Law School Outline - Products Liability Exam Outline - Emory Law

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Law School Outline - Products Liability Exam Outline - Emory Law Powered By Docstoc

A. Traditional Neglig 1. Duty 2. Breach of Duty a) Industry custom is evid of BofD b) S-of-the-A for reasonableness of design 3. Cause in fact 4. Proximate Cause 5. Injury B. Dean Green Duty Theory 1. Retains foreseeability only for breach of duty/negligence. 2. Foreseeability was used as a squid function to conceal itself, judges, lawyers may in effect confuse the jury 3. 3 primary elements a) CIF- court must decide that reasonable minds could differ b) Negligence-breach of duty/failure to exercise care (jury issue) c) Duty of D-broad issues for the court (policy), Court weighs factors: (1) Precedent: apply to cases on pt. (2) Insurance: who can best obtain it (3) Prevention: how easy for D to have prevented injury (4) Economics: impact of verdict on similar Ds, industry, etc. (5) Justice: fairness, morality of shifting liability to D (6) Administrative role of courts: flood of lawsuits, practical considerations (7) Impact: on society of placing duty on D (8) Loss shifting: D’s ability to carry the loss- sometimes a practical factor 4. The judge’s function is to determine D’s duty to P (using policy considerations) 5. Jury’s function is to determine whether D breached his duty” C. When to Use 1. Rx Drugs a) If D receives Rest 2d, Cmt K defense in DD/WD 2. Natural in Food a) If fails CET in MD D. Negligence Defenses 1. Contrib Fault amounting to Negligence a) Injury caused by Awareness of defect + Unreasonable use b) Bars / Reduces recovery 2. Contrib Fault amounting to AofR a) Awareness of Risk b) Voluntarily choice to chance the risk



WARRANTY Privity Req'd Seller = Seller only Buyer = Buyer + family

A. Breach of Express Warranty 1. UCC 2-313 2. Prima Facie a) Representation in the contract itself about quality/performance b) Regarding a basis of the bargain c) NB: P need not rely d) NB: Liable regardless of fault 3. Example: “Golf ball will not hit player” B. Breach of Implied Warranty of Merchantability 1. UCC 2-315 2. Prima Facie a) Only requires the seller to be a merchant of this sort of product b) Defect Req'd 3. Examples a) Exploding Bottle (1) SL – DD (2) Warranty - I.W.Merch (3) Neglig – RIL b) Foreign in Food C. Breach of Implied Warranty of Fitness for a Particular Purposes 1. UCC 2-315 2. Prima Facie a) Seller knows of P’s purpose b) Seller recommends the product c) P relies on seller’s judgment 3. Pure Econ Recovery




2. Prima Facie a) Misrepresentation of material fact b) Made publicly c) Injury after justifiably relying on it (“I purchased b/c of this rep”) d) NB: No Defect Req'd e) NB: Use if you cannot prove “defect” under 402B. 3. Examples: “Golf ball will not hit player” 4. Counterexample: Nuns were not influenced by the tires when they rented the car

PRIMA FACIE CASE (REST 2d)  Defect existed when left seller for market  Product was defective / unreasonably dangerous  Defect caused P’s injury REST 2d v. REST 3d  Defectiveness a) Rest 2d – 1 test for defectiveness b) Rest 3d – 3 tests for MD, DD, WD  Tests c) Rest 2d – CET ????? d) Rest 3d – Adopts RUT, but includes CET as a factor in the main RUT  Stds e) Rest 2d – SL for all defects (no distinction) f) Rest 3d – SL for MD; Radical Neglig for DD; Neglig for WD (1) RADICAL NEGLIGENCE (DD) IMMUNIZES 3 SCOURGES B/C THERE IS NO RAD.

