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at the time when sold or marketed (burden on P) BLACK LETTER LAW: Negligence & PL 2 separate COA BUTP 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 defectivemay sue for negligence w/o privityTODAY:grounded in separate body of law called strict products liability *every state has accepted MacphersonUniversal RuleR2D §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. permittedman injured while using defective power tool to recoverfrom the manufacturer on a theory of liability that NOTrelied on proof of fault nor warrantyNOT: casual sellers (craigs list); NOT: sellers of used goods; NOT sellers of services (generally)Who can Sue? Person using product; employerof person using product; manufacturer; any sellerof product; INDEMNIFICATIONPrima 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 **Policychoices come into play with products liability. Defect of product not negligence of product. 74
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) oMisuse may be SUPERCEDING case – preventing defect from being deemed a proximate cause BAD DEFENSEP “negligently” fails to discover risk oResponse 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 carein designing, manufacturing, or labeling oPrivity: 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 FORESEEABLE2: Warranty– 2 main ways liable under warranty (note: UCC attempts to deal statutorily with warranties) oExpress 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 claimabout the product’s attributes in advertisingor on the label.