Chapter Twelve

Question 1

Under what circumstances can the following be found negligent when a plaintiff is injured by a defective product?

Answer 1

a. manufacturer- A manufacturer is liable if a retailer fails to make an inspection that it is under and obligation to make.
b. maker of component part- Component manufacturers may be liable for failure to use reasonable care.
c. user of component part- Liable if it did not take reasonable care to obtain the part from a reliable source or did not make a reasonable inspection of the components before incorporating them.
d. retailer- If the retailer learns of the defect, either by inspection or through some other means and fails to warn the customer

Question 2

Can lessors, real estate agents, and providers of service be found liable on the basis of negligence?

Answer 2

Lessors of goods may also be liable for negligence for failing to discovery defects.

Question 3

What is privity, and what is its status today?

Answer 3

Privity is the requirement that the plaintiff must have contracted directly with the defendant in order to recover for losses. The privity requirement was abolished in MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), Therefore, a plaintiff can sue the manufacturer, the retailer, or the lessor of a product. Users of products who do not purchase the products can also recover under a negligence theory if they are “reasonably foreseeable” plaintiffs.

Question 4

What damages can be recovered in a product liability case based on negligence?

Answer 4

Personal injuries, property damages, and economic loss (although pure economic loss is difficult to recover).

Question 5

What are the differences between tort remedies and contract remedies based on a breach-of warranty claim?

Answer 5

Tort remedies are designed to protect the public from dangerous products. The purpose of strict liability is to protect consumers and allocate the risk to manufacturers, who are better able than consumers to bear the risk of loss. Contract remedies, in contrast, are designed to compensate parties for the loss of the benefit of their bargain.

Question 6

What is an express warranty, and how is it created?

Answer 6

A seller expressly represents that the good possess certain qualities.

Question 7

Who may recover on the basis of breach of express warranty?

Answer 7

Direct purchaser, remote purchaser, and user (if member of general class expected to be reached by warranty).

Question 8

What can be recovered?

Answer 8

Personal injury damages, property damages, pure economic loss, and incidental and consequential damages.

Question 9

What is the difference between an implied warranty of merchantability and a warranty of fitness for a particular purpose?

Answer 9

A warranty of merchantablity is implied in a contract for the sale of goods if the seller is a merchant in the regular business of selling the kind of goods in question. An implied warranty of fitness for a particular purpose is created when a seller who knows that a buyer wants goods for a particular (noncustomary) purpose makes a recommendation on which the buyer relies

Question 10

What can be recovered when suing on the basis of breach of an implied warranty?

Answer 10

Personal injury damages, property damages, pure economic loss, and incidental and consequential damages (direct purchasers only).

Question 11

Who can be held liable? (breach of an implied warranty)

Answer 11

Manufacturer, user or manufacturer of component part, retailer (except for sealed containers in some courts), lessor, seller of real estate (in some courts), and seller of service (in some courts).

Question 12

What is the “sealed container” doctrine?

Answer 12

Absolves retailers who sell sealed containers of any liability.

Question 13

When is it to a plaintiff’s advantage to sue on the basis of strict liability, and when is it to a plaintiff’s advantage to sue on the basis of breach of warranty?

Answer 13

Many plaintiffs opt for strict liability over warranty claims because strict liability is easier to prove than breach of warranty and in many respects is virtually identical to warranty claims.

A plaintiff who si the direct purchaser and whose damage are solely economic will likely sure ofr breach of warranty rather than for strict liability or negligence because of the generosity of the UCC in providing for damages.

Question 14

What is the justification for strict liability in product liability cases? Why are some courts critical of strict liability?

Answer 14

Proponents argue that manufacturers are in a better economic position than consumers to bear such costs. Others argue that sellers should be made to internalize the cost of any injuries their products inflict, forcing them to incorporate the cost of liability into the product itself and thereby raising the market price of the product. The third argument is that the sophistication of modern products precludes the average consumer from pinpointing the act of negligence response for his or her injuries. When some of the evidentiary obstacles to recovery found under negligence analysis are removed, more consumers are able to recover under a struct liability theory and manufacturers are deterred from producing unsafe products.

Question 15

What does section 402A of the Restatement provide, and how did it evolve?

Answer 15

1. A product was sold;
2. The product was defective;
3. The defective product was the cause in fact and proximate cause of the plaintiff’s injuries;
4. The defect existed at the time the product left the defendant’s hands; and
5. The item was manufactured or sold by the defendant.

Question 16

What must be proved in a strict liability case?

Answer 16

1. a product was sold;
2. the product was defective;
3. the defect existed at the time 4. the product left the defendant’s hands
4. the item was manufactured or sold by the defendant.

Question 17

What is the difference between a consumer expectation test and a risk-utility test?

Answer 17

The consumer-expectation test imputes knowledge of a defective condition of the product to the defendant. The core inquiry is whether a reasonable person would conclude that the perceived risks created by the design and marketing of the product outweigh the benefits.

Question 18

What is an unavoidably unsafe product?

Answer 18

unavoidably unsafe products are those products that are incapable of being made safe for their intended and ordinary use.

Question 19

What unique causation problems exist with strict liability, and how have the courts dealt with these problems?

Answer 19

Unique causation problems have been raised in such case as the diethylstilbestrol (DES) litigation, where the plaintiff was unable to identify the manufacturer responsible for making the DES taken by her mother while the plaintiff was in utero.

Question 20

Is res ipsa loquitur applicable to strict liability cases?

Answer 20

No

Question 21

Who can be sued on the basis of strict liability?

Answer 21

Manufacturer, user or manufacturer of component part, lessor, seller of real estate (in some courts).

Question 22

Who can sue on the basis of strict liability?