B. MANUFACTURING DEFECT 1. Definition = Manuf is strictly liable in MD. P argues that the particular unit of Manuf’s product departed from Manuf’s own intended design specs for this product, with dangerous consequences. 2. Prima Facie Elements: a) Difference between this unit and similar products b) Did defect cause the injury? c) Did defect occur pre/post sale – control? 3. Several CofA a) Warranty - IWM b) SL – MD c) Neglig – RIL

(1) Breach, BofD, Causation & Injury get you to jury (2) Manuf’s Exclusive Control (3) Would not normally happen 4. Proving Defect & Causation To determine, evid on operative factors goes to jury a) Use Experts (Krause, Pouncey) b) Prima Facie with Direct Evid (tire itself) c) Prima Facie with Circum Evid (1) Product malfunctioned (2) Lack of Evid of Abnormal Use (3) Proof excluding other causes d) Was Manuf in Exclusive Control? e) Normal, Intended Use? f) Sealed Container  RIL (1) Prove Cause (2) Prove Control (3) Show evid of No Tampering (no BofP) g) Exploding Bottle  RIL (1) Prove Caused (2) Prove Control (3) Circum / No Evid h) Food (F3C / NON) (1) Old Rule: Foreign (3 CofA) vs. Natural (Only Neglig) (2) New Rule: SL-CET [fish chowder]  Regionalism  Argue defect can be foreign and natural 5. EXCLUDE a) S-of-the-A excluded b/c you only need to show departure from Manuf’s specs


C. DESIGN DEFECT 1. Definition = Manuf is strictly liable in DD. This product was exactly what it was supposed to be, in terms of the design specs, but the design nonetheless caused harm. 2. CET (10) = Defective “if it is dangerous to an extent beyond Ordinary Consumer’s contemplation when used as intended.” a) Problems: (1) Exclude for Complex Design (average Joe doesn’t know what to expect) (2) Bars recovery for Open/Obvious Defect (everyone can contemplate it) (3) Bystanders cannot have expectations about products 3. RUT (15) = Defective when “the magnitude of the danger outweighs the utility of the product”, consider under Barker Factors… (1) Usefulness of the product (2) Likelihood of Injury (3) Gravity of Injury (4) Consumer Awareness of Danger (5) Consumer Ability to avoid danger (due care) (6) Manuf Ability to eliminate danger (7) Manuf Awareness of Safer RAD (8) If not, Feasibility of Safer RAD (good enough) (9) Adverse Conseqs of Safer RAD on product & consumer (10) Financial cost of improving (11) Feasibility of spreading the loss Defective = Cheap fix, Fix would bring up to floor, Doesn’t affect product’s nature Not Defective = Expensive fix, Fix would revolutionize, Changes product’s nature 4. Imputed Knowledge (9) = “Defective if, knowing of the risk, reasonable Manuf would still sell it?” 5. Purposes of SL (Escola Conc) a) Risk-Spreading; Deterrence; Loss Allocation; Utility & Efficiency; Administrative Efficiency; Consumer Expectation Of Safety; Fairness/Justice; Indiv Autonomy b) Manuf can get insurance c) Manuf is best able to evaluate product and reduce hazards d) Manuf can spread the loss among the public as “cost of doing biz” e) No longer close relationship b/t consumer and manufacturer since mass manuf. f) Consumer has no skill to investigate 6. Must Prove Specific Defect Split courts a) P gives evid & jury decided whether defect (1) Maj: You need defect (excludes 3 scourges) (2) Min: Even no defect will get to jury for RUT (aboveground pool) 7. Complex v. Everyday a) Simple: Use CET (jury assessed airbag performance, not design) b) Complex: Use RUT (jury assessed toe pan)  Premise = Jury has little/no understanding/expectation

8. Tests for Defectiveness a) CET b) RUT c) Imputed Knowledge 9. Direct Evidence 10. Circum Evidence is acceptable (Split courts a) P must show some evid for jury. State Farm conservative court b) Weak circumstantial evid is suffic for jury. Ayres liberal court 11. Safer RAD a) Already in RUT b) NB: Not req'd! 12. Obviousness/Patent Danger a) Only 1 pro-D factor in RUT b) No Defense! (1) Kids: D-parental duty || P-Bright color (2) Moto: D-no defect, just dangerous || P-defective crash bar 13. Misuse a) Affirmative Defense Only = Misuse if P’s use was so unforeseeable that D need not have anticipated it (eg. leaning agst window) 14. Alteration (split courts) a) Maj: D must show alteration (defense) (1) Show defect, cause in fact, AofR b) Min: P must show no alteration (P’s case)

