BLS 342 Ch 10

damages recoverable in negligence-based product liability cases

- compensatory damages (make plaintiff whole) - punitive damages (punish defendant)

negligence defense methods used when a plaintiff's own failure to act reasonably contributed to the plaintiff's own harm

- contributory - comparative - modified comparative

three commonly used theories of recovery in product liability cases

- strict product liability - negligence - breach of warranty

two common elements a plaintiff must generally show

- the product is defective - the defect existed when the product left the defendant's control

4 elements of negligence the plaintiff must prove to win a case

1) the defendant manufacturer or seller owed a duty of care to the plaintiff 2) the defendant breached that duty of care by supplying a defective product 3) this breach of duty caused the plaintiff's injury 4) the plaintiff suffered actual injury

When a user of a cosmetic or an over the counter drug has a reaction to that product, many courts find that there is no duty to warn unless the plaintiff proves that ...

1) the product contained an ingredient to which an appreciable number of people would have an adverse reaction 2) the defendant knew or should have known, in exercise of ordinary care, about the existence of this group 3) the plaintiff's reaction was due to his or her membership in this abnormal group

To succeed in a strict-liability action, the plaintiff must prove that:

1) the product was defective when sold 2) the product was so defective that the product was unreasonably dangerous 3) the product was the cause of the plaintiff's injury

to establish a claim for breach of express warranty, the plaintiff must show ...

1) the representation was the basis of the bargain 2) there was a breach of the representation

failure to provide adequate warnings

A defect that arises when a potentially dangerous product is not labeled to indicate that it can be dangerous.

Courts using the market share theory generally require that the plaintiff establish all but which of the following?

All defendants are tortfeasors 2) the allegedly harmful products are identical and share the same defective qualities 3) the plaintiff is unable to identify which defendant caused her injury, through no fault of her own 4) the manufacturers of substantially all the defective products in the relevant area and during the relevant time are named as defendants

Implied Warranty of Merchantability

An assurance, inferred in every sale unless clearly disclaimed, that merchantable goods will conform to a reasonable performance expectation. The purchaser must have purchased or leased the good from a merchant.

express warranty

Any description of a good's physical nature or its use, either in general or specific circumstances, that becomes part of a contract.

Strict Product Liability

Liability under which, courts may hold the manufacturer, distributor, or retailer liable for any reasonably foreseeable injured party.

exists for dangers arising from either unforeseeable misuses of the product or from obvious dangers.

No duty to warn

market share theory

Product liability theory which holds that when it is impossible to identify the manufacturer of a particular product that caused harm, the plaintiff may sue all manufacturers of the product, with liability apportioned among them on the basis of each one's market share.

privity of contract

The relationship that exists between the promisor and the promise of a contract. (being a party to a contract)

manufacturing defect

a defect in an individual product that makes the product more dangerous than other, identical products

design defect

a defect that is found in all products of a particular design and renders them dangerous

warranty

a guarantee or a binding promise regarding a product (generally does not meet the manufacturer's or seller's promises

sophisticated user defense

acts as a complete defense to failure-to-warn claims; notes that a user's knowledge of certain dangers is equivalent to notice

absolute bar to recovery

allowed in states which allows contributory negligence defense

recovery only for the portion of harm attributable to the defendant's negligence

allowed in states which allows defense of pure comparative negligence

Implied Warranty of Fitness for a Particular Purpose

an assurance, inferred in any UCC sale, that when a seller/lessor knows or has reason to know (1) why the buyer/lessee is purchasing/leasing the goods and (2) that the buyer/lessee is relying on him or her to make the selection, the buyer/lessee has an enforceable warranty if such assurance is false

assumption of risk

arises when a consumer knows that a defect exists but still proceeds unreasonably to make use of the product, creating a situation in which the consumer has voluntarily assumed the risk of injury from the defect and thus cannot recover

implied warranty

automatically arising out of a transaction

Expressive warranty

clearly stated by the seller or manufacturer

Misuse of the Product

defense in which the misuse of a product must be unreasonable or unforeseeable

compliance with federal laws

defense to state tort laws because the state tort law is preempted by a federal statute designed to ensure the safety of a particular class of products

MacPherson v. Buick

established products liability based on negligence so that any foreseeable (consumers, users, and bystanders) plaintiff can sue a manufacturer for its breach of duty of care

To bring a successful case based on __________, the plaintiff must demonstrate that the defendant knew or should have known that without a warning, the product would be dangerous in its ordinary use (or in any reasonably foreseeable use,) yet the defendant still failed to provide a warning

negligent failure to warn

modified comparative negligence state

plaintiff can recover the percentage of harm caused by the defendant as long as the jury finds the plaintiff's negligence responsible for less than 50% of the harm

consumer expectations test

relies on experiences and expectations of the ordinary consumer

feasible alternative test (risk utility test)

the court focuses on the usefulness and safety of the design and compares it to an alternative design

What type of law is product liability law primarily based on?

tort law

state of the art defense

used by a defendant to demonstrate that his alleged negligent behavior was reasonable, given the available scientific knowledge existing at the time the product was sold or produced

balance test

used by some courts to determine negligence in cases by weighing the degree of danger to be avoided with the ease of warning

Manufacturer (Duty of Care)

when a law establishes labeling, design, or content requirements for products, the manufacturer has a duty to meet these requirements