ordinary consumers would expect the product to function and whether there is a

Ordinary consumers would expect the product to

This preview shows page 49 - 51 out of 52 pages.

ordinary consumers would expect the product to function; and whether there is a feasible, safer, and affordable alternative design Use Risk –Utility Test- Chow Failure-to-warn (information flaw- warning sticker) (prod unreasonably dangerous b/c didn’t tell consumer there was risk when manuf knew about it) 5) Defect functioned as an actual and proximate cause of P’s injury (doesn’t change) Causes of Action for Products Liability: Privity – no longer required after MacPherson Negligence – P could prove negligence manufacture/design; might require res ispa to prevail (emphasis on manufacturers duties of vigilance) - Escola Misrepresentation – misrepresentation of material fact about product results in injury - contract Warranties – express; implied warranty of merchantability; implied warranty of fitness for particular purpose o Q: was there warranty/promise btwn manuf and ultimate purchaser (henningsen- chryslre gave disclaimer for warranties) Strict Liability – encompasses any claim that might be brought in negligence or warranty PL is the most significant place where our country began adopting SL as the rule for accidents PL really isn’t SL anymore a. 3 rd restatement builds negligence back in to PL – it’s a mess of both neg and SL b. No duty: no foreseeability, no relationship btwn D and victim (bystander) PL in other areas of Tort Law: o Property torts : concern for the consumer’s legitimate expectations for her physical safety o Ultrahazardous activities: large-scale production sometimes poses unavoidable hazards o Workers comp: modernist sense of the propriety of risk spreading and the concern for an uneven playing field between the individual and the large commercial enterprise PRECURSORS/ 1. MANUF DEFECT “DUTY of D while applying Res Ipsa Loquitor” (for SL) ESCOLA v. COCA COLA BOTTLING CO . (CALI) – res ipsa used for SL BUT Traynor’s concurrence stating SL 49
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bottle exploded in her hand (note: person not real consumer) ; cause of action – personal injury argued under negligence, P used res ipsa loquitur to prove breach BUT Traynor thinks otherwise! Duty on bottler to make appropriate tests before they are filled (“infallible” testing on the glass by manufacturer – which is why they weren’t brought in the case) Majority Rule : Res Ipsa Loquitur applies if: (1) D had exclusive control of the thing (i.e. charging and inspection of bottles) causing the injury and (2) the accident is of such a nature that it ordinarily wouldn’t occur in the absence of negligence by the D o Modern view of (1) is that D must have had control at time of alleged negligent act, but not necessarily at the time of the accident provided P proves due care between Ds control and the injury *The REAL Rule of the case Traynor’s concurrence : NOT a Res Ipsa Case (1/600 bottles get checked) BUT a SL case Liable IF: 1) places product on market 2) product has defect 3) mf knows product used w/o inspection 4) Porduct causes injury during normal use (he is worried about the fact that bottles can break in the absence of negligence) ** mfr FAULT NOT REQUIRED!!!
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  • Fall '08
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  • Tort Law

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