15. Custom / Compliance w/Industry Stds (split courts) a) Maj: Exclude – smacks of negligence b) Min: Admit – probative of costs/feasibility 16. State of the Art a) Admit to show technological environment at time of manufacture 17. Evidentiary Proof of DD a) Expert: Daubert Hearing b) Subsequent Repairs Doctrine: Exclude to prove Neglig or DD c) Subsequent Repairs Exception: Admit to prove feasibility (RAD) d) Similar Accidents: Admit as Declarations Agts Interests e) Recall Letters: Admit is sufficiently similar to this DD (104a) 18. Crashworthiness a) “How much MD/DD contrib’d to 2d injury subsequent to initial impact” b) Examples = fire extinguisher screw, airplane upholstery, car trunk c) P – Decide Causation (subst factor) of each party

d) Judge – Decide divisible or indivisible (1) P – If divisible, Divide damages (2) D – If indivisible, Apportion injuries (1st crash v. 2d impact) 19. No DD in 3 Scourges a) Rest 3d, §2b excludes b/c there is no RAD b) Guns (1) Not abnormally dangerous activity (2) But, “no legit purpose” worked for SatNiteSpec c) Climate = Fed protects Manuf, who is attacked by State Legis d) Public Nuisance not yet tested 20. Rx Drugs – Freeman accutane injury a) Min: Cmt K as blanket defense b) Maj: Cmt K as case-by-case defense (a) P – Decide Unreasonably Dangerous under CET/RUT (b) D – Cmt K defense (c) Judge – RUT Minitrial ….Cmt K is defense if: (i) Properly manuf’d + adequate warnings (ii) Benefits justify risks (iii) Incapable of being made more safe  Very useful, FDA-approved drugs will always win Rx Drugs – Shanks xanax suicide a) RUT, or Reasonable Dr Expectation Test Contaminated Blood a) Since Cmt K only shields pure products, States estab’d Blood Shield Statutes as blanket defense b) Can only sue in Neglig!



23. SL v. IWM a) Not mutually exclusive (Bronco II) (1) Lose SL-RUT b/c “utility outweighs risks” (2) Win IWM b/c “fit for ordinary purposes” 24. Defenses a) Misuse (1) Affirmative Defense Only = Misuse if P’s use was so unforeseeable that D need not have anticipated it. b) Assumption of Risk (1) Elements: (a) Awareness of Danger (b) Voluntary use of product, despite knowledge (2) EXCEPT: Argue no AofR for employee who acts out of econ necessity. 25. Not Defenses a) Open/Obvious

D. WARNING DEFECT 1. Definition = Manuf is strictly liable in WD where Manuf did not provided inadequate info of foreseeable dangers flowing from normal/intended uses. 2. Prima Facie = To determine defect, jury will weigh all operative factors, such as... 3. State of Art a) S-of-the-A = Risks that were known or knowable in light of the generally recognized and prevailing best scientific knowledge b) Carlin (maj) = SL if risk was knowable under S-of-the-A when sold. (1) Trending toward neglig (2) But, not liable if not feasible c) Imputed Knowledge + Neglig (min) = Assuming reasonable Manuf actually knew, would he have warned? d) Imputed Knowledge + SL (Beshada) = SL regardless of what Manuf knew or could have known under S-of-the-A. 4. Duty to Warn a) Criteria to determine duty (1) Inherent & hidden danger (2) Manuf knows or should know (3) Substantial Factor in injury (4) Reasonably used 5. Causation a) “Whether Consumer would have changed his conduct” b) Read & Heed Presumption = If warning were provided, P would have read & heeded it. (1) Rebuttable Presumption (P didn’t read; P flouted) 6. Adequacy (“Was warning reasonable under the circums?”) a) Consider your audience (Faberge) b) Consider foreseeable alt uses (cotton puffs) c) Consider True Intended Use (ethyl gaz) d) Placement, Big, Bright, Graphics e) Employees: If product will be dispensed, classes, video, etc f) Jury decides this g) No Alt Warning req'd h) Colorful around kids i) Language: If danger will result, say “will” 7. Patent Danger a) No duty b) Just do RUT (a) Liquor poisoning is obvious Brown (b) Liquor pancreatitis is not obvious Hon is only case

