Products Liability Attack

Which page is Products Liability located on?

133

Claim 1: Negligence - Duty

Duty to ultimate user/anyone foreseeably at risk IF product is foreseeably dangerous

Claim 1: Negligence - Breach & Defense

Manufacturer failed to do what a reasonable manufacturer would do.

Defense: customer failed to read manual.

Claim 1: Negligence - Causation

Proximate/Superseding Cause

Claim 1: Negligence - Damages

Comparative Fault (customer failed to read manual.)

What page is Strict Products Liability on?

134

Strict Products Liability: Rule

A product is defective when:

Manufacturing Defect

Design Defect

Failure to Warn

Manufacturing Defect: Rule

Product DEPARTS from intended design. Impacts only that product.

Design Defect: Rule

A foreseeable risk could’ve been reduced by RAD. Omission makes products NOT safe.

3 Tests:

Risk Utility (BPL) (Denny)

Consumer Expectation Test

CA Burden Shifting Test

Design Defect Risk Utility Test

Product’s utility vs foreseeable risk.

1. Utility to the Public & Individual

1. Likelihood of Injury

2. Danger Attributed to User (e.g. knives)

3. Safer, Functional Similarly Priced Design Feasible

4. Manufacturer could spread costs of safety changes

Design Defect Consumer Expectation Test

Dangerous beyond what ordinary consumer would expect.

Design Defect CA Burden Shifting

P shows product caused injury → D must show product’s benefits outweighed risk

Failure to Warn: Rule

Foreseeable risk could have been reduced by reasonable instructions or warnings.

What’s the difference between Failure to Warn in SPL compared to negligence?

Negligence: would a reasonable manufacturer disclose?

SPL: Company knew/should’ve known

Limits on Failure to Warn

Trivial/obvious dangers (p.137

Can’t warn around design defects

Learned Intermediary (warning doctor is enough)

Sophisticated User (warning HVAC techs on freon)

Circumstantial Evidence: Res Ipsa: Rule + Page Number

Infer defect if 1) incident ordinarily occurs because of defect 2) not solely caused by other factors.

Who ia liable for SPL?

Entire vertical chain: Manufacturer → Wholesaler → Retailer. (NOT secondary/used retailer)

Who can recover for SPL?

Ultimate user + foreseeable bystanders.

Toaster doesn’t turn on. P wasn’t injured. SPL?

No injuries —> sue under contract law

How does the company's compliance or non-compliance with government regulations change analysis?

Non-compliance with gov regs = defective

Compliance = evidence of non-defect but doesn’t preclude finding of defect.

EXPRESS Breach of Warranty: Rule + Page Number

Company made affirmation of fact that goods shall conform to. Some states require reliance on the statement. (167)

IWOM Breach of Warranty: Rule + Page Number

If the seller is a merchant, automatic. Product must be fit for ordinary purpose, be of fair and average quality. (p.167)

Fitness for a Particular Purpose Breach of Warranty: Rule + Page Number

Buyer relies on seller’s skill/judgement to recommend goods for a particular purpose. (p.169) (shredder hypo)

Who Can Sue for Breach of Warranty? (page number)

Jurisdiction A: Family, household members, guests

Jurisdiction B: Anyone expected to use, consume, or be affected by the goods

Jurisdiction C: Option B + companies

What defenses can company use to Breach of Warranty? What’s the counterargument? (page number)

Disclaimers (“as is”). Must mention MERCHANTABILITY to disclaim IWOM.

Limiting remedies (e.g. repair/replace within 90 days).

Counter: Disclaimer procured through unconscionability

(169)