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34 Cards in this Set
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what are some theories of recovery? 7
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Negligence (Privity of Contract?)
Negligent Failure to Warn (Hot coffee – McDonalds) Negligent Provision of Inadequate Warning Negligent Manufacture Negligent Advertising Negligent Design (even if a warning) Negligence per se |
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theories of recovery:
what is Negligence (Privity of Contract?) |
privity...related to third party…where one is a party to a contract; therefore, third party can not sue for duty to care. however, in this case...
you do not need a privity with the manufacture or the retailer to bring a lawsuit for product liability. Which means you don’t have to be the person who bought the product Somebody else bought the car. You were injured. You can still sue the manufacturer. It used to be you had to be the privity (you had to been the purchaser to bring a lawsuit). Since the MacPherson v Buick case, it is no longer required |
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theories of recovery:
what is negligent Failure to warn |
1. failure to have warnings on products that are foreseeable to cause damage. Furthermore, courts frequently consider the likelihood of injuries, seriousness of injury, and the ease of warning.
class notes: the product was risky and dangerous. And because they didn’t warn you about the product, you weren’t on guard. You weren’t concern about your safety and it was that negligent failure to warn that caused your damage. Well, the case that is best known is the Stella Liebeck case. This is the McDonald coffee case. She went to McDonald for coffee, which I think right there shows really poor judgment. She went to McDonald for coffee. she sues and she recovered 240, 000 compensatory damages and 2.7 million punitive damages. in a dangerous situation or the product was misuses… there isn’t a need of duty to ward of dangers |
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theories of recovery:
what is negligent provision of inadequate warning? |
the risk of harm outweighed the utility of the product as designed. Ex. weed killer company. Fail to warn farmers that the product can not be use on plants if corns were to be grown the following year
Tylenol. They used to say something like recommended dosage two. So, my daughter, the actress, she would think that if she had a bad day, she could take ten even with a recommended dosage of two. And she drinks it with wine. But, if you take Tylenol and drink wine, you can get damage to your liver. Was that inadequate warning? Yes. They should have said NO more than two. |
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theories of recovery:
what is negligent manufacture. |
ex. You make guns and you have a gun lock. But, the gun lock doesn’t work. That’s negligent manufacture.
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theories of recovery:
what is negligent advertising? |
This is where you make the product appear safer than it actually is.
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theories of recovery:
what is negligent design? |
It covers a lot of ground. It can be dangerous design that cannot be fixed with a warning. A warning is helpful but doesn’t eliminate negligent design. Insufficient safety devices = some other design defects. Example: lightweight lawn mowers. Children can use the lawn mowers but what if it hits a dog bone?
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theories of recovery:
what is Negligence per se? |
Same with torts. This is in the product liability contract.
it's where the company breaks a law or statue |
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Defense to Negligence Based Product Liability:
Assumption of Risk |
the plaintiff should have known about before doing.
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Defense to Negligence Based Product Liability:
Misuse |
some ppl have a good idea, their cat was in the rain and they put it in the microwave…misuse
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Defense to Negligence Based Product Liability:
State of the Art |
where at the time, there wasn’t advanced technology to know about the risk of or making of the product.
if I make my product from a safety stand point…one cant expect more from the company than was it could do. Flaws…could be that everyone agreed to make things unsafe so that it’s cheap and say it’s state of the art… court doesn’t like it |
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Defense to Negligence Based Product Liability:
Compliance with Safety Regulations [Green v. Collagen Corp] |
going by the rules and regulations
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Defense to Negligence Based Product Liability:
Statute of Limitations |
a statue that bars actions arising more than a specified number of years after the cause of action arises. Ex. Kentucky, Louisiana, Tennessee… 1 yr statutes of limitation
class notes you bring the lawsuit, you have to bring it within a certain amount of years. Over time, evidence have a thing about disappearing. It’s not fair and ppl can’t defend themselves. It doesn’t have to be concluded. Just have to file the suit before the deadline. There’s a lot of statute of limitation that just run out of time |
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Defense to Negligence Based Product Liability:
Statute of Repose |
6. statutes of repose – bars actions arising more than a specified number of years after the product was purchased. At least 10 years
class notes: any manufacturer that’s manufacturing things have a mind set that not everything last forever. You must file lawsuit within a certain number of years. It’s longer than the statute of limitation. 10-15 years. |
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implied warranty of merchantability
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i. a warranty or guarantee that the goods are reasonably fit for ordinary use. To meet standard of merchantability
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Implied warranty of fitness
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i. A warranty that arises when the seller tells the consumer a good is fit for a specific use
ii. If the good can not be use for the purpose that the seller said it can and when purchaser used it and is injured…it is breach of contract. Ex. farmer needs oil for car. He goes to store and seller recommended a type of oil. He puts it in his car. The car |
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Expressed warranties
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clearly stated by the seller or manufacturer
