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Flashcards in Page 36 Deck (41):

If a contractor provides a defective product, can he be liable?

Yes, because the product is what is at issue


If a company has purchased the assets of a prior manufacture without assuming its liabilities, are they liable for injuries caused by defects in the predecessor's products?



If a company merges with another company and agrees to assume the seller's liability, is the new owner liable for any defects in the previous company's products?



Can a franchisor be liable for product defects?

Yes, especially when they retain some control over the franchisees' behavior


When would a seller of a used product be held liable if it has a defect?

If they made a representation of quality, because when you buy a used product you can't reasonably expect it to be free of defects


If you sell used property that has a defect that came from a modification or misuse between the original purchase and the sale, can SPL be imposed on you?



If you just sell your car, why are you not a proper defendant for an SPL suit?

Because SPL only applies to those regularly engaged in the business of manufacturing, selling, or leasing products, so you would just be an occasional seller


If you give commercial endorsement to a product, can you be liable if there's a defect in the product?

No, because you didn't put it into the stream of commerce, the most you could be liable for is negligent misrepresentation


If you publish an advertisement about a defective product, can you be liable for it?



Does SPL apply to things in their natural state like unprocessed poison mushrooms?



Can SPL come from an injury that happens because of the way a product was installed, serviced, or used?



If you give services and a product, how do courts figure out if SPL applies?

Use the dominant aspect test to see if the product is incident to the service, in which case they would be no SPL


Is electricity flowing through powerlines considered a product?



Something involving blood, can that be dealt with in strict product liability?

No, that would be in negligence


If you are injured by something that hasn't yet been sold, can there be SPL?

No, the product must have entered the stream of commerce, so if you are injured by something that hasn't yet been sold, the manufacture can't be held liable for SPL


What is necessary to prove the defective product element for SPL?

Plaintiff must show product was defective, and was a substantial factor in causing harm to a foreseeable user


What are the three different ways to prove a defect for defective product for SPL?

Manufacturing defect, design defect, or failure to warn


What is the quasi-learned hand approach to figure out if a product is defective?

If the defect presents a danger to the average consumer that exceeds the social utility of the product, then it is defective


If you assemble another company's components into your products, can the other company's carelessness be imputed to you?

Yes, because your duty of care extends to all components


Why do services not apply to SPL?

As they don't require mass production or distribution from an unknown manufacturer or seller


If a unique SPL case does go into services, what is recovery limited to?

Transactions that are commercial in character instead of professional


If there is confusion about whether situation is a service or product for SPL, what should you do?

Apply the predominant purpose test


Why is building a home considered a product?

Because the purpose is the new house


If you buy a highly dangerous product from an unknown supplier, what is your duty of care?

You must inspect or at least warn the purchaser of the product comes from an uncertain source of supply


If a dealer warns about a dangerous product, does that discharge his duty to warn?

Yes, and the contractor then has a duty to test or inspect, and if they don't, their negligence is superseding


If The plaintiff fails to discover a defect, can that be a defense to SPL?

Almost never


What must be experienced in order to recover for SPL?

Personal injury or property damage other than failure of the product itself


What is a manufacturing defect under SPL?

The individual unit is uniquely defective, and not shared by all units, and the product isn't in the condition the manufacturer intended at the time it left his control


Manufacturing defects are often seen where?

Assembly-line errors


If I manufacturing defect occurs, even when all possible care was taken to make and market the product, is there still liability?



There's a duty for manufactures to do what to their products?

Inspect and test


Do those people down the chain of distribution have a duty to inspect the product?

Not unless the problem is so obvious that it is readily apparent, or unique facts apply like a dealer usually road tests of vehicle before selling it


If a mattress has a spring poke someone in the back, does that count as an inherently dangerous product enough that the dealer owes a duty to inspect or test it before sale?

No, as long as he got it from a reputable manufacturer


What is a design defect for strict product liability?

When an entire product line is defective, even though it was in the condition intended by the manufacturer, it was designed in a way that presented undue risk of harm in normal use


What is the question to ask to determine if a product has a design defect?

If the product is more dangerous than would be expected by the ordinary consumer that purchased the product


Design defect applies to what time?

Time of manufacture


If crucial new info is discovered after product release, what do the courts usually focus on for timeframe?

The defendant's conduct after the crucial info appeared


Who is responsible for the design of a product?

The manufacturer


When is there usually no strict product liability?

If the danger is something that couldn't have been guarded against through human skill and foresight


What are the three test to prove defective design for strict product liability?

Consumer Expectations test, risk utility test, feasible alternative test


If you are an assembler of component parts, can you be liable for any defective parts supplied by others?

Yes, and the seller of the defective part is also liable