PRODUCT LIABILITY LAW 1 The promise of product liability law ONLY products NO activities 2 Causes of action 1 Negligence majority of cases i duty of care negligence reasonably prudent product manufacturer in similar circumstances sembly testing warning labels must meet all 5 to avoid lawsuit where the duty of care exists product design selecting the materials as when the product was made ii negligence per se plaintiff shows a statute or administrative rule was violated iii res ipsa loquitur screen out defendants to 1 obvious defendant Ex Eating can of spinach with glass in it charge manufacturer 2 Misrepresentation but refuses to tell the consumer Prove by checking paperwork talk to engineers check email i fraudulent defendant manufacturer knows of a defect or problem with a product Grimshaw v Fomoco 1977 Ford motor company Ford Pinto gas tank was outside the frame of the car engineers tell executives the car will explode if you get in an accident get the car out anyways sumer using product gets injured product manufacturer is still liable Pharmaceuticals ii non fraudulent manufacturer test repeatedly and cannot find the flaw con 3 Strict liability not in all states OH does have it 6 elements and ALL must be met 1 product is defective at the point of sale 2 defendent is normally engaged in the business of making or selling of the product not secondary markets 3 product is unusually dangerous be cause of the defect 4 physical harm to you or property 5 causation link between the injury and the defect 6 product has not been substantially changed since it was bought 4 No privity of contract rule buy Chrysler car engine explodes can sue Cummins make engine Chrysler made car Car Dealership sold car 3 Sources of liability 1 2 gateway questions must answer at least one with YES cult to prove i Is the product dangerous beyond ordinary expectations of the consumer diffi ii Is there a less dangerous alternative that is economically feasible 2 Manufacturing process from beginning where conversion of raw materials occurs until the product is finished 3 design defects design blueprints and selection of materials before you start convert ing raw materials 4 inadequate warnings many lawsuits recently plaintiff says they were not warned Have to warn against any foreseeable use or misuse 5 market share liability newer plaintiff knows what product injured them but do not know the manufacturer that made it Court finds entire industry liable and company pays based on their market share Ex DES in pharmaceutical industry mom takes medicine and daughter develops cervical cancer later in life There were many manufactures of the drug put all of the defendants and plaintiffs together in one court case Trumps statute of repose 4 Defenses application of defenses 1 no defense to strict liability 2 do not apply to fraudulent misrep resentation 1 assumption of the risk plaintiff voluntarily uses the product and knew the risks ahead of time warning labels 2 product misuse if there is gross misuse Ex transmission goes out drives car in re verse to work gets in an accident 3 comparative negligence when using the product you violate a statute or ordinance Ex Shooting pigeons in city limits and bullet hits your kid 4 commonly known dangers everybody knows the health effects 5 knowledgeable user defense only is used when plaintiff has specialized training knowledge or expertise using that product Ex electrician 6 federal preemption best defense federal government writes a law where states cannot regulate No plaintiff has ever won a case against a tobacco company from start to finish i Cippolone v Liggett 1992 smoking lady started 7 statute of limitations if act is intentional you have 1 year to file a lawsuit if negligence or strict liability you have 2 years to file lawsuit Starts at the date of discovery Minors time does not start until they turn 18 8 statute of repose age of the product that caused the injury age when product was FIRST sold if more than 12 years old there is no product liability case cabin example where died from ac releasing free on ac was made in 1949 company not liable
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