Flashcards
what are the four general theories of liability available under products liability?
- Negligence
- Strict Liability
- Implied warranties (merchantability and fitness for a particular purpose)
- Representations (misrepresentation)
what are the four elements of a prima facie case of product liability based on negligence?
regular negligence: duty breach causation damages
There are five principal ways in which a manufacturer or supplier can be negligent. What are they?
- Manufacturing Flaw
- failure to reasonably inspect
- negligent design
- failure to warn
- failure to take care to obtain quality components
where products liability cases are predicated on negligence, will the manufacturer’s negligence be imputed to wholesalers and retailers?
No- wholesalers and retailers are in general only responsible for their own affirmative negligence in handling products. THe manufacturer’s negligence will not be imputed to the wholesaler or retailer… wholesalers and retailers do have a duty to inspect for defects if they have any reason they think there might be a defect OR if it would be a failure of due care if they do not inspect
What defenses are available in a products liability suit based on negligence?
- Contributory Negligence (or comparative in some states)
2. Assumption of risk
Of the different types of products liability based on negligence, which is hardest to prove?
Negligent design, because of the balancing test it requires, the risk of injury against the cost of making the product safe
What are the requirements of a products liability claim based on strict liability?
- Defect
- Control
- Changes (product must not undergo significant changes before it gets to the user)
- business
- causation
- no privity required
In the context of strict liability, what are the two tests used to determine if a product should be considered defective?
most courts will consider a product defective under either:
- The consumer expectation- test: the dangerousness of the product is beyond the expectation of the reasonable consumer who is familiar with the characteristics of the product OR
- the danger-utility (or risk-utility) test: a product is defectively designed if its danger outweighs its utility, considering the feasibility of less dangerous, alternative design
What are the primary differences between a products liability claim based on negligence and one based on strict liability
- Unreasonable dangerous defect (this is the essence of a strict liability suit)
- Fault (Must prove fault in a negligence claim; with strict liability, need only prove sales of an unreasonably dangers defective product that causes harm, regardless of fault
- Liability of wholesalers and retailers
- Failure to warn
There are three basic types of defects covered by a strict products liability claim. What are they?
- Manufacturing defects
- Design Defects
- Failure to adequately warn (as to dangers a reasonable user of the product would have no reason to except)
What are the possible defenses and under what circumstances are they available in strict products liability cases
- Assumption of risk
- Abnormal misuse of the product
- failure to follow instructions
There are two basic warranties covered by the implied warranty type of products liability claim. What are they?
- Warranty of merchantability- goods must be fit for the ordinary purposes for which such goods are used
- fitness for a particular purpose- this warranty arises where seller knows of a particular purpose to which buyer intends to put goods, recommends a product for this use, and the buyer relies on teh seller’s skill and judgment in supplying the goods for that purpose
What defenses are available in a suit for breach of an implied warranty
First, there are the defenses that are also available in strict products liability- assumption of risk, abnormal misuse, failure to follow instructions, the type of contributory negligence thats also assumption of rsk (knowingly, unreasonably, and voluntarily exposing oneself to risk of injury), and in some states comparative negligence.
second, there are defenses that are unique to implied warranty:
1. Failure to give seller notice of breach within a reasonable time after its discovery (courts don’t love this)
2. disclaimers unless they abrogate a statutory duty, are inconspicuous or unconscionable (which is likely in a consumer case)
Which is an easier products liability claim for a plaintiff to pursue- strict liability or breach of implied warranty?
They’re pretty comparable, but strict liability may be slightly easier to establish, ironically enough…
- Scope of P’s- under strict liability anyone FORESEEABLY endangered by the product may sue. Under implied warranty, courts sometimes require privity
- Damages- under strict liability, the P can recover for both persona and prop damages, but not usually for “intangible economic loss.” Under implied warranty, not all courts allow recovery for prop damage. as to intangible economic loss, few courts allow recovery on either theory
- Defenses- under strict liaiblity, assumption of risk, misuse, failure to follow instructions, and type of contributory negligence that is also assumption of risk (knowingly, unreasonably, and voluntarily subjection oneself to risk of harm). Under implied warranty, those defenses plus two more- P must give D notice of breach in reasonable time and disclaimers can be valid, except when unconscionable, inconspicuous, or in derogation of a statutory duty.
There are two sources of liability for products liability based on express representations. What are they?
- misrepresentation of a material fact
2. express warranty
