This is a generic term. It is not an absolute duty. It is a fault liability. It means that there is something that has been placed into the marketplace by either the manufacturer or supplier (retailer/wholesaler). Those persons are held to a certain standard

Whose liablity  does product liablity describe?

An Example?

Product Liability is is the term we use to describe the liability of the supplier of the product whether it is the design team, the store that sales it, or the factory that makes it. And they can be held liable when there is something wrong with that product.

So if there is ladder that you buy and you are going to use it and something flies up hits you in the eye and you are blind and this happens because of defect, someone is liable for that defect.

All recalls for any product are to limit the liability of either the manufacturer or the supplier

1) Intent

2) Negligence

3) Stricl Liability

4) Implied Warranties of merchantability and fitness for a particular purpose

5) Representational Theories (express warranty and misrepresentation).

Most products liability cases deal with implied warranties/fitness for a particular purpose and negligence

What must exsit in order to have a product's liablity case?

What does this mean you have to figure out?

And what is the best way to approach a lawsuit in such a circumstance?

Existence of defect- to find liability under products liability theory- Pl must show that the product was “defective” when the product left the defendant’s control.

So you have to figure out where in the chain something was defective (i.e. was it defective when it left the store, the factory, or in its design). So it’s best to sue all three in order to cover your bases.

In a design defect, the fault falls on the designer.

1) Manufacturing defect

2) Design defect

Manufacturing Defect- definition

Example?

one 

product may be so “unreasonably dangerous” as to be defect due to the manufacturing process.

i.e. manufacture substitutes metal screws from design with a plastic peg that then quickly breaks and causes an injury to a child playing with toy. Or something happens in the manufacturing process that causes product not to be properly made.

includes any instructions or warnings on the package- all products of line are defective due to poor design (actual product or packaging)

i.e. inadequate warnings on packaging. Thos warnings come from the designer and not the manufacturer.

What is a defective product according to the Second statement of Torts?

Second of Torts §402A: A product can be the basis for a products liability action if it is in a “defective condition unreasonably dangerous: to users

i. usefulness and desirablility of the product

ii. Availablity of safer alternative products

iii. product dangers ad idnetified by trial

iv. Likelihood/probablity of serious injury

v. obviousness of danger

vi. Normal public expectation of danger

vii. Avoidability of injury by care in use of prodcuts

viii.         Feasibility of eliminating danger w/o seriously impacting product’s function or cost.

The courts look at this feasibility approach rationally (i.e. how much will it cost to modify this product to make it safe).. So it increases the cost of manufacture my $10 and it is usually $1.50 that will not be economically feasible).

1) Misue of product

2) Scientifically Unknowable Risks

Misuse of product- Its relationship to forseeability

example?

Scientifically unknowable risks and foreseeability

example?

Who is it assumed will educate individuals about drugs?

What does this mean for drug risks?

There is a presumption that the doctor will educate you about certain drug risks but for over the counter drugs, the onus is on the purchaser to read the drug info.

So there are two different risks for drugs.

So did someone from the Tylenol manufacturer intentionally manipulate the product? Did someone from the manufacturing side commit negligence in manufacturing?

Strict Liability Based on intent

When can it be used?

How do we get the requisit intent?

What kind of damages are allowed?

What defenses are available?

-attached if def intended consequences or knew injury was substantially certain to occur.

-look to intentional torts for requisite intent

-damages: compensatory, punitive

-usual defenses for intentional torts are available.

How can one prove the intent in a product's liability case?

What is the most common intentional tort used in product's liablity?

Example?

So one of the requisites of intent is to manufacture or design a product with the reasonable certainty knowing that the injury was substantially likely to occur. Once we determine the general or specific intent, the most commonly used basis for the products liability case is battery.

So i.e. You have a manufacturing plant and someone working in the manufacturing plant has a mental illness and he is working at a coca-cola bottling plant. He decides he hates coca-cola and then he decides to put crushed glass in some of the bottles as it goes through the plant. That is an intentional tort.

 1. Legal duty

2) Breach of that duty

3) Actual and proximate cause

4) Causes damages

Usually the duty of care arises when the defendant engages in the affirmative conduct associated with being a commercial supplier of the product

Who is a supplier?

Example?

Suppliers include the manufacturer of the product or a component part; the assembler, the wholesaler, the retailer, and even the used car salesmen who reconditions or rebuilds cares and then sales them.

This does not mean that Aunt Bea next door who pickles cucumbers for a fundraiser is a commercial supplier, even if aunt bea is negligent somehow in pickling her cucumbers, she will not be held liable as a commercial supplier would be.

