ACC 473 Chapter 7

strict liability

liability regardless of fault

under this doctrine, a person who engages in certain activities can be held responsible for any harm that results to others, even if the person used the utmost care

-abnormally dangerous activites

-dangerous animals, or

-defective products

abnormally dangerous activites are those that involve:

- a high risk of serious harm to persons or property

- that cannot be completely guarded against by the exercise of reasonable care

wild animals: persons who keep wild animals are also strictly liable for any harm inflicted by the animals. persons who keep domestic animals are liable IF they knew or should have known that the animal was dangerous regardless of whether or not they are legal

public policy for product liability

- the manufacturer can better bear the cost of injury because it can spread the cost throughout society by increasing the prices of its goods

- the manufacturer is making a profit from its activies and therefore should bear the cost of injury as an operating expense

product liability

those who make, sell, or lease goods can be held liable for physical harm or property damage caused by those goods to

-consumer (bought it)

-user, or (used it regardless of who purchased)

-bystander (someone else used it and it cause harm to a third party)

product liability may be based on the theories of

-negligence (duty, breach, causation, damages)

-misrepresentation

-strict liability

-warranties

Product liability based on negligence: DUE CARE MUST BE EXERCISED

Manufacturers must use due care in all of the following areas:

- Designing the product

− Selecting the materials

− Using the appropriate production process

− Assembling and testing the product

− Placing adequate warnings on the label to inform the user of dangers of

which an ordinary person might not be aware

− Inspecting and testing any purchased components used in the product

Product liability based on negligence: privity of contract not required

- A product liability action based on negligence does not require

privity of contract between the injured plaintiff and the defendant-

manufacturer.

−A person who is injured by a defective product may bring a

negligence suit even though they were not the one who actually

purchased the product.

e.g. a person never buys from the manufacturer, they buy from the retailer. even though they didn't buy from manufacturer, they can still sue

True or false: Cause in Fact and Proximate Cause still apply in Product liability cases

TRUE

Misrepresentation

when a user or consumer is injured as a result of a manufacturer's or seller's fraudulent misrepresentation, the basis of liability may be the tort of fraud

elements of this:

-the misrepresentation must have been make knowlingly or with reckless disregard for the facts

-the misrepresentation must be of a material fact

-the seller must have intended to induce the buyer's reliance on the misrepresentation

-the buyer must have relied on the misrepresentation

Example: This product contains no peanuts (but it was cooked in peanut oil)

What are the public policies for product liability that are expressed in a statute or common law?

- Consumers should be protected against unsafe products.

- Manufacturers and distributors should not escape liability for faulty products

simply because they are not in privity of contract with the ultimate user of those

products.

- Manufacturers and distributors can better bear the costs associated with injuries

caused by their products, because they can ultimately pass the costs on to all

consumers in the form of higher prices.

What are the elements for strict product liability

1. The product must be in defective condition when the defendant sells it. (NOT AFTER)

2. The defendant must normally be engaged in the business of selling that product.

3. The product must be unreasonably dangerous to the user or consumer because of its

defective condition

4. 5. 6. The plaintiff must incur physical harm to self or property by use or consumption of the product.

The defective condition must be the proximate cause of the injury or damage.

The goods must not have been substantially changed from the time the product was sold to

the time the injury was sustained.

Proving a defective condition

- the plaintiff does not need show why or in what manner the product became defective

- the plaintiff has to present evidence that the product was defective at the time it left the hands of the seller AND that the defective condition made the product "unreasonably dangerous"

Unreasonably dangerous product

a product will be considered unreasonably dangerous if:

- it is dangerous beyond the expectation of the ordinary consumer

OR

- if a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to product it

Product liability defines three types of product defects that have traditionally been recognized in product liability law:

- manufacturing defects

- design defects

- inadequate warnings

manufacturing defects

departure from a product unit's design specifications that results in products that are physically flawed, damaged, or incorrectly assembled

quality control: manufacturers failed to exercise due care in the manufacturer, assembly, or testing of the product

