Term
| What originally kept negligence from applying when personal injury was caused by a product? |
|
Definition
| Privity - the requirement that to maintain an action, P must show that he contracted directly with D. |
|
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Term
| Which case does the privity requirement stem from? |
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Definition
|
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Term
|
Definition
| Driver of mail coach sued D, who was supposed to keep the coach in good repair. D had a contract with the post office. Court held that D's duty of repair arose from the contract, and that the duty only extended to the contracting party. A lack of privity meant P couldn't recover in contract or tort. |
|
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Term
| How did the courts loosen up between Winterbottom and MacPherson? |
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Definition
| Courts permitted negligence suits without privity where personal injury occurred from an inherently dangerous defective product. (Food, for example, could be imminently dangerous.) |
|
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Term
| What was Cardozo's big case that changed the inherently dangerous rule? |
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Definition
| Macpherson v. Buick - bad wheel that Buick could have discovered with reasonable inspection |
|
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Term
|
Definition
| P could recover for negligence, despite the fact that he was not in privity with the D. Right of recovery arose from tort, not from contract. Also, the inherently dangerous test was out, P only had to show that the product was reasonably certain to place life and limb in peril when negligently made. |
|
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Term
| Significance of MacPherson |
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Definition
| Oce P shows a product is unreasonably dangerous if defective, he may sue in negligence without privity. |
|
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Term
| New rule wrt negligence that came from MacPherson |
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Definition
| One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence r 2d 395 |
|
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Term
| Most courts allow negligence recovery where it is only ___, not personal injury which results |
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Definition
|
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Term
| If the plaintiff suffers only economic harm, can he recover from a remote seller? |
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Definition
|
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Term
| if plaintiff is casual bystander, can he recover in negligence? |
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Definition
| Only if he was a foreseeable Plaintiff - eg a pedstrian injured in a car wreck could recover |
|
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Term
| Ways that a manufacturer can be negligent |
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Definition
Design - not using due care to design product in a reasonably safe way
Manufacture - Not using reasonably error-free manufacturing procedures
Inspection and testing - Duty to perform reasonable inspections and tests of the finished products
Packaging and shipping - duty to package and ship product in a reasonably safe way
Assembly of parts made by another - taking reasonable care to obtain components from a reliable source and make reasonable inspection of components
Component manufacturer - must use reasonable care to design a safe product |
|
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Term
| If the retailer has a duty to inspect and doesn't what happens to manufcaturer |
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Definition
| Proably not absolved of liabilty for negligent manufacture. But if the retailer learns of the defect and fails to warn customer, many courts hold that it breaks the chain of causation |
|
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Term
| Because it's difficult to bring a suit for negligence against a retailer, what do people usually sue for? |
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Definition
| Warranty or Strict liability |
|
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Term
| Can the retailer be negligent if she has reason to know of a danger? |
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Definition
| Yes, if she does not at least warn customers |
|
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Term
| In general, does the retailer have a duty to inspect the goods? |
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Definition
| Not if there's a reason to believe the product may be dangerous. This is true, even if there's a defect that could have been discovered by a very simple examination. But a minority of courts say the retailer has to make a simple examination no matter what. This is particularly true if retailer is a car dealer because injury is likely to be severe and car dealer has more expertise than consumer. |
|
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Term
| Can a retailer be negligent because of who they sell to? |
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Definition
| Yes, if they sell to someone who can't use it safely, like selling weapons to a minor, that may be an example of negligence |
|
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Term
| Who besides retailers and manuf may have negligence laibility |
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Definition
| bailors of real property (car rental), sellers and lessors of rela estate, suppliers of services (blood transfusions) |
|
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Term
| Historically, who could recover from warranty and when |
|
Definition
| Purchaser can collect from seller even in absence of negligence. Even if seller reasonably and honestly believed reps were true and couldn't have discovered the defect, that was irrelevant, nad even though the defects were due to someone else's negligence, that was irrelevant, too. |
|
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Term
| Relationship between historical idea of warranty and contract |
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Definition
| Warranties only arose where there had been a contract of sale. For instance, SOL usually applied as did the contract measure of damages, including damages for pure economic loss. |
|
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Term
| How does tort relate to warranty |
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Definition
| Within the last 20 years, they have dispensed with the requirement of privity. Many or most states allow a warranty suit to be brought against someone that isn't an immediate purchaser. |
|
|
Term
