Products Liability

Question 1

What are possible theories of liability available to plaintiffs in products liability cases?

Answer 1

PLs in products liability cases may have one of five possible theories of liability available to them:

(i) Intent;
(ii) Negligence;
(iii) Strict liability;
(iv) Implied fitness for a particular purpose and warranties of merchantability; and
(v) Representation theories (express warranty and misrepresentation).

Question 2

To prove breach of duty in a products liability action based on negligence, the plaintiff must show:

Answer 2

(i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant.

Negligent conduct is demonstrated by showing that the defendant’s conduct fell below the standard of care expected of a reasonable person under like circumstances, not the level of care generally exercised by the defendant.

Question 3

In contrast to products liability cases based on negligence, those based on strict liability do not:

Answer 3

do not require that suppliers have an opportunity to inspect.

Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it. In a negligence action, the supplier’s negligence must be proved. Products liability cases based on negligence and those based on strict liability both require that an injured bystander be foreseeable. While privity is not required in these cases, and bystanders are protected and may bring a claim under either theory, they must be foreseeable. Liability under these theories applies to foreseeable plaintiffs. Products liability cases based on negligence and those based on strict liability both prohibit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages. Economic loss cannot be the sole damage claim. As under claims based on negligence, those based on strict liability will impose liability even though an intermediary negligently failed to discover the defect. The same concepts of proximate cause govern negligence and strict liability actions. The negligent failure of an intermediary to discover a defect is not a superseding cause and does not cut off the supplier’s strict liability. However, if the intermediary’s conduct becomes something more than ordinary foreseeable negligence, then it does become a superseding cause.

Question 4

In a products liability case based in negligence, a plaintiff may recover _________.

Answer 4

Personal injury & Property damage.

If the PL’s complaint is only that the product does not work as well as expected or requires repairs (i.e., no personal injury or property damages), most Crts do not permit recovery of damages for economic losses under a negligence theory; the PL must bring an action for breach of warranty.

Question 5

How is an action for breach of express warranty different from an action for breach of the implied warranty of merchantability?

Answer 5

The warranty need not be made by a merchant dealing in the type of goods sold.

Unlike in an action for breach of the implied warranty of merchantability, an action for breach of express warranty does not require that the warranty be made by a merchant dealing in the type of goods sold. The warranty may apply to any sale of goods.