Product Liability

Front 1

3 ways to analyze prod liab:

Back 1

1. Negligence-prod was reasonably certain to be dangerous when negligently made.
2. Warranty
3. Strict

Front 2

Negligence in prod liability: Duties:

Back 2

1. to inspect
2. to carefully design
3. to not manufacture negligently

Front 3

Retailers liable for product liab under negligence?

Back 3

Usually no. no duty to inspect. Exception: if it knows or should know that prod is unreasonably dangerous

Front 4

Privity in Negligence Cases

Back 4

No privity:
1. Nonfeasance=no claim
2. Misfeasance=tort
Privity:
1. Nonfeasance=contract claim
2. Misfeasance=contract or tort claim

Front 5

Warranty

Back 5

Bridge between neg and strict liability

Front 6

Express Warranty
(privity of k is not needed for warranty cases)

Back 6

1. must be specificity
2. P must have relied upon
3. mere puffery is allowed (Best cake mix ever, most attractive car, etc.)

Front 7

Implied Warranties:

Back 7

Implied Warranty of Merchantability
Implied Warranty of fitness for a particular purpose

Front 8

Implied Warr. of Merch.

Back 8

All trnsxns have this. Reasonably fit for the ordinary purpose of the product.

Front 9

Fitness for a partic. purpose

Back 9

Only trnsxns where the buyer has made known to the seller the purpose he intends and he relies on the seller’s skill or judgment. Product must be reasonably fit for that purpose.

Front 10

Strict Liability (2nd Restatement) Privity not required. Reasonable care taken by D is irrelevant.

Back 10

1. Seller must be engaged in the business of selling.
2. Product expected to reach the user w/out substantial change in condition.
3. Harm must be to user or consumer (e.g. not a neighbor injured by a slipping tool. However, maybe the category of user is more broad w/ a swimming pool than w/ a tool.)

Front 11

Strict liability (3rd Restate.)

Back 11

Adds liability to retailer(distributor).
Defect = manufacturing defect, design defect, or inadequate warning

Front 12

How to determine manuf. defect

Back 12

compare it to others off the line

Front 13

Design defect:

Back 13

A PRACTICABLE alternative design exists that could've reduced foreseeable risks.

Front 14

Tests for design defect:

Back 14

Risk-utility: Do the design's dangers outweigh it's utility? (Basically b<pl).
Also consumer expectations test (minority)-dangerous beyond what ordinary consumer would contemplate. this is included in the risk-utility analysis.

Front 15

Tests for design defect:

Back 15

Did a practicable alternative exist? (P must show it is safer and practicable).
Some products are of such limited utility that, even though no safer alternative exists, it's still unreasonably dangerous and subject to SL (there is an alternative to not produce).

Front 16

Foreseeable Misuse:

Back 16

Manuf. must take design precautions against reasonably foreseeable misuse.

Front 17

Warning

Back 17

Warning will not shield liability from a negligently designed/manufactured product. It is an 'extra' requirement where a non-obvious risk exists or possibility of misuse is foreseeable, needing instruction. D must have had knowledge (or should have had) of the risk in order to be held strictly liable.

Front 18

Warning must consist of:

Back 18

Nature, gravity and likelihood. Even if it is obvious, cts are reluctant to relieve.

Front 19

Defenses to strict prod liability

Back 19

1. Assumption of risk (most have turned this into comparative neg, but some still hold it is a complete bar)- voluntary and unreasonable, aware of the danger.
2. Comparative neg
3. Misuse of the product- misuse must have been unforeseeable
4. State of the art- (def. to design defect) design used the best technology available (comeback might be that the social utility of the prod does not outweigh the risk)