| What is an express warranty |
|
Definition
| When the seller expressly represents that goods have certain qualities. The purchaser (or possibly affected persons) may sue for breach of warranty if the goods don't have these qualities |
|
|
Term
| What does UCC 2-313 provide about express warranties? |
|
Definition
| An express warranty may be produced by an affirmation of fact or promise about the goods, by a description of the goods or by use of a sample or model |
|
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Term
| Is reliance required under warranty theory |
|
Definition
| Originalls it was (P had to show he relied on the warranty) but under UCC it only has to be part of the basis of the bargain and most modern non-UCC case law has watered down the requirement as well |
|
|
Term
| If a person in not in privity and wants to recover for breach of express warranty did they have to know about the express warranty |
|
Definition
| No, it's not usually necessary for a non-privity plaintiff to show that. But some courts hold that the non-privity Plaintff must at least be a member of the class seller intended to reach. If seller though buyer was the only one who would ever use it, buyer would not be protected |
|
|
Term
| Most warranties are held to be directed to whom |
|
Definition
| The public at large, so a remote purchaser is part of the general class to which it is addressed |
|
|
Term
| Is there a tort action similar to breach of express warranty? |
|
Definition
| Yes, R2d 402B - strict liability imposed on seller who makes a public misrep of material fact |
|
|
Term
| What is an implied warranty |
|
Definition
| A warranty as to the quality of goods that can also be implied from the fact that the seller has offered the good for sale |
|
|
Term
|
Definition
| Merchantability, fitness for particular purpose |
|
|
Term
| What is a warranty of merchantability? |
|
Definition
| A warranty that goods shall be merchantable that's impleied in a K for the sale of goods if the seller is a merchant wrt goods of that kind |
|
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Term
|
Definition
| No clear explanation, but 2-314 says it must be fit for the ordinary purposes for which such goods are used (eg a car that has a broken sterring wheel isn't fit for the ordinary purposes) and must be adequately contained, packaged, or labeled and must conform to affirmations of fact made on the label (if they do, it would be a breach of express warranty) |
|
|
Term
|
Definition
| A business-person and regularyl sell the kinds of goods in question. |
|
|
Term
| Is there a warranty of merchantability on used goods? |
|
Definition
| It's not clear whether there can ever be a warranty of merch on used goods |
|
|
Term
| Does the warranty of merchantability apply to food? |
|
Definition
|
|
Term
| Does the warranty of merch apply to services? |
|
Definition
| no, not services, real estate transactions, or bailments |
|
|
Term
| Is a retailer responsible for warranty of merch? |
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Definition
| Yes, simply becasue she has sold it, but a few jurisdictions have carved out a sealed container doctrine - a reatailer who resells a sealed containerdoes not warrant the merch of its contents, but since the warranty is not based on failure to inspect or some other fault, this doesn't seem to make sense |
|
|
Term
| What is warranty for part purpose |
|
Definition
| When the buyer relies on the seller's opinion that something is fit for a non-ordinary purpose (eg telling seller you want to buy certain shoes for mountain climbing) |
|
|
Term
| Historically did courts require P to be in privity for breach of implied warranty? |
|
Definition
| Yes, but there were exceptions, like for defective food |
|
|
Term
| What did Henningson v. Bloomfield Motors do? |
|
Definition
| Drastically restricted privity requirement in warranty cases like MacPherson in negligence actions |
|
|
Term
|
Definition
| Henningsen bought a car with defective steering and gave it to his wife. Coourt held she could recovere for implied warranty of merch even though she never contracted with Chrysler directly |
|
|
Term
| How is Henningsen related to food cases |
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Definition
| Court applied the food rationale to break through the privity barrier. It could damage even more than one person and food might only damage one |
|
|
Term
| What did the court think of the disclaimer of warranties in Henningsen |
|
Definition
| It was an adhesion contract and resulted from gross inequality of bargaining positions between manufacturer and consumer so it was ruled invalid |
|
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Term
| Mrs. Henningsen was not in privity in two ways, did either one have more of an effect on the decision? |
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Definition
| No because no matter what, the parties to the warranty would expect her to be in a class of persons who might use the car |
|
|
Term
| May a seller disclaim warranties? |
|
Definition
| Yes, under UCC, they may disclaim both express and implied warranties |
|
|
Term
| Can you disclaim merchantability? |
|
Definition
| Yes, if it's conspicuous, and the word merchantability is mentioned |
|
|
Term
| Can there be an implied disclaimer of merchantability? |
|
Definition
|
|
Term
| What will a seller do rather than disclimaing implied warranties? |
|
Definition
| Limit remedies for breach, like saying any remedy is limited to repair or replacement and there's no liability for consequentail damages, but the UCC says limitation of consequentail damages for injury to the person in the case of consumer goods is prima facie unconscionable |
|
|
Term
| When is it advantageous for a P to sue for implied warranty? |
|
Definition
| If aq P has suffered only economic harm, he may be allowed to recover inimplied warranty against the seller when he would not have been able to recover in strict liability. Or when there's a statute of limitations issue (warranties are usually K which is 4 years, sl is tort, often 2-3 years) |
|
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Term
| Holding in Greenman v. Yuba Power Products (later 402A) |
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Definition
| Traynor - P's failure to give notice of breach of warranty (he was late) does not bar his action since D was strictly liable in tort. A manuf is strictly liable in tort when an object he places on the market knowing that it is to be used without inspection for defects proves to have a defect which causes injury to a human being |
|
|
Term
|
Definition
| manufacturer and retailer and anyone else in distributive chain who is in the business of selling such a product |
|
|
Term
| What does the third R of products liability say? (just two most important sections) |
|
Definition
--person in business of selling or otherwise distributing products is subject to liabilty for harm to persons or property caused by the defect.
