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40 Cards in this Set

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Products Liability
402-A Strict Liability
• Products- things that can be bought and sold
• Defects- three types design, warning, and manufacturing.
• You can only recover for physical injuries and not emotional
• When you recover for money damages alone you have to go somewhere else besides torts like contract law or the UCC.
• The seller is engages in the business of selling such a product- a person who has a garage sale would not be held liable because he is not in the business of selling. Note 8 after the greenman case.
• If it turns out to be defective and cause harm to someone’s personal property.
• Lack of privity of K is NOT a barrier to recover.
• Manufacturing defects we want to hold those people responsible who make the product. Lawyers have convinced the court to impose Design, and Warning Defects also when it comes to strict liability.
Products Liability:

What are the three different types of Defects?
1. Manufacturing
2. Warning
3. Design
Products Liability:

Example of a Manufacturing Claim

Rix v. GM
The D’s argue that they did not make it defective.
 How does the court view a manufacturig defect? Fails from its original design. It was not made the way that it was supposed to be designed. You compare it to the other products.
 If you didn’t make the product you were supposed to then you should be strictly liable.
 The D says that we don’t make product that way. We offer evidence that why. The Jury ultimately decides.
• Note 2- Rix is a SL. Reasonableness is not a factor in SL. What would constitute reasonable care for negligence? The standard for MD is it was perfect before they left the building. Should the evidence be permitted? Yes, they are offering it so show that it was not sold in that condition or we would have caught it first. It is not necessarily given as evidence to prove reasonableness.
• Strictly liable and Negligent perse if product suffers from Manufacturing Defect. If it did you are negligent as a matter of law and you are Strictly liable.
Examples of Design Claim:
Issue of SL or Negligence

Prentis v. Yale
 The nature of this allegation is Design. There is something wrong with the Design of the Product
 The jury finds for the D and the P appeals. Issue: Whether the Jury can impose SL on manufacturers in Michigan.
 They were given a single instruction on Negligence.
 Pg 745 four approaches for review of state law
• 1- knowledge that the product was dangerous at the time it was marketed- negligence
• 2- Risk Utility of the product at the time of the trial- SL
• 3- Consumer expectations- (comment I 402-A)
• 4- Risk-Utility and Consumer expectation
 There are two different theories both SL and Negligenc and when you tell the Jury that just might be confusing.
 The court goes on saying the negligence could be a theory of negligence and not SL.
 Pg 746
• Access to expert witness and techinal data are available to aid P’s in proving the manufacturer’s design decision was ill considered
• A fairness- gives incentive to the manufactueror
• Do not pull project for one small defective
• Fairness
• These are the justifications for those states that recognize negligence theory.
• Michigan adopts a pure negligence, risk-utility test in products liability actionas against manufacturers of products, where liability in predicated upon defective design.
• They do not allow for SL because they feel that you can not be Sliable if you have acted reasonably.
Example of a Design Claim:

O'Brien
 Do we consider whether or not it could have been made safe? Is proof of a safer alternative necessary this court said no.
• Note 3- unlike this case most jurisdictions require that the P prove an alternative feasible design in order to prove the design defect. The thought is that how can you challenge this design when it could not have been made any safer?
What is the Risk Utility test for Strict Liability under Products Liability?
 Risk Utility Test- Strict Liability – how do we know most of these factors focus on the product. We consider about the product is what we know up to the trial.
1. Utility of Current Design-
2. Risk- Frequency
3. Magnitude of the Risk- how badly they injure somebody
4. Utility of Alternative Design
5. Risks Associated with the Alternative Design
6. Burden to make it safe
Last three factors go to see if there is a Reasonable Alternative Design it is a balancing analysis.

 Anything in the facts that speak to reasonableness or unresonableness is what you consider in the exam. It is not limited to these 6 factors.

Notes- 2- different jurisdiction vs. different tests. Fintz assumes that you use the consumer expectations test. Determines expectation.
Note 3- most jurisdiction require finding of a safer alternative.
Are there prodcut that are so dangerous and of such low social utility that liability should be imposed weven if there is no resonable alternative
Yes. .. such as ammunition that is desigend in a way that dreamatically increades the wounding power of the bullet. We don’t require proof of a safer alternative design in order to prevail.
What does state of the art have to do with anything?
It is a key issue in design liability cases. A D can avoid liability by showing compliance with the "state of the art" at the time the product was made. The best economically feasible design. State of the Art has to be put in context.
Strict liability is today. Negligence is than
Applicability to Perscription Drugs and Medical Devicres.
most jurisdictions have delined to apply true SL to the designe of perscriptiojn drugs. comment K 402-A. Unavoidably unsafe products. Comment K should be followed to immunize drug manufacturers form design defect liability. We need the drugs to be around an dwe do not want to create a disincentive. It does not affect the warning just affects the design.
Do we apply strict liability to food?

