How do you attack strict liability and products liability?

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uzpakalis
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How do you attack strict liability and products liability?

Postby uzpakalis » Wed Dec 01, 2010 4:17 pm

I assume you don't do the standard duty/breach/causation/damages. Is it more like evaluate SL or warranty and then/causation/damages? Any input would be appreciated.

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BarbellDreams
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Re: How do you attack strict liability and products liability?

Postby BarbellDreams » Wed Dec 01, 2010 5:55 pm

Strict liability is not based on negligence, it is based on causation. If I take every reasonable precaution in the world to make sure my product comes out fine and there is one that comes out defective I will still be liable under strict liability for a manufacturing defect. The very very basic answer is focus on causation, not negligence.

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cahesu
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Re: How do you attack strict liability and products liability?

Postby cahesu » Wed Dec 01, 2010 6:06 pm

Strict Products Liability:

DUTY: The manufacturer has a duty to create a reasonably safe product, free from defects. (The retailers have a duty to sell reasonably safe products, free from defects.)

BREACH: The product sold is defective in some way.
1) Manufacturing defect
*strict liability
2) Design defect
*negligence standard (BPL analysis)
3) Failure to adequately warn

CAUSATION: The defect was the proximate cause (or a proximate cause) of the plaintiff's injury.

DAMAGES: The plaintiff suffered physical harm (and potentially emotional or economic harm due to the physical harm).

kxz
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Re: How do you attack strict liability and products liability?

Postby kxz » Wed Dec 01, 2010 10:16 pm

That was a good breakdown of PL.

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kswiss
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Re: How do you attack strict liability and products liability?

Postby kswiss » Thu Dec 02, 2010 1:09 pm

Yeah, the action is at the "defect stage."

Mismanufacture --> proof problems (you have to prove that it was different than manufacturers specs when it left the factory, hard to do.

Misdesign/failure to warn --> basically a negligence standard: would a reasonable manufacturer have created this design? Was a safer design feasible/practicable? OR Was it more dangerous than a reasonable consumer would expect to receive?

Cause --> but for the defect, the harm wouldn't have happened?

Foreseeability --> foreseeable use / foreseeable misuse?

Damages

Also: strict liability is usually statutory, so it isn't necessarily the same elements as negligence.

Generic20101L
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Re: How do you attack strict liability and products liability?

Postby Generic20101L » Fri Dec 03, 2010 9:53 pm

cahesu wrote:Strict Products Liability:

DUTY: The manufacturer has a duty to create a reasonably safe product, free from defects. (The retailers have a duty to sell reasonably safe products, free from defects.)

BREACH: The product sold is defective in some way.
1) Manufacturing defect
*strict liability
2) Design defect
*negligence standard (BPL analysis)
3) Failure to adequately warn

CAUSATION: The defect was the proximate cause (or a proximate cause) of the plaintiff's injury.

DAMAGES: The plaintiff suffered physical harm (and potentially emotional or economic harm due to the physical harm).


So, I would assume you could apply that to Products liability caused by negligence and warranty?

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JazzOne
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Re: How do you attack strict liability and products liability?

Postby JazzOne » Fri Dec 03, 2010 10:02 pm

kswiss wrote:Yeah, the action is at the "defect stage."

Mismanufacture --> proof problems (you have to prove that it was different than manufacturers specs when it left the factory, hard to do.

Misdesign/failure to warn --> basically a negligence standard: would a reasonable manufacturer have created this design? Was a safer design feasible/practicable? OR Was it more dangerous than a reasonable consumer would expect to receive?

Cause --> but for the defect, the harm wouldn't have happened?

Foreseeability --> foreseeable use / foreseeable misuse?

Damages

Also: strict liability is usually statutory, so it isn't necessarily the same elements as negligence.