--A product is defective when it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings |
|
|
Term
| When does a product have a manufacturing defect? |
|
Definition
| when it departs from its intended design even though all possible care was exercised in preparation and marketing of the pro0duct |
|
|
Term
| When does a product have a defective design? |
|
Definition
| When foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of an alternative design by the seller or distributor or predecessor in the commercial chain of distribution and the omission of the alternative design renders the product not reasonably safe |
|
|
Term
| When does a product have a warning defect? |
|
Definition
| When there are inadequate instrucvtions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable insturctions or warnings by the seller or other distributor or a predecssor in the commercial chain of distribution and the omission of instructions of warnings renders the product not reasonably safe |
|
|
Term
| The secon restatement of torts said a product is in a defective condition unreasonably dangerous if... |
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Definition
| It is 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 |
|
|
Term
| What is the r2d viewpoint of the consumer test? |
|
Definition
| If a reasonable consumer, knowing the true characterstics of a product, would nonetheless use it, the product is not in a defective condition unreasonably dangerous. |
|
|
Term
| differentce between the 2nd and 3rd restatements and products that are defective |
|
Definition
| Third restatement drops the unreasonably dangerous requirement wrt manufacturing. So that's just when a product doesn't live up to its design and not when the product was dangerous or even unreasonably dangerous |
|
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Term
| Does the third r abandon the requirement of unreasonable dangerousness in the case of design defect and warning defects? |
|
Definition
| no, the defect only exists if the design or omission of the warnings renders the product not unreasonably safe |
|
|
Term
| What is an unavoidably unsafe product? |
|
Definition
| Products that don't conform to their design and essentially do what the consumer expects them to do yet are by their very nature inherently dangerous |
|
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Term
| Examples of products that are unavoidably unsafe |
|
Definition
| Prescription drugs, cigarettes, handguns |
|
|
Term
| Under R2d, comment K, what happens to unavoidably unsafe products? |
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Definition
| they are expmpted as long as they can't be made safe without changing general characteristics, then sale can't lead to product liability - this was frewquently criticised because there are some products that society would be better off without |
|
|
Term
| 3rd R approach to unavoidably unsafe products |
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Definition
| Risk-utility approach - product has defective design 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 and the omission of the alternative design redenrs the product not reasonably safe |
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|
Term
| Unavoidably unsafe products are primarily a (design, manuf, or warning) defect accoridng to 3rd r? |
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Definition
| Design - that's what makes it inherently unsafe |
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|
Term
| Under risk utility, what makes a product defective or not? |
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Definition
| If the utility outweighs the irreducible risks, they are not defective, and if dangers outweigh undvoidable risks, the logic of the risk utility is that they are defective |
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Term
| Practice defective deisgn risk-utility analysis |
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Definition
| If the social utility of the pool is so low that its dangers outweigh that utility, the design will be deemed defective even though the danger was unavoidable. Otherwise the utilty outweighs the danger inherent in the design |
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Term
| Two devices that are exempt from risk-utility |
|
Definition
| Prescription drugs and medical devices - if approved by FDA and warnings were adequate. This is because the risk utility analysis will differe for different people bc different people have reasctions that vary. So a claim can be brought only if the foreseeable risks of harm posed by the drug or medical device is sufficiently great in relation to its foreseeable thereapeutic benefits that reasonable health care providers, knowing of such foreseeable risks and therapeutic benefits would not prescribe the drug or medical device of any class of patients--ie no patient would have it prescribed |
|
|
Term
| What is unknowably unsafe? |
|
Definition
| at the time a product is designed or manufactured, there was no way for a manufacturer to know a danger is hidden within the product. |
|
|
Term
| Is there a duty to design around or warn against a danger that could not have been reasonably foreseen |
|
Definition
| No - it's the state of the art defense and the theird r agrees |
|
|
Term
| Two ways that defectiveness of food is meaured |
|
Definition
| Fooreign natural and Consumer epxectation (majoriy) |
|
|
Term
| What is the foregin/natural food test |
|
Definition
| Strict liability for foreign matter in food but not for vendor's failure to remove a naturally occurring substance (minority) |
|
|
Term
| What's the consumer expectation test for food product liability |
|
Definition
| Food is defective iff it contains an ingredient that a reasonable consumer would not expect it to contain. |
|
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Term
| If the danger is obvious to the consumer does this prevent the product from being defective? |
|
Definition
It depends on how defect is defined.
Under R.2d, a product is defective if consider its reasaonbly foreseeable use it is in an unreasonably dangerous condition not contemplated by the utlimate consumer, so if he can easily see it's defective, the manufacturer has a strong case - this is the consumer expectation test.