8. Expertise (split courts) a) Maj: Consider if obj’ly shown (pro cleaners inhaled chem.) b) Min: Do Not Consider (pro lifter used thin sling) 9. Extremely Dangerous a) …should only be used by trained pros (Vandall!!!) 10. Foreign Languages a) Duty if targeted (ads, exported) to that particular group 11. Allergies (Rest 2d, Cmt J) a) Duty to Warn… (1) Substantial population is allergic + Danger is Unknown, or (2) Consumer would not reasonably expect + Danger is Known b) No Duty to Warn… (1) Only dangerous if you overconsume for long time (fat, cig, alky) 12. Rx Drugs a) Criteria to determine whether warning is adequate (1) Content (2) Sense of Urgency (3) Placement (4) Design (5) Unduly Delayed 13. Post-Sale Duty to Warn (negligence) a) Only applies if product was defective when sold b) Reasonable Person Test (Rest 3d): (1) Seller knows/should know the product causes a risk (2) Purchasers can be identified and are unaware of the risk (3) Warning can be effectively communicated and acted on (4) Suffic’ly great risk 14. Defenses a) Open/Obvious (1) Full Defense (Vandall hates this!!!)l b) Learned Intermediary Doctrine (1) Rule: No Duty to Warn patient (2) Exceptions for [direct marketing] & [involved patient]
Norplant Pill

c) Bulk Supplier Doctrine (1) Rule: No Duty to Warn End-user if reasonably rely on Middleman (a) Inquiry = Intermediary’s knowledge? (b) Inquiry = Manuf’s awareness of middleman’s sloppiness (2) BUT must forward new warning  Vandall: Duty to Warn End-user. Period.


Examples = Supplier gives classes; Supplier ensures repackaged product gets new warning

d) Sophisticated User Doctrine (1) Rule: No Duty to Warn End-user is he is sophisticated (ignore middleman) (a) Inquiry = End-user’s sophistication? e) Misuse (1) Rule: P’s use of product was so unforeseeable that D need not have warned agst the risks. (2) Remember: D must warn agst foreseeable misuse f) Agency Compliance presumes Adequacy (rebuttable)


SL DEFENSES 1. COMPARATIVE NEGLIG a) Good for D  Only pays to the extent of his fault b) Good for P  Gets something – unlike contrib neglig 2. ASSUMPTION OF RISK a) Prima Facie (1) Awareness of defect (2) Voluntary use of product b) Some: Total Defense (1) Disclaimer (totally aware) c) Some: Compared (1) Get it the car with drunk friend (you are contrib neglig) 3. MISUSE a) P used product in an unforeseeable manner (1) MD: Abnormal use caused injury (2) DD: No duty to design for unforeseeable use (3) WD: No duty to warn agst unforeseeable use a) Total Defense if sole cause b) Compared if multi causes c) NB: Not misuse if foreseeable use  Vandall: Abolish misuse 4. ILLEGAL/IMMORAL ACTS a) Total Defense 5. IMMUNITIES a) WORKERS COMP (1) Some: Manuf gets No Contribution from Employer (2) Some: Manuf gets Contribution from Employer (up to Amt Employer would pay Employee) b) GOV'T CONTRACTOR DEFENSE (1) Total Defense 6. PREEMPTION a) Factors… (1) Size of the problem (2) Likelihood of serious injury (3) Volume of Cases (4) Climate of Court (5) Concern of the Court 7. SofL a) Trad Rule: Tolls when injury occurs

b) Discovery Rule: Tolls when P learns/should have known of injury (jury call) 8. SofR a) Bars recovery a certain period after distributed. 9. UCC - DISCLAIMER a) D can disclaim all 3 Warranties, if clear/conspicuous (EMW, 2 IMWs) 10. UCC - REMEDY LIMITATIONS a) D can limit liability for commercial damages, if conscionable (1) Unconscionable if no remedy for Personal Injury



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