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46 Cards in this Set
- Front
- Back
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State the importance of each case
Winterbottom (1842) McPherson (1916) Henningson (1960) |
Winterbottom is where privity was required for negligence claims
McPherson is where there is no privity for negligence Henningson--- cannot disclaim implied warranty in personal injury cases/ need not be purchaser of product (i.e., no privity for warranty claims) |
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State the significance of Greenman V. Yuba Power products, Inc.
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It should not be controlling whether the details of the sales from manufacturer to retailer and from retailer to plaintiff's wife were such that one or more of the implied warranties of the sales act arose. the remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.' To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in deign and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.
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List the entire restatement 2d of torts section 402A
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(1) on who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and (b) it is expected and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. |
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What is is that every Plaintiff must prove in a product liability case? (section 402A)
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defendant must prove....
*the defendant was in the business of selling products. *he sold or otherwise supplied the product in question. *the product was expected to and did reach the Plaintiff without substantial change (i.e., the product was defective when it left the defendant's hands) *the product's defect was the cause of plaintiff's physical harm. |
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What is a "product" anyway?
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(a) A product is tangible personal property distributed commercially for use or consumption.
(b) Services, even when provided commercially, are not products. (c) Human blood and human tissue, even when provided commercially, are not considered products that are subject to product liability laws. |
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What are considered used products?
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*A used product is a product that is commercially sold or otherwise distributed to a buyer NOT in the commercial chain of distribution and used for some period of time.
*Therefore, tested products (like cars), or demonstration models, etc. do NOT count as used products. |
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When should the seller of a used product be held liable for physical harm caused by the product?
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When the defect...
(a) arises from the seller's failure to exercise reasonable care; or (b) is a manufacturing defect and the seller's marketing of the product would cause a reasonable person in the position of the buyer to expect the used product to present no greater risk of defect than if the product were new; or (c) is a defect in a used product remanufactured by the seller; or (d) arises from a used product's noncompliance with a product safety statute or regulation applicable to the used product. |
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What is the Restatement (3rd) of Torts...Product liability Section 2 1998?
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* A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product....
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of |
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Describe the "manufacturing defect"
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Under both the Second and Third Restatements-- there is strict liability for manufacturing defects
*Thus, a product has a production flaw or manufacturing defect when it disappoints consumer expectations by departing from its intended design. *Liability is imposed whether or not the manufacturer exercised the utmost care in the manufacture and distribution of the product. |
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Describe manufacturing defects in food
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Foreign/natural distinction
*Some jurisdictions allow SL only if defect is "foreign" to the food product (minority view) *Consumer Expectation ---Third Restatement test (majority view) |
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Product Liability...Res Ipsa Loquitur
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*It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. |
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What is is that every plaintiff must prove in a product liability case?
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Under 402A, they must prove....
*the defendant was in the business of selling products. *he sold or otherwise supplied the product in question. *the product was expected to and did reach the plaintiff without substantial change (i.e. the product was defective when it left the defendant's hands) *the product's defect was the cause of plaintiff's physical harm. |
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List the Risk/Utility Test
Dean Wade Factors |
1. Usefulness and desirability of the product.
2. Probability and magnitude of potential injury. 3. Availability of substitutes. 4. Manufacturer's ability to eliminate the unsafe character. 5. User's ability to avoid the danger. 6. User's awareness of the danger. 7. Manufacturer's ability to spread the loss. |
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claimed design and warning defects:
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The risks of harm must be foreseeable.
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Design Defects and Drugs
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Under the third restatement, a prescription drug or medical device is defectively designed if the foreseeable risks are so great in relation to its benefits that reasonable health care providers would not prescribe the drug or device to any class of patients.
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What every plaintiff must prove in a product liability case:
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Under 402A, a plaintiff must prove...
