XV. Torts: Products Liability -- Negligence and Strict Liability

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rubidoux
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XV. Torts: Products Liability -- Negligence and Strict Liability
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2012-03-05 15:37:54
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torts products liability
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  1. THEORIES OF LIABILITY
    1. intent;

    2. negligence;

    3. strict liability;

    4. implied warranties of merchantability and fitness for a particular purpose; and

    5. representation theories (express warranty or misrepresentation).
  2. EXISTENCE OF A DEFECT
    To find liability under any products liability theory, plaintiff must show that the product was defective when it left defendant's control.
  3. TYPES OF DEFECTS
    Manufacturing defects -- product emerges from manufacturing process different from cohorts, and also more dangerous than if it had been made the normal/correct way.

    Design defects -- when all of the products of a line are made according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packaging, the entire line may be found to be defective.

    Inadequate warnings -- may be analyzed as a type of design defect, product must have clear and complete warnings of any dangers that may not be apparant to users.
  4. A DEFECTIVE PRODUCT
    It is in defective condition unreasonably dangerous to users.

    For manufacturing defect, plaintiff will prevail if the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design.

    For design defects, plaintiff must usually show a reasonable alternative design that is less dangerous and economically feasible.
  5. FEASIBLE ALTERNATIVE DESIGN:
    FACTORS TO CONSIDER
    1. usefulness and desirability of the product;

    2. availability of safer alternative products;

    3. the dangers of the product that have been identified by time of trial;

    4. likelihood and probable seriousness of injury;

    5. obviousness of the danger;

    6. normal public expectation of danger (especially for established products);

    7. avoidability of injury by care in use of product (including role of instructions and warnings);

    • 8. feasibility of eliminating the danger without seriously impairing the product's function or making it unduly expensive.
    • ------------------------
    • A product is deemed to be defective in design or warnings if it fails to comply with applicable gov't safety standards. OTOH, a product's compliance with applicable gov't saftey standard is evidence, but not conclusive, that the product is not defective.
  6. COMMON DEFECT PROBLEMS
    MISUSE -- Courts have required suppliers to anticipate reasonably foreseeable uses even if they are misuses of the product.

    SCIENTIFICALLY UNKNOWABLE RISKS -- Courts have usually refused to find drugs unreasonably dangerous where it was impossible to anticipate the problem and make the product safer or provide warnings.

    ALLERGIES -- If the allergic group is significant in number, the product is defective unless adequate warnings are conveyed. Modern trend is to require warnings no matter how few allergies there are.
  7. LIABILITY BASED ON INTENT
    If defendant intended consequences or knew they were substantially likely to occur, the cause of action most likely would be based on battery.

    Punitive damages would be available in intentional products liability to the same extent as for intentional torts generally.

    The usual defenses for intentional torts would be available.
  8. PRODUCTS LIABILITY BASED ON NEGLIGENCE:
    PRIMA FACIE CASE
    1. the existence of a legal duty owed by the defendant to that particular plaintiff;

    2. breach of that duty;

    3. actual and proximate cause; and

    4. damages.
  9. PRODUCTS LIABILITY BASED ON NEGLIGENCE:
    DUTY OF CARE TO PLAINTIFF
    Duty of care arises when defendant engages in the affirmative conduct associated with being a commercial supplier of products.

    Those who repair a product owe a general duty of care, but are not usually suppliers for purposes of products liability cases.

    A retailer who labels a product as the retailer's own or assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even tough the retailer is not personally negligent.

    No privity required -- duty of care extends to any foreseeable plaintiff, user, consumer, or bystander.
  10. PRODUCTS LIABILITY BASED ON NEGLIGENCE:
    BREACH OF DUTY
    To prove breach, plaintiff must show:

    1. negligent conduct by defendant leading to

    2. the supplying of a defective product by the defendant.

    The defendant's conduct must fall below the standard of care expected of a reasonable person under like circumstances, considering such superior skill or training as defendant has or purports to have.

    MANUFACTURING DEFECT CASES:

    -- plaintiff may invoke res ipsa loquitur against the manufacturer if the error is usually something that does not occur without the negligence of the manufacturer

    -- the majority view is that the dealer who buys from a reputable supplier or manufacturer with no reason to anticipate that the product is dangerous need make only a cursory inspection of the goods to avoid liability for manufacturing defects.
  11. PRODUCTS LIABILITY BASED ON NEGLIGENCE:
    CAUSATION
    Standard negligence analysis for both actual causation and proximate cause applies to products liability cases based on negligence.

    An intermediary's negligent failure to discover a defect is not a superseding cause, and the defendant whose original negligence created the defect will be held liable along with the intermediary. But when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause.
  12. PRODUCTS LIABILITY BASED ON NEGLIGENCE:
    DAMAGES
    Plaintiff may recover for personal injury and property damages but if plaintiff only sufferes economic loss, most courts require plaintiff to bring action for breach of waranty to recover such damages.
  13. PRODUCTS LIABILITY BASED ON STRICT LIABILITY:
    PRIMA FACIE CASE
    1. strict duty owed by a commercial supplier;

    2. breach of that duty;

    3. actual and proximate cause; and

    4. damages.
  14. PRODUCTS LIABILITY BASED ON STRICT LIABILITY:
    COMMERCIAL SUPPLIER
    Defendant must be a commercial supplier as opposed to a casual seller. Thus, strict liability applies when defendant is a manufacturer, retailer, assembler, or wholesaler.

    Most courts have expanded strict liability to include mass producers of new homes, commercial lessors, and sellers of used products that have been reconditioned or rebuilt.

    Does not apply to suppliers of services, only products.

    To hold commercial supplier strictly liable for a product defect, the product must be expected to, and in fact, reach the user or consumer without substantial change in the condition in which it was supplied.
  15. PRODUCTS LIABILITY BASED ON STRICT LIABILITY:
    BREACH OF DUTY
    Plaintiff must prove that product in fact is so defective as to be unreasonably dangerous.

    A retailer in a strict liability action may be liable for a manufacturing or design defect simply because it was a commercial supplier of a defective product -- even if it had no opportunity to inspect the manufacturere's product before selling it.
  16. PRODUCTS LIABILITY BASED ON STRICT LIABILITY:
    CAUSATION
    Plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect.

    The negligent failure of an intermediary to discover the defect does not void the supplier's strict liability.
  17. PRODUCTS LIABILITY BASED ON STRICT LIABILITY:
    DAMAGES
    Recover for injury to person or property only.
  18. PRODUCTS LIABILITY BASED ON STRICT LIABILITY:
    DEFENSES
    Ordinary contributory negligence is not a defense where plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff's misuse was reasonably foreseeable. OTOH, voluntarily and unreasonably encountering a known risk is a defense.

    Comparative negligence rules will apply in comparative negligence states.

    Disclaimers of liability are irrelevant in negligence and strict liability cases if personal injury or property damage has occurred.

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