at the time when sold or marketed burden on P BLACK LETTER LAW Negligence PL 2

At the time when sold or marketed burden on p black

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at the time when sold or marketed ( burden on P ) BLACK LETTER LAW : Negligence & PL 2 separate COA BUT P cannot recover double for same injuries Historically : Winterbottom : since P&D NO contract, P could not recover Macpherson : established general principle – once P shows product unreasonably dangerous IF defective may sue for negligence w/o privity TODAY: grounded in separate body of law called strict products liability * every state has accepted Macpherson Universal Rule R2D §395 one who negligently manufactures a product is liable for any personal injuries proximately caused by negligence Emergence 1963 : Greenman v. Yuba Power Products Inc. permitted man injured while using defective power tool to recover from the manufacturer on a theory of liability that NOT relied on proof of fault nor warranty NOT : casual sellers (craigs list); NOT : sellers of used goods; NOT sellers of services ( generally) Who can Sue? Person using product ; employer of person using product; manufacturer ; any seller of product; INDEMNIFICATION Prima Facie: AMOL (1) P has suffered an injury (emotional, economic, property damage) (2) D sold product ( NOT : services, human body parts, live animals, textual material (except maps/charts), intangible) (3) D is a commercial seller of such products (4) At the time it was sold by D, the product was in a defective condition; and (5) The defect functioned as an actual and proximate cause of P’s injury ** Policy choices come into play with products liability. Defect of product not negligence of product. 74
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DEFENSES: Assumption of risk Contributory: if act of P combined with product caused harm Knowingly pursues high-risk & even in absence of defect injury could have occurs Ignoring safety precautions Misuse of product (unless misuse is reasonably foreseeable and could be guarded against) o Misuse may be SUPERCEDING case – preventing defect from being deemed a proximate cause BAD DEFENSE P “negligently” fails to discover risk o Response to Defense : may turn to TJ Hooper : custom is NOT dispositive on the issue of negligence b/c an entire industry may have lagged in the installation of safety devices. 3 main theories under which seller of chattel liable: 1: Negligence – used to make manufacturer liable for failing to use reasonable care in designing, manufacturing, or labeling o Privity : NOT REQUIRED. Negligent manufacturer is liable to “ remote ” purchaser (one who bought from some intermediary in the distribution channel), or “ user ” or “ bystander P MUST BE FORESEEABLE 2: Warranty – 2 main ways liable under warranty ( note: UCC attempts to deal statutorily with warrantie s) o Express Warranties : If goods turn out not to have these qualities, the purchaser (or affected persons) may sue for this breach of warranty. Most commonly , breached by making a false claim about the product’s attributes in advertising or on the label.
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