3rd R- a consumer may know of a design danger but maybe not know of safer alternatives, so obviousness is merely one non-dispositive factor. It also varies based on whether it's a design, manuf, or warning defect issue. |
|
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Term
| Will a manufacturing defect matter under the 3rd r? |
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Definition
| Rarely - a product contains a manufacturing defect when it departs from its intended design but if the jurisdiction applies comparative fault it may reduce P's recovery |
|
|
Term
| Will a design defect matter under the 3rd r? |
|
Definition
It's relevant but doesn't preclude a P from establishing that a reasonable alternative designshould have been adopted that would whave reduced or prevented injury to P.
EG cigarettes - if there wasa less dangerous design, it should have been used. |
|
|
Term
| Will a warning defect matter under the 3rd r? |
|
Definition
| Yes - it's likely that it won't cause a defect - there is no general requirement for a seller to warn or instruct regarding the risks and risk avoidance measures that should be obvious to or generally known by foreseeable product users. It won't provide any more safety and may diminish the significance of warnings about non-obvious risks. |
|
|
Term
| What must a P showing strict liability prove? |
|
Definition
Item was manufactured or placed in stream of commerce by D
Product was defective (most courts say you can't show subsequent remedial measures
There's a res ipsa like inference - if the accident wouldn't normally occur without a product defect
Cause in fact and proximate cause
Defect existed at time it left D's hands |
|
|
Term
| What can plaintiff do in a difficult to prove a product was defective mass toxic tort case |
|
Definition
| Present animal studies or epidemiological evidence of effectiveness - evidence based on statistical proff that a condition is more prevalent when a substance is used is enough to allow a jury to find a product is defective |
|
|
Term
| What's general causation v. specific causation in terms of toxic tort? |
|
Definition
General causation - a substance is capable of causing a certain disease
Specific causation - exposure to an agent caused a particular disease |
|
|
Term
| When a P has to show causation in sl, how does that relate to rebutting alternative causes? |
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Definition
| May have to rebut that alternative events were either the sol cause in fact of the acciendt or a susperseding cause that prevented the defect from being a proximate cuase. Issue arises most commonly when P is negligent, but courts are liberal in letting this get to a jury. |
|
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Term
| How does a court decide whether an intervening act is superseding or not in sl cases? |
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Definition
Apply mostly the same rules they would in negligence. Sometimes the courts apply the test more strictly bc sl doesn't depend on fault of D, especially where the cause is negligence or recklessness caused by P or a third person. Also if product was misuesd by P or 3rd person this may bea defense to D.
So if the intervening act is reasonalby foreseeable or uforeseeable but causes the same type of harm as made the product dangerous the intervention will not be superseding |
|
|
Term
| Are courts strict or lenient in requiring P to show the defect existed in hands of D in strict liability cases? |
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Definition
| Lenient to P, like they are in proximate cause issues |
|
|
Term
| How does the res ipsa inference work with P having to show that a product was defective when it left D's hands? |
|
Definition
THey can show that the product didn't behave in the usual way, the accident was the kind that usually results from a product defect, general evidence that no one tampered with the product after it left defendant's hands.
3rd R says it may be inferred from the harm sustained by the P was caused by a product defect at time of sale or distribution without proof of a specific defect when the incident that harmed the P was of a kind that ordinarily occurs as a result of product defect and was not in the particular case solely the result of causes other than the product defect existing at the time of sale or distribution. |
|
|
Term
| Some courts have held that whether a product suffers from a design defect is to be determined by ___? |
|
Definition
| A pure negligence standard in which a product's utility is to be weighed against the risks it presents - a manufacturer has a dty to use reasonable care in designing a product a guard it against foreseeable and unreasonable risk of injury |
|
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Term
| Advantages of a negligence standard that uses risk-utility |
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Definition
| Rewards the careful manufacturer and penalizes the careless one, finding of defective design is likely to nullify an entire product line thus depriving the public of the product and bankrupting the manufacturer so a higher threshold of liabilty is appropraite, use of fault brings greater instrinsic fairness in that the careful safety oriented manufacturer will not bear the burder of paying for losses caused by the negligent seller |
|
|
Term
| Most design defect claims have heavy ___ aspects |
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Definition
|
|
Term
| Why are many designed defect claims have negligence aspects? |
|
Definition
| A suit against a manfuacturer (eg mower without a foot guard), whether phrased in negligence or strict tort would involve substantially the same issues ie whether the design posed an unreasonable danger to the plaintiff in view of the burdens of using some other design |
|
|
Term
| Some courts have held that whether a product suffers from a design defect shoulw be determined by a |
|
Definition
| Pure negligence standard - which balances risks and utility of the product |
|
|
Term
| When a negligence sytandard is used in desgin defect cases, the key issues and factors to make that determination are: |
|
Definition
| Issue: REasonableness of the manufacturer's conduct in placing the product on the market. Factors include 1. relative need for the product, 2. likelihood that the product will cause injury as well as probable severity of each injury, 3. the availability of an affordable, SAD |
|
|
Term
| Third R's test for defective design |
|
Definition
|
|
Term
| 3rd R defines a product as being defective in design when___ |
|
Definition
| The foreseeablerisks of harm posed by the product could have been reduced or avoided by 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 reasonably safe. |
|
|
Term
| Recent years have seen a shift___ |
|
Definition
| Away from strict liability for design defects and toward negligence |
|
|
Term
| A plaintiff needing to show design defect under the third R will need to show ___? |
|
Definition
| Reasonable alternative design that would have been materially safer. This is necessary but not sufficient. |
|
|
Term
| How specific must a P's proof of RAD be under the third R? |
|
Definition
| It's not clear. R says he doesn't have to produce a prototype in order to mae a prima facie case. |
|
|
Term
| What is one of the easiest ways for P to show existence of RAD? |
