Chapter 10

In a state where the defense of pure comparative negligence is allowed, if 30 percent of the harm is attributable to the plaintiff's negligence, the defendant is required to pay ______.

70 percent of the damages

Under ______, the actions of the manufacturer or seller are not relevant; rather, liability focuses on the item under consideration. (Check all that apply.)

Strict product liability

Which of the following is true in case of the assumption of risk defense?

The consumer is aware of the defect in the product before using it.

What is one of the elements of the cause of action for a negligence product defect for failure to warn?

The defendant knew or should have known that without a warning about the product, the product would be dangerous.

Under the pure comparative negligence defense, what would happen if the defendant was found to be 50% negligent in a product defect case?

The defendant would pay only 50% of the damages the court awards the plaintiff.

Which of the following are necessary elements for a successful case based on negligent failure to warn? (Check all that apply.)

The defendant, despite knowing the danger, chose not to provide the warning. The defendant knew or should have known that without a warning, the product would be dangerous for ordinary use.

What defense to the product defect negligence action indicates that the negligent behavior was reasonable given the current scientific knowledge?

State-of-the-art defense

failure to provide adequate warnings

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

In which of the following scenarios, a manufacturer does not have the duty to warn to handle the product safely?

A set of sharp kitchen knives

In order to be a design defect, what must be true?

All products of a particular design must be defective.

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.

What is one way in which a product may become defective?

As a result of the manufacturer failing to give an adequate warning

What are defenses that can be used for strict liability cases? (Check all that apply.)

Assumption of risk Product misuse

What is the name of the defense for a product defect negligence case whereby the consumer is aware of the defect before the accident and continues to use the product?

Assumption of the risk defense

Which of the following is not a recognized defense in a negligence-based product liability action?

Collective negligence

What is the name of the test used when a court asks if a product met the standards expected by a reasonable consumer?

Consumer expectations test

What are the possible defenses to a product defect negligence action? (Check all that apply.)

Contributory negligence Modified comparative negligence Comparative negligence

Which of the following is a class of products that is often the basis for actions based on negligent failure to warn because the use of these products frequently causes adverse reactions?

Drugs

Which of the following are types of warranties? (Check all that apply.)

Express Implied

What type of warranty involves the making of an affirmative representation?

Express warranty

Compliance to what type of laws provide the defendant a defense in a product defect negligence action?

Federal laws

Which implied warranty requires that the seller be a merchant?

Implied warrant of merchantability

Identify true statements about warranties. (Check all that apply.)

Implied warranties can give rise to liability. Some warranties automatically arise out of a transaction.

Martha buys a bicycle for her son to commute to school. Within a month, the spokes of the wheels break and her son falls off the bicycle and gets injured. When Martha calls the company to complain, she is informed that the bicycle is meant for children under a certain weight. She does not find any labels on the bicycle indicating the weight range. Which of the following types of defects is exemplified in the given scenario?

Inadequate warning

Which of the following is a reason why a product can be defective?

Inadequate warnings

What are ways in which a product can be defective? (Check all that apply.)

Inadequate warnings A design defect A manufacturing defect

Which of the following is true of the implied warranty of merchantability?

It is inferred in every sale made by a merchant unless clearly disclaimed.

Identify a true statement about the consumer expectations test. (Check all that apply.)

It is not answered by the use of expert testimony about the merits of the design. It relies on the experiences and expectations of ordinary users.

Strict Product Liability

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

What type of defect refers to an individual product that is more dangerous than identically distributed products?

Manufacturing defect

What type of defect to a product must exist to bring a product liability case based on strict liability?

Manufacturing defect

When Sam tries to use his new microwave oven to warm his coffee, the oven does not work. He takes it back to the store. The store manager gives him a replacement oven of the same model. The replacement oven works. What kind of defect did the first oven most likely have in the given scenario?

Manufacturing defect

If a plaintiff fails to use a product in a reasonable or foreseeable way, then what defense to a product defect negligence action exists?

Misuse

What are the commonly used theories for recovery in product liability cases? (Check all that apply.)

Negligence Breach of warranty

What form of negligence is created when a manufacturer fails to follow standards set by a law?

Negligence per se

Would a manufacturer of razors be responsible for negligence if it failed to warn consumers that its razors might cut them?

No, because no duty to warn exists for obvious dangers of the product.

How can retailers or wholesalers satisfy their duty of care and protect themselves against a product defect negligence charge?

Perform a cursory reasonable inspection of the product when they receive it

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.

In the context of negligence-based defense, which of the following statements is true of the contributory negligence defense?

Proof of any negligence by the plaintiff is an absolute bar to recovery.

What type of damages can a plaintiff seek in a product defect negligence case? (Check all that apply.)

Punitive damages Compensatory damages

Who among the following can satisfy their duty of care by making a cursory reasonable inspection of a product when they receive it from the manufacturer?

Retailers

Which of the following must a plaintiff do to establish a claim for breach of express warranty? (Check all the apply.)

Show that the representation was the basis of the bargain Prove that there was a breach of the representation

Identify the defenses to a negligence-based product liability claim that are most likely to be available in most states in a strict-product liability case. (Check all that apply.)

The lapse of time under statutes of limitations The assumption of the risk defense The misuse of products defense

Which of the following are elements of negligence? (Check all that apply.)

The manufacturer or seller owed a duty. The manufacturer breached the duty of care by supplying the defective product.

