PRODUCTS LIABILITY
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Proximate cause: Defenses
1) Assumption of Risk: If P is entitled to rely on representation, assumption of risk does not apply. 2) Contributory Negligence (fault): Whether contributory neg. is a defense depends on type of misrepresentation. For neg. misrepresentations, contributory negligence is a valid defense. In SL actions for defective products. If P can show D's misrepresentation was intentional, contributory neg. will be NO defense.
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: Defenses
1) Assumption of risk: UCC-> if product used while individual KNOWS that there is a breach in warranty and uses anyway NO PROXIMATE CAUSE! 2) Contributory Negligence: Unreasonable failure to notice conduct not a bar BUT unreasonable conduct after notice IS A BAR 3) Comparative Negligence: comparative fault notions are used to reduce award damages (Like SL) 4) Notice of Breach: Buyer give seller notice of breach within reasonable time of buyer noticing or should hae noticed breach (Personal injury/ even when not in privity)
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Misrepresentation: Generally
1) Defendants state of mind, 2) Material Fact required, 3) Intent to induce reliance of particular buyer, 4) Justifiable reliance, 5) Actual Cause, 6) Proximate cause
PRODUCT LIABILITY: NEGLIGENCE: Prima Facie
1) LEGAL DUTY owed by D to P, 2) BREACH of that duty, 3)Actual and proximate cause, 4) Damages
PRODUCT LIABILITY: Types of Defects
1) Manufacturer, 2) Design, 3) Inadequate warning
PRODUCT LIABILITY: Common defect problems:
1) Misuse 2) Scientfically Unknown Risks 3) Allergies
PRODUCT LIABILITY: What makes it defective?: Feasible Alternative
1) Usefulness and desirability of product, 2)availability of safer alternative, 3) dangers of product identified by trial, 4) liklihood and probability of injury, 5) obviousness of danger, 6) normal public expectations of danger (especially established products, 7) avoidability of injuryby care in use of product (warnings and instructions), 8) feasibility of eliminating danger without seiously impairing products function/ making expensive
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Defenses:
1) contributory negligence, 2) comparative, 3) disclaimers of liability
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT:express warranty: scope
4) DISCLAIMER: Effective ONLY if read consistent w/express warranties. Almost IMPOSSIBLE to disclaim an express warranty.
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Causation: Actual
Actual Cause: traceable to a defect in product which existed when product left D's control. If cant trace (destroyed) Presumptions: 1) P may rely on inference that would only happen if defect existed. 2) If based on lack of adequate warning P rely on assumption that heeded warning
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT:
Both theories involve affirmative representation by D beyond the act of distributing a product. When doesnt live up to expectation both TORT and K are at issue.
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: PRIVITY: Vertical
Courts allow waranties to run w/ the goods, or retailer is manufacturers agent. Usually DONT NEED PRIVITY between buyer seller
PRODUCT LIABILITY: Breach of Duty: NEGLIGENCE: Design Defect
Designer must :knew or should have known of enough facts to put REASONABLE MANUFACTURER on notice of dangers of manufacturuing product NO NEG! if manufacturer only becomes aware of defect after it has reached public
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Defenses:Disclaimers of Liability
Disclaimers of liability are irrelevant in negligence or strict liabiliy cases if personal injury or proerty damage has occured.
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT:express warranty: general
Express Warranty arises where seller or supplier makes any affirmation of fact or promise to buyer relating to goods that becomes part of BASIS of the BARGAIN
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Commercial supplier: LIABILITY
For liability, 1) NOT substantially altered. Must be in substantially same condition it left manufacturer in. 2) NO PRIVITY required-> any supplier in CHAIN of custody extended to buyers friends family guests friends and employees and forseeable bystandanders JUST about whether product is DEFECTIVE Retailer still liable even if didnt get time to inspect
PRODUCT LIABILITY: Common defect problems: Allergies
If affects large number, the product is defective UNLESS adequate warnings conveyed Modern trend is to require warnings even if small group affected.
PRODUCT LIABILITY: What makes it defective?
In defective condition and is unreasonably dangerous to users 1) Manufacturer Def.: Must be DANGEROUS BEYOND THE CONDITION OF AN ORDINARY CONSUMER due to its departure from intended design->consumer expectation standard (food) 2) Design Defects: P must show that a LESS dangerous modification/ alternative ECO feasible.
