Torts Manufacturing liability 2nd vs 3rd restatement

Question 1

Consumer discovery of a product defect; 2nd Restatement

Answer 1

Failure for a consumer to discover a product defect or to guard against the possibility of its existence is not a defense

Question 2

Consumer discovery of a product defect; 2nd Restatement, exception

Answer 2

(1) Voluntarily
and;
(2) Unreasonably
proceeding to encounter a
(3) Known
danger is an “assumption of the risk defense”

Question 3

Consumer expectations for product defects; 3rd restatement

Answer 3

In general, a user has no reason to expect a new product to contain a defect or to be on guard to discover one

Question 4

Consumer discovery of a product defect; 3rd restatement

Answer 4

A user has no duty to discover or guard against a product defect

Question 5

Consumer discovery of a product defect; 3rd restatement, exception

Answer 5

A user does have a duty to take other reasonable precautions, so the failure to take these precautions is negligence and is subject to comparative fault

Question 6

Factors to determine an activity suitable for strict liability damages; 3rd restatement

Answer 6

(1) The activity is not a matter of common usage
(2) There is a highly significant risk despite reasonable care

Question 7

Factors to determine an activity suitable for strict liability damages; 2nd Restatement

Answer 7

(1) Existence of a high degree of risk of harm to others
(2) Likelihood that the resulting harm will be great
(3) Inability to eliminate the risk by the exercise of reasonable care
(4) Extent to which the activity is not a matter of common usage
(5) Inappropriateness of the activity to the place it is carried on; and
(6) Extent to which its value is outweighed by the danger

Question 8

Manufacturing Defects; 2nd restatement, examples of parties it applies to, non-obvious

Answer 8

(1) Commercial Lessors
(2) Those who give products away[free samples]
but;
The rule typically does not apply to those who sell re-sell used goods

Question 9

Liability for Product Defect; 3rd Restatement

Answer 9

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is liable for harm caused by the defect.

Question 10

Product Defect; both restatements, kinds of actionable defects

Answer 10

(1) [pure] Manufacturing Defect
(2) Design Defect
(3) Defective instructions or warnings

Question 11

Product Defect; 3rd restatement, Manufacturing Defect

Answer 11

• a product has a manufacturing defect when the product:
  (1)departs from its intended design even though
  (2)all possible care was exersised in the preparation and marketing of the product

Question 12

Product Defect; 3rd restatement, inference of a [pure] Manufacturing Defect

Answer 12

A product defect can be inferred if
(1) The incident was of a kind which ordinarily occurs as a result of a product defect
and;
(2) was not solely the result of other causes

Question 13

Design Defect; Second restatement, fails to perform as expected

Answer 13

A product could be defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner

Question 14

Design Defect; Second Restatement , Hindsight Rule

Answer 14

A product can be found defective if the jury determines the risk of danger inherent in the challenged design outweighs the benefits of such a design

Question 15

Design Defect; Third restatement

Answer 15

A product has a desing deefect when:
(1) The foreseeable risks of harm could have been reduced or avoided by adopting a reasonable alternative design
and;
(2) the omission renders the product not reasonably safe

Question 16

Defective Warning; Third Restatement

Answer 16

A warning is defective when:
(1) the forseeable risks of harm could have been reduced or avoided by providing reasonable instructions and warnings
and;
(2) the omission renders the product not reasonably safe

Question 17

Defective warning; Third Restatement, exceptions

Answer 17

If an ordinary consumer would know about the risk in question, then a manufacturer does not have a duty to warn

Question 18

Defective warning; Third Restatement, Heeding rule

Answer 18

If the jury finds a warning is inadequate, it will be instructed to presume that an adequate warning would have been heeded.

Proves factual cause

Question 19

Defective warning; Third restatement, Heeding rule defendant response

Answer 19

The defendant may rebut the presumption by showing that the user or consumer would not have heeded an adequate warning

Question 20

Hindsight rule; Second Restatement, Majority rule

Answer 20

Most states reject the hindsight rule in favor of one that states:
A manufacturer shall be held liable if they knew or should have known of the risk at the time of sale

Question 21

Hindsight rule; Second Restatement, Minority rule

Answer 21

Under the Second Restatement, some courts imposed liability if, “through hindsight,” the jury determines that the product was defective, regardless of the state of the art at the time of the sale

Question 22

Hindsight Rule; Third Restatement

Answer 22

Adopts the majority rule:
foreseeable risks of harm must have been avoided by reasonable alternative design or warnings

Question 23

Design defect; Third Restatement, Risk discovered

Answer 23

Once a risk is discovered, a manufacturer might have a post sale duty to warn previous purchases who can be identified and informed

Sellers!

Question 24

Product Defect; Third restatement, Servicers

Answer 24

One who provides a service, and incidentally a product in the course of conduct shall not be strictly liable for product defect.

One who provides a product, and incidentally service, in their course of conduct shall be strictly liable for product defect.

Question 25

Product defect; manufacturing, duty under both restatments

Answer 25

A manufacturers duty runs to anyone who foreseeably might use the product or who foreseeably might be injured if the product is defective.

Question 26

Five factors for adequacy of warning

Answer 26

• Scope of danger
• Reasonable communicate the extent of serious harm from misuse
• Physical aspects of warning
• Directive warning may require description of severity of injury
• Means to convey warning must be apparent

Question 27

If misuse(like a third party modification) is reasonably foreseeable

Answer 27

Then in most states, they can still be sued.

Some states say they cannot be held liable for an injury caused by a third party modification to the product
Though;
Even in those states, there may be liability for a failure to warn about the consequences of a foreseeable modification