The defect is exactly the contestable issue in many PL cases. The product must be defective and unreasonably dangerous to prove products liability. Unreasonable danger is determined by the expectations of the ordinary consumer of the product. Normally, a specific feature of the product is alleged to be the defect (such as a crack in the glass of a coffee pot that causes it to break open and spill hot coffee on someone). However, there is an analog of res ipsa loquitur that will allow the court to infer a defect, even when the actual defect is unknown, if the type of accident would not normally occur in the absence of a defect. For instance, if your coffee maker catches on fire and burns the house down, you might not be able determine what the defect was, but the defect might be inferred since coffee makers will generally not catch on fire unless they are defective. Many times the defect is known even after a fire, but not always. The 3rd Restatement has a specific provision regarding this inference, though it is not referred to as "res ipsa."

Edit: If I recall correctly, the 3rd Restatement has separated the three types of PL. It used to be that you argued the same elements no matter what your theory of PL was. Now, I think there are different elements in many jurisdictions depending on whether the claim is a defect in manufacturing, design, or warranty. Basically, in the 1960s, the 2nd Restatement announced uniform elements for all three types of PL. Then we had 30 years of case law that showed why those elements were not well suited for design defects or warranty failures. So, the modern trend (including the 3rd Restatement) is to treat each type of PL slightly differently.

Generic20101L
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Re: How do you attack strict liability and products liability?

Postby Generic20101L » Fri Dec 03, 2010 10:37 pm

cahesu wrote:Strict Products Liability:

DUTY: The manufacturer has a duty to create a reasonably safe product, free from defects. (The retailers have a duty to sell reasonably safe products, free from defects.)

BREACH: The product sold is defective in some way.
1) Manufacturing defect
*strict liability
2) Design defect
*negligence standard (BPL analysis)
3) Failure to adequately warn

CAUSATION: The defect was the proximate cause (or a proximate cause) of the plaintiff's injury.

DAMAGES: The plaintiff suffered physical harm (and potentially emotional or economic harm due to the physical harm).


Not just manufacturer has the duty.

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JazzOne
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Re: How do you attack strict liability and products liability?

Postby JazzOne » Fri Dec 03, 2010 10:41 pm

Generic20101L wrote:
cahesu wrote:Strict Products Liability:

DUTY: The manufacturer has a duty to create a reasonably safe product, free from defects. (The retailers have a duty to sell reasonably safe products, free from defects.)

BREACH: The product sold is defective in some way.
1) Manufacturing defect
*strict liability
2) Design defect
*negligence standard (BPL analysis)
3) Failure to adequately warn

CAUSATION: The defect was the proximate cause (or a proximate cause) of the plaintiff's injury.

DAMAGES: The plaintiff suffered physical harm (and potentially emotional or economic harm due to the physical harm).


Not just manufacturer has the duty.

This is also true. Everyone in the supply chain can be sued for products liability, including the retailer. Although, I think the retailer can seek indemnification from the manufacturer.

Cogburn87
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Re: How do you attack strict liability and products liability?

Postby Cogburn87 » Sat Dec 03, 2011 10:21 pm

JazzOne wrote:This is also true. Everyone in the supply chain can be sued for products liability, including the retailer. Although, I think the retailer can seek indemnification from the manufacturer.


This is correct. Pretty much every jurisdiction has implied rights of indemnification up the distributive chain. However, these implied rights can be contracted away through hold-harmless agreements, which courts unanimously enforce.

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sun
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Re: How do you attack strict liability and products liability?

Postby sun » Sat Dec 03, 2011 10:50 pm

I just want to point out that OP started this thread a year ago.

Cogburn87
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Re: How do you attack strict liability and products liability?

Postby Cogburn87 » Sat Dec 03, 2011 11:22 pm

Bizarre. It was on the front page when I clicked it.

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shepdawg
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Re: How do you attack strict liability and products liability?

Postby shepdawg » Sun Dec 04, 2011 12:50 am

This is my strategy for Abnormally Dangerous activities analysis. Agree?

Step 1: Posner/Gerhart analysis. Can the activity's risk be eliminated with reasonable care? If yes, it's negligence standard. If no, move on to Restatement factors.
Step 2: Go through each of the restatement factors.

......
Products Liability question. Can RIL be use to show that the product was defective at the time it left D's control, or is it supposed to be applied just to the causation of the injury?




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