MBE TORTS: Strict Liability & Products Liability

If prescription drug is administered by a medical professional, duty to warn is satisfied if medical professional is informed of the risks b/c there is a presumption the doctor will inform patient.

“Learned intermediary” rule

In Torts, strict liability is only imposed in which 3 scenarios? Abnormally Dangerous activities; Wild Animals; and Defective products Remember “DAD”

Abnormally Dangerous activities

Not of common usage; and Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors (i.e. cannot be performed safely no matter how much care is exercised)

abnormally dangerous activity

Elements needed to establish a prima facie case for strict liability: D’s activities impose an ______ ______ ______ ______ ______; Breach of duty; Actual cause; Proximate cause; and Damages

absolute duty to make safe

In strict liability situations, D must make activities ______ ______.

absolutely safe

Risk-utility test: P must prove: Reasonable ______ ______ was available to D; and Failure to use that design rendered the product not reasonably safe

alternative design

4 defenses to breach of warranty: ______ ______ ______; Comparative fault; Contributory negligence; and Misuse (breach of implied warranty of merchantability only)

Assumption of risk;

What are the defenses to strict products liability claim? Unforeseeable user misuse/alteration/modification ______ ______ ______ or Product changed significantly after it left D’s control

Assumption of risk

Products liability claims can be brought on what 3 legal bases? Strict liability; Negligence; or ______ ______ ______

Breach of warranty

What are the defenses to strict products liability claim? Unforeseeable user misuse/alteration/modification Assumption of risk; or Product ______ ______ after it left D’s control

changed significantly

Elements of a strict products liability claim: D is a ______ ______ ______ ______ of the product; Product was defective; Defect existed when D sold the item; P used the product in an intended or foreseeable way; and Defect was an actual and proximate cause of P’s injuries

commercial manufacturer or supplier

Elements of a strict products liability claim: D is a ______ ______ ______ ______ of the product; Product was defective; Defect existed when D sold the item; P used the product in an intended or foreseeable way; and Defect was an actual and proximate cause of P’s injuries

commercial manufacturer or supplier

Who is included in the chain of distribution? Manufacturer; Distributor; and ______/______ seller

Commercial/retail

Blasting, Mining, Transporting toxic waste, Fumigating, Using explosives, are examples of ______ ______ ______ ______.

common abnormally dangerous activities

4 defenses to breach of warranty: Assumption of risk; ______ ______; Contributory negligence; and Misuse (breach of implied warranty of merchantability only)

Comparative fault

P is considered to have “assumed the risk” if P knew of the defect/danger; P ______ ______ ______ of the defect/danger; and P voluntarily exposed himself to that danger

comprehended the consequences

What are the 2 tests to determine whether there are design defects? ______ ______ test; and Risk-Utility test

Consumer Expectation

4 defenses to breach of warranty: Assumption of risk; Comparative fault; ______ ______; and Misuse (breach of implied warranty of merchantability only)

Contributory negligence

Elements of a strict products liability claim: D is a commercial manufacturer or supplier of the product; Product was ______ Defect existed when D sold the item; P used the product in an intended or foreseeable way; and Defect was an actual and proximate cause of P’s injuries

defective

Elements of a strict products liability claim: D is a commercial manufacturer or supplier of the product; Product was ______; Defect existed when D sold the item; P used the product in an intended or foreseeable way; and Defect was an actual and proximate cause of P’s injuries

defective

In Torts, strict liability is only imposed in which 3 scenarios? Abnormally Dangerous activities; Wild Animals; and Defective products Remember “DAD”

Defective products

Defect that makes the product inherently dangerous because of its design

design defect

What are the 3 types of product defects? Manufacturing defects; ______ ______; and Warning defects

Design defects

Who is included in the chain of distribution? Manufacturer; ______; and Commercial/retail seller

Distributor

D makes a representation as to the nature or quality of the product that becomes the basis of the

express warranty

When there is an inadequate warning of foreseeable, non-obvious risks of harm

failure to warn

2 implied warranties: Merchantability; and ______ ______ ______ ______ ______

Fitness for a particular purpose

D is not strictly liable for all injuries resulting from abnormally dangerous activities, only for ______ ______ ______ ______ activity abnormally dangerous

harm that made the

D is only liable for injuries caused by domesticated pets if D knows or should know of the animal’s dangerous propensity; and ______ ______ ______ by dangerous propensity

Harm is caused

D is strictly liable for harm caused by his animal trespassing on another’s land: Yes, for reasonably foreseeable harm for animals other than ______ ______

household pets

Warrants that the goods being sold are of acceptable quality and fit for their intended use

implied warranty of merchantability

The duty to warn satisfied for a product that is unavoidably unsafe if D provides: ______ ______ ______ and Sufficient warning of foreseeable dangers