|
Definition
| Show that similar products from other manufacturers already have that design - eg car with a roll bar. If similar cars from that year have a roll bar, this showing will probably meet the requirement of a reasonable alternative design. |
|
|
Term
| 2 things that factor heavily into the analysis that a RAD should be used |
|
Definition
| Cost and utility. If it would double the price, that would factor heavily against the use of the RAD, and if the safety features would cause the RAD to be much less useful, this will weigh heavily against a finding that the alternative is reasonable. |
|
|
Term
| Is the consumer expectation test dispositive under the third restatement? |
|
Definition
| No, it's a factor, but it's not dispositive. THe ultimate test is risk benefit. THe mere fact that most consumers find a particular product to meet their expectatitons certainly does not prevent a finding that a particular safety feature could have provided so much benefit at so little cost that its absence makes the product defective. |
|
|
Term
| Is the state of the art defense allowed under the Third Rs focus on the availability of a reasonable alternative design? |
|
Definition
| It's recognized in effect because if the defendant can show that at the time a product was manufactured, the state of the art did not allow for production of a safer product at a reasonable price, it will be found to not be defective. |
|
|
Term
| Under the third R, what would happen in a design defect case if the product was the safest available at the time |
|
Definition
| The lesser showing will probably but not necessarily be enough to demonstrate that the product was not defective |
|
|
Term
| When a defective design suit is brought against a distributor or retailer, is it strict liabilty or negligence? |
|
Definition
| SL because all that matters is whether the manufacturer achieved a good risk-utility tradeoff |
|
|
Term
| Three types of design defect claims: |
|
Definition
| Structural, absence of safety features, suitability for unusual purposes |
|
|
Term
| Warranty provisions of article 2 of UCC applies only to ___ |
|
Definition
| goods, not to services or real estate |
|
|
Term
| How do courts interpret express warranties? |
|
Definition
| Some hold that a general assurance of safety constitutes an express warranty that the product will not injure the user. (eg safe for houselhold use is an express warranty) but others are more stirct (eg a docile doberman isn't guaranteed not to bit e child later). So warranties are subject to disputes based on the language and the facts. |
|
|
Term
| Warranties can be made by samples or models. What are examples of this? |
|
Definition
| Picture of backhoe lifting something is a warranty, glass jar of shelled nuts is not a warranty |
|
|
Term
| What does not constitue an affirmation of fact for warranties? |
|
Definition
| Opinions, especially of value; promise unrelated to a good |
|
|
Term
| In a breach of express warranty, the sellers statements must become ___? |
|
Definition
| Basis of the baragin - and all statements are basis of bargain unless shwn to the contrary |
|
|
Term
| What can a seller do once he's made an express warranty about a product |
|
Definition
| Show by clear proof that the statement was retracted by him before the deal was closed or that the parties understood that the goods would not conform to the affirmation or description |
|
|
Term
| Who is an express warranty applicable to? |
|
Definition
| Merchants and non merchants, but the seller has to make the representation |
|
|
Term
| UCC 2-313 Comment 3 states |
|
Definition
| No particular reliance on seller's statements need to be shown |
|
|
Term
| Can a seller benefit if the buyer never saw the warranty |
|
Definition
| No, the buyer doesn't have to show that he relied on it or even saw it |
|
|
Term
| Comment 7 to UUCC 2-313 provides |
|
Definition
| post sale representations may be considered part of the bargain even if they aren't supported by independent consideration |
|
|
Term
| In New York, is it possible for a product to be defective for breach of implied warranty and not in tort? |
|
Definition
| Yes because breach of implied warranty is seen as contract and uses consumer expectations test but products liability uses risk utility |
|
|
Term
| Is the argument that the seller could not have prevented the defect a defense for breach of implied warranty of merchantability? |
|
Definition
| No, one day old chicks with cancer - retailer wasn't negligent but still breach of implied warr of merch. |
|
|
Term
| iS IT NORMALLY A DEFENSE TO A CLAIM FOR IMPLIED WARRANTY OF MERCH that a seller could not have done anything? |
|
Definition
|
|
Term
| Even if goods aren't fit for their ordinary purpose, can they still be merchantable? |
|
Definition
| Yes. If the buyer inspects and the defects are obvious. |
|
|
Term
| What case intorduced strict tort liabilty |
|
Definition
| Greenman v. Yuba Power Products |
|
|
Term
| What was the thinking behind R2d 402 A |
|
Definition
| THe injured consumer should not be burdened with having to prove negligence |
|
|
Term
| Traynor created a theory of liabilty that had nothing to do with |
|
Definition
| The fault of the manufacturer |
|
|
Term
| Why did Traynor try to switch to strict liabilty |
|
Definition
| To remove the complicated question of duty |
|
|
Term
| Originally, implied warranty was seen as what (tort or K)? |
|
Definition
| K - so it applied only to contract law - example of this is winterbottom |
|
|
Term
| Implied warranty was actually based on? |
|
Definition
|
|
Term
| Questions courts differ in in risk utility test |
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Definition
| Should safety be traded off against monetary cost or should safety be given greater weight as a matter of fairness? |
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Term
| Even though courts ended up at risk utility their case history follows two paths. What are they? |
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Definition
| Warranty-based and negligence-based |
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Term
| If a court that folloowed R2d rule of strict product liability that the product must be dangerous beyond that which would be contemplated by the ordinary consumer, and they get a case where a coffeemaker exploded, what would they do? |
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Definition
| It's easy to apply the test because the design was faulty and consumer wouldn't reasonably expect it to not perform its intended function. So design is defective and seller is subject to strict liabilty. Today this would be governed by the malfunction doctrine. But the R2d requirement that the product be unreasonably dangerous. |
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Term
| It could have been strict liability for all products but it's only strict liability for |
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Definition
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Term
| Why are design and warning defects more difficult than manufacturing defects |
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Definition
| It's more difficult to find out what is defective--manufacturing defects can just be compared against the other items the manufacturer has made AND the repercussions of declaring that a product is defective because of its design or a failure to warn are more serious for the manufacturer |
