Absence of privity is not a defense. The duty of due care is owed to any foreseeable plaintiff— user, consumer, or bystander (such as a pedestrian injured when struck by an automobile with defective brakes). Breach of Duty To prove breach of duty, the plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a “defective product ” by the defendant. Causation The standard negligence analysis for both actual causation and proximate cause applies to products liability cases based on negligence. Defenses 45 | P a g e
P a g e | 46 The standard negligence defenses are applicable to any products liability case predicated on negligence. Thus, in comparative negligence states, plaintiff’s contributory negligence may be used to reduce his recovery in an action against a negligent supplier of defective chattels. LIABILITY BASED ON STRICT LIABILITY Prima Facie 1. D is a commercial supplier 2. D produced or sold a defective product 3. Defective product was the actual and proximate cause of the P’s injury 4. P suffered damages to person or property Defendant Must be “Commercial Supplier” Strict liability only imposed on one who supplies PRODUCT not a service (negligence for service) (negligent in the service)….Product Not Substantially Altered Privity not required As with liability based on negligence, a majority of courts extend this liability to any supplier in the chain of distribution and extend the protection not only to buyers, but also to members of the buyer’s family, guests, friends, and employees of the buyer, and foreseeable bystanders. Production or Sale of Defective Product Negligence need not be proved. Can be liable even if had no opportunity to inspect the product before selling it Causation Actual cause To prove actual cause, the plaintiff must trace the harm suffered to a defect in the product that existed when the product left the defendant’s control. However, if the defect is difficult to trace (such as if the product is destroyed), the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. Proximate Cause The same concepts of proximate cause governing general negligence and strict liability actions are applicable to strict liability actions for defective products. Damages Same as Negligence. Most states deny recovery under strict liability when sole claim is for ECONOMIC LOSE Defenses Contributory Neg 46 | P a g e
P a g e | 47 According to Restatement (Second) section 402A, ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff’s misuse was reasonably foreseeable Comparative Neg States own rules Disclaimers of Liability Ineffective Disclaimers of liability are irrelevant in negligence or strict liability cases if personal injury or property damage has occurred IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS 1. Proof Of Fault Unnecessary a.
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