*the defendant was in the business of selling the products. *he sold or otherwise supplied the product in question. *the product was expected to and did reach the plaintiff without substantial change (i.e., the product was defective when it left the defendant's hands) *the product's defect was a cause in fact and legal cause of plaintiff's physical harm. |
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Warning Defects
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A product is defective when the manufacturer or distributor fails to provide a reasonable warning for a reasonably foreseeable harm.
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Categories of Warning Defects
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*Omission of warning regarding foreseeable risks.
*Inadequate warnings... 1. warning not displayed in such a way as to reasonably catch the attention of the persons expected to use the product 2. warning fails to fairly apprise a reasonable user of the nature and extent of the danger 3. warning fails to instruct the user as to how to use the product in such a way as to avoid the danger |
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Winterbottom (1842)
McPherson (1916) Henningson (1960) |
Winterbottom...privity required for negligence claims
McPherson....no privity for negligence Henningson....cannot disclaim implied warranty in personal injury cases/ need not be purchaser of product (i.e., no privity for warranty claims) |
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Greenman v. Yuba Power Products, Inc.
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It should not be controlling whether the details of the sales from manufacturer to retailer and from retailer to plaintiff's wife were such that one or more of the implied warranties of the sales act arose. 'The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.' To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.
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Restatement (2d) of Torts §402A
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(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. |
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What every plaintiff must prove in a product liability case:
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Under 402A a plaintiff must prove:
the defendant was in the business of selling products he sold or otherwise supplied the product in question the product was expected to and did reach the plaintiff without substantial change (i.e., the product was defective when it left the defendant’s hands) the product’s defect was the cause of plaintiff’s physical harm |
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What is a “product” anyway?
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(a) A product is tangible personal property distributed commercially for use or consumption.
(b) Services, even when provided commercially, are not products. (c) Human blood and human tissue, even when provided commercially, are not considered products that are subject to product liability laws. |
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Used Products
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A used product is a product that is commercially sold or otherwise distributed to a buyer NOT in the commercial chain of distribution and used for some period of time.
Therefore, tested products (like cars), or demonstration models, etc. do NOT count as used products. |
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When should the seller of a used product be held liable for physical harm caused by the product?
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When the defect:
(a) arises from the seller's failure to exercise reasonable care; or (b) is a manufacturing defect and the seller's marketing of the product would cause a reasonable person in the position of the buyer to expect the used product to present no greater risk of defect than if the product were new; or (c) is a defect in a used product remanufactured by the seller; or (d) arises from a used product's noncompliance with a product safety statute or regulation applicable to the used product |
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Restatement (Third) of Torts: Prod. Liab. § 2 (1998)
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A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of |
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manufacturing Defect
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Under both the Second and Third Restatements – there is strict liability for manufacturing defects.
Thus, a product has a production flaw or manufacturing defect when it disappoints consumer expectations by departing from its intended design. Liability is imposed whether or not the manufacturer exercised the utmost care in the manufacture and distribution of the product. |
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Manufacturing defects in food
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Foreign/natural distinction
Some jurisdictions allow SL only if defect is “foreign” to the food product (minority view) Consumer Expectation Third Restatement test (majority view) |
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Product Liability...Res Ipsa Loquitur
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It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. |
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What every plaintiff must prove in a product liability case:
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Under 402A a plaintiff must prove:
the defendant was in the business of selling products he sold or otherwise supplied the product in question the product was expected to and did reach the plaintiff without substantial change (i.e., the product was defective when it left the defendant’s hands) the product’s defect was the cause of plaintiff’s physical harm |
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Restatement (Third) of Torts:
Product. Liability Section 2...1998 |
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of |
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Risk/Utility Test Dean Wade Factors
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1. The usefulness and desirability of the product
2. Probability and magnitude of potential injury 3. Availability of substitutes 4. Manufacturer’s ability to eliminate the unsafe character 5. User’s ability to avoid the danger 6. User’s awareness of the danger 7. Manufacturer’s ability to spread the loss |
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Design and warning defects
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Risk of harm must be foreseeable
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Design Defects and Drugs
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Under the Third Restatement, a prescription drug or medical device is defectively designed if the foreseeable risks are so great in relation to its benefits that reasonable health care providers would not prescribe the drug or device to any class of patients.
