Torts Ii

Front 1

What elements are need to prove a design defect under the alternative design rule?

Back 1

1) Existence of an alternative design
2) The alternative design would in reasonable probability have prevented or substantially reduced the risk
3) Alternative design doesn't substantially impair the product's utitlity

Front 2

What factors are considered in determining if the existense of an alternative design should have been an appropriate option?

Back 2

1. Feasibility of an alternate design
2. Cost of an alternate design (in addn to being possible, an alternative design must be reasonable. These factors help assess the reasonableness of an alternative.)

Front 3

What factors are considered for determining if hte alternative design would have, in reasonable probability, have prevented or substantially reduced the risk?

Back 3

1) Gravity of the proposed danger
2) Likelihood of injury

Front 4

What factor is considered when determining if the alternative design substantially impairs the product's utitility?

Back 4

Adverse consequences of an alternate design.

Front 5

What are 3 important points regarding "Utility v. Risk"?

Back 5

1) a product's utility v. risk should be assessed in the context of its intended use

2) A product safe for its intended use is not defectively designed just b/c it may be unsafe in other circumstances

3) A manufacturer's intent that a product only be put to a certain use does not necessarily shield it from liability, but it is a factor that must be considered. In effect, this is a balancing test.

Front 6

What are the 2 things a party will generally try to do in a design defect case?

Back 6

1) A party will generally try to define the intended use and or the particular risk in terms most favorable to that party.

2) Likewise, a party will generally try to get the court to adopt the test for design defect that is most favorable.

Front 7

Problem 1 - p. 766

1)What are the significant factors that must be considered in determining whether the manufacturer is liable for this accident for failing to include such a safety device in its design of the automobile?

2) Where would we start?

Back 7

1) We need to look at what the possiblities of a defect could be

2)start w/ consumer expectations rule
Consumer expectation rule does not really help us b/c the thing is not really not performing in a way we think it should.

Front 8

1) What about alternative design..Do we have a design defect? Why?
2) Is it feasible?
3) Would it have decreased the risk?
4) Would it have been costly to add to this car?
5) Does it subst impair product's utility?

Back 8

1) Yes, b/c
2) Yes
3) Yes
4) Probably not
5) NO

Front 9

What is important to remember about technology when analyzing if there is a design defect?

Back 9

As technology changes, remember the analysis changes, ex. pop-up roll bars - always look at both rules

Front 10

Problem 2, p. 766

Is the car defective in design from a consumer expectation standpoint?


What about the consumer expectation rule?

Back 10

No, Consumer does not expect a roll bar in a convertible
The car meets your expectations and performs as you would expect.

Front 11

What are examples of unavoidable unsafe products?

Back 11

Unavoidably Unsafe Products

EX: firearms, cigarettes, Rx, fireworks

Front 12

Brown v. Superior Court p. 766

Can you be strictly liable for a design defect? What can you be liable for?

Back 12

NO, can't be strictly liable for design defects but can be liable for failure to warn

Front 13

What is the policy reason for not making defective design available for Rx drugs?

Brown v. Superior Court

Back 13

1) already very expensive

2) don't want to deter the devolopment of new drugs

there is a whole regulatory scheme that is designed to protect - the fda process, there are still strict liablity and negligence claims available.

Front 14

D is arguing that neither test s/b applicable b/c?

Back 14

1) consumer expectation - md gives it to you or not, so per se unavailable for Rx drugs, - not really the issue of the manufacturer...also the drug is a unique chemical strx, it may have affects on some that it does not have on others.

2) alternative design - it is a drug, one is not really available.

Front 15

Can you get a design defect for a Rx drug?

Back 15

NO

Front 16

Explain what an unavoidable unsafe product is...

Back 16

- products that conform to their design and do what the consumer expects them to do, but even with all precautions may still be dangerous

Front 17

What determines if strict liability for a design defect will be imposed?

Back 17

- whether strict liability FOR A DESIGN DEFECT will be imposed for these products often depends on their overall social utility v. general degree of risk

Front 18

Is the issue about the product itself or how people use it?

Back 18

- it is not necessarily about how people use them but about the product itself