Products Liability

reduced

a Ps recovery in products liability cases may be _____ according to the extent to which the his injury resulted from his own lack of reasonable care

unreasonably dangerous, and defective

for products liability, the product must be (two things):

warranty

generally means a guarantee or promise which provides assurance by one party to the other party that specific facts or conditions are true or will happen.

strict liability

if the object is foreign to the food (piece of glass in chicken), then there is ____

strict liability

if the object is natural to the food (bone in chicken) then no ____

packaging defect

if the product did not meet specifications and caused an unreasonably risk of injury when packaged, manufacturer pays even if acting reasonably

express warranty liability

if the product does not conform to the representation of fact made by the D, orally or in writing, in connection with the sale/transaction, on which P relied in the purchase and/or use of product

unreasonably dangerous

if the product fails to perform as safely as an a ordinary user would expect when using it for its intended purpose

implied warranty of merchantability liability

if the product is not reasonably fit for the uses intended or reasonably foreseeable by D

implied warranty

if you put something on the market, there is a ____ attached to it

foreseeable risks

instructions and warnings are based upon _____ in connection with the product

used products

many courts dont apply strict liability to these types of products

strict liability

no matter how careful you are, you can still cause harm and you will be liable, regardless of how important the activity is, how useful it is, or how important, etc.

Restatement 402 A

one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property, if: o the seller is engaged in the business of selling such a product, and o it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold

unreasonable risk of danger; unreasonably dangerous

only those products that create a ____ or are _____ are subject to products liability

Keaton's view

view of this judge says you look at the technology at the time the accident happened (graham says this doesnʼt make sense because when you were making it how are you supposed to know about future technology)

1960

what year introduced products liability and comparative fault?

implied warranty

when a manufacturer and a dealer put a new automobile on the market and promote its purchase to the public, a _____ warranty that is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser, despite any contractual provisions to the contrary

failure to warn doctrine

when a manufacturer or seller of a product fails to provide the consumer with adequate or sufficient warnings of the potential risk of injury known to result from the use of its product, and that failure results in an injury.

Design defect (third restatement)

when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonable safe (Graham doesnt like this)

misuse

you have to make a product safe for its intended uses and reasonably foreseeable unintended uses BUT NOT FOR _____

manufacturing defects, design defects, warnings defect, packaging

4 types of products liability:

1. Usefulness and desirability of the product; must take into account whether product is necessary or is a luxury item 2. Safety aspects of the product (likelihood and seriousness of injury) 3. Availability of safer substitute 4. Manufacturer's ability to eliminate unsafe character without impairing usefulness or price 5. User's ability to avoid injury by exercise of care in use 6. User's awareness of dangers either through public knowledge or warnings and instructions 7. Feasibility of manufacturer spreading cost of loss through price or carrying liability insurance

7 factors of risk-utility analysis:

risk utility test (FL view)

A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits (Keeton). Measure w/ 7 factors (even though the factors are not part of jury instructions)

Negligent use by a consumer that is reasonably foreseeable by the manufacturer does not bar an action based on strict liability resulting from a defective product.

Case: Earnest Matthews (Mr. Mathews) was dragged under a tractor and killed when he started the tractor while standing next to it. The tractor started while in gear, but was equipped with a safety switch designed to prevent this from occurring; switch was defective; P might have been misusing the tractor; D was liable

"The law imputes to a manufacturer knowledge of the harmful character of his product whether he actually knows of it or not." This ∆is responsible for the harm it caused even if you didnʼt know about it. As a manufacturer, youʼre presumed to know about the risk and are held liable because if they knew about the risk, the harm could have been avoided

Case: Man saw combination power tool demonstration, read the brochure and bought it; while using, piece of wood he was working on flew out of his hand, hit him on the head causing injuries; man suing retailer and manufacture; D was liable

One finger does not make you negligent, but it does create products liability because it is a manufacturing defect that created an unreasonable risk of danger

Case: P buys a coke that has a finger in it; D (manufacturer) had made 500 million other bottles that were fine; D was liable

manufacturer cannot be held strictly liable for the danger caused by one of its products, if it does not cause the defect in the product; however, a manufacturer will be held strictly liable for manufacturing defects

