can some one help me with this exam .i will attach all the notes that you need to answer the questions.

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.

Greeman v. Yuba Power Product, Inc.

I. Teacher to Teacher Dialogue

Caveat Emptor! Let the buyer beware! Throughout the history of common law, the law’s expectations of buyer protection started and ended with the buyers themselves. A person entering the marketplace was expected to personally know the seller and to resolve any differences directly with him or her. The roles of government and its courts as sources of buyer protection were expected to be minimal. That all worked well enough in the pre-industrial age populated by small communities with direct dealings between the buyer and seller. What are the realistic chances today of an aggrieved buyer working out a problem directly with a descendent of Mr. Ford or with Mr. Gates? The postindustrial global marketplace has become too complex to expect a buyer to resolve these issues directly with the seller. The law has stepped in with numerous remedial measures to help alleviate the shortcomings created by caveat emptor. Products liability litigation is forcing the manufacturers, sellers, and lessors of defective products to accept responsibility for the injuries their goods and services have caused.

Products liability is one of the most visible parts of tort law today. All forms of media are constantly running advertisements for class action suits. With the continual coverage in the media, parties are staking their claim for a share of the available money. Manufacturers are being held to higher standards of care, and product recall notices are being issued frequently to the nation’s consumers. The issues covered in these materials go far beyond the question of who pays for what harm and the like. These matters take students into the entire realm of how a society chooses to conduct business, how it allocates the “costs” of doing that business, and most important of all, how much value society places on the balancing process between business latitude and individual rights.

I always open this material with an historical overview that picks up where the story of ultra-hazardous activity doctrines left off in tort law. As an aside, I tend to teach the strict liability portion of this chapter right after torts. Instructors need to be cognizant that the warranty material as part of the UCC section on Article 2 is also relevant, and that the students need to be exposed to the multiple paths available to remedy the victim of a product’s harm.

After going over the history of the early strict liability cases, I go into a dichotomous listing of the arguments on the current state of affairs in the product liability arena. I stress that each student must decide for him or herself how they feel about these issues. The possibilities for debate and open-ended discussion on these matters are endless. Products liability remains one of the great socioeconomic and legal dilemmas of our day. I also like to have my students each choose a different manufactured or produced product and write a short paper on the controversy and its resolution, to increase the dialogue in class.

II. Chapter Objectives

• Describe and distinguish among the several legal theories of product liability.

• Define the doctrine of strict liability.

• Identify and describe defects in manufacture and design.

• Identify and describe defects of failure to warn and in packing.

• Describe the damages recoverable in a product liability lawsuit.

III. Key Question Checklist

• Does the case at hand come under the purview of products liability law?

• Do any traditional tort theories of liability apply?

• Is strict liability an issue?

• Are there any defenses to product liability that are applicable?

• Are any consumer protection statutes applicable?

• If products liability is found to be the issue, what measure of liability should be used?

IV. Text Materials

Parties injured by defective products may be able to recover damages under the tort theories of negligence and misrepresentation.

Product Liability: Negligence

To be successful in a negligence action, the plaintiff will have to prove that the defendant’s breach of a duty of due care was the cause of his actual injuries. Examples of these duties include a failure to exercise due care in assembling the product, negligent design or packaging, negligent inspection and testing, and failure to give sufficient warning as to any dangerous propensities of the product.

Product Liability: Misrepresentation

Buyers or lessees who are injured due to the intentional or fraudulent misrepresentation of the quality of an item may receive limited recovery, if they can prove that the seller or lessor affirmatively misrepresented the quality of the product or concealed a defect.

Product Liability: Strict Liability

The early cases rising out of strict liability holdings for ultra-hazardous activities lead to the first signs of holding businesses liable for the harms created by their products. The second stream of cases arose out of the warranty aspects of UCC sales. The doctrine of strict liability in torts is the basis for most product liability actions.

Liability Without Fault – Strict liability does not require that the injured person prove that the defendant breached any duty of care. It is applied to persons in the business of selling or leasing those products, which means that casual sales and sales by nonmerchants are not covered.

Landmark Law: Restatement of Torts

The most widely recognized articulation of the doctrine of strict liability is found in Section 402A of the Restatement (Second) of Torts. This doctrine holds sellers strictly liable even if they have exercised all possible care.

The ALI has adopted the Restatement (Third) of Torts: Product Liability, which has defined defect to be any product, which at the time of sale or distribution, contained a manufacturing defect, is defective in design, or is defective due to inadequate instructions or warnings.

All in the Chain of Distribution Are Liable – All parties in the chain of distribution are held strictly liable for the injuries caused by that product, and may be sued under the doctrine of strict liability in tort.

Parties Who Can Recover for Strict Liability – Because strict liability is a tort doctrine, privity of contract is unnecessary, so that the seller or lessor is liable to the ultimate user. Many jurisdictions have extended this protection to bystanders.

