Essay Approaches 1. Products a. There are five possible theories if recovery P can assert in products liability. They are negligence, strict liability, implied warranty, express warranty, and misrepresentation. b. Types i. Negligence 1. Proper Plaintiff: P can be anyone within foreseeable use. 2. Proper Defendant: manufacturers, product designers, wholesalers. 3. Duty: Must act as a reasonable manufacturer would act in same or similar circumstances in making product. a. Retailer/wholesaler: no duty to inspect have reason. 4. Duty owed to p: foreseeable user. 5. Breach: There are 3 types of breach. They are: a. Defect in manufacture b. Defect in design c. Defect in warning i. Show what a reasonable person would have done. 6. Actual Causation: but for 7. Proximate: foreseeable injuries 8. Damages: for pain and suffering, economic not valid. 9. Defenses a. Contributory b. Assumption of risk c. Misuse ii. Strict 1. P may recover from any commercial supplier who places a unreasonably dangerous product within the stream of commerce. 2. Proper p: anyone injured by product 3. Proper d: anyone with chain of distribution 4. Defective product a. Consumer expectation approach: beyond expectation, foreseeable dangers. b. Feasible alternative test: could make safer without costs outweighing benefit c. California test: unreasonably dangerous beyond expectation and proximate cause of injury 5. Actual cause: defect existed when left control 6. Proximate: any party between 7. Defenses a. Misuse b. Unknown risks
c. Assumption c. Warranties i. Express: affirmation of fact by seller which rely that safe. 1. affirmation 2. made to public 3. justifiable reliance ii. Implied: fails implied fitness of intended purpose 1. generally equal quality to other goods 2. forseeably used d. Mispresentation i. Misrep of material fact ii. Reasonable reliance iii. Scienter iv. Intent/negligence v. damage