Design defects

product is unreasonably dangerous as designed even if it is manufactured correctly

to successfully assert a design defect, a plaintiff has to show that:

- a reasonable alternative design was available

- as a result of the defendant's failure to adopt the alternative design, the product was not reasonably safe

courts use the risk-utility analysis and consumer-expectation test to determine whether a product's design is defective

Risk-utility analysis

Determines whether the risk of harm from the product outweighs its utility to the user and public

Example: Ford cars and the inadequate latching system (had a safer alternative but chose not to use it. less expensive to pay damages in lawsuits than use the new model)

Consumer expectation test

Consumers expect a new design to be safe

example: umpire mask

Inadequate warnings

- a seller must warn consumers of harm that can result from the foreseeable misuse of its product (dont use a hairdryer near water)

- plaintiff must show that the inadequate warning was the proximate cause of the injuries that they sustained

- Courts apply a "reasonable" test to determine if the warnings adequately alert consumers to the product's risks

- there is no duty to warn about risks that are obvious or commonly known

Example: Defibrillator, or the case with the tourettes drug that made the kid grow breasts bc of downplayed risk

market-share liability

a theory under which liability is shared among all firms that manufactured and distributed a particular product during a certain period of time

- each manufacturer responsible for a percentage of the plaintiff's damages that is equal to the percentage of its market share

- this theory of liability is used only when the specific source of the harmful product is unidentifiable

Example: you get chemicals for your business all mixed into a vat, one of them caused harm but since you cant pinpoint which one, you get to sue all of them

Other applications of strict product liability

- almost all courts extend the strict liability of manufacturers and other sellers to injured by standers

- strict product liability also applied to suppliers of component parts

Defenses to product liability

- No basis for the plaintiff's claim

- the plaintiff has NOT met the requirements for such an action (such as causation)

- a defendant can claim that the plaintiff failed to meet one of the requirements

Preemption in Product Liability

government regulation that preempt a product liability claim

EXAMPLE: Makers of vaccines are sued, now we have no vaccines, but we need vaccines. Gov preempts this and says these claims need to be argued in a specified court. These items (vaccines) are already vetted and tested before release, so making a claim is difficult. This protects vaccine makers and they will continue to make medicine without fear of being sued

Establishing Assumption of Risk

-the plaintiff knew and appreciated the risk created by the product defect

- the plaintiff voluntarily assumed the risk - by express agreement or by words or conduct - even though it was unreasonable to do so

Example: Nick Brown v. his high school case (thing with the head injury even though they signed all those forms agreeing to it)

product misuse

A defense against product liability that may be raised when

the plaintiff used a product in a manner not intended by the manufacturer.

− The courts have severely limited this defense, and it is now recognized as a defense only

when the particular use was not foreseeable.

− If the misuse is reasonably foreseeable, the seller will not escape liability unless measures

were taken to guard against the harm that could result from the misuse.

Example: the guy who bypassed the safety measures of the forklist and was crushed and died

Commonly known dangers

the dangers associated with certain products (such as matches and sharp knives) are so commonly known that manufacturers need not warn users of those dangers

- if a defendant succeeds in convincing the court that a plaintiff's injury resulted from a commonly known danger, the defendant will not be liable

Knowledgeable user

if a particular danger (such as electrical shock) is or should

be commonly known by particular users of a product (such

as electricians), the manufacturer need not warn these

knowledgeable users of the danger.

Example: I ate too much McD's and now I have health issues (well, you should have known that it was an unhealthy option and therefore it is your fault)

Statutes of Limitations and Repose (REVIEW)

Statutes of limitations restrict the time within which an action may be brought

- varies according to state law

- a statute of limitations may be tolled until the party suffering an injury has discovered it or should have discovered it

to ensure that sellers and manufacturers will not be left vulnerable to lawsuits

indefinitely, many states have passed statutes of repose, which place outer time

limits on product liability actions.