Chapter 7 - Strict Liability and Product Liability

Misrepresentation

when a user or consumer is injured as a result of the manufacturers or sellers of fraudulent misrepresentation, the basis of liability may be the tort of fraud. Professors notes:

due care

If a manufacturer fails to exercise "due care" to make a product safe, a person who is injured by the product may sue the manufacturer for negligence. manufacturers must use due care in all of the following areas: 1. if negligent Designing the product. 2. if negligent in Selecting the materials. 3. Using the appropriate production process. 4. Assembling and testing the product. 5. Placing adequate warnings on the label to inform the user of dangers of which an ordinary person might not be aware. 6. Inspecting and testing any purchased components used in the product. Professors notes: You can sue for negligence. manufacturer liable for its failure to exercise due care. to any person injured proximately caused by there manufacturers negligence.

knowledgeable user

a related defense is the knowledgeable user defense. 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 users of the danger. Professors notes: *

assumption of risk

assumption of risk can sometimes be used as a defense in a product liability action. to establish assumption of risk, the defendant must show the following: 1. The plaintiff knew and appreciated the risk created by the product defect. 2. The plaintiff voluntarily assumed the risk-by express agreement or by words of conduct-even though it was unreasonable to do so. Professors notes: *

comparative negligence (fault)

comparative negligence or fault can also affect strict liability claims. today, courts in many jurisdictions considered the negligent or intentional actions of both the plaintiff and the defendant when apportioning and in liability and damages. a defendant may be able to limit some of its liability if it can show that the plaintiff's misuse of the product contributed to his or her injuries. Professors notes: the plaintiffs own negligence was the cause. similar to assumption of the risk.

commonly known 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. Professors notes: if everybody knows about it then the defendant can escape liability.

Product misuse

similar to the defense of voluntary assumption of risk is that a product misuse, which occurs when a product is used for a purpose for which it was not intended. Professors notes: the plaintiffs use was not reasonably forseeable.

abnormally dangerous activities

strict liability for damages proximately caused by an abnormally dangerous, or ultrahazardous, activity is one application of strict liability. courts apply the doctrine of strict liability in these situations because of the extreme risk of the activity. abnormally dangerous activities 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. activities such as blasting or storing explosives qualify as abnormally dangerous. Persons who keep wild animals are strictly liable for any harm inflicted by the animals. an owner of domestic animals, such as dogs, cats, cows, or sheep, may be strictly liable for harm caused by those animals if the owner knew, or should have known, that the animals were dangerous or had a propensity to harm others. Professors notes: aka ultra hazardeous. it's so dangerous that it gives rise to liability regardless of fault. does it have harm? have high degree of risk? not commonly performed in the community? ex: blasting hotels on the strip (taking it down). You don't have to show duty. Defendant automatically pays it. a person who keeps a wild animal is strictly liable. owner of a domestic animal is liable if the owner knew or should have known that it was dangerous. 1 bite rule- if the dog bit before or has been trained, then you are liable.

Strict liability A.k.a. liability without fault

we looked at a category of tort called strict liability. under the doctrine of strict liability, 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. Professors notes: liability regardless of fault.

unreasonably dangerous product (product defect)

Sellers or lessors are liable only for products that are unreasonably dangerous. a court could consider a product so defective as to be an unreasonably dangerous product in either of the following situations: 1. The product was dangerous beyond the expectation of the ordinary consumer. 2. A less dangerous alternative was economically feasible for the manufacture, but the manufacturer failed to produce it. Professors notes: so defective it threatens a consumers health and safety bc is dangerous beyond the expectation of the ordinary customer. or manufacturer failed to produce a safer product. Ex: Ford Pinto.

manufacturing defects

according to section 2a of the restatement (third) of torts, a product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. basically, a manufacturing defect is a departure from a product units design specifications that results in products that are physically flawed, damaged, or incorrectly assembled. a glass bottle that is made to thin and explodes in a consumers face is an example of the product with a manufacturing defect. Professors notes:

Product liability

those who make, sell, or lease goods can be held liable for physical harm or property damage caused by those goods to a consumer, user, or by standard. product liability may be based on the theories of negligence, misrepresentation, strict liability, and warranties . multiple theories of liability can be, and often are, asserted in the same case. we look here at product liability based on negligence and on misrepresentation. Professors note: manufacturer/seller has a liability to users. Ex: samsung note 7. can sue samsung and the seller.

Preemption

a defense that has been successfully raised by defendants in recent years is preemption-that government regulations preempt claims for product liability.an injured party may not be able to sue the manufacturer of defective products that are subject to comprehensive federal regulatory schemes. Medical devices, for instance, are subject to extensive government regulation and undergo a rigorous premarket approval process. Defendants in product liability suits can raise a number of defenses. Professors notes: gov regs can preempt claims for liability. Ex: guns

requirements for strict product liability

the basis for an action in strict liability that are set forth in section 402a of the restatement (second) of torts can be summarized as a set of six requirements: 1. The product must be in a defective condition when the defendant sells it. 2. The defendant must normally be engaged in the business of selling (or otherwise distributing) that product. 3. The product must be unreasonably dangerous to the user or consumer because of its defective condition (in most states). The three types of product defects that have traditionally been recognized in product liability law-manufacturing defects, design defects, and inadequate warnings. 4. The plaintiff must incur physical harm to self or property by use or consumption of the product. 5. The defective condition must be the proximate cause of the injury or damage. 6. The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained. Professors notes:

strict product liability

the law imposes strict product liability as a matter of public policy. this public policy rests on the threefold assumption that: 1. Consumers should be protected against unsafe products. 2. 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. 3. 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. Professors notes: rests on assumption that consumers should be protected from unsafe products....

statutes of limitations and repose

statutes of limitations restrict the time within which an action may be brought. the statute of limitations for product liability cases varies according to state law. usually, the injured party must bring a product liability claim within 2 to 4 years. Professors notes: something happens to you, from that time you must bring a lawsuit within x amount of years. if you don't you can't bring a lawsuit. You must act quickly.