Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/18

Click to flip

18 Cards in this Set

  • Front
  • Back
Theories
(NWS)
Negligence
Warranty
Strict Liablility
Defects
(MDW)
Manufacturing
Design
warning
Causation
ACTUAL
Proximate
Product Liability
Theories + Defects + Causation + Damage + Defenses
Defenses
(CUPPS)
comparative
Unforseeable misuse
pre emption
prop 51
Statutes of Limitations
Exeptions to strict liability Design
Medically implanted devices and Pharmacuticals are not available to strict liability tort.
Strict liability Manufacturing defect
1.D manufactured/distributed/sold
the product;
2.product contained a manufacturing defect when
it left D’s possession;
3.product was used or misused in a way that was reasonably foreseeable to D;
4. P was harmed;
5. Products defect was a substantial factor in
causing P’s harm.
Strict Liability
Design defect
1. Consumer expectation test
2. Risk Benifit test
Strict liability design defect elements +
1. That the product did not perform as safely as an
ordinary consumer would have expected at the time of
use;

2.Defendant can assert defense:
In deciding whether the benefits outweigh the
risks, you should consider the following:
(a) The gravity of the potential harm resulting from the use
of the [product];
(b) The likelihood that such harm would occur;
(c) The feasibility of an alternative design;
(d) The cost of an alternative design; [and]
(e) The disadvantages of an alternative design; [and]
(f) [Other relevant factor(s)].
Strict Liability
Design defect
1. D manufactured/distributed/sold
the product
2. at the time of the use, the product was
substantially the same as when it left D's
possession
[or]
any changes made to the product after it left D's possession were reasonably foreseeable to D
3. product was used or misused in a way that
was reasonably foreseeable to D; and
4. product’s design was a substantial factor in
causing harm to P.
Strict liability
warning
1. That D manufactured/distributed/sold
the product
2. The product had potential risks that were known [or] knowable
3. the potential risks presented a substantial danger to users of the product
4. ordinary consumers would not have recognized the
potential risks
5. D failed to adequately warn or
instruct of the potential risks
6. the product was used or misused in a way that
was reasonably foreseeable to D
7. P was harmed; and
8. That lack of sufficient instructions [or] warnings was a substantial factor in causing P’s harm.
Product liability Negligence
Generally
1. That D designed/manufactured/supplied/installed/inspected/repaired/rented the product
2. That D was negligent in designing/manufacturing/supplying/installing/inspecting/repairing/
renting the product
3. That P was harmed; and
4. That D’s negligence was a substantial factor in causing P’s harm.
Negligence -
Standard of care
A [designer/manufacturer/supplier/installer/repairer] is negligent
if [he/she/it] fails to use the amount of care in [designing/
manufacturing/inspecting/installing/repairing] the product that a
reasonably careful [designer/manufacturer/supplier/installer/
repairer] would use in similar circumstances to avoid exposing
others to a foreseeable risk of harm.
In determining whether [name of defendant] used reasonable care,
you should balance what [name of defendant] knew or should
have known about the likelihood and severity of potential harm
from the product against the burden of taking safety measures to
reduce or avoid the harm.
Express Warranty
1. That D either:
A. made a statement of fact/promise to/received by P that the product was warrantied for
B. gave P a description of the product [or]
C. gave P a sample or model of the product;

2. The product
A. did not perform as stated
B. did not meet the quality of the description/sample/ model
3.P took reasonable steps to notify D within a reasonable time that the product was not as represented, whether or not D received such notice
4. That P was harmed;
5. That the failure of the product to be as represented was a substantial factor in causing P’s harm.
Implied Warranty
1. That P bought the product from D
2. at the time of purchase, D was in the business of selling these goods OR by occupation held himself out as having special knowledge or skill regarding these goods;
3.product(include which apply)
A. was not of the same quality as those generally acceptable in the trade
B. was not fit for the ordinary purposes for which such goods are used
C. did not conform to the quality established by the parties’ prior dealings or by usage of trade
4. P took reasonable steps to notify D within a reasonable time that the product did not have the expected quality
5. That P was harmed; and
6. That the failure of the product to have the expected
quality was a substantial factor in causing P’s harm.
Implied Warranty
Food
1. That P ate/drank a food product sold by D
2. at the time of purchase, D was in the business of selling the food or held himself out as having special
knowledge or skill regarding this food
3. That the food was harmful when consumed
4. That the harmful condition would not reasonably be expected by the average consumer
5. That P was harmed; and
6. That the food was a substantial factor in causing
P’s harm.
Negligence
Warning
1. That D manufactured/distributed/sold
the product
2. That D knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable
manner;
3. That D knew or reasonably should have known that users would not realize the danger;
4. That D failed to adequately warn of the
danger or instruct on the safe use of the product;
5. That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have warned of the danger or instructed on the safe use of the product
6. That P was harmed; and
7. That D’s failure to warn or instruct was a substantial factor in causing P's harm.
Negligence—Duty to Warn
1. That D manufactured/distributed/sold
the product;
2. That D knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner;
3. That D knew or reasonably should have known that users would not realize the danger;
4. That name of D failed to adequately warn of the danger or instruct on the safe use of the product;
5. That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have warned of the danger or instructed on the safe use of the product;
6. That P was harmed; and
7. That D’s failure to warn or instruct was a substantial factor in causing P’s harm.
Negligence—Recall
1. That D manufactured/distributed/sold
the product;
2. That D knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner;
3. That D became aware of this defect after the product was sold;
4. That D failed to recall or warn of the danger of the product;
5. That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have recalled the product;
6. That P was harmed; and
7. That D’s failure to recall the product was a substantial factor in causing P’s harm.