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22 Cards in this Set

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Strict Products Liability
One who sells a product in a defective condition and it is unreasonably dangerous to the user or consumer.

Strictly liable for the harm and injury caused.

2 requirements:
plaintiff and injury have to be foreseeable.
(Strict Products Liability -- Tort)
1. misuse--use in manner not intended or foreseeable
2. alteration--third party changes product unforeseability
3. assumption of the risk
Defendants in Products Liability
Anyone in the marketing chain - commercial seller of such products
Plaintiffs in Products Liability

*does have to be a contractual relationship (so don't have to be the person to buy it.
Wild Animals
Strictly liable for any harm caused by animal, even if taken precautions.

Can be a direct or injury or that the animal has a dangerous propensity (Ex. loose gorilla, mom ran to protect and tripped and fell)

Does not matter how unforeseeable the injury is.
Strict Liability
1. animals
2. dangerous activities
3. products liability
Domestic Pet Rule
The keeper is not liable unless the keeper knows or should know of the animal’s dangerous propensity.

-->one free attempt to bite
Abnormally Dangerous Acticity
Inevitable high risk of serious harm and it is not a common activity
(Ex: blasting TNT; crop-dusting; transporting toxic waste; fumigating)

1. The defendant was involved in an abnormally dangerous activity and the defendant was the cause in fact and the proximate cause of the plaintiff’s injury.

The plaintiff has to be injured by a risk that makes the activity inherently dangerous
Strict Liability Defenses
The plaintiff’s unreasonable conduct is not a defense. (no contributory negligence)

Exception: assumption of the risk
Strict Products Liability in Tort
1. Proper plaintiff (user, consumer, bystander w/ PI)
2. Proper defendant (anyone in market chain & business of dealing with this product)
3. Proper context (product, not service)
4. defect**
5. Cause-in-fact
6. Proximate cause
7. Damages
8. Defenses
Predominate Factor Test
When both a service and a product, the test is whichever predominates (for strict liability must be product)
No Strict Liability?
Must prove fault
(Strict Liability -- Tort)
Product in condition not intended by the manufacturer.

3 types:
1. Manufacturing Defect
2. Design Defect
3. Absence of Warnings
Manufacturing Defect
Must show:
1. product is in bad condition not intended or more dangerous than the ordinary consumer would expect
2. the product came from the manufacturer in such condition
Design Defect
Product comes out as manufacturer intends but there is a problem with the design (e.g. Ford Pinto)

1. product is more dangerous than the ordinary consumer would expect as the product is already used

Risk Utility Balancing Test:
1. risk of the product as designed outweighs its benefits.
2. Usually defective if: availability, feasibility, and impact of alternative design is more safe (must show safer alternative)
3. Some products exempt
E.g. vaccines have extraordinary social utility so no
Absence of Warning
1. inadequate warning;
a. Does the warning reasonably inform the reader of significant risks?
b. Look at language used, placement of warning, size of font

2. no warning when there should have been one
a. The manufacturer has to warn about risks of which is knows or should know
b. Look at gravity and probability of harm

results in a "defect"
Learned Intermediary Doctrine
(Strict Product Liability -- Tort: Proximate Cause)

If the manufacturer provides a warning to a doctor, that manufacturer can expect that the warning will be passed along to a patient and if doctor doesn’t, that will be a superseding cause
(Strict Product Liability -- Tort)
May be recovered when:
a) Personal injury or damage to property other than the product itself

Where the harm is only to the product itself:
a) The only claim available to plaintiff is one of breach of warranty
Products Liability--Negligence
1. Any foreseeable plaintiff is entitled to bring an action.
2. Analyze the conduct of each defendant and ask whether it was reasonable.
3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory.
4. Negligence defenses apply.
Products Liability--Warranty Theory
2 types:
1. express
2. implied
Express Warranty
Defendant makes a specific representation as to the quality of a product that becomes the basis of the bargain.

Anyone can make an express warranty (not just merchants).
Implied Warranty (Warranty of Merchantability)
1) Applies to merchants—in any transaction of goods, the merchants states implicitly in that it’s good for its intended use.
2) There are privity and notice requirements.
3) Can be disclaimed.