Natural v. Foreign
Yes. Foreign or natural to the food product. Natural- no strict liability. Glass- Strict liability. Is the food product more dangerous than a consumer who is familiure with the food products. The test remains the same. We can use it for design claims if that is what we wanted to do.
Warning Defects:

Example

Anderson
 Issue: is the exposure to absetos that caused his cancer and sues for failure to warn against the manufacters.
 State of the Art in a warnings case defined as- the scientific knowledge that was known at the time we made it
 The argument is that the scientific community did not know about this. The TC gets confused because thy fell that this court is grounded is SL. And to get this into evidence is something that suport reasonableness so they can’t get into it.
 Supreme court askes is this really a negligence standard.. or is it a real form of SL. For SL we ask did you warn about it “no” than you are liabile. But the California court said that you are only responsible for warning about things that you knew of or should have known of.. Really this is a negligence analysis.
Warning Defect:

McDonald Birth Control Case
• The D claims that it was the Dr. responsibility. They claim that all they had to do was warn the Dr.
• The manufacturer does not have direct contact. You warn the Dr. and that discharges your duty to warn. It is to learn intermediary doctrine. As we go forward. Lawyers can use the same rationale for the products that come in bulk.
• Asbestos-
• What about this case are they going to apply to other cases? They only goes to the Dr. once a year and they really can’t warn them once a year. They do not have enough contact to sufficeinelty warn. It is a lifestyle drug. A dr. is a dispenser.
• Now that we created this exception that you have to warn directly is now a question of fact or question of law? It is a question of fact. The jury already determined that the warning was inadequate. It is likely tha the court of appeal is not going to diserb that? Why inad it failed to mention the word stroke.
• Causation you have to show that the defect in the product caused the harm.
• Once you have established the warning is inadequate the law says tha the warning would have been headed as a presumption that if she had known she would not have taken the pills. That presumption is rebuttable.
• The warning has to be reasonable- that is negligence and therefore not inadequate. There is also protection in the causation aspect. Even if it had included this additional language it would not have included anything that the P did. (Refer to note 7)
Do court sill apply a fault-based standard?
Yes by requiring that the P show that the manufacturer knew or should have known of risks that injured P. you have to be reasonable when it comes to the warning
with warning being a fact. That mean that it will go to trial. You don’t know about your product unless you get sued and the jury says that you were. Where do you start? With prob the most severe risks and when do you stop when you run out of room on the product. How severe and how prevelant.
Example with Hypersensitivity and do manufactures have a duty to provice warnings if they know of the dangers. Most jurisdictions impose a duty to warn if the ingredient is one to which a substantial number of persons are allergeic.
What about the presumption that warning will be read and heeded?
In most jurisdictions P is entitled to a presumption that the user would have read and heeded an adequate warning. Based on the language 402 A
Is there a presumption tha tthe warning will be read and heeded
in most jurisdions P is entitled to a presumption that the user would have read and heeded an adequate warning.
What are the relevant inquireies that we can examine to see if the warning was reasonable?
• Procedure
- Where did you place the warning?
- What type of font? To get attention
- How was it displayed?
- What did it say? Caution, Warning
• Substance-
- did it identifiy the risk
 This could be called the Risk Awareness Test (Substance and Procedure)

The rest is the common consumer expectation. This is the 402-A
The warning goes to the risks to what you knew of or should have known of.
How does a lifestyle drug change the learn intermediary doctrine?
McDonald Departed from the failure to warn. If the Patient went for a lifestyle drug how does that support the departure? They should be warned directly because they are making the decision. They should be advised upfront so when they make that decision it is an informed decision.
Warning on Vapor Patch (warning analysis)
- we look at the manufacturing process that was applied in warning.
• Procedure
- Where did you place the warning?
- What type of font? To get attention
- How was it displayed?
- What did it say? Caution, Warning
• Substance-
- did it identifiy the risk
 This could be called the Risk Awareness Test (Substance and Procedure
How do we distinquish between a SL and Neg in a design defect?
- negligence- at the time of the product was made, knowledge may be limited to what we know about the product today
- sl- at the time of the conduct focuses on the product
Manufacturers Duty
Manufacturers Duty
- warn non-obvious risks
- they do have to warn about risks the manufacuterer were aware of or should have been aware of them if they were foreseeable
- they do not have to warn against things that they could not have been aware of
- Do you have to prove a safter alternative design in a Negligence case? No.. if the risk outweighs the utility (O’brien) Note 3- there is a test

