Tort Law- Ch. 12

Express Warranty Made in one of three ways:

1)as an affirmation of fact or promise regarding the goods, or 2) a description of the goods, or 3) by use of a sample or model of the goods

Section 402 A

Special liability of seller or product for physical harm to user or consumer 1. 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 his property if a.the seller is engaged in the buisness of selling such a product b. it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold 2. The rule above applies although a. the seller has exercised all possible care in the preparation and sale of his product b. the user or consumer has not bought the product from or entered into any contractual relation with the seller

What can plaintiff recover in express warranty?

personal injuries property damage pure economic loss incidental and consequential damages

What can plaintiff recover in implied warranty?

personal injuries property damage pure economic loss incidental and consequential damages (direct purchaser only)

What can plaintiff recover in Negligence?

personal injuries property damage economic loss (although pure economic loss is difficult to prove)

Defect products cause what three types of losses?

personal injury- injury to a person property damage-physical injury to property economic loss-diminution in the value of the product

Unavoidably Unsafe Products

products that are incapable of being made safe for their intended and ordinary use.

Product Liability

refers to the liability of a manufacturer, seller, or other supplier of a chattel which, because of a defect, causes injury to a consumer, a user, or in some cases a bystander

Requirements for goods to Merchantable

- be "fit" for the ordinary purposes for which such goods are used -be within the variations permitted by the agreement of even kind, quality, and quantity within each unit and among all units involved -be adequately contained, packaged, and labeled as the agreement may require -conform to the promises or affirmations of fact made on the container or label if any

Defenses in Warranty

-contributory negligence -comparative negligence -assumption of risk -disclaimer of warranty -limitation of remedies -failure to discover breach in reasonable time -statute of limitations/statute of repose

Defenses in Strict Liability

-contributory negligence (only if plaintiff misued product or used in an abnormal fashion) -comparative negligence (subject to much controversy) -assumption of risk -statute of limitations/statute of repose

402 A- plaintiff must prove 5 elements

-product was sold -product was defective -the defective product was the cause in fact and proximate cause of the plaintiff's injurires -the defect existed at the time the product left the defendant's hands -the item was manufactured or sold by the defendant

Requirements for certification

-there is a common issue of law or fact among members of the class -the claims and defenses alleged by the proposed representative are typical of the claims and defenses of the other members of the class -there are so many potential claimants and it would be impractical to join them in one action as plaintiffs -the proposed representative party will fairly and adequately represent every member of the class -the adequate notice will be given to all potential members of the class(ads in newspapers and establishing websites)

Liability can be based on any of three theories of recovery

1) Negligence 2) Warranty 3) Strict Liability

A manufacturer may be negligent in:

1) The way it designs or manufactures its product 2) its failure to conduct a reasonable inspection or test of its finished products 3) its failure to package and ship its products in a reasonably safe manner

Three major defects plaintiffs typically allege are

1) manufacturing defects 2) design defects 3) defective warnings

Strict Liability now constitute the primary basis for liability for manufacturers of products for 3 reasons

1) sellers of defective products, rather than consumers, should bear the cost of compensating tort victims 2)sellers should be made to internalize the cost of any injuries their products inflict, forcing them to incorporate the cost of liability into the product itself and thereby raising the market price of the product 3)the sophistication of modern products prevents the average consumer from pinpointing the act of negligence responsible for her injuries

Where is Merchantability Warranty Applicable?

Allowed: sale of food or drink Not allowed: Services and Real Estate Transactions

Negligence

Anyone who negligently manufactures a product is liable for any personal injuries proximately caused by her negligence.

Commercial and Economic Loss

Contract Claim

Who can sue in Express Warranty?

Direct purchaser remote purchaser user (if member of general class expected to be reached by warranty

Strict Liability Causation

Frequently defendants will argue that intervening events were the promximate cause of the plaintiff's injuries. Courts are more likely to find a superseding cause in a strict liability cause of action than in a negligence case. Generally if the act was reasonably foreseeable it will not be considered a superseding act. If the act was unforeseeable but caused the same type of harm that made the product dangerous, then once again the act will not be considered superseding

Who can be sued in implied warranty?

Manufacturer User of manufacturer of component part retailer (except for sealed containers in some courts) lessor seller of real estate (in some courts) seller of service (in some courts)

Who can be sued in express warranty?

Manufacturer User or manufacturer of component part retailer lessor seller of real estate supplier of a service

Who can be sued in Negligence?

Manufacturer User or manufacturer of component part retailer (difficult to prove) Lessor Seller of real estate Supplier of a service

Retailers

Suits against retailers on the basis of negligence are often unsuccessful. The sale of a negligently manufactured or designed product is not enough itself to show negligence. The manufacturer is liable if a retailer fails to make an inspection that is under an obligation to make, unless they learn of defect and sell it anyways. Generally a retailer has no duty to inspect

Users and Makers of Component Parts

The manufacturer of a component part, no less than the manufacturer of the completed product may be liable for failure to use reasonable care in inspections.