Damages Recoverable for Strict Liability – Personal injury damages are recoverable in all jurisdictions, but they may be limited as to the dollar amount. Property damages are also recoverable in all jurisdictions, but economic loss is rarely granted.

Critical Legal Thinking – Punitive damages are assessed when a tribunal believes that a tort situation is outrageous and the conduct of the defendant is so extreme and hazardous to consumers that it requires the court to add more damages to the award of a current plaintiff so as to encourage the defendant to change its business practices for the future and to correct its deficiencies so that future consumers will not be harmed.

Product Defects

The injured party must prove that the product that caused the injury had one or more types of defects.

Defect in Manufacture

When the manufacturer fails to properly assemble, test, or check quality of a product, they may have a defect in manufacture.

Case 6.1 Defect in Manufacture: Shoshone Coca-Cola Bottling Co. v. Dolinski

82 Nev. 439, 420 P.2d 855, 1966 Nev. Lexis 260, Supreme Court of Nevada

Facts: Dolinski had purchased a bottle of Squirt from a vending machine where he worked. He consumed part of the soda, and immediately became ill. Upon examination, it was discovered that the bottle contained a mouse and feces. Dolinsky sought and received medical attention for nausea, and continued to suffer both physical and mental distress. He brought a suit against Shoshone, who was both the manufacturer and distributor of the bottle, based on strict liability. The State of Nevada had not previously recognized this doctrine, but the trial court adopted this doctrine. The jury returned a verdict in favor of the plaintiff and the defendant appealed.

Issue: Should the State of Nevada judicially adopt the doctrine of strict liability? If so, was there a defect in the manufacture of the Squirt bottle that caused the plaintiff’s injuries?

Decision: Yes to both.

Reason: The supreme court of Nevada both adopted the doctrine of strict liability and upheld the evidence presented before the jury that both the mouse and the feces had been there before the bottle was filled, supporting the trial court’s finding of a defect in manufacture.

Case Questions

Critical Legal Thinking: Strict liability is liability without fault, unlike negligence, which is an intentional tort. Whereas with negligence the plaintiff must prove that there was a breach of a duty owed to the plaintiff, defendants can be held to be strict liable, even thought hey used all possible care.

Business Ethics: It is, of course, possible to add the mouse parts to the soft drink. Further, they were large parts. However, it is not unusual to occasionally find an entire insect that has managed to get into an unopened bottle of pop. There would have been fewer questions if it had been an unopened bottle.

Contemporary Ethics: This idea of all in the chain being responsible developed from the fact that it is often difficult to determine who actually was the guilty party? For example, if an accident is caused by a missing screw on a motorbike, it is often difficult to tell if it was the manufacturer’s failure or the dealer’s when they did the prep work.

Defect in Design

Design defects can be used to support strict liability action. The courts will apply a risk utility analysis, consider the gravity of danger, likelihood of injury occurring, cost of producing safer alternatives, and the social utility of the product.

Crashworthiness Doctrine – Automobile manufacturers have the duty to protect occupants from all foreseeable dangers caused by a second collision when they strike something inside the automobile.

Failure to Warn

Manufacturers and sellers of products that are inherently dangerous are under a duty to warn users of these dangerous propensities. Failure to warn is a defect that is actionable under strict liability.

Case 6.2 Failure to Warn: Patch v. Hillerich & Bradsby Company

257 P.3d 383, 2011 Mont. Lexis 214 (2011), Supreme Court of Montana
Facts: A child was killed by a baseball hit by an aluminum bat. Aluminum bats allow the ball to go much further and harder than a wooden bat hit.

Issue: Did the failure to warn increase the change of injury?

Decision: Yes.

Ethics Questions: Students will have differing opinions on this question and it is a good one to use in class because baseball is an easy to understand topic with which most students are familiar.

Defect in Packaging

Manufacturers owe a duty to design and provide safe, tamperproof packaging. Failure to meet this duty, subjects all in the chain of distribution to strict liability for the defect.

All parties in the chain of distribution are liable under the doctrine of strict liability if the manufacturer fails to provide adequate instructions for either safe assembly or use of a product.

Other Defects

Other defects that support a finding of product liability based on strict liability include inadequate testing of products, inadequate selection of component parts or materials, and improper certification of the safety of a product.

Defenses to Product Liability

Generally Known Danger – If the product is known to the general population to be inherently dangerous, sellers will not be held strictly liable for failure to warn.

Government Contractor Defense – Contractors manufacturing products to government specifications will not be held liable if they follow the government-supplied specifications, and if they warned the government of known dangers and defects in the product.

Abnormal Misuse of a Product – Sellers are relieved of responsibility only if the plaintiff’s misuse was unforeseeable.