402-K
-does not want to deter drug manufacturers
- immunize for design cases

Consumer Expectation test
- for food
- the test can be found comment I four 02 A

Triaminic Patch
- shows how easily it is to show that a products warning is defective
Contributory negligence:

Martinez
- he was blowing up the tire and the tire blew up and it injured half of his face
- tire manufacuturers knew about this problem for a long time
- he tries to put a 16 in tire in a 16 and a half rim and it ends up exploding
- the real manufactures and the rim designers settled for 1.4 million
- the case goes to verdict against uniroyal, and TC finds for Uniroyal. The appeallete court awards damage
- No contributory negligence. Why did the jury not find? Because he was replacing the same size tire he had just taken off the rim.
- Uniroyal responds in four ways
o Comment J 402A- uses this language by saying that if there was an adequate warning the product can not be defective in its design. So dismiss the design defect case. Courts rebut Could it be taken out of context as to the warning because this is for warning and instruction cases. Secondly, a manuf for safety can be discharged if they place a warning. Court relys on a testimony from human factor experts to because we know that most people never read warnings.
o Work from a trilogy of thought of what reasonable manufactures do when they run into a problem 1) design out the risk if you can do so reasonably 2) protect by locating the risk by the user does not come into frequent contact with the risk (protect by location) 3) if you can’t do either one that is when you warn. The person who fails to warn is one who is unreasonable.
o They also showed evidence of a design change. Showed a safer alternative, it shows an ambition you found that there was a problem with it otherwise you would not have made a change, is the argument.
o Remedial measures It can’t be used to show negligence but it can be used in SL. Beaware of how it can be used in a negligence case.
o How might ownership be an issue in a lawsuit? Responsibility for maintenance.
o Feasibility and issues? Absolutely. If the D says we couldn’t not have changed our design it was not feasible but you show that they did. In a SL lawsuit, it can be used (?)
o Contrib neg was also raised on appeal- how ever it was shot down because it was a question of fact.
GOOOO OVERRRR
Proof:
The problem with proof when trying to prove contributory negligence.
Friedman
- Defect manufacturing claims there is a credibility issue weather it was sold in that condition or not.
- He claims that the accident happened when the car was in drive and he turned his ignition but he didn’t expect it to start this made the court skepitical
- Friedman has been advised on how to be Contrib neg- he has shaded his testimony to not be found contrib negligence
- Now the car will start in grear but we don’t know if it was because of the accident or if that defect existed before the accident.
- Judge dismisses for want of sufficient evidence. That was what was wrong with what happened. The Defect did exist before the accident and should allow the case to be heard.
Rule on Excluding Evidence of Produce imporvements to prove defect
Should P be abler to show that the D redesigned or repaired his product after the accident occurred? While most courts preclude p's from introducing this evidence, some will admit it if the underlying theory of liability is strict liability rather than negligence. FED rule 407 was used to codity the view of the majority.. providing
Violation of Safety Statute or Regulation/
Parallels the doctirn of negligence per se, most jurisdiction provide that violatoin of a product safety statute or regulation makes the product defective as a matter of law... Restatement deems the product defective with respect to the risks sought to be reduced by the statute or regulation
Defenses:P's Conduct

Can comparative negligence be found in SL?
- It is not a total bar to recover in a SL claim- it can be raised as a defense and lower the damages that the P is entitled to can it be used to avoid liability? Depends on what Comparative fault rule they have adopted and what the jury says that they are.
Defenses: P's Conduct
Can comparative negligence be extended to SL products liability?
most jurisdictions have followed that it can be found but it does not bar total recovery. A few jurisdictions, have refused to recognize the doctrine of comparative fault in a products liability cases or have limited it to situations in which the P has assumed the risk
Defenses: P's Conduct
Comparative Negligence:

