Product Liability
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Product Liability

Product Liability

As the title implies, there is a lot of content for product liability.  Anyone who releases an unreasonably dangerous product into the stream of commerce is liable for the injury it causes.  There are three theories of liability the plaintiff may use. Strict Product Liability in torts, Negligence and Warranty (both Implied and Express).

Strict Product Liability In Torts

Who can sue – any foreseeable plaintiff (privity not required)-

Who can be sued- Commercial sellers/merchants. Anyone who put a defective product into the stream of commerce can be held liable for all damages.  This includes retailer, wholesaler, distributor or manufacture.

BREACH: Production or sale of defective product as proved by:

Manufacturing – product is different and more dangerous that properly made products / food items foreign product

Design- Inherently dangerous design – H.A.D. Hypothetical alternative design–Could the product have been made to be safer?

Consumer Expectation test

Risk Utility Test

Warning- Failure of adequate warning


DAMAGES: Actual (avoidable?), indemnification

DEFENSES: Assumption of Risk


This is written like a straight negligence answer

DUTY:      To whom: Forseeable (Palsgraff)

Standard of care: Reasonable


Res Ipsa

Learned Hand/Utility v Risk


DAMAGES: Acutal (injury), indemnification

Defenses: Contrib, Assumption


There is an implied warranty of both merchantability and fitness for a particular use with the sale of all goods. Defendants must be merchants

Merchantability: Goods are average acceptable quality and generally fit for use made

Fit for particular use: Seller knew reason for purchase and used skill and judgment to select good

Who can sue: Family, buyers, household, guests

Breach: Fails to live up to standards of both implied warranties

Damages: PI, PD AND economic only.,

Defenses: Assumption of risk, contributory


Express Warranty:  A promise goods will work, work in particular way.

Anyone can sue





Material fact re quality or uses of goods AND seller induced reliance (MSIJN)

Justifiable reliance: required



Defenses: Contrib

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