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Products Liability (Liability Based on Strict Tort Liability (Prima Facie…

- - - - Assumption of risk is a defense
      - if π merely failed to discover the defect or guard against it's existence no defense
    - - Supplier - implied assumption of the risk is contributory fault and subject to Ohio comparative neg. statute
      - Manufacturer - implied assumption of the risk is complete defense
  - - - BUT supplier treated as manufacturer if: (i) the manufacturer is insolvent or not subject to process, (ii) the supplier owns or is owned by the manufacturer, (iii) the supplier furnished the specifications for the product or marketed it under its own name, (iv) the supplier altered or failed to maintain the product, rendering it defective, or (v) the supplier failed to timely disclose the manufacturer’s name and address to the plaintiff after being requested to do so.
- - - - particular purpose for which the goods are required AND
      - buyer is relying on the seller's skill or judgment to select or furnish suitable goods
  - - - Alternative A (most states have adopted) - IW protection to a buyer's family, household, and guests who suffer personal injury
      - Alternative B - extends protection to any natural person who suffers personal injury
      - Alternative C - covers any person who suffers any injury
  - - - unreasonable failure to discover doesn't bar recovery but unreasonable conduct after discovery does bar recovery
    - - UCC §2-607 requires the buyer to give seller notice within a reasonable time after the buyer discovers or should have discoverd the breach
- - - - Labeling Another's Product - A retailer who labels a product as their own or assembles a product from
        components manufactured by others is liable for the negligence of the actual manufacturer
    - - Duty of care is owed to any foreseeable π - user, consumer, or bystander
  - - - Proof of Negligence in Manufacturing Defect Case
        
        Liability of Manufacturer - to show neg. π may invoke res ipsa against manufacturer if the error doesn't usually occur w/o neg. of manufacturer
        
        Liability of Dealer - to avoid liability a dealer is expected to do at least a cursory check of goods from a reputable manufacturer
      - Proof of Negligence in Design Defect Case - must show that ∆ knew or should've known enough facts to be put on notice
- - - - Manufacturing Defects - product emerges from manufacturing process different from the other products and more dangerous than if it had been made as it should've. May be so "unreasonably dangerous" as to be defective
      - Design Defects - when all products of a line are made identically according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packaging, the entire line may be found to be defective by design
        
        Inadequate Warnings - product must have clear and complete warnings of any dangers which may not be apparent to users
    - - Manufacturing Defects - π will prevail if product was dangerous beyond the expectation of the ordinary consumer
        
        Defective Food Products - same "consumer expectation" approach
      - Design Defects - π must show reasonable alternative design (i.e. that a less dangerous modification or alternative was economically feasible)
        
        Effect of Gov. Safety Standards
        
        Failure to comply = defective
        
        Compliance = evidence—but not conclusive—that the product is not defective
        
        Federal labeling compliance doesn't preempt state laws on defective warnings
        
        Feasible Alternative factors
        
        availability of a safer product
        
        The dangers of the product that have been identified by the time of trial
        
        usefulness & desirability of the product
        
        Likelihood and probable seriousness of injury
        
        Normal public expectation of danger (especially for established products)
        
        Avoidability of injury by care in use of product (including role of instructions
        and warnings) and
        
        Feasibility of eliminating the danger without seriously impairing the product’s
        function or making it unduly expensive.
    - - Misuse - suppliers are required to anticipate reasonably foreseeable uses, even if they're misuses
      - Scientifically Unknowable Risks - not unreasonably dangerous
      - Allergies - modern trend requires warnings whenever the manufacturer knows that there is a danger of allergic reaction
- - - - Contributory Negligence (Fault)
        
        Negligent misrepresentations - contributory neg. is a defense
        
        strict liability - if plaintiff can show that the ∆ misrepresentation was intentional, contrib. neg. is no defense
      - Assumption of Risk
        
        if entitled to rely on representation, assumption of risk isn't a defense
    - - analyzed in the same manner as products liability based on neg. or strict liability
    - - Reliance Need Not Be Victim's
        
        privity is irrelevant
    - - ∆ must've intended to induce buyer or class of persons to which buyer belongs
    - - "puffing" and statements of opinion aren't enough
    - - Negligent Misrepresentation - just have to show that a reasonable person should've known the representations were false when making them
      - Intentional Misrepresentation - must show the representation was made knowingly or with reckless disregard for facts
      - Strict Liability
        
        just have to show that the representation was false, no need to show fault
  - - - Same as implied
    - - UCC 2-316 - disclaimer will only be effective if it's consistent w/ the express warranty
    - - just have to show that a breach occurred, not that it occurred through fault of the ∆