Torts Ii--Products Liability

Front 1

PL--3 major theories

Back 1

1. Negligence
2. Strict Liability
3. Warranty

Front 2

**********PL--Negligence--Elements for PF case

Back 2

1. Duty--conduct reasonable under circumstances?
2. Breach
3. Causation
4. Damages

Front 3

*********PL--claim predicated on negligence--how can manufacturer/supplier be negligent

Back 3

1. Manufacturing Defect
2. Failure to reasonably inspect
3. Negligent Design
4. Failure to Warn
5. Failure to take care to obtain quality components

∆ is liable for DEFECTIVE product that can reasonably be expected to be capable of inflicting SUBSTANTIAL HARM, so long as ∆ failed exercise due care and the product actually CAUSED harm

Front 4

PL--Strict Liability Claim--requirements

Back 4

"Defendant Can't Conceal Bad Commercial Products"

-seller liable even if he exercised all possible care

1. Defect

2. Control

3. Changes

4. Business

5. Causation

6.Privity not Required

Front 5

PL--SL--Defect--

Back 5

Product must have been in defective condition

Front 6

PL--SL--Control

Back 6

Product must have been defective when it left ∆'s control.

Front 7

PL--SL--Changes

Back 7

Product must not undergo any significant changes

Front 8

PL--SL--Business

Back 8

Seller must be in the business of selling the product

--can;t be a casual seller or merely a user

Front 9

PL--SL--Causation

Back 9

Damage must result from the defect.

Damage must be PHYSICAL--can;t be lost profits or cost of repairs under SL

Front 10

PL--SL--Privity

Back 10

not required. Duty extends to anyone FORESEEABLY endangered by the product

Front 11

PL--Design Defect--Tests

Back 11

TESTS

1. Consumer Expectations Test--MORE POPULAR TEST

OR

2. Risk-Utility Test

Front 12

PL--Defect--Tests--Consumer Expectations Test

Back 12

dangerousness of product is beyond the expectation of the reasonable consumer who is familiar with the characteristics of the product

MORE POPULAR TEST

Front 13

PL--Defect--Tests--Risk-Utility

Back 13

A product is defective if the risk outweighs utility, considering the feasibility of a less dangerous, alternative design.

Front 14

PL--Defect--Tests--Risk Utility--Factors in Balancing

Back 14

1. Gravity of danger posed by the design
2. Likelihood that such danger would occur
3. Mechanical feasibility of a safer alternative design
4. financial cost of the improved design
5. adverse consequences to the product and to the consumer that would result from an alt. design

Front 15

PL--Defect--Types

Back 15

TYPES

1. Manufacturing

2. Design

3. Failure to warn if no defect

Front 16

PL--SL--Defenses

Back 16

AIM

1. ASSUMPTION of Risk
2. Failure to follow INSTRUCTIONS
3. Abnormal MISUSE of Product
4. Contributory Negligence

Front 17

PL--SL--Defenses--Assumption of Risk

Back 17

π actually recognized the danger and voluntarily and unreasonably exposed himself to it

OR

∆'s only duty was to warn and π knew about the defect

Front 18

PL--SL--Defenses--Abnormal Misuse

Back 18

use of product that was not reasonably foreseeable

Front 19

PL--SL--Defenses--Failure to follow instructions

Back 19

not nearly as common

Front 20

PL--SL--Defenses--Contrib Neg

Back 20

plaintiff carelessly failed to realize the danger

Front 21

PL--Implied Warranty Claim--Types

Back 21

1. Warranty of Merchantability

2. Fitness for a particular Purpose

Front 22

PL--Implied Warranty Claim--Warr of Merch.

Back 22

Goods [if sold by a merchant] must be fit for the ordinary purposes for which such goods are used

--Used primarily to recover when there is no PHYSICAL DAMAGE but only intangible economic damage

Front 23

PL--Implied Warranty Claim--Fitness for a particular purpose

Back 23

∆ knows of the particular purpose for which π intends to use the product, recommends the product for such use and π relies on ∆'s skill and judgment in supplying goods for that purpose

Front 24

PL--Implied Warranty Claim--Defenses

Back 24

same as strict liability defense plus:

1. Failure to give seller notice of breach within a reasonable time after its discovery [disfavored by courts]

2. Disclaimers, unless they revoke a statutory duty, are inconspicuous or unconscionable[most likely counter argument]

3. Privity--some states require that π must be a purchaser rather than a user or bystander

Front 25

PL--Defect--Types--Manufacturing/Product Defect

Back 25

product departs from its design[i.e. different from all other "sister" products] despite all reasonable care by ∆

--π need not prove that a specific defect, if he can prove that

1. the incident that occurred follows naturally as a result of a product defect

2. the incident was not solely the result of causes other than a product defect existing at the time when the product left the ∆'s control

Front 26

PL--Defect--Types--Design

Back 26

The product is not an outlier--same as its "sister" products.
-Apply risk utility and expectation test. Disjunctive not

Front 27

PL--Duty to Warn--Operative Questions

Back 27

1. Is any warning required?

2. If so, is the warning adequate?

must warn of the danger not the consequences.

Front 28

PL--Duty to Warn--When required

Back 28

1. A reasonable person could not readily understand its risks--[negligence analysis despite SL tort]
2. There is inherent danger in the use or foreseeable misuse of the product
--there is no duty to warn when the dangers are obvious

3. If ∆ is aware of danger

4. If ∆ is not aware of danger but should have known through proper testing

5. If ∆ was not aware and could not have discovered through proper testing--more of a negligence standard--Defense

Front 29

PL--Duty to Warn--Heeding Presumption

Back 29

Courts presume that a user will heed an adequate warning

Front 30

PL--Duty to Warn--Is warning adequate?

Back 30

Yes. if it conveys a fair indication of the NATURE and EXTENT of the danger so in COMPREHENSIVE language such that a reasonably prudent person would understand

Front 31

PL--Duty to Warn--considerations

Back 31

-way in which stated--comprehensive, tone, context, etc.
-for whom is the warning intended--user or learned intermediary
--almost always a question for the jury

Front 32

PL--Duty to Warn-Defenses

Back 32

1. ∆ did not know of danger and could not have discovered the danger through adequate testing

2. Learned Intermediary Doctrine

3. Federal Preemption Doctrine

5. Contributory Negligence--Did π know or should have known of danger? Was the harm caused by actions of the π?

Front 33

PL--Duty to Warn-Defenses-Learned Intermediary Doctrine

Back 33

If mfr warns Dr., sufficent--need not warn the patient b/c doctor is is better position to weigh the risks based on patient history. etc.

Pharmacists not learned intermediaries

Front 34

PL--Duty to Warn-Defenses--Federal preemption Doctrine

Back 34

-compliance with federal statute is not necessarily a defense--provides only minimal standard that might not be enough to overcome SL standard

UNLESS

1. the field of πs is preempted--i.e.
2. ordinary preemption principles apply
3. does the particular case conflict with legislative intent?

4. Savings Clause--language in preemption statute stating that complying with statute does not exempt common law legislation


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