i. Created by seller in one of three ways 1. by describing the goods 2. making a promise or affirmation of fact about the goods 3. by providing a model or sample of good ii. ex. a man asked if the ladder can take over 200 lb man, and the seller said yes. When he goes home and goes on the ladder, it breaks because it cant take that much weight. 200lb man can sue. |
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Warranty
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is a guarantee or a binding promise. Either express or implied
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Disclaimers
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“Seller hereby disclaims any warranty in connection with the sale of these goods, either express or implied and the Buyer acknowledges that it is buying the goods ‘as is, where is’”
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Greenman v. Yuba Power
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1962 California) (402A of Restatement (Second) of Torts “One who sells a product in a defective condition, unreasonably dangerous to the user or consume or his family is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:
The seller is in the business of selling such a product, and It is expected to and does reach the consumer or user without substantial change in the condition in which it was sold. *******NOTE This rule applies although A) the seller has exercised all possible care in the preparation and sale of his product, and B) the user or consumer has not bought the product from or entered into any contractual relation with the seller. |
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To succeed in a strict liability case:
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A) product defective when sold
B) defective condition rendered the product unreasonable dangerous C) product was the cause of the injury Ex. buying a car and stops at REI. Buy a box to fit on top (racks). Attached it to the car. When used it, the box tips over because of the box on top. The dynamic of the car has changed. Sure for strict liability, but defense said you motified it so they say you cant sue for tort and strict liability. Can argue that the car was built for putting the box so on. |
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“Defect”
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Flaw in manufacture or marketing that led it to being more dangerous than otherwise.
Failure of manufacturer or seller to warn of the risk or hazard associated with the product. Design is defective. |
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Welge v. planters lifesavers company
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involved boarding house. A person likes peanut and put it on the fridge… pg 391. jar broke and hurt his risk…is it product liability? The theory used by the judge was interesting. Things speak for itself. It shouldn’t have been broken
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Market share liability
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1. a theory of recovery in liability cases according to which damages are apportioned among all the manufacturers of a product based on their market share at the time of plaintiff’s cause of action arose
2. market share theory- created in California. a. Ex. drugs that causes damage 20 years later…when it comes down to it… it’s hard to know who made it. |
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Factors for applying Enterprise Liability
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All of the defendants are tortfeasors
Harmful products are identical Unable, through no fault, in identifying which one manufactured. All manufacturers in the relevant market named as defendants. |
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Defenses to Strict Liability in Tort
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Product Misuse
Assumption of risk (Brown v. Williams) State of the Art |
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product misuse
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ex. weed wacker… peeling wall paper and using wacker to take it off the wall… is it for that? That’s misuse.
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Assumption of risk
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brown v. williams…digging a trench…a small machine that help you. Williams was operating it, the machine grabs something in the ground…and pulled… the tired was compressed and when it decompressed, the pressured push williams up and it landed on him. Widow sued…defense is assumption of risk. Court said it’s not assumption of risk, but design
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State of the art
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everyone used it and cant expect more from me than other ppl. Courts dont really like it.
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Service liability
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malpractice suits…usually based on a theory of negligence, breach of contract, or fraud.
Involves professionals and is based on negligence, breach of contract or fraud. [accountants, lawyers, architects] - Failure to use the degree of care and skill, judgment and knowledge that can be of expected of members of that profession |
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Service Liability:
To whom is the duty owed? |
Ultramares Doctrine – rule making accountants liable only to those in a privity-of-contract relationship with the accountant.
1. ex. if a client contracted an accountant to prepare a statement that the accountant knew was going to be used to secure a loan from the first founding back, first founding bank could not sue the accountant for malpractice Section 522 of the Restatement of Torts – liable to a limited class to whom professional knows will receive a copy. under this rule... first bank can recover Reasonably foreseable users (only 3 states) |
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defense to negligents (6)
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assumption of risk
trier of fact... did the plaintiff indee assume risk? by looking at age (was the person too young to use the product?) and experience misuse of produce statue of limitation... specific numbers of years after cause of action arises statute of repose... action arising more than a specified number of years after the product was purchased. At least 10 years state of the art |
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what are two breach of warranty?
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implied - when a person recommend it to you...and i doesnt work
express - writen out. ex. ladder said it can take 200lbs. a 200lbs man gets on it and ladder fail. |
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Defenses to breach-of-warranty actions
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i. Purchaser failed to give seller notice w/in a reasonable time after he knew or should have known of the breach of warranty....there are some exceptions
existence of a disclaimer |
