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Flashcards in Part Seven: Products Liability Deck (11)
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What does "products liability" refer to?

"products liability" --> refers to the liability of a supplier of a defective product to someone injured by the product


What are the 5 theories of liability for products liability?

1. intent
2. negligence
3. strict liability*
4. implied warranties of merchantability and fitness for a particular purpose
5. representation theories (express warranty and misrepresentation)

NOTE --> if Q doesn't specify which theory to apply, use "strict liability" bc it's the easiest to prove


What element are required for EVERY products liability case, regardless of theory?

Under EVERY theory, P must show:
1. defect
(i) manufacturing defects
(ii) design defects
(iii) inadequate warnings

2. existence of defect when product left defendant's control
NOTE --> this will be INFERRED if product moved through normal channels of production


What is a "manufacturing defect"?

What is a "design defect"?

What is an "inadequate warning"?

"manufacturing defect" --> product is different from and more dangerous than products made properly

"design defect" --> All products of same line are identical but have dangerous propensities

"inadequate warning" --> manufacturer failed to give adequate warnings as to risks involved in using the product that may not be apparent to users
NOTE --> for prescription drugs/medical devices, warnings given to physicians is usually sufficient


What is the standard for proving a "manufacturing defect"?

Product failed to perform as SAFELY as an ORDINARY CONSUMER would expect.

NOTE --> also applies to defective food products

NOTE --> D must anticipate REASONABLE misuse


What is the standard for proving a "design defect" or "inadequate warning"?

P must show -->
-D could have made product SAFER without SERIOUS IMPACT on PRICE or UTILITY


With regards to proving the existence of a defect, what is the effect of compliance or non-compliance w government safety standards?

Non-compliance --> establishes that product was defective

Compliance --> is EVIDENCE, but not conclusive, that product is NOT defective


Is D in products liability case responsible for unforeseeable or unknowable risks?



What is D's liability in products liability for "unavoidably unsafe products" ?

D will NOT be held liable If:
1. danger is APPARENT; AND
2. there is NO SAFER WAY to make the product

EXAMPLE --> knives


What rules apply w regards to "products liability based on intent" ?

Who can sue?

What damages are available?


General rule --> D will be liable to ANYONE injured by an unsafe product if D:
(1) INTENDED the consequences; OR
(2) KNEW that they were substantially certain to occur
NOTE --> Not very common. But if there is intent, the most likely tort is battery.

Who can sue? --> any injured P. Privity is NOT required.

Damages? --> may collect COMPENSATORY and PUNITIVE damages

Defenses --> all intentional tort defenses


What rules apply w regards to "products liability based on negligence" ?

To whom is duty owed?

Who can sue?

Who can be held liable?

General rule --> same as any negligence case. P must show:
(1) duty

(2) breach
(i) negligent conduct of D;
(ii) leading to supplying of "defective product"

(3) actual and proximate cause
(4) damages

Duty owed --> to any foreseeable P, including:
(1) users, (2) consumers, (3) bystanders
- Privity is NOT required.

Who can be held liable? -->
General rule: Anyone who supplies product to another can be held liable. But usually applies to COMMERCIAL SUPPLIERS, including
- Manufacturers
- Wholesalers
- Retailers