[T3] E2 // Fl(T) Pl

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TORTS - PRODUCTS LIABILITY

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[T3] E2 FL(T) F12

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Products Liability

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• 5 Types:
1. Intent (very uncommon)
2. Negligence*
3. Strict Liability*
4. Implied Warranties*
-Merchantibility
-Fitness for a Particular Purpose
5. Representation Theories*
-Express Warranty

• For liability under any of these theories, P must show
(1) A product defect (unreasonably dangerous as a result); and
(2)The defect existed when product left D's control.

• 3 Types of Defects:
(a) Manufacturing: products emerges from manufacturing more dangerous than products made properly. To prove, P must show product failed to perform as safely as an ordinary consumer would expect; D must anticipate reasonable misuse.
(b) Design: all products on line have dangerous propensities. To prove, P must show D could have made product safer w/o serious impact on product's price or utility.
(c) Inadequate warnings: danger must not be apparent to user, manufacturer fails to give adequate warnings to risks in using product

Prevailing feasible alternative [PFA] Test - Provides that the product is defective if the defendant could have removed the danger without serious adverse impact on the product's utility or price. (8) Factors.

• Govt Rules Defense: Non-compliance w/ govt standards creates rebuttable presumption that product is defective; Compliance w/ govt standards creates rebuttable presumption in favor of D/ Manufacturer of non-defective product.

• D not liable for dangers unforeseeable at time of marketing.

• D not liable for dangerous products if danger is apparent & there is no way to make product safer (knives)

• Any foreseeable P (even a bystander) can sue any commercial supplier in product's distribution chain.

• Retailer/Wholesaler need only make cursory inspection to avoid liability if products liability cause of action is based on negligence theory.

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Products Liability - "Canned" Opening paragraph:

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P may have COA for PRODUCTS LIABILITY against D based on NEGLIGENCE and STRICT LIABILITY for injury to P.

To find LIABILITY under any PL theory, P must show that (i) the product was DEFECTIVE (ii) when the product LEFT D's CONTROL.

There are 2 types of DEFECTS.

The first is a MANUFACTURING defect, when a product emerges from a manufacturing process not only different from the other products, but also more dangerous than if it has been made the way it should have been.
--For manufacturing defects, the P will prevail is the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design.

The second type is a DESIGN defect, when all the products in a line are made identical according to specifications, but have dangerous propensities because of their mechanical features.
--For design defects, the P usually must show a reasonable alternative design that a less dangerous modification or alternative was economically feasible.

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What makes a product DEFECTIVE?
What are the TYPES OF DEFECTS?

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DEFECTIVE:

● Unreasonably Dangerous Product: A product so defective as to threaten a consumer’s health and safety either because

(1) The product is dangerous beyond the expectation of the ordinary consumer, or

(2) The manufacturer failed to produce an economically feasible, less dangerous alternative.


DEFECTIVE PRODUCTS - TYPES OF DEFECTS:

● Claims that a product is unreasonably dangerous generally fall into one of three categories:

(a) Manufacturing Flaw: The manufacturer fails to exercise due care in the manufacture, assembly, or testing of the product;

(b) Design Defect: The product, even if manufactured perfectly, is unreasonably dangerous as designed – often because an economically feasible, less dangerous alternative was available to the manufacturer; and

(c) Inadequate Warning: The product, even if designed and manufactured perfectly, lacks adequate warnings or instructions for the consumer or other end user.

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In determining whether such an alternative design or modification is feasible (for DESIGN defects), the trier of fact will examine and balance the following [6] six factors:

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1) Usefulness/desirability of the product;

2) The availability of safer alternative products;

3) The dangers of the product that have been identified by the time of trial;

4) Normal public expectation of danger;

5) Avoidability of injury by care in the use of the product;

6) Feasibility of eliminating the danger without seriously impairing the product's function of making it unduly expensive.

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STRICT PRODUCT LIABILITY

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STRICT PRODUCT LIABILITY -- A manufacturer, seller, or lessor of goods will be liable, regardless of intent or the exercise of reasonable care, for any personal injury or property damage to consumers, users, and bystanders caused by the goods it manufactures, sells, or leases if:

(1) The product is defective when the defendant sells it (either to an end-user or to another seller for ultimate resale);

(2) The defendant is normally engaged in the business of selling or otherwise distributing the product in question;

(3) The product is unreasonably dangerous to the user or consumer because of its defective condition;

(4) The plaintiff suffers physical harm to self or property as a result of using or consuming the product;

(5) The defective condition of the product proximately causes the plaintiff’s harm; and

(6) The product had not been substantially changed between the time the defendant sold or otherwise distributed it and the time the plaintiff was injured.


- FL Law extends SPL protection to not only the buyer - but also the buyer's family, friends, guests, employees and bystanders (i.e., Any foreseeable P).
- To reduce potential liability, D would raise P's contributory negligence.

