Pharm Law 2
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- Based on:
- Strict Liability in Tort
- Breach of Warranty
- Usually a combination
Elements of Negligence
- defendent owes plantiff duty of care
- defendent breached that duty
- breach actually and legally caused plaintiff injury
- plaintiff suffered a real and compensable injury
- improper manufacture
- negligent inspection
- failure to warn
- negligent design
- negligence per se
- improper materials, improperly producing the product, and improper packaging
- compounding your liable vs not compounding not liable.
manufacturer's duty to inspect for risks that create a forseeable risk of harm
Failure to Warn
- giving an inadequate warning is at least one of the grounds alleged in most product liability cases.
- without an inadequate warning the product would be dangerous in its ordinary use or in any reasonably forseeable use.
- the sale of defectively designed products is a big ticket area of products libability since it involves no just one dfective item or batch but the entire product line.
- the plaintiff must prove that the product design is inherently dangerous, contains insufficient safety measures, or consists of materials that do not satisfy trade standards.
- plaintiffs own negligence
- assumption of risk
- unreasonable or reasonably unforseeable product misuse.
- state of the art defense
- compliance with applicable code, standard of regulation (limited)
Product misuse/ state of the art defenses
- product misuse: the plaintiff didn't use it correctly
- state of the art defense: what we did was the best anyone knew how to do at the time so we couldn't have been negligent.
Strict liability in tort
- defective condition and
- unreasonably dangerous
- to user, consumer or family
- seller is liable (even if inot negligent) for physical harm cause by defect if:
- seller is engaged in the buisness of selling the product
- the product reaches consumer witout substantial change.
Breach of Warranty for product liability
- warranty is a contractual promise about the nature of the product sold.
- under the UCC warranties may be expressed or implied.
- use of warrant or gaurantee is not necessry
- no specific intention to create a warranty is necessary if a statement of fact, promise, description or sample is made part of the basis of the bargain.
- these only exists if seller is merchant
- there are two types: implied warranty of merchantability and implied warranty of fitness for a particular purpose.
- implied warranty: fitness for particular purpose: seller has reason to know purpose for goods required and tat the buyer is relying on the seller's skill or judgement to select or furnish goods and the implied warranty that the the goods shall be fit for such purpose.
Exclusion of warranties
- both express and implied warranties can be excluded
- exclusion must be written and conspicous
- disclaim warranty of merchantability, must use the word merchantabitliyt but "as is, where is or with all faults disclaims all warranties.
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