Which of the following parties are potentially liable in a strict product liability action?

The manufacturer, the distributor, and the retailer

Under the contributory negligence defense, what happens if there is proof that the plaintiff contributed to the negligence product defect in the case?

The plaintiff is barred from recovering any damages.

Which of the following are reasons why a manufacturer would have to provide a warning for an over-the-counter drug? (Check all that apply.)

The product contained an ingredient to which a large number of people have an adverse reaction. The manufacturer should have known that there was a group of people that could have an adverse reaction to the drug

What common elements appear in most product liability causes of action? (Check all that apply.)

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

Which of the following are elements or conditions necessary for a product to be deemed merchantable under the UCC? (Check all that apply.)

The product must be adequately packaged as indicated in the agreement. The product must be fit for ordinary use. The product must conform to promises made on label.

Identify the mandatory conditions that must exist to succeed in an action for breach of the implied warranty of fitness for a particular purpose. (Check all that apply.)

The seller must have knowledge of the customer's specific purpose. The customer must have relied on the seller's skill and judgmen

In which of the following types of defense to failure-to-warn claims, the consumer's knowledge of certain dangers is considered equivalent to notice?

The sophisticated-user defense

What does the term "merchantability" mean?

The term means that particular goods would be accepted by others who deal in similar goods.

Where is the implied warranty of fitness found?

UCC Article 2, Section 315

An express warranty may be presented in what forms? (Check all that apply.)

Written Oral

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

an assurance or guaranty, either expressed in the form of a statement by a seller of goods or implied by law, having reference to and ensuring the character, quality, or fitness of purpose of the goods

Some courts use a(n) ______ test for product liability negligence cases that weigh the degree of danger to be avoided with the ease of warning.

balancing

Implied Warranty of Fitness for a Particular Purpose

buyer has enforceable warranty with false assurance

Under a strict liability analysis, a defective condition can render a product ______ dangerous. (1)

bystander

Damages recoverable in negligence-based product liability cases are the same as those in any action based on negligence_________damages and ___________ damages.

compensatory punitive

The ______ defense is a defense to state tort law because the state tort law is preempted by it.

compliance with federal regulations

When all products of an identical make are defective, then the products have a(n) ______ defect.

design

A product may be defective due to any of the following: _______. (Check all that apply.)

design defect manufacturing defect inadequate warning

In applying a balancing test for determining liability in a product liability negligence case, the court will weigh the degree of danger to be avoided with the: _______.

ease of providing a warning

When a manufacturer provides a warning for a product, it must ensure: _______.

ensure it will get to consumers

According to the statement made by California Supreme Court in the Elmore v. American Motors, in a case where injury from a product defect is reasonably foreseeable, bystanders are _______.

entitled to greater protection than the user

In a modified comparative negligence state, the 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 ______ percent of the harm.

fifty

For ______ goods to be merchantable, they must be of fair average quality within the description.

fungible

When a seller sells a particular kind of goods, there is a(n) ______ which means that the particular goods would be accepted by others who deal in similar goods.

implied warranty of merchantability

In a negligence action, the injured party is owed a duty of care by the: ________. (Check all that apply.)

manufacturer seller

Under the ______ ______ theory, the plaintiff must prove that the manufacturers of substantially all the defective products in the relevant area and during the relevant time are named as defendants.

market share

One defense to a product defect negligence case is ______ of the product, which is when the plaintiff did not use the product in a reasonable or foreseeable way.

misuse

In applying ______ test, the court focuses on the usefulness and safety of the design and compares it to an alternative design.

risk-utility

The feasible alternatives test is sometimes referred to as the ______ test.

risk-utility

If a consumer of a product has specific knowledge of certain dangers of that product, then the manufacturer would assert the ______ form of defense in a product defect negligence action.

sophisticated-user

The ______ defense is 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.

state-of-the-art

A product liability case based on the theory of ______ may be brought when a person is injured by a product with a manufacturing defect that caused that product to be unreasonably dangerous.

strict product liability

In order to establish a claim for breach of express warranty, the representation must be

the basis of the bargain.

After the MacPherson case, the plaintiff can bring an action for a defective product directly against manufacturer because: _______.

the court indicates any foreseeable plaintiff can bring a defective product claim against retailers, wholesalers or manufacturers

In a modified comparative negligence state, the plaintiff can recover the percentage of harm caused by the defendant only if ______.

the plaintiff's negligence is responsible for less than 50 percent of the harm

A necessary element of a product liability claim is that: _______.

the product must be defective

In order to establish a claim for breach of express warranty, the representation must be (1)

the seller is a merchant

Prior to the MacPherson case, the plaintiff could not bring an action against a manufacturer because: _______.

there is no privity of contract between manufacturer and consumer

Product liability is based on: _______.

tort law

Under the market share theory, the plaintiff is: _______.

unable to identify which manufacturer caused the injury

Under a strict liability analysis, a defective condition can render a product ______ dangerous.

unreasonably

A manufacturer must ensure that a(n) ______ reaches those consumers who are intended to use his or her product.

warning

A(n) ______ is a guarantee or a binding promise regarding a product.

warranty

What is the term for a guarantee or binding promise regarding a product?

warranty

Negligence per se is proven: _______.

when a manufacturer fails to follow the standards for safety that are proscribed in law

Under a strict product liability case, the product must have been defective: _______.

when sold