1) Strict duty owed by a commerical suplier (this extends from a duty of a commerical supplier to a consumer)

2) Breach of that duty

3) Actual and proximate cause

4)    Damages

Who does strict liablity apply to in a products liablity case?

Does this apply if the product is free?

Between whom is the breach of duty? What does the PL have to show?

Example?

This not someone how does something at home this is a commercial supplier

Strict liability applies to the manufacture of the product or a part of the product, the retailer, or the wholesale, this now includes mass producers of homes and those of used products such as those on ebay.

This applies even if you are supplying the product for free

i.e. at Movie Theater you go to is selling candy that is rotten. Because they are a supplier of the product even though it is not their main business.

The breach of the duty between the supplier and the consumer- the plaintiff does not have to show that defendant was at fault for selling or making the product only that the product was so defective that it was unreasonably dangerous to the general public. And damages (to prove strict liability).

It harms a person’s relations interest with other persons in society

1) The false and defamatory statement

2) Concerning or about the plaintiff

3) The the defendant intentionally published to an unprivleged third party

4. Damaging the Pl’s reputation

Definition language that tends to adversely affect one’s reputation; tend to impeach Pl’s honesty, integrity, virtue, sanity or the like

Only living people can be defamed. If you are pl in defamation lawsuit, and you die during the trial, the claim dies with you because you are no longer harmed in their reputation.

Majority of jurisdictions require pl to prove the statement is false.

How many tests are there to establish defemation?

What are they (generally- name them)?

There are two different tests for private figures (i.e. me) or public person (i.e. Brad Pitt of bill Clinton). 

IF Person puts themselves out in the public for their own personal interest then they are a public figure and then it is much more difficult to show and establish a defamation claim. So public figure would have to prove that the defendant had knowledge of the falsity of the statement and acted with malice, I would just have to show that the statement is false.

What are the two kinds of demation? (generally)

How is which kind of defamation a statement is determined and by whom?

Defamation comes in per quod vs. Per se. Whether defamation is one of these, it is a legal question that is determined at the beginning of the case by the courts.

What is per quod defamation?

What MUST you have to have a per quod defmation case?

Example?

Per quod defamation requires actual damage or special damages/economic damages that are done to the plaintiff.

These are statements that are not defamatory on their face. They are not words that a jury would not necessary or absolutely find defamatory. Per quod cases are more difficult b/c the client must have actual damages (i.e. lost job or not granted a mortgage or they weren’t promoted or were demoted because of these statements). There has to be an economic harm because of the statements.

Per Se defamation- what is it?

What kind of damages are required?

Per se defamation it means that the words themselves on their face are defamatory. They damage the person’s reputation that a jury just in reading those words would find that those words could not be taken any other way but to damage a person’s reputation. I.e. you leave your job to go to school, you graduate and are being interviewed and it calls up your former employer and they imply that you were stealing but there is no proof that you did it and the person who said it said it to try and get with your bf. The words on their face is defamation b/c they accuse you of a crime

Per se defamation: words are defamatory on their face; unique damages: presumed/ they are similar to punitive damages

You must know the difference between the words on their face and if it can be taken either way then it's per quod. If it’s obvious it’s defamation than it’s per se. For per quod, you must show damages. For per se, you get similar stuff as punitive.

To be a public figure, you must hold yourself out for your own benefit to the public in the normal course of business.

What are the requirements to bring a defamation case against a public plaintiff?

What is the important lawsuit that contributed to this standard and what did it decide?

What must be balanced in these cases

1) Balance of 1st amendment rights with  the person's reputation if the speech is of public concern.

2) The elenement of fault requires actual malice  

New York times v. Sullivan: statement must be false.

What is the standard for a private plaintiff to bring a defamation suit?

Under what bases can you get what kinds of damages

1) Element of fault can be proven by either

a) Negligence or B) Actual Malice

If based in negligence, you only get actual damages

If it's based in actual malice, you get both actual and punitive damages.

-       clear and convincing evidence that the def knew published statements were false or acted with reckless disregard and this usually means that they did no investigation to determine that the statement they were about to make was false.

The plaintiff attempts to demonstrate that a product is unreasonably dangerous because of a design defect by presenting evidence of an alternative design that would have prevented injury and was feasible in terms of cost, practicality and technological possibility" Hanson v. Baxter Healthcare, 198 Ill. 2d 420, 436 (2002).

Basically it's a way to show that a prodcuct was defective!