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What every plaintiff must prove in a product liability case:
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Under 402A a plaintiff must prove:
the defendant was in the business of selling products he sold or otherwise supplied the product in question the product was expected to and did reach the plaintiff without substantial change (i.e., the product was defective when it left the defendant’s hands) the product’s defect was a cause in fact and legal cause of plaintiff’s physical harm |
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Warning Defects
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A PRODUCT IS DEFECTIVE WHEN THE MANUFACTURER OR DISTRIBUTOR FAILS TO PROVIDE A REASONABLE WARNING FOR A REASONABLY FORESEEABLE HARM.
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Categories of Warning Defects
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OMISSION OF WARNING REGARDING FORESEEABLE RISKS
INADEQUATE WARNINGS: 1. warning not displayed in such a way as to reasonably catch the attention of the persons expected to use the product 2. warning fails to fairly apprise a reasonable user of the nature and extent of the danger 3. warning fails to instruct the user as to how to use the product in such a way as to avoid the danger |
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What every plaintiff must prove in a product liability case:
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Under 402A a plaintiff must prove:
the defendant was in the business of selling products he sold or otherwise supplied the product in question the product was expected to and did reach the plaintiff without substantial change (i.e., the product was defective when it left the defendant’s hands) the product’s defect was the cause of plaintiff’s physical harm |
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Warnings...(presumption)
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Generally in warning cases there is a presumption that if a warning had been given, it would have been read and headed (presumption rebuttable).
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Allergic Reaction
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General Rule: Warning required when the harm causing ingredient is one to which a substantial number of persons are allergic.
Not enough to show that the plaintiff suffered a reaction The more severe the harm, the more justified is a conclusion that the number of persons at risk need not be large to be considered "substantial" so as to require a warning. Essentially, this reflects the same risk-utility balancing undertaken in warnings cases generally. But courts explicitly impose the requirement of substantiality in cases involving adverse allergic reactions. |
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Learned Intermediary Rule
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Courts almost always hold that a prescription drug manufacturer’s warning to the doctor who prescribes a drug is sufficient to warn the doctor’s patients as well. If the doctor fails to inform the patient of the risks, the patient has a claim against the doctor but not against the manufacturer of the drug.
Rule applies not only to drugs but also to medical devices and bodily implants that are usually accompanied by medical advice and supervision. Basis of the learned intermediary rule is that the manufacturer can reasonably rely upon the physician to pass on the warnings and that the patient relies upon the physician and not the manufacturer. |
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Learned Intermediary Rule (Exceptions)
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mass inoculations and other instances of unsupervised dispensation of prescription drugs
Birth control prescriptions and devices It has also been argued that when prescription drugs are advertised directly to the consumer, direct warnings to the consumer should be given in the same medium |
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Exceptions to Duty to Warn
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Sophisticated users: Most jurisdictions apply some sort of sophisticated user defense.
Raw materials and component parts : Sellers of raw materials and component parts, are seldom required to warn ultimate users of dangers that may result from the way their raw materials or component parts are integrated into a final product. |
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Exceptions in duty to warn continued....
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Bulk Suppliers: Sellers of bulk materials to intermediaries are seldom required to warn end users of the product’s dangers.
Bulk seller must take reasonable steps to warn the buyer or the ultimate user if: The seller knows or has reason to think that the buyer is ignorant of the danger, or inadequately trained or When the seller knows or has reason to think that the product will be dangerous to the user and that the buyer will not transmit warnings to the end user. Open and Obvious |
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Plaintiff's fault as a defense
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(a) A plaintiff's recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff combines with the product defect to cause the harm and the plaintiff's conduct fails to conform to generally applicable rules establishing appropriate standards of care. (Majority)
(b) Some jurisdictions only recognize Assumption of Risk as a defense. |
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Affirmative Defense of Preemption
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Express preemption
Implied preemption |
