09 Aug 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
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