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Term
| Holding of Lee v. Electric Motor Division |
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Definition
| A manufacturing defect is readily identifiable in general because the defective product is one the comes off the line in a substandard condition. |
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Term
| Rationale for manufacturing defect rule according to the 3rd Rest |
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Definition
| Strict liability on manuf for manuf defects encourages greater investment in product safety than does fault-based liabilty under which sellers may escape their share of responsibility. Also it causes the price of products to reflect the cost of defects and discourage consumption and it reduces transaction costs. |
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Term
| Some jurisdictions apply ___ test in manufacturing cases and ___ test in design defect cases |
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Definition
| Consumer expectations in manufacturing (becasue consumer expects the product is no different from its brothers) and risk-utility in design defect cases (because the design makes it unreasonably dangerous). Texas thinks this |
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Term
| To recover in a manufacturing defect case, does it have to be defective or unreasonably dagerous? |
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Definition
| Both. It can be defective manufactured but still safe for the consumer, so it needs to be both (Wiseman v. Goodyear) |
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Term
| Two test for food manufacturing defects |
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Definition
| Foreign-Natural and Consumer expectations |
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Term
| What is the third R's position on food product defects? |
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Definition
| Consumer expectations - only time this is used |
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Term
| What is a defective product under the consumer expectations test? |
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Definition
| The product is at the time it leaves the seller's hands in a condition not contemplated by the ultimate consumer |
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Term
| What is the consumer expectations test for design defects? |
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Definition
| One who sells an y product in a defective condition unreasonably dangerous (dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it) to the consumer or to his property is subject to laibilty for physical harm thereby caused to the ultimate user or consumer or to his property. |
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Term
| Consumer expectation test of 402A is rooted in |
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Definition
| Warranty remedies of contract law |
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Term
| Under the consumer expectations test in its most generic form, is there liabilty for open and obvous dangers? |
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Definition
| No, the court looks to the general public who will be using the product, not to the general public or to the specific person (eg gasoline tanker manufacturer was not subject to strict liability for failing to equip a tanker with an automatic shutoff because experienced truck drivers ordinarily used it) |
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Term
| if manufacturers are ignorant of risk, is that an excuse in design defect cases under sonumer expectations test? |
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Definition
| No, not for manufacturers, but the consumer could be ignorant. |
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Term
| Overview of strict liability in design defect cases |
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Definition
| P must show the product was defective (there is no clear definition of defect and that decision is made on a case by case basis, if it's not as safe as reasonably possible, that's a factor) and unreasonably dangerous ( means dangerous to an extent beyond which reasonably contemplated by an ordinary consumer (ie latent, not open and obvious) |
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Term
| What was the disagreement in the gas can cases? |
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Definition
| Whether the non-child proofing was unreasonably dangerous. One court said it was made for adult use and the manufacturer is not an insurer and the other side said it was a latent danger and wouldn't have cost much more. |
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Term
| How have some courts broadened the scope of liability under a consumer expectations test? |
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Definition
| By being reluctant to find a danger is open and obvious |
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Term
| Problem with consumer expectations re whose expectations do we look to? |
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Definition
| Child in a child safety case (baby bottle), a bystander (eg forklift - the danger was obvious to the operator but not the bystander), beginning teenage smoker (since ordinary smoker is a teenager, that standard can be applied) |
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Term
| Most design defect cases fall into what three categories? |
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Definition
| Structural defects, absence of safety features, suitability for unusual purposes |
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Term
| What's the test for structural defects in a design defect case? |
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Definition
| Whether a product is less durable than a reasonable consumer would expect, taking into account the price of the product and other things |
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Term
| Can a product be held defectively undurable? |
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Definition
| Yes, if it wears out too fast in relation to its cost. It doesn't have to be the most durable design, but not one that's too flimsy |
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Term
| Does a product have to have a safety feature or else it's defective? |
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Definition
| It's possible. If it could be installed with so little expense and when you compare the cost and magnitude of danger existing without the feature, it can be defective design not to install it |
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Term
| What are three defenses defendants make to safety features? |
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Definition
| That competitive products similarly lack the feature, that it would be cost-prohibitive, or that the feature would prevent the product from being put to its intended use |
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Term
| What do courts think of the argument is as safe as the competition's product? |
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Definition
