Term
| 3 basic theories of product liability |
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Definition
Express and implied warranties
Negligence
Strict Liability |
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Term
| 3 Things express warranty may be based on: |
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Definition
1. A promise of affirmation (i.e. assertion) of fact about the goods
-- Assertions of fact, not opinions or puffery
-- Warranty that goods will be or perform as promised
2. A description of the goods to be sold; or
-- Warranty that goods will conform to their description
3. A sample or model of the goods to be sold
-- Warranty that goods will conform to the sample or model
Must be part of the basis of the deal |
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Term
| What types of sellers can express warranty claims be brought against? |
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Definition
Any type
- merchants
- individuals |
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Term
| How are implied warranty claims created? |
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Definition
| By law rather than by seller's words or actions |
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Term
| 2 Types of implied warranties |
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Definition
1. Warranty of Merchantability
2. Warranty of Fitness for a Particular Purpose |
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Term
| Who can Implied warranty of merchantability claims be brought against? |
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Definition
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Term
| How does a seller breach the implied warranty of merchantability? |
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Definition
By selling goods that are not fit for use for their ordinary purposes
- Merchantability means that goods are fit for the ordinary purposes for which the goods are used |
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Term
| Who can the implied warranty of fitness be brought against? |
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Definition
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Term
| Where is warranty of fitness for a particular purpose implied (3 criteria)? |
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Definition
1. The seller has reason to know the particular purpose for which the buyer requires the goods
2. The seller has reason to know that the buyer is relying on the seller's skill or judgment to select suitable goods; and
3. The buyer actually relies on the seller's skill or judgment in purchasing the goods
- Brought against the company the seller works for |
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Term
| What do product liability suits based on negligence allege? |
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Definition
| The manufacturer or seller of a product breached a duty of care to the plaintiff by failing to eliminate a reasonably foreseeable risk of harm |
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Term
| 4 types of negligence claims |
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Definition
1. Negligent manufacture of the goods (including improper materials and packaging)
2. Negligent inspection
3. Negligent failure to provide adequate warnings
4. Negligent design |
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Term
| What are strict liability theories based on? |
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Definition
| Liability without respect to fault |
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Term
| Who is liable for injuries that result from their sale of defective products? |
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Definition
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Term
| 3 things that must be present with strict liability of product theory |
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Definition
1. The seller must be a merchant
2. The product was sold in a defective condition
3. The product caused the plaintiffs injury |
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Term
| 3 types of product defects |
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Definition
1. Manufacturing defects- The product doesn't meet the manufacturer's own standards
2. Design defects- The product's design poses an undue risk of harm when used as intended
3. Inadequate warnings- The product fails to warn users or "learned intermediaries" of unexpected or hidden dangers |
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Term
| 2 tests for design defects |
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Definition
1. Feasible Alternative Test: Could the risk posed by the design be eliminated by an alternative design without affecting its utility or price
2. Consumer expectation test: Is the product as safe as ordinary consumers would expect it to be? |
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Term
| Who is strictly liable for strict liability of products |
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Definition
| Everyone in the supply chain can be strictly liable for selling a defective product unless the product was not defective at the time they sold it |
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Term
| Who can sue for strict liability of products? |
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Definition
| Anyone who is a foreseeable user of the product (not just the original purchaser) |
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Term
| 3 defenses to product liability claims |
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Definition
1. Product Misuse or modification
2. Assumption of Risk
3. Contributory Negligence |
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Term
| When can the defense of misuse or modification be used? |
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Definition
| - Defense only against unforeseen product misuse or modification - Defense to negligence and strict liability claims |
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Term
| What is assumption of risk as defense against? |
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Definition
| Negligence and strict liability claims |
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Term
| When is contributory negligence a defense? |
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Definition
- For negligence claims
- Courts disagree over defense to warranty and strict liability |
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Term
| Disclaimers of warranty claims |
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Definition
1. Express warranty- Can be disclaimed with clear language, but difficult to disclaim since claims are based on the seller's representations
2. Implied warranty of merchantability- Can be disclaimed orally or in writing, but must include the term "merchantability" or "as is"
3. Implied Warranty of Fitness- Can only disclaim in writing, but need not mention fitness |
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Term
| How can one disclaim all warranties? |
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Definition
| Selling goods "as is" or "with all faults" or other language indicating there are no warranties |
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Term
| Disclaimers of Tort Liability |
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Definition
| Usually cannot be disclaimed |
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Term
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Definition
| A provision that limits the remedies a person can recover for injury from a defective product |
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Term
| When are remedy limitations more likely to be enforceable? |
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Definition
| Where the sale is for commercial transactions (transactions between business), and not consumer goods |
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Term
| What are the old and new rules for product liability? |
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Definition
Old- Caveat emptor (buyer beware)
New- Caveat venditor (seller beware) since sellers are better able than consumers to bear the costs of defective products |
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