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Products Liability:
Strict Liability

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• Products Liability - Strict Liability Theory [[A strict liability action based on supplying a defective product requires proof of duty, breach, actual and proximate cause, and damages]]

SPL- Elements: (6)
1) Strict duty owed by commercial supplier of product (any in chain even if no change to inspect product) to supply safe products; casual sellers exempted
2) Breach [requires proof that the product sold was in a defective condition unreasonably dangerous to users- (i.e., manuf(flaw) or design(PFA test) defect)]
3) Causation
4) Damages: physical injury or property damage only (not economic loss)
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5) Defect
6) Existed when left D's control

• Foreseeable P: any user, consumer or bystander
• No strict liability for services
• Actual cause: P must show defect existed when product left D's control; if difficult to show, may be able to rely on inference that product failure would occur as result of defective product
• Defenses: Assumption of risk and comparative negligence.
• Disclaimers are ineffective

Prevailing feasible alternative [PFA] Test - Provides that the product is defective if the defendant could have removed the danger without serious adverse impact on the product's utility or price.(Use with Design/Label defect)

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PL - Strict Liability Theory - Presumption: WARNINGS

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If the P claims that one of the defective conditions was a lack of an adequate warning, P is entitled to a presumption that an adequate warning would have been read and heeded.

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PL Action - Seller/Retailer D Liability:

Cursory Inspection:

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- Retailers/Sellers may be liable for manufacturing/design defect even though they did not make or design the product or have an opportunity to inspect the product before selling it. In contrast to negligence actions, in a PL case based on SL, a D/Retailer cannot escape potential liability by making a cursory inspection of the product.

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PL - Strict Liability & Negligence Theories:

To prove breach and causation, the P must prove:

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To prove breach and causation, P must trace the harm suffered to a defect in the product that existed when the product left the D's control.

-P will have to establish that the product is unreasonable dangerous (because of the alleged defect) and would have caused her damages (even if she hadn't "misused" the product in some way).

-P will have to establish that her injuries were in-fact caused by the product.

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Products Liability:
Negligence Theory

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Products Liability: Negligence Theory

Elements:
1) Duty of care (any foreseeable P: users, consumers, bystanders)
2) Breach of Duty (negligent conduct of D resulting in defective product)
3) Causation (can use res ipsa loquitor)
4) Damages: physical injury or property damage only (not economic loss)
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5) Defective Product
6) Existed at time it left the D's control

-- Defenses: Same as general negligence

• Difficult to hold retailers/wholesalers liable bc they can satisfy their duty w/ cursory inspection; wholesaler's negligent failure to discover a defect isn't usually a superseding cause.

• Res ipsa availble for breach.

• Disclaimers are ineffective.

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PRODUCT LIABILITY: NEGLIGENCE

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PRODUCT LIABILITY: NEGLIGENCE

● Product Liability: A manufacturer’s, seller’s, or lessor’s liability to consumers, users, and bystanders for physical harm or property damage that is caused by the goods.

NEGLIGENCE = (1) Duty to P (Users, Consumers, Bystanders); (2) Breach of duty (negligence in in manufacture or design lead to supply of defective product); (3) Causation (RIL) (D must anticipate foreseeable misuse); and (4) Damages; (5) Defective Product = Unreasonably dangerous b/c of manufacturing, design/warnings defect; (6) Defective when left D's Control (and not altered after).

● Negligence: A manufacturer is liable for its failure to exercise due care to any person who sustained an injury proximately caused by the manufacturer’s negligence in:

(1) Designing the product,

(2) Selecting materials (including any component products purchased from another seller that are incorporated into a finished product),

(3) Using appropriate production processes,

(4) Assembling and testing of the product, and

(5) Placing adequate warnings on the product, which inform the user of dangers of which an ordinary person might not be aware.

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Products Liability:
Implied Warranty

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• Two warranties implied in every sale of goods that can serve as basis of suit by a buyer against a seller:

(1) Merchantability: goods must be of average acceptable quality & generally fit for ordinary purposes

(2) Fitness for Particular Purpose: seller knows/has reason to know of particular purpose for which goods are required & buyer is relying on seller's skill & judgment in selecting goods.

• PFC Requires:
1) P: buyers, family, household, and guests can sue for personal injury.
2) Breach: if product fails to live up to either above standard, no fault of D necessary
3) Causation
4) Damages: personal injury, property damage AND economic loss

• Defenses: Assumption of risk (No implied in FL), contributory negligence, PCN, failure to give notice of breach.

• Disclaimers allowed for economic loss, not for personal injury

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Products Liability:
Express Warranty

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• Express Warranty:
1) Affirmation of fact or promise concerning goods
2) Someone must have relied on this promise (not necessarily the injured party)
3) Breach: product didn't live up to warranty, no fault required
4) Causation: Same as implied warranties
5) Damages: Same as implied warranties - Personal injury, property damage AND economic loss

• Defenses: Same as implied warranties - Assumption of risk (No implied in FL), contributory negligence, PCN, failure to give notice of breach.