Case: Plaintiff was injured when his pickup was hit from behind by a chasis-cab that had been equipped with a water tank, after sale, by the Defendant dealership. Plaintiff brought suit against Defendant under a theory of strict liability, and products liability, maintaining that the product, which had been placed into the stream of commerce, was unreasonably dangerous because of both manufacturing and design defects; D was not liable

Automobile purchasers may recover for damages caused by defective parts under an implied warranty of merchantability since automobile manufacturers and dealers may not limit this warranty to replacement of only defective parts as this violates fair dealing and public policy.

Case: Plaintiffs Claus and Helen Henningsen sued Defendant Bloomfield Motors, Inc., for breach of an implied warranty of merchantability imposed by the Uniform Sales Act after Helen Henningsen was injured when the steering mechanism of the car Plaintiffs purchased from Defendant malfunctioned. Defendant asserted that the warranty had been disclaimed by the fine print on the back of the purchase contract; D was liable

The principle of comparative fault can be applied in strict products liability cases to reduce a plaintiff's recovery.

Case: The Decedent was thrown from his automobile because of an alleged defect of the door latch, resulting in his death. Evidence suggested the driver did not use the shoulder harness system, did not lock the door and that he was intoxicated; D (manufactuer) was not liable for all of it

The majority in this case found that a manufacturer must provide warnings if it is or should be aware of potential dangers, but to impose liability for failure to warn when the manufacturer had no way of knowing of the potential danger is unjust.

Case: The Plaintiff, Anderson (Plaintiff), was allegedly injured from exposure to asbestos materials manufactured by the Defendant, Owens-Corning Fiberglass Corp. (Defendant). Defendant answered by claiming it did not warn of potential dangers because there was no scientific knowledge at the time of manufacture that the product was potentially dangerous; D was not liable

Hospitals are not subject to strict liability for a defective product provided to a patient during treatment when the hospital is a provider of services rather than a seller of a product; providers of medical services are not subject to strict products liability

Case: The Plaintiff, Frances Hector (Plaintiff), claimed that strict product liability was applicable to the Defendant, Cedar-Sinai Medical Ctr. (Defendant) in relation to the implantation of a defective pacemaker; D was not liable

Based on risk utility analysis, a defendant may be liable for a design defect even if his product complied with the existing level of technological advances at the time of design.

Case: The Plaintiff, Gary O'Brien (Plaintiff), was injured when he dove into an above ground pool designed and manufactured by the Defendant, Muskin Corp. (Defendant). Plaintiff brought suit claiming that Defendant was strictly liable for the defectively designed pool

remote retailer who is outside of the original producing and marketing chain is not subject to strict products liability

Case: The Plaintiff, James Peterson's (Plaintiff) children were injured when they were struck by a used car. The Plaintiff sued the Defendant, Lou Bachrodt Chevrolet Co. (Defendant), alleging that the used car was defective when it left the Defendant's lot; D was not liable (graham doesnt like this)

A federal law enacted by Congress will not be held to preempt existing state law unless it is the clear intent of Congress to legislate exclusively in the area.

Case: The Plaintiff, Lora Lohr (Plaintiff), required emergency surgery when a pacemaker manufactured by the Defendant, Medtronic, Inc. (Defendant), failed. Plaintiff sued under state laws alleging negligence and strict liability. Defendant answered by moving the case to federal court and claiming preemption of state law by a federal act; d was liable still

a manufacturer or retailer of a product is responsible in tort for all representation upon which the consumer must rely, regardless of a contractual relationship between P and D

Case: π purchased car which was promised to have shatterproof glass, got into a car accident in which the windshield shattered, and πwas injured; D the manufacturer was liable

implied warranty of fitness for a particular purpose liablity

If the product is not reasonably fit for the specific purpose for which the ∆ knowingly sold the product and for which the purchaser bought the product in reliance on the judgment of the ∆

intentional torts

In FL, comparative fault applies to everything except ____

that product was defective, that the defect existed at the time the product left the factory, and that the defect was the direct and proximate cause of the accident and injuries.