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Intent to Induce Reliance of Particular Buyer
Intent to Induce Reliance of Particular Buyer: a) D must have intended to induce reliance of the buyer, OR b) a class of persons to which the buyer belongs, in a particular transaction Representation made to the public by label, ad, also sufficient to show I2IR to any P.
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Misrepresentation of Fact: Intent
Intentional Misrepresentation: misrepresentation was made 1) knowingly OR 2) reckless disregard for facts.
PRODUCT LIABILITY: Negligence: Causation: Intermediaries
Intermediaries neg. failure to discover defect is NOT superceding cause, D whose neg cause defect WILL BE LIABLE w/ intermdiary, UNLESS more than ordinary forseeable negligence-> b/c becomes superceding, intermediaries failure to notify of defect relieve D of liablility!
PRODUCT LIABILITY: Privity
K privity between P and D usually irrelevant. Privity: Kual agreement (direct sale) Verticle privity absent: remote chain (P sues manufacturer rather than retailer) Horizontal privity absent: Retailer to P BUT not P using (friend, family, stranger)
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Misrepresentation of Fact: D's State of Mind
Liability arises when the representation by seller about product induces reliance by buyer. Usually based on 1) STRICT LIABILITY, but may also be in 2)INTENT and 3)NEGLIGENT misrepresentation.
PRODUCT LIABILITY: Breach of Duty: NEGLIGENCE: Manufacturer Defect
Liability:1) Res Ipsa Loquitor OR 2) Dealer who obtains from reputable dealer need only make CURSURY INSPECTION to avoid liability
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT:express warranty: scope
Like express waranties, extended to bailors, and other nonsale transactions 1) PRIVITY NOT required in most cts today (unlike UCC which required privity) 2)Basis of the Bargain: a) buyer suing must have been the basis of bargain-> easier to prove than reliance, b) not in privity, then as long as it was basis of original bargain, may still sue 3) Basis of LIABILITY: Breach of Warranty: NO FAULT needed, just factual breach (allergy). 4) Causation: Same as implied warranties 5) Damages: Same as implied warranties 6) Defenses: Same as implied warranties
PRODUCT LIABILITY: Negligence: Damages
May recover for personal injury, property damage * Some jurisdiction, purely eco loss (repairs) means cant win on neg grounds, ony K breach of warranty in that case.
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Defenses: Comparative
Most Comparative neg. states apply these rules to strict liability cases
PRODUCT LIABILITY: NEGLIGENCE: Breach of Duty
Must show 1) negligent conduct by D leading to 2) supplying of a defective product by D, -> standard must fall below REASONABLE PERSON under LIKE CIRCUMSTANCES consider SUPERIOR SKILL TRAINING as D has or proports to have.
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Misrepresentation of Fact: Neg.
Negligent misrepresentation: Do not need actual knowledge of the misrepresentation, NEED Reasonable person would have known statement to be false when making them.
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Justifiable reliance
No L is not known or does not influence the transaction. Reliance found ONLY when: representation was Substantial Factor in inducing purchase->even though other inducements may exist Privity irrelevant: prior purchaser passed to P is ok, even if P knows nothing of misrepresentatin.
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: Damages
Personal injury, property damage AND economic loss.
PRODUCT LIABILITY: What makes it defective?: Feasible Alternative: Government safety standards
Product will be defective in design or warning if it fails to meet gov standards. Showing compliance w/ sandards doesnt negate defect or relieve liability but it serves as evidence Fed rules do NOT preempt state rule
PRODUCT LIABILITY: Generally
Refers to the liability of a supplier of a product one injured by the product. 5 Theories: 1) Intent, 2) Negligent, 3) Strict, 4) Implied Warranties of merchantability and Fitness for a particular purpose, 5) Representation Theories (Express warranty and misrepresentation). REMEMBER there are different types!! Must show: Product was defective when it left D's control.
