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63 Cards in this Set

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what are the three contexts of strict liability?
1. dangerous animals
2. abnormally dangerous activities
3. products liability
Is a keeper of a wild animal always liable?
yes
Generally, can you recover punitive damages for strict liability?
no
May a plaintiff recover for emotional distress for strict liability when the defendant kept a wild animal?
yes
Do inetional intervening forces cut off strict liability in most jurisdiction?
yes
what is the barf for an abnormally dangerous activitiy?
Defendant engaged in an activity, which has been identifed as an abnormally dangerous activity, and it caused actual and legal damages to plaintiff
what are some factors we look at to see if an activity is abnormally dangerous?
1. the risk of harm is great
2. the harm that would ensue if the risk materialized could be great
3. cant be eliminated by reasonable care
4. innappropriate to the area in which the activity took place
5. not common usage
6. some utility to society
what type of activies are subject to strict liability?
1. toxic chemicals
2. pile driving
3. crop dusting
4. poisonous gases
5. fireworks display
6. hazardous waste disposal site
7. oil wells
8. water escape
What is the term for a stream of distribution of a commercial product?
vertical distribution or vertical privity
what are the three theories actually sued under a products liability case?
1. strict liability in tort (strict products liability)
2. negligence
3. warranties
what is the barf for strict liability in tort?
a commercial supplier who puts a product in the stream of commerce in a defective condition unreasonably dangerous will be liable for injuries cause by that product. (restatement 402A)
Is a commercial supplier in the chain of distribution liable?
yes they are liable if:
1. the seller is engaged in the business of selling such a product and;
2. it is expect to and does reach the user or consumer without substantial change in the condition in which it is sold. this applies although the seller has exercised all possible care in the preparation and sale of his product, and the user or consumer has not bought the product from or entered into any contractual relation with the seller, and the plaintiff is injured.
if an injury results from a misuse of a product, which is safe if normally handled, is the seller liable?
yes, pursuant to 402A
Is the manufactuer liable for injuries resulting from abnormal or unintended use of his product?
no, not if such use was not reasonably foreseeable.
What is the fundamental difference between strict products liability and negligence?
the difference is that if the manufacture puts a product in the stream of commerece with a defect, every person in that chain of commerce is also liable.
in a products liability action, what must the plaintiff be prepared to show?
1. that the product that injured him ws in fact manufactured by defendant.
2. that the product was defective and he was injured as a result
3. that the defect existed in the product or was incipiently in it when it was sold by the particular plaintiff
Generally, is it reasonable for a retailer to inspect every single product that they sell?
no, in order for them to be negligent, they had to actually have done something negligent themselves (like something that put the retaier on notice that something was wrong with the product)
Will a wholesaler or retailer who neither creates nor assumes the risk entitled to indemnity ?
yes, but he will still be held liable in the underlying action because he passed the product along the distribution line
are sellers of used goods subject to strict liability?
no, because they are outside of the original marketing chain and it would be too difficult to prove that the defect left the retailer.
Can reconditioners be subject to products liability?
yes, especially if they advertises or portrays it as such, then they are liable just as if it was a new product.
Are the commercial lessors of chattels subject to strict liability?
yes, it has been adopted with almost uniformly
Are the makers of component parts subject to further proceedings in strict liability?
no, the maker of a component part is not subject to further proceedings or substantial change in the manufacturing process is likely to be subjected to strict liability if there is a defect in that part or material
Will courts apply strict liability if the transaction is predominantly a service, with only a indicental transfer of goods?
no
are charts and maps subject to strict liability?
yes
are endorsers generally subject to strict liability?
no, but they can still be subject to negligence
Can tract home builders be subject to strict liability?
yes
What are the three ways a product can have a defect under strict liability theory?
1. manufacturing defect
2. design defects
3. warning defects
what is the barf for a manufacturing defect?
a manufacturer shall be strictly liable in tort when an article he places on the market, knowing that it will be used without an inspection for defects proves to have a defect that causes injury to a human being
what is a manufacturing defect?
when a product edeviates from how the product is supposed to be based under the manufacturers design.
what is a design defect?
argument that the product created is inherently created with with a danger.
are prescription drugs subject to design defects?
no they are prescription drugs because the are dangerous
can prescription drugs be subject to manufacturing defects
yes
what is the barf for warning defects?
the manufacturer of a product must warn of all risks known or knowable at the time of manurfactur based on the state of the art
in a warnning defect, do we look at only the forseeable risks?
yes, you cant put a warning on a product for risks that you can appreciate.
what is the majority position for a warning defect analylisi?
majlrity position is a totality negligence analysis PGBU.
