Products Liability

Products Liability Check List

402a

Is it a product?

Product versus service

Is it provided ancillary to a service? (medical care)

Is it why you get the service?

Who selects it?

Does the provider make money off it?

Is the defendant a seller?

Engaged in the business of selling?

Casual seller?

Custom machinery - rides at Disneyland that they build themselves?

A demo?

What kind of lease?

Products on display for sale?

Expected and does reach consumer without substantial change?

Has there been unanticipated modification?

Is it substantial?

Is there expected modification by an intermediary?

What is the defect?

Manufacturing defect?

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?

Design defect?

Selection of parts - Shopsmith example

Bad design - Minster Machine

Is there a way to change the design?

Feasible?

Cost-effective?

Does it create new risks?

Was it known at the time?

Was it knowable at the time?

Unpreventably dangerous products

What are the consumer expectations?

Comment K

Drugs and the like

always dangerous

must balance risks and benefits

key is warning/information

who do you warn?

Was the info understandable for the audience?

Comment I

Products that are dangerous as used

Good whiskey

Good tobacco

Are there unexpected risks?

Does the defect make the product unreasonably dangerous?

How is the danger linked to the defect?

Does it allow an accident to happen that could be prevented?

Absence of safety devices - design

Defective safety devices - design and manufacturing

Was there misuse?

Could it be anticipated?

Is the misuse directly related to the accident?

Does it cause the accident?

Directly? (weak chain on the chainsaw)

Indirectly? (bad brakes)

Does it change the way a consumer would expect the product to work?

Is it a warning issue?

Is there enough information?

Is it understandable?

What reading level?

What language?

Is it obvious?

Where is it?

How big is it?

Is it diluted?

Warranty Theories

Is there an express warranty?

Shatterproof windshield

Is there an implied warranty of fitness for a specific purpose?

Jeep case

How do you prove?

Advertising

Representations by sales persons

Specific recommendations on which product to buy