Sunday, April 20, 2014

Theories of Products Liability

When the term "products liability" appears on the MBE, it's tempting to immediately think of strict products liability. But it's important to remember that there are quite a few theories of liability available to those claiming damages due to defective products. They are as follows:

--Strict Liability
--Implied Warranty of Merchantability
--Representation Theories (for example, express warranties)

On an essay, you should be sure to address all relevant theories, and on the MBE you should consider all theories of liability in your analysis. The one overarching factor among all theories is that to find liability under any products liability theory requires that plaintiff show that the product was defective when the product left defendant's control.

Let's assume there is a defect in the product rendering it unreasonably dangerous. Next you should determine:

--Did defendant intend the harm towards plaintiff (specific intent), or was the defendant substantially certain that the harm would occur (general intent)?


--Even though defendant did not intend for the harm to occur, did defendant act in a way that a reasonable person would not have acted, and are all the traditional elements of negligence satisfied?


Strict Liability
Is the defendant a commercial supplier who has produced or sold a defective product, and that defective productive is the actual and proximate cause of plaintiff's injuries.


Have implied or express warranties regarding the product been breached. The implied warranty of merchantability will only apply to merchants. Express warranties. however, are not similarly limited.

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