Products Liability in a Nutshell

by Owen, David G.; Phillips, Jerry J.

• ISBN13: 9780314155108
• ISBN10: 0314155104
• Edition: 7th
• Format: Paperback
• Copyright: 2005-07-27
• Publisher: West Group

Summary

Fast, reliable source on products liability. This authoritative summary shows how a rule is applied and its rationale; addresses procedure and strategy questions; and discusses common-sense issues. In addition, this text covers the definition and scope of products liability; causes of action; damages; remedies; jurisdiction; production and design defects; inadequate warnings and instructions; misrepresentation; and problems of proof.

Table of Contents

Preface	p. V
Summary of Contents	p. IX
Table of Cases	p. XIX
Introduction
Products Liability Law	p. 1
Early Law	p. 5
Modern American Law	p. 11
Foreign Law	p. 38
Theories of Liability
Negligence
Negligence-Generally	p. 41
The Standard of Care	p. 44
Proof of Negligence-Industry Standards	p. 52
Proof of Negligence-Violation of Statute	p. 53
Proof of Negligence-Res Ipsa Loquitur	p. 59
The Resurgence of Negligence	p. 64
Tortious Misrepresentation
Misrepresentation-Generally	p. 67
Fraud	p. 69
Negligent Misrepresentation	p. 75
Strict Liability for Misrepresentation	p. 77
Warranty
Warranty-Generally	p. 81
Express Warranty	p. 83
Implied Warranty of Merchantability	p. 88
Implied Warranty of Fitness for Particular Purpose	p. 92
Privity of Contract and Third Party Beneficiaries	p. 95
Notice of Breach	p. 100
Disclaimers	p. 102
Limitations of Remedy	p. 112
Anti-Disclaimer and Other Warranty Reform Legislation	p. 116
Strict Liability in Tort
Strict Products Liability in Tort-Generally	p. 121
The Path to Strict Liability in Tort	p. 122
Restatement (Second) of Torts [section] 402A	p. 129
Policies and Rationales	p. 138
Liability Tests	p. 143
The Consumer Expectations Test	p. 144
The Risk-Utility Test	p. 149
Alternative Tests	p. 154
Comparison with Other Liability Theories	p. 158
Product Defectiveness
Nature and Proof of Defectiveness
Defectiveness-Generally	p. 169
The Three Types of Defect	p. 171
Proof of Defect-Expert Testimony	p. 176
Proof of Defect-Recurring Issues	p. 188
Restatement (Third) of Torts: Products Liability	p. 195
Manufacturing Defects
Manufacturing Defects-Generally	p. 202
Theories and Tests of Liability	p. 205
Departure from Design Specifications	p. 208
Product Malfunction	p. 209
Food and Drink	p. 213
Design Defects
Design Defects-Generally	p. 217
Theories and Tests of Liability	p. 220
The Consumer Expectations Test	p. 220
The Risk-Utility Test	p. 223
Proof of a Reasonable Alternative Design	p. 229
Combining Consumer Expectations and Risk-Utility	p. 235
Constructive Knowledge-The Wade-Keeton Test	p. 242
Design Defectiveness in the Third Restatement	p. 244
Optional Safety Devices	p. 247
Prescription Drugs and Medical Devices	p. 250
Warning Defects
Warning Defects-Generally	p. 257
Theories and Tests of Liability	p. 261
Adequacy	p. 263
Persons to Be Warned	p. 271
Sophisticated Users and Bulk Suppliers	p. 274
Prescription Drugs and Medical Devices	p. 277
Limitations on Defectiveness
Limitations on Defectiveness-Generally	p. 288
Obvious Dangers	p. 289
Inherent Product Hazards-Product Category Liability	p. 295
State of the Art	p. 298
Prenatal Harm	p. 316
Deterioration	p. 318
Disposal and Salvage	p. 319
Post-Sale Duties to Warn, Repair, or Recall	p. 321
Causation
Cause in Fact
Cause in Fact-Generally	p. 325
Tests and Proof of Causation	p. 326
Multiple Defendants	p. 334
Warnings Cases-Special Causation Issues	p. 344
Proximate Cause
Proximate Cause-Generally	p. 349
Foreseeability and Other "Tests"	p. 351
Intervening and Superseding Causes	p. 357
Defenses
User Misconduct Defenses
User Misconduct Defenses-Generally	p. 371
Contributory Negligence	p. 374
Comparative Fault	p. 378
Assumption of Risk	p. 384
Misuse	p. 390
Defenses to Warranty Claims	p. 397
Defenses to Misrepresentation Claims	p. 400
Special Defenses
Special Defenses-Generally	p. 403
Compliance with Contract Specifications; Government Contractors	p. 403
Compliance with Statutes and Regulations	p. 407
Federal Preemption	p. 409
Statutes of Limitations and Repose	p. 414
Special Issues
Special Types of Defendants
Special Types of Defendants-Generally	p. 419
Retailers and Other Non-Manufacturing Sellers	p. 420
Raw Material and Component Part Suppliers	p. 425
Parent and Apparent Manufacturers; Franchisers	p. 427
Successor Corporations	p. 430
Employers as Manufacturers	p. 434
Miscellaneous Marketing Participants	p. 437
Special Types of Transactions and Products
Special Types of Transactions and Products-Generally	p. 444
Lease, Bailment, and License Transactions	p. 445
Service Transactions	p. 450
Repaired, Rebuilt, and Reconditioned Products	p. 456
Used Products	p. 458
Electricity	p. 459
Real Estate	p. 460
Publications	p. 462
Blood	p. 466
Miscellaneous Transactions and Products	p. 467
Automotive Litigation
Automotive Litigation-Generally	p. 470
Defects Which Cause Accidents	p. 471
Crashworthiness	p. 473
Indivisible Harm and Damages Apportionment	p. 478
Plaintiff Fault	p. 482
Punitive Damages
Punitive Damages-Generally	p. 490
Functions of Punitive Damages	p. 494
Forms of Manufacturer Misconduct	p. 498
Basis of Liability	p. 503
Problems and Recurring Criticisms	p. 506
Judicial and Legislative Reform	p. 506
Constitutional Limitations	p. 512
Index	p. 521
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