Supervening Event – Under the doctrine of supervening event, the seller will not be liable if the product has been materially altered, and the modification caused the injuries.

Assumption of Risk – In order to apply this doctrine, the defendant must show that the plaintiff knew and understood the risk, and then voluntarily assumed it.

Case 6.3 Supervening Event: Cummins v. BIC USA, Inc.

727 F.3d 506, 2013 U.S. App. Lexis 16800 (2013), United States Court of Appeals for the Sixth Circuit

Facts: Defendant’s lawyer made inflammatory remarks during his closing arguments which the plaintiff avers prejudiced the jury. The plaintiff requested a new trial on appeal.

Issue: Did the remarks prejudice the jury during closing arguments?

Decision: No new trial, the remarks were neither inaccurate nor inflammatory.

Ethics Questions: The remarks may best be categorized as unbecoming of a licensed attorney. Perhaps some type of warning from the state ethics committee would be appropriate in this instance.

Statute of Limitations and Statute of Repose – Most states have established a statute of limitations for bringing actions that will start to run when injury occurs. The period varies from state to state.

Since purchase of product could potentially expose manufacturers and sellers to years of waiting to see if someone will sue them over some just discovered defect, many states have enacted a statute of repose, which requires the seller’s liability to a certain number of years from when the product was first sold. The period varies from state to state.

Plaintiff Partially at Fault – Contributory negligence will not bar a plaintiff’s recovery in strict liability actions. Comparative fault will still allow apportionment of damages between the plaintiff and the defendant.

V. Key Terms and Concepts

• Abnormal misuse—A defense that relieves a seller of product liability if the user abnormally misused a product.

• Assumption of the risk—A defense in which the defendant must prove that (1) the plaintiff knew and appreciated the risk ,and (2) the plaintiff voluntarily assumed the risk.

• Chain of distribution—All manufacturers, distributors, wholesalers, retailers, lessors, and subcomponent manufacturers involved in a transaction.

• Comparative negligence—A doctrine that applies to strict liability actions that says a plaintiff who is contributorily negligent for his injuries is responsible for a proportional share of the damages.

• Consumer expectation test—The court standard for evaluating a product’s design based on a showing that the product is more dangerous than the ordinary consumer would expect.

• Contributory negligence—A doctrine that says a plaintiff who is partially at fault for his own injury cannot recover against the negligent defendant.

• Crashworthiness doctrine—A doctrine that says automobile manufacturers are under a duty to design automobiles so they take into account the possibility of harm from a person’s body striking something inside the automobile in the case of a car accident.

• Defect in design—A defect that occurs when a product is improperly designed.

• Defect in manufacture—A defect that occurs when the manufacturer fails to (1) properly assemble a product, (2) properly test a product, or (3) adequately check the quality of the product.

• Defect in packaging—A defect that occurs when a product has been placed in packaging that is insufficiently tamperproof.

• Failure to provide adequate instructions—A defect that occurs when a manufacturer does not provide detailed directions for safe assembly and use of a product.

• Failure to warn—A defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown.

• Generally known dangers—A defense that acknowledges that certain products are inherently dangerous and are known to the general population to be so.

• Government contractor defense—A defense that says a contractor who has been provided specifications by the government is not liable for any defect in the product that occurs as a result of those specifications.

• Greenman v. Yuba Power Products, Inc.—In this case, the California Supreme Court adopted the doctrine of strict liability in tort as a basis for product liability actions.

• Intentional misrepresentation—When a seller or lessor fraudulently misrepresents the quality of a product and a buyer is thereby injured.

• Liability without fault—Strict liability is liability without fault. A seller can be found strictly liable even though he or she has exercised all possible care in the preparation and sale of his or her product.

• Negligence—A tort related to defective products where the defendant has breached a duty of due care and caused harm to the plaintiff.

• Privity of contract—Because strict liability is a tort doctrine, privity of contract between the plaintiff and the defendant is not required.

• Product defects—Something wrong, inadequate, or improper in the manufacture, design, packaging, warning, or instructions about a product.

• Product liability—The liability of manufacturers, sellers, and others for the injuries caused by defective products.

• Punitive damages—Monetary damages that are awarded to punish a defendant who either intentionally or recklessly injured the plaintiff.

• Risk-utility analysis—A court may apply this analysis in evaluating the adequacy of a product’s design.

• Statute of limitations—Statute that establishes the time period during which a lawsuit must be brought; if the lawsuit is not brought within this period, the injured party loses the right to sue.

• Statute of repose—A statute that limits the seller’s liability to a certain number of years from the date when the product was first sold.

• Strict liability—A tort doctrine that makes manufacturers, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, irrespective of fault.

• Supervening event—An alteration or modification of a product by a party in the chain of distribution that absolves all prior sellers from strict liability.