• Disclaimer: Effective only if consistent w/ warranty

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Misrepresentation (Fraud, Deceit)

Elements: [6]

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Misrepresentation (Fraud, Deceit)

Elements: [6]


(1) Misrepresentation - of material fact (no duty to disclose and opinion not actionable unless rendered by someone with superior skill in the area);

(2) Scienter - i.e., when D make the statement, he knew or believed it was false or that there was no basis for the stmnt;

(3) Intent - to induce P to act or refrain from acting in reliance upon the misrepresentation.

(4) Causation (actual reliance)

(5) Justifiable reliance (generally, reliance is justifiable only as to a stmnt of fact, not opinion); and

(6) Damages - P must actual pecuniary loss.


-There are no defenses to intentional misrepresentation.

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Negligent Misrepresentation

Elements: [5]

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Negligent Misrepresentation

Elements: [5]

(1) Misrepresentation by D in a BUSINESS or PROFESSIONAL CAPACITY;

(2) Breach of duty toward a particular P;

(3) Causation;

(4) Justifiable reliance;

(5) Damages.

-Generally, Neg. Misrep. COA is confined to a misrepresentation made in a COMMERCIAL setting, and liability will attach only if reliance by the particular P could be contemplated.

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Implied Warranties:
Merchantability
Fitness for a Particular Purpose

"Canned" Paragraph:

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P may have causes of action based on implied warranties of merchantability and fitness for a particular purpose.

When a merchant (M) who deals in certain kinds of goods, sell such goods, there is an implied warranty that they are merchantable: ARE OF A QUALITY EQUAL TO THAT GENERALLY ACCEPTABLE AMONG THOSE WHO DEAL IN SIMILAR GOODS AND ARE GENERALLY FIT FOR THE ORDINARY PURPOSES FOR WHICH SUCH GOODS ARE USED.

An implied warranty of fitness for a particular purpose arises when the SELLER KNOWS OR HAS REASON TO KNOW THE PARTICULAR PURPOSE FOR WHICH THE GOODS ARE REQUIRED, and that the BUYER IS RELYING ON THE SELLER'S SKILL OR JUDGEMENT to select or furnish suitable goods.

Proof of fault it unnecessary.

If a product fails to live up to the standards imposed by an implied warranty, the warranty is breached and the D will be liable.

Vertical privity is no longer required between the buyer and the manufacturer.

Under the UCC, horizontal privity is extended to the buyer's family, household, and guests who suffer personal injury.

Disclaimers must be specific and are narrowly construed.

Contractual limitations on personal injury damages resulting from a breach of warranty for consumer goods are prima facie unconscionable.

-For Merchantability, P would argue that X-product was obviously not fit for the ordinary purpose for which it was intended to be used (because use resulted in injury/medical problems).

-For Fitness for a particular purpose, P could argue that D-retailer, through its employee, knew or had reason to know that P would be using X-product for a specific purpose and that she was relying on the employee's recommendation.

In defense, D (manufacturer or retailer) would argue that the product was not intended to be use to __(whatever use P made of X-product), it was designed to only to do/for XYZ. However, this alone will not relieve them of liability for the implied warranty of merchantability.

D will argue misuse (comparative negligence/fault) by D.

D-Retailer will argue that it did not make an implied warranty of fitness for a particular purpose because it was not responsible for employee's conduct (negligent misrepresentation). However, the retailer/employer will probably be vicariously liable for any misrepresentations made by employee.

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Negligent Misrepresentation / VL

"Canned" Paragraph: (Part 1)

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The elements of negligent misrepresentation are:
(1) MISREPRESENTATION made by D in a BUSINESS/PROFESSIONAL CAPACITY;
(2) BREACH of duty toward a particular P;
(3) CAUSATION; and
(4) DAMAGES.
*Generally, the action is confined to only those misrepresentations made in a commercial setting.

(i) P will argue that employee's statements were a MATERIAL MISREPRESENTATION.

(ii) P would argue that as a customer, she was owed a duty and the material misrepresentation was a breach of that duty.

(iii) P would argue that reliance on the statement was justifiable - D was an employee/agent of the retailer/seller which represented itself as a dealer in such goods, and it was reasonable to assume that D/employee had special knowledge or skill.

(iv) P would argue that she has incurred damages (i.e., injury suffered).

Defense: D/EE will also argue that P was comparative negligent.

[[[With regard to a 3P, employee/D will not be liable if he made no representation to her. Liability only attaches if reliance by the particular P could be contemplated. A D is under a duty of care only to those persons to whom the representation was made or to specific persons who D knew would rely on it. Foreseeability that the statement will be communicated to 3rd persons generally does not suffice for negligent misrepresentation.]]]

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Vicarious Liability / Neg. Mispresentation

"Canned" Paragraph: (Part 2)

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P will have a COA against ER/Retailer(D) based on the doctrine of VICARIOUS LIABILITY: P will argue that an ER is vicariously liable for the tortuous act committed by an EE if the tortuous act occur within the scope of the employment relationship.

D (ER-Retailer) will argue that EE's statements were not made within the scope and course of his employment.

P might also have a claim against D (ER-Retailer) for negligent hiring and negligent supervision of its employees.

D will argue that is was not negligent.