Answer 22

Direct purchaser, remote purchaser, user and bystanders (some courts)

Question 23

What can be recovered in a strict liability case?

Answer 23

Personal injury damages, property, and economic loss if accompanied by personal injury or property damage.

Question 24

How does a manufacturing defect differ from a design defect?

Answer 24

A manufacturing defect results from a deviation in the manufacturing process that causes the items that injures the plaintiff to be different from others manufactured by the defendant. In a design defect case, all products manufactured by the defendant are the same but possess a feature that is unreasonably dangerous; thus the defect arises from the design.

Question 25

What are the three types of design defects?

Answer 25

Any design defect alleged by a plaintiff must fall into one of three categories; a structural defect exists when the defendant’s choice of materials results in structural weakness, causing the product to be dangerous; absence of safety features; foreseeable misuse where the product, though not dangerous when used in the manner intended by the manufacturer, becomes dangerous when put to some other use. If such misuse is reasonably foreseeable by the manufacturer, most courts will require the manufacturer to employ reasonable design precautions to protect the plaintiff from the danger resulting from that misuse.

Question 26

How does a design-defect case brought on the basis of negligence differ from one brought on the basis of strict liability?

Answer 26

The key issue in a negligence cased is the reasonableness of the manufacturer in placing the product on the market.

Question 27

What is a state-of-the-art defense?

Answer 27

In the “state-of-the-art” defense, the defendants argue that the level of technology existing at the time they made the product precluded them from utilizing a safer design.

Question 28

Why is a plaintiff not allowed to introduce evidence that a defendant redesigned a product after the plaintiff was injured?

Answer 28

The rational underlying this rule is that the admission of this evidence would inhibit manufacturers from redesigning products to make them safer.

Question 29

Give an example of a structural defect?

Answer 29

A structural defect exists when the defendant’s choice of materials results in a structural weakness, causing the product to be dangerous.

Question 30

What determines whether a safety feature must be installed?

Answer 30

In determining whether a safety feature must be installed, one must consider the installation expense of the feature in comparison with the product cost and the magnitude of the danger that exists without such a safety feature.

Question 31

Give an example of a foreseeable misuse case, and explain why the manufacturer would be liable even though the plaintiff misused the product.

Answer 31

The most common foreseeable-misuse cases center around the production of “crashworthy” vehicle. Plaintiffs reason that manufacturers should protect vehicle occupants involved in “secondary collision,” the collisions that occur inside the vehicle following the initial accident. Most modern courts have found that secondary collisions are clearly foreseeable and that manufacturers have an obligation to take reasonable precautions to make their cars reasonably safe in the event of an accident.

Question 32

What must a plaintiff prove in an airbag case, and why are such cases difficult to prove?

Answer 32

a plaintiff must prove that the manufacturer’s failure to install airbags rendered the vehicle’s design defective.

Question 33

Under what conditions will a manufacturer's warnings be considered defective?

Answer 33

Defective warning cases involve a failure to give adequate warnings or directions for use. The absence of a warning regarding the possible dangers of a product may also lay the groundwork for a defective product claim

Question 34

What defenses can be raised in a warranty case?

Answer 34

A seller can disclaim both implied and express warranties. A seller can also limit the remedies available to plaintiffs for breach of implied warranties by providing that the seller will not be liable for consequential damages. A seller can also argue that a buyer must “within a reasonable time after he discovers or should have discovered any breach” notify the seller of the breach.

Question 35

How can a defendant disclaim a warranty?

Answer 35

To disclaim a warranty of merchantability the UCC requires that the seller use language that is conspicuous and that specifically mentions merchantability

Question 36

Can a seller limit his consequential remedies?

Answer 36

No

Question 37

What defenses can be raised in a strict liability case?

Answer 37

Defenses include misuse of the product, lack of sole proximate cause of the plaintiff’s injuries, assumption of risk, statute of limitations, and statute of repose.

Question 38

What issues arise in the context of states of limitations and statutes of repose in product liability cases?

Answer 38

There are problems with the timeliness of the lawsuit.

Question 39

What is preemption, and how did it arise?

Answer 39

The framers of the Constitution foresaw the potential for conflict between the two separate lawmaking bodies of federal and state government.

Question 40

What is the difference between implied and express preemption?

Answer 40

Under express preemption Congress explicitly states the extent to which its enactments preempt state law. Implied preemption can occur in one of two ways – field preemption or conflict preemption.

Question 41

What is the difference between field preemption and conflict preemption?

Answer 41

Filed preemption occurs when a statute is in a field that Congress intended the federal government to occupy exclusively.

Question 42

Why has preemption been such a significant issue in tobacco and airbag cases?

Answer 42

The manufacturers claimed, among other things, that the Federal Cigarette Labeling and Advertising Act (1965) and its successor, the Public Health Cigarette Smoking Act of 1969, protected them from any liability based on their conduct after 1965. The district court ruled that the statutes did not preempt common law actions. On this issue preemption was the difference between holding the manufacturers liable or not.

Question 43

What is a class action, and what are its advantage?

Answer 43

A class action is a suit in which representative members of the class sue o behalf of other members of the class. The representative parties act on behalf of everyone who was injured, eliminating the need for each one of those parties to file an individual suit or be personally involved in the courtroom process.

Question 44

What must be shown before a court will agree to certify a class action?

Answer 44

Certification requirements are usually stringent, requiring proof: (1) that there is a common issue of law or fact among members of the class, (2) that the claims and defenses alleged by the proposed representative are typical of the claims and defenses of the other members of the class, (3) that there are so many potential claimants it would be impractical to join them in one action as plaintiffs, (4) that the proposed representative party will fairly and adequately represent every member of the class, and (5) that adequate notice will be given to all potential members of the class.