| They are starting to not allow this defense. Judge Hand said it's not dispositive on the issue of negligence because the entire industry could have lagged on the issue of safety devices. The third restatement agrees. |
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Term
| What is the rule about obvious defects in a safety-design defect case? |
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Definition
| It may be a factor, but it's not dispositive. The third restatement agrees that it's not dispositive. |
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Term
| What if there is a subsequently-discovered precaution by the time of trial? |
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Definition
| Most courts would allow it at the time of trial as evidence of a feasible alternative design. But the question is "Was the design reasonably saf at the time of manufacture and sale to Plaintiff?" So the manufacturer can show that the alternative was not yet feasible at that time and didn't become feasible until later. |
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Term
| Does the manufacturer have a responsibility to design against unintended use? |
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Definition
| Unforeseeable misuse - no - a design s defective when the foreseeable risks of harm imposed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, but if it was reasonably foreseeable, then courts would say manufacturer should take design precautions (unless its unreasonable, eg standing on the back of a chair) |
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Term
| Henningson wrt conspicuousness |
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Definition
| Seller tried to disclaim implied warranty of merchantability, but court said it had to be conspicuous. |
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Term
| 2-719 - limitation to damages for commercial losses is not prima facie unconscionable |
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Definition
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Term
| 3 types of design defect claims |
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Definition
| Structural, absence of safety features, suitability for unusual purposes |
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Term
| What is the test for structural design defects? |
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Definition
| Usually, it's whether a product is less durable than a reasonable consumer would expect, taking into account the price of the product |
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Term
| Does the test for structural defects require the most durable design to be used? |
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Definition
| No, just not one that' unreasonably flimsy |
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Term
| Is it defective design not to install a safety feature? |
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Definition
| Only if it can be installed with so little expense compared with the cost of the product and the magnitude of danger existing without the feature that it is a defective design not to install it |
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Term
| Do courts allow a designer to show that a design is as safe as the competition's product as a complete defense? |
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Definition
| Fewer courts are allowing it. Judge Hand says custom is not dispositive and an entire industry may have lagged in the installation of safety devices. The 3rd R agress. It's not dispositive and P always can try to convince the trier of fact that a reasonable alternative design was practicable |
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Term
| The most common unintended but foreseeable use involves |
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Definition
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Term
| What is the plaintiff's theory in crashworthiness cases |
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Definition
| Although the manufacturer can't prevent the accident, it should be liable for not taking reasonable precautions to minimize the injuries to passengers once the accident occurs. He should take precautions against the second collision. |
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Term
| What are the courts' recent views of crashworthiness cases |
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Definition
| Most courts have held that manufacturers do have an obligation to make the car reasonably safe in an accident. Earlier courts said crashes weren't an intended use. |
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Term
| Is industry custom admissible in crashworthiness cases? |
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Definition
| Yes, for issues of reasonableness, but it's not dispositive and the custom may be held to be negligent |
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Term
| To determine whether a vehicle was unreasonably unsafe, it may only be compared with other vehicles of____ |
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Definition
| A similar general type (VW vans compared to similar cars) |
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Term
| The presence or absence of a warning as well as quality of directions for use may have an impact on |
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Definition
| whether the product is unreasonably dangerous or defective |
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Term
| In determining what warnings or instructions are needed, what kind of standard is used? |
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Definition
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Term
| If no amount of money can eliminate a risk, P may be able to argue that the product was ___ |
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Definition
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Term
| Warnings only shield a manufacturer from liabilty if it was |
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Definition
| Properly designed and properly manufactured and there remains a non obvious risk of personal injury or if a reasonable consumer might misuse a product |
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Term
| Some courts have implicitly treated duty to warn as a type of ___ but most courts have applied ___ principles to the duty |
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Definition
| Strict liability, negligence-like |
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Term
| In determining whether a particular accident could have been avoided by a particular type of warning, most courts apply a |
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Definition
| risk-utility analysis, where they balance factors like foreseeability of harm, severity, costs of of giving a warning, and the likelihood that the warning would have been heeded |
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Term
| The third R says liability for failure to warn should be based on |
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Definition
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Term
| A product will be deemed defective on account of inadequate instructions or warnings according to the third restatement |
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Definition
