Products Liability

What is Risk-Utility in Negligence?

Balancing the burden of precautions against the foreseeability and probability of harm, and amount of loss if harm does occur.

What are the elements of a Negligence claim?

Duty, Breach, Cause, Damage.

What are the elements of Strict Liability under 402A?

One who sells an unreasonably dangerous defective product is subject to liability for physical harm caused to the user or his property if the seller engages in selling such product and it is expected to and does reach the user without substantial change in condition

What defines Fraudulent Misrepresentation?

A knowingly false representation of a fact.

What defines Negligent Misrepresentation?

A representation of fact the speaker should know to be false or failed to take reasonable care to ensure the truth of.

What is misrepresentation generally?

A false representation of material fact the speaker intended the recipient to rely upon which the recipient justifiably relied upon to his damage.

What are the elements of Strict Liability in Tort for Misrepresentation?

One engaged in selling chattels making a misrepresentation of material fact concerning the character or quality of a chattel to a consumer's justifiable reliance which results in physical harm.

How are Express Warranties created?

Affirmation of fact/promise, description of the goods, or sample/model that becomes the basis of the bargain.

What statements are insufficient to create an Express Warranty?

Mere affirmation of value or statement of the seller's opinion.

How is an Implied Warranty of Merchantability created?

Seller is a merchant of goods of that kind.

What is considered Merchantable under an Implied Warranty of Merchantability?

Those fit for the ordinary purpose such goods are used for.

Goods found to be defective under 402A are also unfit under which Warranty?

Implied Warranty of Merchantability.

How is an Implied Warranty of Fitness for a Particular Purpose created?

Seller has reason to know particular purpose required by buyer and buyer relies on seller's skill or judgment to select goods.

How are statements relating to the Exclusion or Modification of a Warranty construed?

Consistent with each other wherever reasonable.

What must language Excluding or Limiting a Warranty include?

Conspicuous mention of merchantability.

How can an Implied Warranty be disclaimed?

Phrases like "as is" or inspection by the buyer.

How is Conspicuous defined in relation to Warranties and Warnings?

Presented in a way a reasonable person should notice, such as capitals or contrasting type

What is the Alternative A presentation for Warranty Protections?

A natural person in the family, household, or a guest in the home of buyer who is injured in person.

What is the Alternative B presentation for Warranty Protections?

A natural person reasonably expected to use, consume, or be affected by the goods who is injured in person.

What is the Alternative C presentation for Warranty Protections?

A person reasonably expected to use, consume, or be affected by the goods who is injured.

What is included in Consequential Damages?

Personal injury or property damage proximately caused by breach.

In what manner can remedies relating to a Product be limited?

Repair or replacement only.

Can consequential damages be limited?

Yes, except for personal injuries to consumers or other unconscionable limitations.

Are punitive damages allowed under Express Warranty claims?

No.

What is required in order to preserve remedies following a breach of Warranty?

Timely notice of breach after discovery or when breach should have been discovered.

Which portions of the elements of Negligence does Defectiveness fall under?

Duty and Breach.

What portion of the elements of Strict Liability under 402A does Defectiveness fall under?

In a defective condition unreasonably dangerous to the user or consumer or his property.

What portion of the elements of Warranty Claims under 2-715 does Defectiveness fall under?

Any breach of warranty.

What portion of the elements of the Implied Warranty of Merchantability does Defectiveness fall under?

Fit for the ordinary purposes for which such goods are used.

What is the general test for a Manufacturing Defect?

Pleading and proof.

What must be shown under Pleading generally in the Pleading and Proof test?

The specific defective component and how it deviated from the intended design.

What must be shown under Proof generally in the Pleading and Proof test?

That there was a flaw when the product left the manufacturer.

What are the two manners through which Proof can be shown in the Pleading and Proof test?

Through direct evidence presenting the defective part or circumstantial evidence proving the malfunction was the cause.

Is expert testimony generally required under the Pleading and Proof test?

