Torts Products Liability - MBE

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Author:
stac8199
ID:
159134
Filename:
Torts Products Liability - MBE
Updated:
2012-06-17 18:57:19
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products liability
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Description:
products liability for MBE
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  1. Products liability is an area of tort liabiliey where the P is injured do to what?
    product related harm
  2. What are the legal theories on which products liability is based?
    • (1) negligence
    • (2) breach of warranty
    • (3) strict liability  
  3. What is the focus on in strict products liability?
    the condition of the produce and NOT the D's conduct
  4. What are the 8 elements of strict products liability?
    • (1) proper P
    • (2) proper D
    • (3) proper context for strict products liability
    • (4) defect
    • (5) cause in fact
    • (6) proximate cause
    • (7) damages
    • (8) defenses        
  5. Who is a "proper P" under strict products liability?
    • generally any P who is physically injured while using a defective product
    • i.e. - user, consumer, bystander 
  6. Who is a "proper D" for strict products liability?
    commercial suppliers at all levels of the distribution chain and in the business of dealing with this product
  7. Is an occasional seller a proper D in strict products liability?
    no
  8. What is the proper context for strict products liablity?
    • must be dealing with a product
    •  
  9. Does strict PL apply to non-product related harm?
    no
  10. When there is both a service and a product involved what rule is used to determine if there is a proper context for strict PL?
    whichever predominates win
  11. When there is both a service and a product and the product predominates, what standard applies?
    SL
  12. When there is both a service and a product and the service predominates, what standard applies?
    P must prove fault to recover
  13. Almost all jurisdictions impose SL where a product is in what kind of condition?
    a defective condition that is unreasonably dangerous
  14. What are the 3 categories of defects under strict PL?
    • (1) manufacturing defect
    • (2) design defect
    • (3) absence of warnings  
  15. What is a manufacturing defect under strict PL?
    the product comes out in condition not intended by manufacturer
  16. What must the P show when dealing with a manufacturing defect to recover under strict PL?
    • (1) the product is more dangerous than an ordinary consumer would expect when used in its ordinary condition
    • (2) defect existed at time product left manufacturer's hands 
  17. What are design defects in strict PL?
    • entire product line is defective caused by the very design of the product
    • product cam out how M intended it to but this design is what makes it dangerous 
  18. What is the ordinary consumer expectation test for design defects under strict PL?
    product is more dangerou than an ordinary consumer would expect when it is used for its designed purposes
  19. What is the risk-utility balancing test for design defects under strict PL?
    risk of the product as designed outweighs the utility of the product as designed
  20. What does the risk-utility balancing test for desgin defects under strict PL balance?
    the likelihood, nature, and potential severity of injuries caused by the product
  21. When is a product's design usually defective under the risk-utility balancing test?
    if an alternative design could have reduced the danger at about the same cost
  22. Which products are exempt from being found defective in design under strict PL liability?
    • those which have extraordinary social utility and no alternatives
    • unavoidably safe products

    i.e. - vaccines, prescription drugs, etc 
  23. When dealing with an absence of warning defect, what is the P asserting?
    • (1) there is an inadequate warning; or
    • (2) there should have been a warning and product is defective b/c there isn't one 
  24. What is the test when the P is asserting there was an inadequate warning?
    does the warning reasonably inform the reader of the significant risks?
  25. What do you look at when trying to determining if a warning is inadequate?
    placement, size, font, etc of the warning
  26. What is the test when the P is asserting that there should have been a warning and the product is defective b/c there isn't one?
    M has to warn about risks it knows or should know about and reasonably should warn about
  27. What do you look at when determining if there should have been a warning and the lack of one is a defect?
    gravity and probaiblity of harm
  28. What satisfies the casue-in-fact element of strict PL?
    but for the defect the P wouldn't have been injured
  29. What does the court look at when determining if the proximate cause element of strict PL has been established?
    • (1) superseding causes
    • (2) situations where 3P discovers the defect 
  30. What is the Learned Intermediary Doctrine of the proximate cause element for strict PL?
    if a M provides a warning to a D, the M can expect that the warning will be passed on to the patient and if not the doctor is the superseding cause
  31. When may damages be recovered for strict PL?
    when there is a personal injury or property damage to property other than the product itself
  32. What claim is available when the harm is only to the product itself?
    breach of warranty only
  33. What are the defenses to strict PL?
    • (1) misuse
    • (2) alteration
    • (3) AoR  
  34. What is the misuse defense to strict PL?
    if P uses product in manner that is neither intended nor foreseeable then recovery is barred
  35. What is the alteration defense to strict PL?
    If a 3P unforeseeably alters a product then no liablity
  36. Is comparative fault on the part of P a defense to strict PL?
    no
  37. Under negligence theory, what Ps may bring an action for PL?
    any foreseeable P
  38. What takes the place of a manufacturing defect in a negligence theory of PL?
    res ipsa loquitur
  39. How should one approach PL on a negligence theory?
    analyze the conduct of each D and ask whether it was reasonable 
  40. What defenses apply to PL on a negligence theory?
    all negligence defenses
  41. When does an express warranty exist?
    where D makes specific representations as to the quality of the product that becomes a basis of the bargain
  42. What is the implied warranty of merchantability?
    product will be fit for its intended use
  43. To whom does the implied warranty of merchantability apply?
    merchants only
  44. What requirements are associated with the implied warranty of merchantability?
    privity and notice requirements
  45. Can the implied warranty of merchantability be disclaimed?
    yes

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