1. what risks are forseeable
2. how likely is the injury to occur
3. how serious is the potential injury
4. how burdensome would it be on the defendant to make the warning?
what is the majority test for a warning defect?
its a pure negligence test and there are a number of ways a product can be defective in regards to a warning:
1. there was no warning at all
2. the warning given was inadequate
what is the learned intermediary rule?
manuf of a prescription drug only has to give warnigns to the doctor. legally your doctor is supposed to warn you about the drugs (as long as the warning to the doctor was adequate)
In most jurisdictions, is the plaintiff entitled to a presumption that the user would have read and heeded an adequate warning?
yes, this shifts the burden of proof to defendant to prove that plaintiff would not have rad the warning and headed it. there is a rebuttable presumption
are pure economic loss recoverable in S/L?
no, the only cause ofa ction available sometimes is warranty
In warranty, to recover pure economic loss, must you have privity?
yes
In strict liability, is privity necessary to recover property or personal injury?
no
In a majority of jurisdictions, is damage to the product itself and lost profits considered pure economic loss?
yes
Is economic loss flowing out of physical injury recoverable under a S/L theory?
yes
In strict liability, can one recover for pure emotional distress under the same restrictions that one can recover it in negligence?
yes
are contributory and comparative negligence defenses in strict liability?
no
Is assumption of the risk a defense in S/L?
yes, assujmption of the risk acts as a complete defense to a strict liability claim
what must be proven to show that a person assumed the risk?
that they appreciated the risk, they knew about it and voluntarily assume it
what is an express warranty?
it is simply a statement of fact about the goods. When that statement of fact turns out to be false, then the defendant is liable.
what is the barf for express warranty?
an express warranty requires an affirmation of fact that becomes part of the basis of the bargain which proves untrue in a way that injury results.
In regards to express warranty, does the plaintiff have to prove that the defendant made a specific factual statement abut the product and that particular thing result resulted in plaintiffs injuries?
yes
In regards to express warranty, may only a commercial seller make an express warranty?
no, even a private seller can make one
In express warranty, can anyone that the maker of the statement anticipates is gong to hear or read and rely on that statement, sue?
yes
what are the two implied warranties?
1. ucc 2-314 warranty of merchantability
2. ucc 2-315 warranty of fitness for a particular purpose
what is ucc 2-314 warranty of merchantability?
a warranty that the goods shall be merchantable is implied in the contract for their sale if the seller is a merchant with respect to the goods of that kind. They must be fit for the ordinary purpose for which such goods are used.
What is the barf for commercial suppliers in regards to implied warranties?
a commercial supplier passing the product along the chain of distribution impliedly assets that the product is fit for its ordinary purpose.
Do implied warranties apply only to merchants?
yes
What is the question that we ask in regards to warranty of merchantability?
Is the product fit for the ordinary purposes of that product?
what is ucc 2-315 warranty fitness for a particular purpose?
where the seller at the time of contrating has reason to know any particular purpose for which the goods are required and the buyer is relying on the sellers skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section, an implied warranty that the goods shall be fir for such purpose. (ie buying shoes appropriate to climb half dome and sellers sells you birkenstocks)
Discuss ucc 2-316 exclusion or modification of warranties
in regards to implied warranties, you can make a statement and then take it away. to disclaim implied warranty, you must merchantability by name or be specific for what you are disclaiming.
is it possible to recover pur economic loss under warranty?
yes
Discuss ucc 2-318 third party beneficiaries of warranties express or implied
1. alternative a- limited to the household and foreseeable guest, but only for personal injuries
alternative b- not limited to the household, but still limited to personal injury
alternative c- any person, corporation, etc not limited to personal injury (most common alternate)
For pure economic loss under warranty, if it is only your damage, must you have privity?
yes
In express warranty, which of the following can you recover? personal injury, property damage, or economic loss?
all of them