Damage to Persons or Property

Tort Claim

Recovery in Implied Warranty Claims

a direct purchases can recover on the basis of implied warranty for personal injury and property damage resulting from product, and economic damages can recover the difference between what the product would have been worth had it been warranted and what it's worth with the defect can recover incidental and consequential damages

Defective Condition for strict liability

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

402 Applies only to

a sale of a product and not to the provision of services a movie theater who sells popcorn is engaged in the sale of products even though service is his main buisness and still liable

Express Warranty

a seller expressly represents that the goods possess certain qualities ex. windshield advertised as "shatterproof"

Defective Warnings

absence of warnings regarding the possible dangers of a product obviousness of danger is a factor in determining obligation. However obviousness of dangerous doesn't exempt this obligation. Some products are so dangerous they shouldnt be sold at all

statute of repose

adopted by some states, yes florida 12 years, provide a fixed period of time from the date of the original sale during which a product liability suit can be brought. statute of limitations=begins to run at the same time of injury statute of repose =begins at the date of sale

design defect

all products manufactured by the defendant are the same but posses a feature that is unreasonably dangerous was there another available design? defendants try to use state of the art defense in which they argue that the level of technology existing at the time they made the product prevented them from making a safer design, works unless the product is so dangerous it shouldnt be produced

Certification of a class

allowing one or more members of the class to serve as representatives for other members of class`

Who may be a defendant in strict liability?

anyone in the buisness of selling goods, whether or not he is the manufacturer. Ex. owner of movie theater selling popcorn is but a private individual selling furniture on craigslist isnt

Who may be a plaintiff in strict liability?

anyone who is the "ultimate user or consumer". many courts have been willing to extend it to bystanders whose presence was reasonably foreseeable

Warranty

combination of tort and contract law originally action was deemed a form of misrepresentation and was therefore considered a tort. But because most warranties arose under common law in situations involving a contract of a sale, contract law was also applicable Tort Claim: Plaintiff allege that she has been exposed by means of a hazardous product to an unreasonable risk of injury Contract Claim: Allege the product failed to perform in accordance with the expectations one would have for a product of a particular quality and fit for ordinary us

Defenses in Negligence

contributory negligence comparative negligence assumption of risk statute of limitations/statute of repose

Implied Warranty of Fitness for a Particular Purpose

created when a seller who knows that a buyer wants goods for a particular, noncustomary purpose makes a recommendation on which the buyer relies

Economic loss

diminution in the value of the product and includes items such as the cost of repairs, cost of replacement, and the loss of profits

Who can sue in Strict Liability?

direct purchaser remote purchaser user bystanders (some courts)

Who can sue in Negligence?

direct purchaser remote purchaser user (if reasonably foreseeable)

Who can sue in Implied Warranty

direct purchaser remote purchaser user (some courts)

Structural Defects

exists when the defendant's choice of materials results in a structural weakness, causing the product to be dangerous

Privity

former requirement that a plaintiff in a negligence action was required to contract directly with the defendant abolished in MacPherson v. Buick Motor Co. tire broke but who was liable, manufacturer or retailer? Now a plaintiff can sue the manufacturer, the retailer, or the lessor of a product

Damages in Negligence Cases

generally seek to recover damages resulting from personal injuries, they can also recover for property damage plaintiffs in negligent actions generally have a hard time recovering for pure economic loss. breach of warranty is preferred for economic loss

Greenman v. Yuba Power Products Inc.

held that the plaintiff's failure to give timely notice of breach of warranty to the defendant as required by California Law didnt bar his recovery because the defendant was strictly liable

Foreseeable Misuse

if such misuse is reasonably foreseeable by the manufacturer, most courts will require the manufacturer to employ reasonable design precautions to protect the plaintiff from the danger resulting from that misuse. ex. second collisions inside vehicles

Implied Warranty of Merchantability

implied in a contract for the sale of goods if the seller is a merchant in the regular business of selling the kind of goods in question

Defective warning

involve a failure to give adequate warning or directions for use

Who can be sued in strict liability

manufacturer user or manufacturer of component part retailer lessor seller of real estate supplier of service

Who can breach of warranty actions be brought against?

manufacturers, retail dealers, component manufacturers

Lessors, Real Estate Agents, and Sellers of Services

may also be held liable in negligence for failing to discover defects ex. rental car companies that lease defective cars, providers of blood transfusions

Damages in Strict Liability

may recover for property damages as well as damages resulting from personal injuries loss profits and other economic harm are generally not recoverable unless the plaintiff can show that she also suffered injury or property damage

Absence of Safety Features

must consider the expense of installing safety feature in comparison with the cost of the product and the magnitude of the danger that exists without such a safety feature. If minimal and not incorporated, defective

When defect existed in strict liability

must show the defect existed at the time the product left the hands of the defendant manufacturer

Recovery in Express Warranty

need not show that she believed the seller's representations to be true, nor in most cases, that she was even aware of the express warranty. All the plaintiff need to show is that the representation was in fact false. don't have to be in privity with the seller a plaintif whose damages are solely economic can recover the difference between what the product would have been worth had it been as it was warranted and what it was in fact worth with its defect buyer can also recover for incidental and consequential damages, property damage and personal injuries resulting from the defective product

What can plaintiff recover in strict Liability?

personal injuries property damage economic loss if accompanied by personal injury or property damage

Implied Warranty

representations as to a product's qualities that are implied by virtue of the product being offered for sale

manufacturing defect

results from a deviation the manufacturing process that causes the item that injures the plaintiff to be different from others manufactured by the defendant

Strict Liability over Warranty Claims?

strict liability is easier to prove than breach of warranty and is virtually identical to warranty claims However if consumer is direct purchaser and whose damages are solely economic will likely sue for breach of warranty rather than for strict liability or negligence because of the generosity of the UCC in providing damages.....ex what it was worth when warranted-what its worth with damages

Any design defect alled by plaintiff must fall into 1 of 3 categories

structural defect absence of safety features misuse of product

Class Action

suit in which representative parties act on behalf of everyone that was injured, eliminating the need for each of those to file an individual suit