| When the foreseeable risks of harm imposed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of the instructions or warnings renders the product not reasonably safe |
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Term
| What does the third R say about longer warnings? |
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Definition
| In some cases excessive detail may detract from a typical users ability to focus on the important aspects |
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Term
| What does the third R say about warnings to users and purchasers? |
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Definition
| Normally it must be given to purchaser, but in some instances it shouldbe given to others Like if a machine is used by a business, the manufacturer may need to see to it that the employees are warned and a sign would need to be attached to the machine |
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Term
| Does the 3rd R require products with inherent dangers to have warnings? |
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Definition
| Yes--they allow the user or consumer to avoid the risk warned against by making an informed decision not to purchase or use the product at all |
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Term
| Most common category of failure to warn cases |
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Definition
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Term
| Who does a drug manufacturer usually have a duty to warn? |
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Definition
| The physician--learned intermediary, who is in the best position to decide whether a drug should be prescribed and when and how its risks should be disclosed. 3rd r says if the providers won't be in a position to warn the patients, they have to warn the patient directly |
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Term
| When a drug warning to the end user is required, what must be provded? |
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Definition
| A warning in comrehensible language conveying the nature, gravity and likelihood of known or knowable risks and it must be intense (considering the advertising and publicity which may detract from the intensity) |
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Term
| If a drug is of net benefit to some class of patients, the only way to sue is for |
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Definition
| Failure to warn, defective design liabilty does not exist |
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Term
| Does the D have a duty to warn of unknown or unknowable dangers? |
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Definition
| Vast majority of courts say no if didn't know and in the exercise of reasonable care should not have known of a danger |
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Term
| Compare duty to warn of unknowable danger with duty to design against unknowable danger |
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Definition
| No duty in both--state of the art defense in design |
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Term
| How does a manufacturer show something was unknowable |
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Definition
| They have the duty to show what reasonable testing would reveal |
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Term
| Con government labeling requirements show that a warning was adequate |
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Definition
| Most courts allow it to be admitted into evidence, but it's not dispositive. A jury may conclude that a reasonable manufacturer would have given a more specific or different warning. But if court finds that Congress created labelling standards and intended to preempt states from requiring different warnings, then states can't award damages, either |
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Term
| If the product is only dangerous to a small number of people does the manufacturer have to warn? |
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Definition
| It usally depends on the magnitude or harm |
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Term
| If the danger is obvious, is there a duty to warn? |
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Definition
| It will be a factor in reducing D's obligation. But if there's some evidence that some substantial minority of people were not aware of the danger, it probably doesn't automatically mean there's no duty. |
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Term
| Two distinct functions of a warning |
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Definition
| Notification of a danger and explanation of the existence of an alternative |
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Term
| Is there a duty to warn against misuse? |
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Definition
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Term
| If a manuf installs a saftey device and a third party removes it, he may be liable for |
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Definition
| Not design defect but failure to warn the ultimate user that operating the equipment without the safety device is dangerous |
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Term
| If manufacturer learns of a risk after sale, does he have a duty to warn? |
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Definition
| Yes, if risk was great and user of product can be identified. Duty probably exists even if it wasn't knowable at time of manufacture |
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Term
| Does a manufacturer have a duty to monitor performance and safety of equipment? |
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Definition
| some courts have said yes. Most likely to be found in the case of prescription drugs (continuing duty of reasonable care to test and monitor after sale) |
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Term
| Is a manufacturer required to inform the user about new safety technology? |
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Definition
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Term
| Can a manufacturer be liable for not recalling? |
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Definition
| Not if there's no statute requiring the recall. Otherwise, he's only liable if he tries to recall but doesn't do so reasonably |
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Term
| Does a manufacturer have a duty to warn of allergies? |
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Definition
| May need to warn of a particular ingredient and may need to warn that an ingredient may cause an allergic reaction. But most courts don't require it if it's generally known to consumers and the Third Restatement states that the ingredient must be one whose danger or whose presence isn't generally known to consumers |
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Term
| What is the balancing test approach to allergies? |
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Definition
| Some courts have adopted a balancing test like other warning cases - if the allergic reaction is only mild, a greater percentage of the overall population will have to be allergic in order to warn |
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