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Torts > Products Liability > Flashcards

Products Liability Flashcards

1
Q

five theories P can use for products liability

A
  1. intent
  2. negligence
  3. S.L.
  4. implied warranties of merchantability and fitness for particular purpose;
  5. representation theories (express warranty and misrepresentation)
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2
Q

If question doesn’t indicate P’s theory of products liability, assume it’s _____ b/c ___-

A

assume S.L. b/c easiest to prove

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3
Q

common elements to any product liability theory (2)

A
  1. DEFECT

2. existence of defect WHEN IT LEFT D’S CONTROL

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4
Q

3 types of defects for product liability

A
  1. manufacturing defect
  2. design defect
  3. inadequate warnings (for drugs and medical devices, warnings to doctors sufficient)
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5
Q

Proving manufacturing defect: D liable if P shows?

A

P shows product failed to perform as safely as ordinary consumer would expect (D must anticipate reasonable misuse). Also applies to DEFECTIVE FOOD PRODUCTS

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6
Q

Proving design defect: D liable if P shows?

A

D could’ve made product SAFER without impacting price or utility

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7
Q
  1. product’s NONCOMPLIANCE w/ govt safety standard conclusively establishes defectiveness?
  2. product’s COMPLIANCE w/ govt safety standard conclusively establishes non-defectiveness?
A
  1. Yes. Noncompliance = defective.

2. No, compliance is evidence, but NOT CONCLUSIVE EVIDENCE of non-defectiveness

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8
Q

Can D be held liable for scientifically unknowable risks at time of marketing?

A

No.

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9
Q

E.g. of unavoidably unsafe product? D liable? Reqs to avoid liability?

A

E.g., knives. D not liable if danger is apparent and no way to make safer product

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10
Q

Draw inference that product was defective when it left D if?

A

if it moved through normal channels of distribution.

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11
Q

Is privity of K relevant to product liability suit?

A

No. Any foreseeable P may sue, including end user w/o privity.

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12
Q

prima facie negligent product liabilities case is same as any negligence case. four elements?

A
  1. duty
  2. breach of duty
  3. actual and prox cause
  4. damages
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13
Q

who can sue for prod liab action? 3 classes of P

A

any foreseeable P:

  1. user
  2. consumer
  3. bystander
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14
Q

who can be held liable for product liability case?

A

commercial suppliers, e.g., manufacturers, wholesalers, and retailers.

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15
Q

breach of duty in negligent product liability case: 2 elements

A
  1. negligent conduct leading to

2. supply of defective product

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16
Q

difficult to hold retailers and wholesalers liable for negligent product liability suit b/c?

A

b/c they satisfy their duty through cursory inspection.

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17
Q

does intermediary’s negligent failure to discover defect relieve original manufacturer’s negligence? if so, when?

A

generally no, unless intermediary’s conduct exceeds ordinary foreseeable negligence

18
Q

Product liability suit solely for economic loss recovers what damages?

A

NONE for just econ loss. Product liability suit REQUIRES PERSONAL INJURY OR PROPERTY DAMAGE

19
Q

Defenses to negligent product liability

A

same as any other negligence suit

20
Q

Elements of strict liability products liability case (four elements)

A
  1. Strict duty owed by COMMERCIAL SUPPLIER
  2. Production or sale of defective product
  3. Actual and proximate cause
  4. Damages
21
Q

Is privity required for strict liability products liability suit? Who can sue?

A

Privity is not required. Users, consumers and bystanders can sue.

22
Q

If there is a substantial alteration, can a strict liability products liability suit the made?

A

No. The product must reach the plaintiff without substantial alteration

23
Q

May strict products liability suits extend to services as well?

A

No, even where the product is incidental to a service, there’s no strict liability. Plaintiff may sue in negligence.

24
Q

For a strict liability suit against the defective product what must plaintiff show about product?

A

Plaintiff must show that the defect makes the product dangerous beyond the ordinary consumer’s expectation

25
Q

Can retailers be strictly liable for the sale of a defective product that is dangerous beyond the ordinary consumer’s expectation?

A

Yes, even if they have no opportunity to inspect the product.

26
Q

To demonstrate cause in a strict liability case, the plaintiff must show that defect existed when?

A

That it existed when the product left the defendant’s control

27
Q

Which of the following defenses are valid against strict liability products liability cases

  1. Contributory negligence?
  2. Assumption of risk?
  3. Comparative negligence?
A
  1. contributory negligence is no defense if P failed to Discover the defect or guard against existence.
  2. assumption of risk is a good defense
  3. most comparative negl states apply comp negl rules to S.L. cases
28
Q

Are disclaimers effective as a defense against negligence or strict liability cases where personal injury or property damages occur?

A

No. Disclaimers are irrelevant in these circumstances.

29
Q

What are the 2 warranties in every sale of goods that can provide the basis for a suit against the seller?What are their definitions?

A
  1. Merchantability, meaning they’re average acceptable quality and fit for ordinary purposes
  2. fitness for particular purpose, meaning seller knows or has reason to know of the purpose and that the buyer is relying on seller’s judgment
30
Q

Most courts no longer require vertical privity. On a narrow view of the horizontal privity requirement, who can sue for personal injuries with respect to products liability or the lease of goods?

A

Any buyer, family, household, guests can sue for personal injuries based on products liability (purchased or leased).

31
Q

What constitutes breach of warranty?

A

If the product fails to live up to its warranty of merchantability or its warranty of fitness for a particular purpose.

32
Q

Does the plaintiff have to prove fault by any defendant in the case of breach of warranty?

A

No, proof of fault is not required

33
Q

What are 3 defenses to breach of warranty cases in the case of the products liability?

A
  1. Assumption of risk (using product while knowing of breach of warranty)
  2. Contributory negligence (to the same extent as strict liability cases)
  3. Failure to give notice of breach is a defense under the UCC
34
Q

Are disclaimers of warranties effective in personal injury cases? Are they effective in economic loss cases?

A

Disclaimers of warranty are rejected in personal injury cases but upheld in economic loss cases

35
Q

In addition to implied warranties, defendant may be liable when a product fails to live up to an affirmative representation. This is called the ________ theory of liability

A

Representation theory of liability

36
Q

What are the 2 representation theories

A
  1. Express warranty, meaning a promise regarding goods that is a basis of the bargain
  2. Misrepresentation of fact regarding a product
37
Q

When will the seller be liable for misrepresentation of facts concerning product (2 elements)?

A
  1. Material misstatement of fact regarding quality or uses of goods (puffery insufficient)
  2. The seller intended to induce reliance by the buyer
38
Q

For misrepresentation of fact __________ reliance is required

A

Justifiable reliance (the representation was a factor inducing purchase). Privity is irrelevant, and the reliance can run to a prior purchaser.

39
Q

Is assumption of risk a defense against misrepresentation of fact if the plaintiff is entitled to rely on the representation?

A

No, assumption of risk is not a defense to misrepresentation of fact.

40
Q

Can a seller of goods be strictly liable for harm where the manufacturer is originally responsible for the defect and the defect was not discoverable?

A

Yes, the seller can be strictly liable because he is a commercial supplier and owes a duty not to sell a product that is unreasonably dangerous.

Torts (7 decks)

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