Yes, to show the defect caused the accident.

What is required of expert testimony under the Pleading and Proof test?

It must be relevant and reliable.

What is further required to show Proof under the Pleading and Proof test as it relates to Food and Drink?

That it contains an unexpected element to the reasonable consumer with evidence against post-packaging mishandling.

What must be shown generally for a Design Defect?

The product is defective due to a faulty design when it leaves the manufacturer which makes it unreasonably dangerous.

How is a Design Defect proven under the Consumer Expectations test?

The product is more dangerous than the ordinary consumer would expect.

Whare are factors to consider when weighing Burden for the Risk-Utility test for Design Defects?

Alternative design costs and the impact of an alternative design on utility.

How is Design Defect proven under the Barker test?

The product fails to perform safely as expected, followed by a risk-utility analysis.

What is the Restatement 3rd test for Design Defect?

Risk-Utility with a reasonable alternative design requirement.

How is Design Defect proven under the Potter test?

Consumer expectations where risk-utility defines reasonableness

What factors are considered to prove a Design Defect exists?

Feasible design alternatives, regulations, industry standards, prior accidents, and subsequent remedial measures for feasibility of alternative.

What is Substantive Adequacy as it relates to a Warning Defect?

The warnings covers the nature/existence of a risk as well as the seriousness/consequences of that risk.

What presumption is made when there is a Failure to Warn of a Defect?

The heeding presumption that plaintiff would have heeded an adequate warning.

What is required generally to prove a Warning Defect?

That is catch the attention of a reasonably prudent person, convey the nature and extent of the danger, and provide comprehensible notification past prompting further inquiry.

What are some issues relating to Warning Defects in cases where warnings are given?

Over-warning, instructions alone, and over-promotion.

How is a Warning Defect proven under Negligence?

The defendant knew or should have known the risk and no reasonable person would market without a warning.

How is a Warning Defect proven under Strict Liability?

The product is unreasonably dangerous due to inadequate warnings at the time it left the manufacturer.

How is a Warning Defect proven under the Restatement 3rd?

Defective if reasonable instructions/warnings could have reduced foreseeable risks.

Are warnings required for Obvious Dangers?

No, risk is solely due to a user's choice to encounter it.

What are Inherent Dangers?

Products that can't be made safer where dangers are obvious and commonly known.

How is Misuse determined in relation to Defectiveness?

Objective reasonableness of foreseeable usage and the connection between the misuse and type of harm.

How is State of the Art determined in relation to Defectiveness?

Scientific or technical knowledge available at the time of manufacture.

How is State of the Art relevant to Defectiveness claims under Negligence?

Shows whether the manufacturer knew or should have known of dangers at the time.

How is State of the Art relevant to Design Defect under Strict Liability?

Consumer expectations are based on knowledge at the time and risk-utility considers the feasibility of alternative designs at the time.

How is State of the Art relevant to Warning Defect under Strict Liability?

Risk-utility factors in whether the risks were scientifically knowable at the time.

Does a manufacturer have any general duty to recall or retrofit dangers discovered at a later time?

No, but it may have a duty to warn consumers.

What is the Statute of Limitations on Warranty claims?

4 years after delivery.

What is the Statute of Limitations on Tort claims?

4 years after discovery or reasonable discovery or an injury.

What is the Statute of Repose?

An absolute cutoff for claims, which overrides the discovery rule.

Which portions of the elements of Negligence does Causation fall under?

Cause.

What portion of the elements of Strict Liability under 402A does Causation fall under?

Caused.

What portion of the elements of Warranty Claims under 2-715 does Causation fall under?

Proximately resulting from.

How is Causation proven under the But-For test?

Injury would not have occurred but for the defect.

How is Causation proven under the Substantial Factor test?

Was the defect a substantial factor to cause the injury?

What happens if multiple defects concurred to cause an injury?

The defendants can be held jointly and severally liable.

Can Causation be apportioned by percentage?

Yes, as analyzed by a jury relating to each independent defect.

