Products Liability

Front 1

Three Types of Products Liability covered
(Men Do Women)

Back 1

*Manufacture - product doesn't meet blueprint
*Design - whether blueprint itself was defective
*Warning/Instructions - lack or inadequate

Front 2

Manufacture Claims
(Not Safe Men's Work)

Back 2

*Negligence
*Strict Liability
*Misrepresentation
*Warranty

Front 3

For negligent manufacture claims, when can res ipsa loquitur be alleged?

Back 3

RIL alleged in products cases in which something disgusting is found in the product. RIL can be asserted to show more likely than not conduct was by one specific D.

Front 4

Who are the Ds in manufacture negligence claims?

Back 4

*manufacturers
*wholesalers
*retailers

Front 5

What are the damages in a manufacture negligence claim?

Back 5

*compensatory
*nominal
*punitive

Front 6

What are the defenses in a manufacture negligence claim?

Back 6

*Contributory Neg
*Comparative Fault
*Assumption of Risk
*P Misuse/Misconduct (J/S)
*Statute of Limitations/Statute of Repose Preemption

Front 7

Statute of Limitation/Statute of Repose Preemption

Back 7

D will argue that where the federal government has established standard for a device/product, a products liability suit cannot be maintained alleging a defect as long as D has met federal standards

Front 8

Exceptions to those who can be held strictly liable for manufacture defect? EXAM: Question whether the D falls under an exception.

Back 8

*sellers of used products
*non-commercial sellers (no in "business")
*testers, certifiers
*auctioneers
*financiers
*contractors (J/S)

Front 9

What are the strict liability damages for manufacture defect?

Back 9

*may be strictly liable for any direct harm and any inflicted emotional distress (including bystanders)
*punitive (j/s)

Front 10

What are strict liability defenses for manufacture defect?

Back 10

*comparative fault
*assumption of risk

Front 11

What are the elements of misrepresentation for manufacture defect?

Back 11

1. A false, material, or factual representation
2. which results in justifiable reliance

Front 12

What are the defenses to misrepresentation for manufacture defect?

Back 12

assumption of risk

Front 13

What are the elements of expressed warranty in a manufacture defect claim?

Back 13

1. D gave affirmation of fact, with no disclaimer
2. regarding the goods in question
3. basis of bargain

Front 14

Merchantability

Back 14

Merchant/D dealing in goods in question, goods must be fit for ordinary purpose, up to the standard of the trade , with conspicuous disclaimer using the word merchantability

Front 15

Fitness for Particular Use

Back 15

*implied warranty
*seller aware of buyer's purpose for purchase, buyer relies on sellers' advice of product, and includes disclaimer must be written and sconspicuous

Front 16

What phrase disclaims all warranties?

Back 16

"as is"

Front 17

Design Claims

Back 17

*negligence
*strict liability

Front 18

In a negligence action for design, what must the P prove?

Back 18

The P must prove that the blueprint itself was bad and that the defect existed a time that is was in the D's control

Front 19

What are the two tests in a strict liability design claim for causation?

Back 19

*AC:SC (Reasonable Alternative Design - cost/utility analysis, industry custom/standard, duty to recall)
*Reasonable Consumer Test

Front 20

Reasonable Consumer Test

Back 20

*intended user v. foreseeable user
*open and obvious risk (j/s)
*complex technical issue may need expert witness

Front 21

In a strict liability design claim, who has the burden of proof for proving that the utility of the product outweighs the harm?

Back 21

The D has the burden of proof

Front 22

What is the duty in a negligent warning/instruction claim?

Back 22

Duty to warn of dangers consumers may be unlikely to know of & duty to provide adequate warning

Front 23

What are the two tests in a strict liability warning/instruction claim?

Back 23

*Necessity
*Adequacy

Front 24

Necessity

Back 24

If foreseeably risk is greater in nature or amount than ordinary consumer's expectation
-learned intermediary doctrine
-sophisticated user doctrine

Front 25

Adequacy

Back 25

*must reasonably inform ordinary consumer of the nature and extent or risks involved
*Consider
-prominence/location of the warning
-clear and direct msg
-need or distraction by pictures
-scope/seriousness of danger
-ordinary consumer's knowledge

Front 26

Learned Intermediary Doctrine

Back 26

no need if seller can reasonably rely on someone else to warn (doctors/pharmacist warn patients of meds)

Front 27

What are the exceptions to the Learned Intermediary Doctrine?

Back 27

*FDA requires a warning, mass immunization, direct advertising
*On EXAM, ask if it falls under an exception to the LID

Front 28

Sophisticated User Doctrine

Back 28

*applies to bulk suppliers
*on warning is sufficient for bulk products
*suppliers not liable for not warning when bulk distributed

Front 29

What are the two exceptions under necessity?

Back 29

*Learned Intermediary Doctrine
*Sophisticated User Doctrine

Front 30

What is the causation for strict liability warning/instruction claims?

Back 30

Heeding Presumption: party responsible for inadequate warning must show that the user would not have heeded the adequate warning. Also, the P must show that the harm suffered was foreseeable and that there was no superseding cause.