Monday, May 7, 2012

Strict Products Liability: Defective Products

The following question was asked in an e-mail:

"On product liability under SL theory where do you analyze the product defect (under duty or breach)?"


What makes products liability difficult, and a likely essay topic, is that there are five theories of liability that plaintiff may use to prove liability. They are intent, negligence, strict liability, implied warranties, and express warranties. On an essay, you would want to address them all.

In regards to strict products liability, the analysis is very similar to negligence in this context, but the duty that defendant owes to plaintiff differs. On a theory of strict liability, defendant owes an absolute duty to supply plaintiff with safe products. In addition, defendant is liable only if he is a commercial supplier of the product.

The defects enter the analysis when determining if defendant has breached his duty of care to supply plaintiff with safe products. You must examine the facts to determine whether there is either a manufacturing defect (the product failed to perform as safely as an ordinary consumer would expect), a design defect (defendant could have made the product safer without serious impact on the product's price or utility, or inadequate warnings (defendant failed to give adequate warnings as to the risks involved in using the product). Any of these three can form a basis for breach of duty. You should also address whether the defect made the product unreasonably dangerous, as this, too, is required for liability. Finally, address causation, which is quite similar to a case in negligence (you'll want to address both actual and proximate causation).

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