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Material Fact
Regardless of state of mind applied need MATERIAL FACT-> quality/ nature/ appropriate use on which RConsumer expected to rely. PUFFING and OPINION insufficient
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Actual Cause
Reliance of purchaser is actual cause of injury
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Commercial supplier: Examples
Restaurant: suplier Hospital transfusion: service] Pilot v. airplane: Neg v. Strict liability
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Commercial supplier
SL applies when D must be a manufacturer of defective product or part, retailer, assembler or wholesaler *Trend: L for Mass producers new homes, commercial lessors, sellers of used products reconditioned/ rebuilt
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Misrepresentation of Fact: SL
SL: 1) D is engaged in selling such products-> no need to show fault, 2) D's representation WAS false, regardless of D's intent
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: PRIVITY: Disclaimers
SPECIFIC and narrowly construed Contractual limitations on personal injury damages resulting from breach of warranty for consumer goods -PRIMA FACIE UNCONSCIONABLE
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Causation: Proximate
Same as Neg. Negligent failure of an intermediary to discover defetc does NOT cut off liability
PRODUCT LIABILITY: Neglgence: Causation
Same as neg. proximate and actual causation
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Damages
Same as negligence action 1) personal injury, 2) propery damage *Most states DENY recovery if loss is only economic
PRODUCT LIABILITY: REPRESENTATION/ EXPRESS WARRANTY AND MISREPRESENTATION OF FACT: Proximate cause and Damages
Same as product liability based on neg. or SL. Sometimes if intentional allow punitive damages
PRODUCT LIABILITY: Common defect problems: Misuse
Some products are serious dangers if misused, cts require suppliers to ANTICIPATE REASONABLY FORESEEABLE uses.
PRODUCT LIABILITY: Common defect problems: Scientfically Unknown Risks
Sometimes dont know danger until product already marketed (drugs). EVEN WHEN more dangerous than consumer expected, cts usually dont find UNREASONABLY DANGEROUS when a) impossible to anticipate problem or b) make product safer
PRODUCT LIABILITY: NEGLIGENCE: Defective Product Analysis
The same analysis of "unreasonably dangerous" applies to Neg, & Strict Liability
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: PRIVITY: Horizontal
UCC silent but three theories: 1) buyers family and household/ guests, 2) any natural person, 3) any person...who sufferes injury. Most states do (1).
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE
When Neg is difficult to prove (brach of Warranty) 1) Strict duty owed by commercial supplier, 2) Production or sale of a defective product, 3) Actual and Proximate Cause, 4) Damages
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: Merchantability
When a merchant deals in goods of specific kind, implied that goods are 1) MERCHANTABLE, 2) QUALITY generally acceptable to similar dealers, 3)and are fit for the ordinary purpose such goods used.
PRODUCT LIABILITY: Types of Defects: Design defect
When all products of a line made identically to manufacturer specifications, but have dangerous propensities due to their mechanical features or packaging
PRODUCT LIABILITY: Types of Defects: Inadequate Warning
When clear and complete warnings of any dangers which may not be apparent to users are undisclosed. *Learned intermediary rule for meds, and med devices. Sometimes viewed as a design defect
PRODUCT LIABILITY: Types of Defects: Manufacturer
When product arises 1) different from other products AND 2) More dangerous than it would have been, had it been done properly. If unreasonably dangerous then defective
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
When product fails to stand up to its implied warranty standard. Plaintiff NOT required to show D FAULT. Applicable to 1) Sale of Goods (UCC),2) bailment, 3) lease
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: Implied fitness for particular purpose
When seller knows or has reason to know 1) particular purpose goods require, 2) buyer is relying on seller's skill/ judgment to select/ furnish suitable goods3) USUALLY merchand of particular goods, NOT mandatory though.
PRODUCT LIABILITY: INTENT: General
Will be liable if the D intended consequences or knew they were substantially certain to occur. RARE 1) Usually based on batery, 2)privity irrelevant, 3) damages (compensatory/ punative) 4) CONSENT -> no neg
PRODUCT LIABILITY: NEGLIGENCE: Duty of Care
applies when COMMERCIAL SUPPLIER Repairers: owe general duty of care Retailers held neg even when 1) simply labling product as their own, OR 2) assembling product from components of other manufacturers No privity needed- any forseeable P (user consumer bystander)
PRODUCT LIABILITY: Strict Tort Liability: PRIMA FACIE: Defenses: Contributory
contributory negligence NOT available when P simply 1) failed to notice and guard against defect, 2) misuse was forseeable Assumption of risk- voluntarily and unreasonably taking on the risk is a defense
PRODUCT LIABILITY: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS: CAUSATION
same as negligence
