Torts - Product Liability Flashcards
(33 cards)
How do you know you’re doing a product liability question?
There’s an issue with a product. Lol. And you want to sue the person who made it.
Under product liability, is it always strict liability?
No, can be negligence or warranty breach.
Eg, if someone in chain of manufacturing didn’t do something they were supposed to do (ie, they did not exercise reasonable care or “breached duty of care”), then this is not SL, this is negligence.
What are three types of product liability?
Strict
Negligent
Breach of warranty
When is products liability strictly liable?
A strict liability claim under products liability requires the plaintiff to show:
- The product was defective in manufacture, design, or failure to warn;
- The defect existed when the product left the defendant’s control; AND
- The defect caused the plaintiff’s injury when the product was used in a foreseeable way.
What is company makes some sort of promise or guarantee along with a product and it does not?
This is a warranty. And the hypo is a “breach of warranty” question.
While there is “implied warranties”, MBE questions will usually TELL YOU about the warranty, otherwise would be too vague.
What if you get a lemon: the product just doesn’t work or the product broke due to no fault of your own?
Product is defective.
What if a food product contains a harmful ingredient?
The presence of a harmful ingredient is generally considered a manufacturing defect “if a reasonable consumer would not expect the food product to contain that ingredient.”
So if product contains harmful ingredient, is producer strictly liable?
Yes. SL whenever “the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product . . . .”
If store sold a defective product, are they strictly liable?
Yes, Strict products liability applies to all commercial sellers; even a retailer who had no control over the design and manufacture of a product may be found strictly liable if that retailer sells a defective product.
Note: could also recover on an implied warranty theory
What if dentist is exercising reasonably due care on procedure, but uses a defective product? Are they liable for strict liability?
Liable for malpractice?
No, because product never left dentist’s control and was not engaged in business of selling the product.
No, because exercised due care. So not responsible at all for the use of the defective product bc exercised due care and not selling product (never left control).
In addition to design defect, is there any other theory of liability for products with defects/harmful ingredients?
Could also rely on the implied warranty of merchantability to establish the U.S. companies’ liability.
Article 2 of the Uniform Commercial Code. See UCC §§ 2-102, 2-105(1). The producers are “merchant(s)” with respect to those goods (see UCC § 2-104(1)), so the contract of sale included an implied warranty of merchantability.
To be merchantable, goods must be “fit for the ordinary purposes for which such goods are used.”
What doctrines are available to a P when P can not directly meet the causation requirement?
- Market sahre liability
- alternative liability
- joint venture/enterprise liability
What is market share liability?
“market share” liability doctrine permits the jury to apportion damages based on the market shares of manufacturers of a defective product. But virtually all courts have held that this doctrine is available only if the manufacturers’ defective products are basically interchangeable in relation to their capacity to cause harm.
eg, in defective tea MEE, the contamination varied across different teas, so could not use this theory to show causation because not idential/interchangeable.
What is alternative liability theory?
“alternative liability” doctrine permits a jury to find two defendants liable when each was negligent and either could have caused the plaintiff’s injuries.
What is joint venture/enterprise doctrine?
“joint venture” or “joint enterprise” doctrine allows the jury to impute one defendant’s tortious conduct to other defendants who are engaged in a common project or enterprise and who have made an explicit or implied agreement to engage in tortious conduct.
What if failed to be merchantable before the merchants came into possession of it?
Merchants may not rely on the fact that the contamination took place before the product came into their hands to evade liability. In a warranty action, the only issue is whether the herbal tea was merchantable. How it came to be unmerchantable is irrelevant.
What does product defect look like?
Left factory defective, or someone in the chain messed up the product, and then it made its way to someone in the business of selling, then sold to a foreseeable user, then the user used it in manner intended to be used:
STRICT PRODUCT LIABILITY for defective products
How will you know products defective in fact pattern?
2 ways:
- sometimes they’ll tell you
- sometimes they’ll show someone who gets a product and it just doesn’t work or just breaks and no indication it was user’s fault bc using in manner normally used for (so sort of implied here, but pretty straightforward still)
If I buy a car and then my friends use the car, can they sue car maker for defective product?
Yes.
If someone stole my car, can they sue car maker for defective product?
NO. not a foreseeable user.
What if I make a thousand phone calls in one day, is that a foreseeable use of phone?
Yes. using it for what it’s supposed to be used for.
What if I use phone to pry something open?
No, not using it in manner intended.
A defect in manufacture requires the plaintiff to show that the product…
- Deviated from its intended design; AND
- Fails to conform to the manufacturer’s own design.
There are two tests for a defect in design…
Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
Under the risk-utility test, the plaintiff must show that the product’s risks
outweigh its benefits AND that there is a reasonable alternative design.