Instructions for usage

Elements of a strict products liability claim: D is a commercial manufacturer or supplier of the product; Product was defective; Defect existed when D sold the item; P used the product in an ______ ______ ______ way; and Defect was an actual and proximate cause of P’s injuries

intended or foreseeable

P is considered to have “assumed the risk” if P ______ of the defect/danger; P comprehended the consequences of the defect/danger; and P voluntarily exposed himself to that danger

knew

D is only liable for injuries caused by domesticated pets if D ______ ______ ______ ______ of the animal’s dangerous propensity; and Harm is caused by dangerous propensity

knows or should know

Who is included in the chain of distribution? ______; Distributor; and Commercial/retail seller

Manufacturer

Exists when: The product is not produced in a condition intended by the manufacturer; and The condition makes it more dangerous than the ordinary consumer would expect

manufacturing defect

What are the 3 types of product defects? ______ ______; Design defects; and Warning defects

Manufacturing defects

2 implied warranties: ______; and Fitness for a particular purpose

Merchantability

4 defenses to breach of warranty: Assumption of risk; Comparative fault; Contributory negligence; and ______ (breach of implied warranty of merchantability only)

Misuse

What are the defenses to strict products liability claim? Unforeseeable user ______ Assumption of risk; or Product changed significantly after it left D’s control

Misuse/modification

Products liability claims can be brought on what 3 legal bases? Strict liability; ______; or Breach of warranty

Negligence

Are economic losses sufficient in a product liabilities claim?

no

Is D liable to undiscovered trespassers for injuries from wild animals on their property?

No

Is compliance with governmental regulations conclusive evidence that the product is not defective?

No

Is contributory negligence a defense to strict liability in contributory negligence jurisdictions?

No

Risk-utility test: P must prove: Reasonable alternative design was available to D; and Failure to use that design rendered the product ______ ______ ______

not reasonably safe

What type of seller cannot be sued on a strict products liability claim? One-time or occasional seller

occasional

What type of seller cannot be sued on a strict products liability claim? One-time or occasional seller

One-time

When are damages allowed in strict products liability cases? When there is either ______ ______ or property damage.

personal injury

When are damages allowed in strict products liability cases? When there is either personal injury or ______ ______

property damage

Elements of a products liability negligence claim: Commercial seller owes a duty of care to foreseeable users/P’s (bystanders, etc); Seller breached duty by failing to ______ ______ product; Breach was actual and proximate cause of injury; and P suffered physical damages or property damages (economic losses are insufficient)

reasonably inspect

Exception to the “learned intermediary” rule: company still has duty to warn if they know medication will be administered w/o physician oversight or if ______ ______ ______ ______

required by federal law

What are the 2 tests to determine whether there are design defects? Consumer Expectation test; and ______ test

Risk-Utility

Products liability claims can be brought on what 3 legal bases? ______ ______; Negligence; or Breach of warranty

Strict liability

Defense to ______ ______ ______ claim depends on whether it is a comparative fault or contributory negligence jurisdiction.

strict products liability

When is D strictly liable for injuries resulting from a wild animal? When P’s injuries are: ______; and Caused by the animal’s foreseeable dangerous propensities or characteristics

Unprovoked;

Who has standing to sue on a products liability claim? Any foreseeable: ______ Consumer Bystander

User

P is considered to have “assumed the risk” if P knew of the defect/danger; P comprehended the consequences of the defect/danger; and P ______ ______ himself to that danger

voluntarily exposed

The duty to warn satisfied for a product that is unavoidably unsafe if D provides: Instructions for usage; and Sufficient ______ ______ ______ ______

warning of foreseeable dangers

What are the 3 types of product defects? Manufacturing defects; Design defects; and ______ ______

Warning defects

Exists when the seller knows the product is being purchased for a specific purpose and the buyer relies on the seller’s expertise. Ex. Max goes to Home Depot and asks the plant specialist to recommend the best food for his indoor orchids. The plant specialist recommends Orchids Alive, and Max buys the product in reliance on the plant specialist’s recommendation.

warranty of fitness for a particular purpose

Animals that, as a matter of common knowledge, are naturally: Ferocious; Unpredictable; Dangerous; Mischievous; or Not by custom devoted to the service of mankind where they are kept

wild animal

In Torts, strict liability is only imposed in which 3 scenarios? Abnormally Dangerous activities; Wild Animals; and Defective products Remember “DAD”

Wild Animals

Exception to the “learned intermediary” rule: company still has duty to warn if they know medication will be administered ______ ______ ______ or if required by federal law

without physician oversight

In strict liability situations, will D be liable for P’s injuries even if D was not negligent?

Yes

Is assumption of risk a defense to strict liability?

Yes

Is contributory negligence a defense to strict liability comparative-fault negligence jurisdictions?

Yes

Is the supplier of a component part liable for product defects?

Yes

What is the consumer expectation test? Asks: Is the product more dangerous than the ordinary consumer would expect? If yes, a defect likely exists.

void

When is D strictly liable for injuries resulting from a wild animal? When P’s injuries are: Unprovoked; and Caused by the animal’s foreseeable ______ ______ ______ ______

dangerous propensities or characteristics

Who has standing to sue on a products liability claim? Any foreseeable: User ______ Bystander

Consumer

Who has standing to sue on a products liability claim? Any foreseeable: User Consumer ______

Bystander