Products Liability

Question 1

product liability (strict liablity)

Answer 1

1. D is a commercial supplier
2. Product is defective
3. Defective product was **actual + proximate cause **of P’s injuries
4. P used the product in a foreseeable manner

Question 2

commercial supplier

Answer 2

one who routinely deals in the products sold, including any merchant in the stream of commerce (OSM)

Question 3

examples of commercial supplier

Answer 3

manufacturer
distributor
supplier

Question 4

who is not a commercial supplier

Answer 4

casual sellers
service providers

Question 5

who can sue for product liability?

Answer 5

foreseeable users or bystanders

guests, employees, family, etc

Question 6

damages for product liability

Answer 6

injury + property damage NOT economic losses only

Question 7

types of product defects

Answer 7

manufacturing defect
design defect
inadequate warning

Question 8

manufacturing defect

Answer 8

product departs from its intended design, causing it to be more dangerous than all of the manufacturere’s otehr products of same kind

P must show product failed to perform as safely as ordinary consumer would expect

Question 9

design defect

Answer 9

product creates **an unreasonable risk of danger **due to its faulty design

P mus show feasible alternative design or modification would be safer

Question 10

inadequate warning

Answer 10

manufacturer fails to adequately warn of non-obvious risk associated with product’s use
* includes duty to warn of foreseeable dangers of misuse

NO duty for unforeseeable risks @ time of marketing

P must show product failed to have clear and complete warnings not ordinarily apparent

Question 11

Unavoidably safe products

Answer 11

If a product cannot be safe for its ordinary use, manufacturer must give:
1. proper instructions for use; and
2. adequate warnings for known dangers

EX: chain saw, firearms

Question 12

product liability (negligence theory)

Answer 12

1. Duty of care: each commercial supplier in stream owes duty to all foreseeable users and bystanders
2. Breach of duty: D’s negligence leads to the supplying of a defective product
3. Causation: actual + proximate cause (intermediate commercial supplier does** NOT absolve upstream** commercial supplier - not superseding cause)
4. Damages: injury or property damage NOT economic loss alone

Question 13

types of implied warranties

Answer 13

merchantability
fitness for particular purpose

Question 14

merchantability

Answer 14

goods are reasonably fit for their intended purpose

Question 15

fitness for a particular purpose

Answer 15

seller knows or has reason to know of buyer’s particular purpose and buyer relies on seller’s skills or judgment in selecting product

Seller implies goods are fit for that purpose

Question 16

Who can sue for an implied warranty

Answer 16

buyer’s family, household, and guests suffering personal injury

Question 17

elements to establish warranty breach

Answer 17

1. Warranty: exists and buyer relied on it
2. Breach: product fails to live up to applicable warranty
3. Causation: actual and proximate
4. Damages: personal, property, or economic

Question 18

defenses

Answer 18

assumption of the risk
contributory negligence
comparative negligence

Question 19

liability based on representation

Answer 19

D may be liable if a product falls short of an affirmative representation made to a buyer

Question 20

express warranty

Answer 20

a statement of material fact or promise regarding goods sold that becomes part of the basis of the bargain

any consumer or bystander (as long as OG purchaser relied)

Question 21

misrepresentation of fact

Answer 21

1. seller made a misrepresentation regarding a material fact concerning the **quality or use **of the goods
2. seller intended to induce reliance by buyer, and
3. the misrepresentation induced justifiable reliance

NOTE: for strict liability, buyer does NOT need to rely on misrepresentation for liability