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22 Cards in this Set

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Elements of Strict Liability
There are 5

1. Sellers engaged in business of selling product that caused harm.
2. Product was defective when sold
3. Product was reasonably dangerous to user or consumer
4. Product was intended to and did reach the consumer w/o substantial change in condition
5. Product caused physical harm to the Plaintiff
Types of Product Defects
There are 3

1. Manufacturing
2. Design
3. Information
Restatement of the Law, Third, Torts is what?
Products liability
Rest 3d, sec 1
Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in a business of selling or o/w distributing products who sell or distributes a defective productive is subject to liablity for harm to person or property caused by the defect.
Manufacturing Defects
(Rest 3d, Sect 2(a))
One where the product departs form its intended desing even though all possible care was exercised in the preparation and marketing of the product.
1. When you are looking at a product defect, where do you start?

2. Ford v. Gonzalez
1. Need to look at the restatements and see which type of defect is in question.
Rest 3rd, Sec 2.

2. F v. G: no problem w/design, marking and warning labels are OK, something is still wrong, must be manuf. defect.
Contributory Negligence/Comparative Fault in Products Liability Cases

Old Rule
Contributory negligence did not bar recovery under a strict liablity theory (you don't get to negate liablity b/c you have fault)
Contributory Negligence/Comparative Fault in Products Liability Cases

New Rule
P's negligence may be compared with the liability of the D under a strict liablity theory

Rest 3d, sec. 17
Ford v. Gonzalez

Why would we allow this type of circumstantial evidence?
Internalize the cost

Very difficult to prove this, so we will put on the manufacturere - this is the kind of thing that does not happen w/out a defect
What is DTPA?
Deceptive Trade Practices Act
Manufacturing defects can be proven ___ ways?

What are they?
(2)

1. Direct evidence -
2. Circumstantial evidence (Doctrine of Res Ipsa Loquitor)
What sect Rest talks about circumstantial evidence?

What does this say?
Sec 3

It may be inferred that the harm sustained by the P was caused by a product defect existing at the time of sale or distribution, without a proff of a specific defect, when the incident that harmed the P:

1. was of a kind that ordinarily occurs as a result of product defect; AND

2.
When using circumstantial evidence, the P must prove that it is _____ _______ than not that the product was ________ when it left ______ control
more probable

defective

Defendant's
In Res Ipsa, What is the differences between
Strict Liability v. Negligence?
Negligence: doctrince used to establish negligence of D (breach and causation)

Strict Liability: doctrine used to show that the D placed a defective product on the market
When you have established defect, is the entire claim proven?
No, this is just one of the 5 elements that must be proven.
Which are the more difficult defect cases to prove?
Design defect
What sect of Rest talks about and defines design defect?

What is the definition of a design defect?
Rest 3d, sec. 2(b)

When the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption or a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonable safe.
When is strict liability for a Design Defect available?
Strict liability for a design defect is available when a P can show that an unreasonably dangerous product design proximately caused or enhanced the P's injuries in the course of a foreseeable use.
Baker v. Lull (high-lift loader)

How do you show "unreasonably dangerous?"
Very difficult to prove!!!!
1. have to have a product that has been out long enough
2. must have a way to gather this information

But there are 2 tests
1. Consumer Expectation Test
2. Alternative design rule
-Have to have the existence of some other way (alternative design) to make this type of product...there are a few exceptions.
Consumer Expectation Rule:
The design will be deemed defective if P demonstrates that the product failed to perform as safeley as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
Alternative Design Rule:
A product may be defective in design (even if it meets consumer expectations) if the risk inherent int he challenged design outweighs the benefits of the design. (risk utility)
Problems w/Consumer Expectation Rule?
Can be ineffective and not work very well by itself.

If the consumer is aware of a defect, the expectation would be lowered, and would actually have performed as consumer would have exptected b/c they have knowledge (ex. Firestone tires)

If you just have this rule, the manuf. may easily get off of the hook, if you go with this rule and apply it b/c of the lowered expectations.