Flashcards in Page 38 Deck (32):
What must the plaintiff prove in order to argue feasible alternative test for defective design?
That at the time of manufacture some technologically feasible and safe alternative existed
Why are products like alcohol, firearms, and swimming pools protected from defective design?
Because there is no way to make them safer on account of their propensity for injury
When would a plaintiff not have to show a reasonable alternative design when trying to prove feasible alternative test for defective product?
If a design would obviously and blatantly fail a risk/utility analysis
What is the burden of proof for A plaintiff to prove a product is defective?
My show is effective when It left the defendant's control and that there was a causal relationship to his injury
Can plaintiff show evidence of other accidents that happened before or after his injury as proof that a product was defective?
Yes, if they were materially indistinguishable from his injury and the circumstances were similar
Can a plaintiff use circumstantial evidence and res Ipsa to prove defective product?
Does it matter that the product is no longer in the defendant's control when a suit for defective design is brought?
How can Res Ipsa. Prove product defect?
It can be reasonably inferred that it is more probable than not that the product was defective when It left the D's control
What are some ways a D can rebut a defective condition claim?
- by showing the product is state-of-the-art
- by showing the product is unavoidably unsafe
How can a D rebut a defective condition claim by showing the product is state-of-the-art?
Showing it is the best product that can be manufactured, constructed, and designed and it is as safe as technologically feasible
How can a D reBut a defective condition claim by showing the product is unavoidably unsafe?
If a product is dangerous, but very socially useful, it will be considered okay that the product is unavoidably unsafe because there is no way to make it safer
If an unknowable risk becomes discoverable, when is the manufacture liable for negligence?
- if the danger could have feasibly been eliminated, then due care must be used before continuing to market the product
- if the risk can't be eliminated, then product is unavoidably unsafe and then manufacturer has to put a warning on it or discontinue distributing it if the danger outweighs the benefit
- manufacturer must take reasonable steps to warn earlier purchasers about defects that are suddenly discovered
What is failure to warn as a subset of defective product?
If The product has potential for injury that is not obvious to users and has no warnings of the risk or instructions on how to use it safely, the seller can be liable (and defendant knew or reasonably should of known of the danger)
Example of a situation where failure to warn for defective product would be applicable?
The need to wear safety glasses with some power tools
Why is a product that is sold without warnings considered defective?
Because the foreseeable risks of harm could've been reduced or avoided by giving instructions or warnings
What must a warning be In order for it to be considered effective on a product?
Reasonably clear and of sufficient force and intensity to convey the nature and extent of the risks to a reasonable person
If a possible harm by a product is very severe, what kind of warning needs to be given?
Very specific information
What Are the things of warning must do?
Alert the user to danger, how to avoid it and the extent of the harm that could result
What is the manufacturer the one that is in the best position to warn about a product?
Because they are the ones that designed it
Why must The danger be in a failure to warn for defective product?
Something a reasonable user wouldn't have had any reason to expect or anticipate
Why wouldn't you have to warn about someone not diving into a shallow pool?
Because you don't have to worry about dangers that are patently obvious
Who must the warning on a product reach?
The person at risk from the danger
What are the two different ways that you can fail to warn for defective product?
Inadequate warning and failure to warn
What is considered an inadequate warning for failure to warn for defective product?
Warning should explain a reasonably prudent use of the product, the nature and extent of the hazard, have direct to language, describe methods of safe usage, advise of hazards from reasonably foreseeable misuse, and provide antidotes for misuse
How could a warning on the product in adequate?
If it doesn't specify the risk, is inconsistent with how the product should be used, or doesn't give the reason for the warning
What are The two major things that a warning on a product should include?
A warning of the danger and instructions for use (plus if there is a safer way to use the product that isn't obvious, that information must be given)
Warnings on the product must be both timely and what?
Users must be able to understand and act on the message
What are The things that are balanced in the inadequate warning section of defective products?
How dangerous the product is, form of its use, intensity/form of warnings, language/placement/font size/color, burdens of warning, how likely the warning will be to those that will use the product, form/content considerations, etc.
What is the form of a warning?
Printed label, tag, integrated material, attention catching
What must be the content of a warning for a product?
It must be comprehensible to the average user and show the nature/extent of the danger to a reasonably prudent person
When is a label/warning not adequate?
If the physical characteristics like size and placement are too small or obscure for reasonable consumer to read, or doesn't inform of pertinent hazards and use for avoidance