Proof necessary to overcome directed verdict for a D (manufacturer):

products liability

The umbrella term for the liability of a manufacturer, seller, or other supplier of chattels, to one with whom he is not in privity of contract, who suffers physical harm caused by the chattel

comparative fault

_____ applies in products liability cases

misuse

a manufacturer is not liable if you ____ the product

NOT LIABLE; you can sue the person who made it, not the person who sold it to you because you are paying for the service, not the product (you cant sue salon that use L'Oreals product and it turns your hair purple)

a person who sells you a product as a part of their service is liable or not liable???

consumer expectation test (FL view)

a product is defective and unreasonably dangerous when it fails to perform the way it is expected

consumer expectation

a product is in a defective condition and is unreasonably dangerous if it is dangerous to an extent beyond which would be contemplated by the ordinary customer who purchases it, with ordinary knowledge common to the community as to its characteristics

manufacturing defect

an imperfection that occurs when a specific product deviates from the manufacturer's intended design

design defects

an imperfection that occurs when the foreseeable risks of harm posed by a product could have been reduced by the adoption of a reasonable alternative design

Medical Device Amendments preempt state requirements that are different from, or in addition to, any requirements applicable to a medical device under federal law; State common law claims against an FDA approved medical device are preempted

case: Plaintiff, a cardiac patient sues Defendant, the manufacturer of a balloon catheter that ruptured in his artery during an angioplasty. The balloon catheter received premarket approval from the FDA; P tried to sue D manufacturer

If a product is reasonably expected to be dangerous (car tire) if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists.

case: The Plaintiff brought a negligence suit against the Defendant for injuries sustained after he was thrown from his car when the wheel collapsed. Defendant had sold the automobile to a retail dealer, who in turn sold it to Plaintiff. The wheel, which was sold to Defendant by another manufacturer, was made of defective wood. Evidence suggested that the defect could have been discovered through reasonable inspection, but no inspection occurred; D was liable and owed duty of care

Plaintiff

the ____ bears the burden of evidence and persuasion that the product contained a design defect

unavoidably unsafe products (no strict liability)

prescription drugs; you can never know and cannot know that certain drugs will effect people in certain ways and you cannot be held liable for not warning someone of something that cant be reasonably foreseen

warrant of merchantability

product is warranted for the ordinary use for which it was intended/designed

negligence

requires that the manufacturer failed to do something or did something that a normal manufacturer normally would have or wouldnʼt have done to make the product defective or not reasonably safe

risk-utility test

test is used to determine whether a product's design or warning is defective, thereby making the manufacturer liable for injuries caused by its product; The manufacturer is held liable under this test if the probability of injury times the gravity of injury under the current product design is more than the cost of an alternative reasonable design plus the diminished utility resulting from modifying the design (like learned hand formula)

consumer expectation test

test is used to determine whether the product is negligently manufactured or whether a warning on the product is defective. Under this test, the product is considered defective if a reasonable consumer would find it defective.

imputing knowledge

the difference between products liability and negligence is ______

manufactures

the one who negligently ____ a product will be liable for any personal injuries proximatley caused by his negligence

state of the art analysis

the requirement that the best scientific and medical technology that is practically and economically feasible at the time the product was made or marketed be utilized by the manufacturer. The product is evaluated in light of knowledge and technology that was available at the time of manufacture rather than at the time of trial

preemption

the rule of law that if the federal government through Congress has enacted legislation on a subject matter it shall be controlling over state laws and/or preclude the state from enacting laws on the same subject if Congress has specifically stated it has "occupied the field."

misuse

the use of a chair for hitting someone is a _____

intended

the use of a chair to sit on is ___

reasonably foreseeable but unintended

the use of a chair to stand on to change a lightbulb is _____

Wade's view

the view of this judge say you look at the technology at the time that it was manufactured, and asks if you could have made it better (graham likes it better)

leased products; lessors are the same as sellers

these types of products are also subject to product liability law