Who Can We Sue?
This party is ALWAYS fair game in product liability and made the product.
Who is the manufacturer?
This theory does NOT require proving fault - just a defective, unreasonably dangerous product.
What is strict liability?
The three possible defects in a products liability claim.
What are manufacturing, design, and warning defects?
The "but-for" test is used to establish this type of causation.
What is actual cause?
The plaintiff acted carelessly - the fault is split.
What is comparative fault?
These middlemen move the product along but do not make it.
Who are distributors?
Duty, breach, causation, damages - this classic tort theory.
What is negligence?
This test asks: is the product dangerous beyond the expectation of the ordinary consumer?
What is the consumer expectation test?
When multiple causes exist, courts may use this test instead.
What is the substantial factor test?
Plaintiff knowingly encountered the danger.
What is assumption of the risk?
This is the last stop before the consumer gets the product.
Who is the retailer?
The two steps considered in the Reasonable Alternative Design test.
What are (1) is a reasonable alternative design available and (2) the failure to use it makes it not reasonably safe.
This asks whether the harm was a foreseeable result.
What is proximate cause?
Using a product in an unforeseen manner is this defense.
What is product misuse?
Under modern law, strict liability usually applies to ALL of these people collectively.
What is the chain of distribution?
What are Rd2 402A and Rd3 1&2?
This test weighs utility vs. risk AND asks if there is a reasonable alternative design.
What is 402A's Risk Utility/Wade test?
In warning cases, courts assume the plaintiff would have done this if properly warned.
What is heed (read and consider) the warning?
If the product was changed after sale, defendant may raise this.
What is subsequent alteration (modification)?
Even a component-part maker can be liable if this is true.
What is that the component was defective?
The direct contractual relationship between plaintiff and defendant this is needed in warranty PL claims.
What is privity?
The seven factors considered in the Risk Utility/Wade test (402A).
What are (1) utility of design as to public as a whole and the individual user; (2) likelihood to cause injury; (3) availability of safer design; (4) the potential for designing and manufacturing product so that it is safer but remains functional and affordable; (5) the ability of plaintiff to have avoided injury with careful use; (6) the degree of awareness of danger that can be reasonably attributed to the plaintiff; and (7) the manufacturers ability to spread cost related to improving the safety of the design.
An unforeseen intervening act can do this to causation.
What is break the casual chain?
Defendant argues that no safer design existed at the time.
What is state of the art?