Predate Strict Liability
Related to UCC Warranties
Cannot Disclaim for Personal Injuries
Based on Promises
Manufacturer Is Held to Specific Promises
Shatterproof Windshield Case
Claimed It Was Just "Puffing"
Court Said It Was a Clear Promise
Did Not Matter If It Was Impossible
Can Be Written or Verbal
Can Physicians Give Binding Warranties About Products?
Implied From the Context of the Sale
A Product Is Safe for What It Is Sold for
FDA Approved Drugs Have Only the Stated Risks
Implied Warranty of Fitness for a Specific Purpose
Manufacturer or Seller Says the Product Is Good for Something Other Than Its Usual Purpose
Use of Drugs For Unapproved Purposes
Jeep Sold for off the Road Use
Rolled and Killed and Injured Passengers
Made Like a Sardine Can
Manufacturer Claimed Improper Use
How Do You Prove?
Representations by Sales Persons
How Do You Prove Negligence?
Why Is This Hard for Products?
Generic Goods - No Specific Information
Defendant's Have Lots of Resources
Defects Affect Lots of People
Strict Liability Encourages Safety
Restatement of Torts 402a
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Defenses under 402a
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Is It a Product?
Product Versus Service
Customer Designed Product - Rides at Disney Land
Big Issue In Health Care
Special Shield Laws
Is It in the Stream of Commerce?
Display at Trade Show
Custom Machine at Factory
Do You Have to Buy It?
Test Drive at the Car Dealer?
Broken Cookie Jar Lid at Walmart?
Experimental Drugs and Devices
Is the Defendant a Seller?
Everyone In The Chain is Liable
Not the Case in Health Care
You Sell Your Used Car
You Make Clocks for a Hobby and Sell One
Special Rules for Used Goods
Manufacturer Is Always Liable
How is Health Care Different?
The Patient Is Not the Buyer
The Doctor Is Not the Seller
The Hospital Is Not (Usually) a Supplier
Who Do You Warn?
What Is the Role of The Learned Intermediary?
Otherwise The Same Theories As Consumer Products
Is the Product Only Ancillary to a Service?
Is It Why You Get the Service?
Who Selects It?
Does the Provider Make Money off It?
Hospitals and Physicians
Economics Have Changed
Missouri Tried Limiting the Exception
Expected and Does Reach Consumer Without Substantial Change?
Has There Been Unanticipated Modification?
Is It Substantial?
Is There Expected Modification by an Intermediary?
Does the Manufacturer Know That Users Modifies the Product?
Is Something Broken?
Was It Made Incorrectly?
Was There a Defect in the Material?
Is It a Component Part That Fails?
Is the Component Part Manufacturer Liable?
Is Made for This Specific Purpose, or Is It Generic?
O-Ring in Anesthesia Machine
Selection of Parts - Shopsmith
Bad Design - Jeep
Does It Create New Risks?
Was It Known or Knowable at the Time?
Big Issue In Health Care
Show What the Defect Is
Show Why It Creates the Danger
Show It Meets the Other Elements
Must Show That It Was an Improper Design
Really a Negligence Standard
How Is the Danger Linked to the Defect?
Failing to Prevent Known Risks
Absence of Safety Devices
Defective Safety Devices
Does It Cause the Injury?
Directly? (Weak Chain on the Chainsaw)
Does It Change the Way a Consumer Would Expect the Product to Work?
Based on Consumer Expectations
Chainsaws V. Sump Pumps
Unpreventably Dangerous Products
Warnings and Information Are Critical
Products That Are Dangerous As Used
Are There Unexpected Risks?
Fetal Alcohol Syndrome
Were There Misrepresentation?
Claims that Smoking Is Not Addictive
Drugs and the Like
Must Balance Risks and Benefits
Key Is Warning/information
Who Do You Warn?
What About Home Health Care?
Is the Info Understandable for the Audience?
Was There Misuse?
Could It Be Anticipated?
Is the Misuse Directly Related to the Injury?
Does the Manufacturer/Seller Encourage Misuse?
Selling For Improper Use - Oximeters
Is It a Warning Issue?
Is There Enough Information?
Is It Understandable?
What Reading Level and Language?
Is It Diluted?
Is the Warning Obvious?
Where Is It?
How Big Is It?
Who Gets The Warning?
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