If the causal Defendant is unknown, how can it be determined?

Market share liability is used, with the burden shifting to defendants to disclaim responsibility.

What factors are relevant to disproving responsibility when the causal Defendant is unknown?

Time lapse since the injury, product dissimilarity, plaintiff's testimony.

How can the defect be connected as the Cause of the injury?

Expert witness or circumstantial evidence.

How is Causation proven in cases of Proximate Cause?

Harm must be a generally foreseeable consequence of the defect.

Are there manners in which a product can be excluded as the Proximate Cause of Foreseeable Harm?

Yes, if the manner is so bizarre it couldn't be anticipated.

What policy considerations must be weighed when considering Foreseeable Harm under Proximate Cause?

Holding the manufacturer liable too generally versus leaving plaintiffs without compensation.

Is Foreseeable Harm under Proximate Cause limited to intended uses?

No, it includes all reasonably foreseeable uses.

What types of intervening causes sever the causal chain in Proximate Cause?

Third-party negligence/misuse, employer modification, parental negligence, plaintiff's reckless conduct, and criminal acts.

Is failure to discover risks enough to prove Comparative Fault under Strict Liability Causation?

No, additional negligence is required.

What consequences does the Plaintiff face if Comparative Fault is proven by a failure to mitigate risk under Strict Liability Causation?

Recovery can be reduced.

Can Comparative Fault be proven under normal use of a product under Warranty Causation?

No, even if a riskier method of normal use is employed.

How is Assumption of Risk conventionality handled under Strict Liability Causation?

There is a total bar on recovery.

What is required to prove Assumption of Risk under Strict Liability Causation?

Actual knowledge, appreciation, and voluntary encounter of known risk.

Is general awareness sufficient to prove Assumption of Risk under Strict Liability Causation?

No, plaintiff must have specific knowledge and appreciation of the danger.

Is unforeseeable misuse a recoverable form of Causation?

No, it is barred in most states due to lack of defect or proximate cause.

Which portions of the elements of Negligence does Damage fall under?

Damage.

What portion of the elements of Strict Liability under 402A does Damage fall under?

Physical harm...to the ultimate user or consumer or his property.

What portion of the elements of Warranty Claims under 2-715 does Damage fall under?

Injury to person or property.

What falls under Economic or Special Damages for Compensatory Damages?

Medical expenses, lost wages, or lost earning capacity.

What falls under Non-Economic or General Damages for Compensatory Damages?

Pain and suffering, disability, disfigurement, and loss of enjoyment.

What are Other Damages under Compensatory Damages?

Loss of consortium, medical monitoring, and wrongful death.

What qualifies as Direct Victim Emotional Distress under Compensatory Damages?

Reasonable fear or distress from potential exposure or injury.

What qualifies as Bystander Emotional Distress under Compensatory Damages?

Must be present at the scene and have serious emotional distress from witnessing the event which manifests physically.

Can any Bystander qualify for Emotional Distress under Compensatory Damages?

No, most states limit recovery to direct relatives.

Can you recover for the economic loss of a product under Compensatory Damages?

Not under general tort theories.

What exceptions are there to the Economic Loss rule?

Accidents which also cause personal injury or property damage, hazardous products posing unreasonable risk, and negligent misrepresentation.

What conduct merits Punitive Damages generally?

Reckless disregard for the rights/safety of others, conscious indifference to grave dangers, deliberate acts with known likelihood of injury.

What is the standard to prove the necessity of Punitive Damages?

Clear and convincing evidence.

Is mere negligence enough to prove the awarding of Punitive Damages?

No.

How does Procedural Due Process guide the awarding of Punitive Damages?

Jury guidance, trial court review, and appellate de novo review.

How does Substantive Due Process guide the awarding of Punitive Damages?

Reprehensibility of conduct, ratio to compensatory damages, comparison to similar authorized penalties.

What additional duties do Retailers/Distributors have under Negligence?

To inspect and warn if they notice a product is likely dangerous.