Misuse
forseeable negligence of the P does not bar recovery for the D
- like assumption of the risk misuse is a total bar to recovery, however only unforeseeable misuse is a total bar to recovery.
- If the misues was foreseeable we go back to contrib neg, if unforeseeable it is barred
Defenses: P's Conduct

Who decides if it was forseeable or not?
IN SL cases there is a willingness to tlet the jury decide whether the misuse was forseeable
Defenses: P's Conduct

Where does the burden lay when using contributory negligence
CONTRIBUTORY NEG

It is either a BAR or we can COMPARE. The burden is on the D to show the that the P was contributory negligence.
Once they are found contrib negligence it is either a BAR or a COMPARE
DEFENSES
Preemption and other Government Actions
- showing of govt negligence
- two types: express- when congress has expressly stated that they are going to preempt any claims and to not let any state law tamper with it to protect the integrity of the product, suggest that they know how the poduct was made.
- Implied- it is implicit in the govt regulation that the preemption is implied, does not mean that a court won’t find it was implicit if there was not an express stating.
- Consequence- is that the state law claim can not go forward it is preempted by federal law
Defenses:
Preemptive Government

Government Standards
Federal Preemption of state common law should not be confused with compliance with governement standards. Most jurisdictions permit the D to introduce evidence of compliance with government standards on the issue whether the manufacture was negligent, or , in SL whether the product was defective.

Most jurisdictions allow a jury to second guess the government stantdards.
Defenses:
Preemptive Government

Government Standards
Restatement 3-
Provides that compliance with an applicable product safety statute or administrative regulatioin can be considered in determining defect, but is not determanitive.

(treated much like custom was)• If you don’t comply with the minimum standard prima facia evidence of defect in your product
Defendants other than Principal Manufactureres/Harm othat personal Injury:

Other suppliers of Chattels
- not about holding a used seller responsible- we hold any seller responsible. The question is do we hold them strictly liable
- We don’t hold those who were not in the orginal chain of distribution strictly liable
- If we hold strict liability the wells would dry up the sales would no longer be there, they don’t have the relationship with the manufacutreer with those that
- The person below the manufacture if they get sued they are going to go to the manufacturer and say hey indemnify us
Defendants other than Principal manufacturer:

Retailers, Wholesalers, and Distributors
most courts have estended strict liability to these sellers in the chain of distribution. In some cases the retailer may be the only member of the enterprise reasonably available to the injured P. In other cases, the retailer himself may play a substantial part in insuring that the prduct is safe or many be in a position to exert pressure on the manufacturere to that end.
Defendants other than Principal manufacturer:

Indemnity and Contribution
a relevant factor in determining which class of defendants should be subject to SL may be contribution and indemnity rights.
Cts apply indemnity and contribution principles that have been utilized in negligence law.

Example, the retailer would be entitled to indemnity or full reimbursement form the manufactureer, unless the retailer also was negligent. The manufacturer would be entitled to indemnity from the maker of a defective component part unless the manufacturerer also was negligent. Under those circumstances, comparative fault principles would apply.
SERVICES:

Can you be held liable under Products liability for placing a defective pacemaker in a D?
Hector-
-you can always sue in negligence, the question is are they going to be strictly liable for a product they distributed?
- we are in the business of selling and therefore we should not be held SL
- the court did not want to hold the hospital for selling so it didn’t
- the hospital is in the business of providing services not selling products
Topic 1 Section 8:

Liability of Commercial Seller or Distributor of Defective Used products
One engages in the business of selling or otherwise distributing used products or distributes a defective used product is subject to liability for harm to persons or property caused by the defect if the defect

a) resultf from the seller's failure to exercise reasonable care; or

b) is a manufacturing defect or is infered as a manufiacturing defect and a reasonable person buying the product would not suspect any unreasonable risk

c) is a defect manufactured by the seller of a predecessor in the commercial chaing of distrubituion

Defin of used product- is a product that prior to this time of sale or other distribution is commercially sold or otherwise disributed to a buyer not in the commercial chain of distribution and used for some period of time
Services:

Can you apply SL?
attemtps to extend SL to services generally have failed.
Products Liability:

What is the economic loss doctrine?
In products liability you are liabile if your product injures another person or property. You are barred from recover if the product injures the product itself. - no recover for tort for economic loss
- same in products liability

402a- when we are talking about property other than the product itself. If the product itself is injured it is barred by economic loss. If it hurts a another product or person that is not economic loss