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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Tuesday, May 18, 2010

2 – Strict Liability in Tort (Strict Liability for Defective Products - Elements)

2 – Strict Liability in Torts (Strict Liability for Defective Products - Elements)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Once again, remember that when faced with a fact situation wherein a consumer is injured by a product, you should think “Strict Product Liability,” but you should also think negligence and breach of warranty. Always, always, always consider those three causes of action.

For the negligence cause of action, approach it using all we have already learned about negligence: Duty, Standard of Care, Breach of Duty, Causation, Damages and Defenses. We’ll talk about Warranty in a future post.

For now, let’s look at strict products liability. What are the elements of a strict liability claim? 1) Proper parties, (2) defective product, (3) causation, (4) damages and (5) absence of defenses. You could also look at Restatement 402A. A manufacturer or seller of a product will be strictly liable if: (1) the product was in fact in a defective condition, unreasonably dangerous for its intended use; (2) such defect existed when the product left defendant’s control; and (3) the defect was the proximate cause of the injury sustained, so these would also be an acceptable answer.

Proper Parties:

Obviously, one who is injured by a defective product, is a proper plaintiff, but what about a proper defendant. Here the rule is one who is in the stream of commerce, or the like. That would include a designer, component parts designer, manufacturer or component parts manufacturer, distributer, supplier, wholesaler, retailer, etc.

Defective Product:

What tests do courts use to determine if product is defective?

1) Consumer expectation test – Is product more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner?
2) Risk/Utility test – Does the product’s risk of harm outweigh its utility? (If “. . . the benefits of the challenged design do not outweigh the risk inherent in such design . . .” then the product design is defective.)

What types of defects are there?

1) Manufacture Defect
2) Design Defect
3) Information Defect (Failure to Warn)

Causation:

The defect in the product actually and proximately causes the injuries.

Defenses:

1.) Product Misuse: Manufacturers and sellers can defend themselves on the basis of misuse so long as the misuse is not reasonably foreseeable. The question in this instance is whether it is reasonably foreseeable that I would spin the gun on my trigger finger. However, my friend’s claim would not be barred by this defense (the claim against the seller or manufacturer) because it is my misuse. Not my friend’s.

2.) Assumption of Risk. Assumption of the risk applies to products liability cases to bar any claim by the plaintiff who knowingly and voluntarily assumed the risk. (Here, for example, it might be shown that I knowingly and voluntarily assumed the risk that the safety switch might not work if I made statements specifically disregarding that risk.) However, my friend’s claim would not be barred by this defense, since assumption of the risk applies only to the plaintiff who did the act resulting in the injury.

3.) Contributory/Comparative Fault: Contributory negligence/comparative fault were not defenses under the traditional rule. However now that most jurisdictions have adopted comparative fault, the plaintiff's negligence will reduce his/her recovery.

Next in torts, we’ll look more closely at the defective products issue.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

2 comments:

  1. In civil cases, all or some of the substantive law issues decided by a state court may be determined under the law of another state or country, if that state's choice of law rules provide for the application of another state's laws.

    ReplyDelete
  2. You are right, but if the parties choose, by placing that choice in the contract, that the law of another state will apply, there must be some reasonable basis or connection of the parties or the subject matter to that other state. In addition to selecting the law of another state, the parties can also select the jurisdiction of another state so long as there is a reasonable basis or connection. In that case, if there is a dispute, the suit would have to be brought in that state - jurisdiction - the parties have selected.

    For a strict product liability suit, jurisdiction and the choice of law would, almost always, be where the injury occurred.

    Professor Holden

    ReplyDelete