Deck 10: product liability

Question 1

A court is not bound by the Restatement's formulation of product liability law.

Answer 1

True

Question 2

The Restatement (Third)requires that any claim of design defect be supported by a showing of a reasonable alternative design.

Answer 2

True

Question 3

If the use of a product carries an obvious risk,the manufacturer will not be held liable for injuries that result from ignoring the risk.

Answer 3

True

Question 4

Strict liability in tort applies only to products,not to services.

Question 5

The assumption of risk doctrine makes the manufacturer liable for a resulting injury.

Question 6

If the use of a product carries an obvious risk,the manufacturer of the product will not be held liable for injuries that result from ignoring the risk

Question 7

A design defect may result from the manufacturer's choice of the product's materials.

Question 8

Because other countries have applied principles of assumption of risk,the U.S.is the only country where the tobacco industry faces legal problems.

Question 9

To recover for a defective product,an injured person must be in a contractual relationship with the seller.

Question 10

A seller should enter into a contract of indemnity with a manufacturer giving the seller a right to reimbursement if found liable for a defect caused by the manufacturer.

Question 11

For a defendant to be held strictly liable,the plaintiff must prove that the defect existed at the time the product left the defendant.

Question 12

The European Union applies strict liability to services.

Question 13

In regard to a product liability action,a disclaimer of liability is generally effective.

Question 14

Under federal law,manufacturers,but not sellers,may be held strictly liable for a defective product.

Question 15

The doctrine of strict product liability in tort is grounded in the common law and was transported to this country from England in the 1800's.

Question 16

Most states in the United States have adopted strict product liability whereby an injured person may recover damages by showing that a defendant was negligent.

Question 17

A statute of repose cuts off the right to assert a product liability action.

Question 18

Under federal law a retailer who had no role in the manufacture of a defective good may not be held liable to a consumer injured by the good.

Question 19

An unusual use that is reasonably foreseeable may be considered a normal use of a product.

Question 20

Under the preemption defense,certain federal laws and regulations that set minimum safety standards are held to preempt state-law product liability claims.

Question 21

Which of the following is true regarding causation in a failure-to-warn claim?

A) Causation is not an issue so long as the plaintiff can prove that the defendant intentionally refused to warn of known dangers.
B) Causation is not an issue so long as the plaintiff can prove that the defendant either intentionally refused to warn of known dangers or negligently failed to warn of known dangers.
C) Cause in fact, but not proximate cause, is required in a failure-to-warn claim.
D) In an extreme case, a judge may set aside a jury verdict on causation grounds.

Question 22

On a failure to warn claim,adequate warnings and instructions for a product's safe use can shield a manufacturer from liability for a

A) properly manufactured and designed product.
B) defectively designed product.
C) defectively manufactured product.
D) properly manufactured and designed product or defectively designed product

Question 23

To prove ________ in a product liability case,the injured party must show that the defendant did not use reasonable care in the design or manufacture of its product.

A) negligence
B) strict liability
C) breach of warranty
D) defect

Question 24

In regard to successor liability,courts applying the ______ look for constancy between the buyer and seller to determine whether the successor company is essentially a mere continuation or reincarnation of the predecessor entity.

A) market-share approach
B) product-line theory
C) traditional successor liability rule
D) continuity-of-enterprise approach

Question 25

Which of the following is not a theory on which a product liability claim can be based?

A) Negligence.
B) Breach of warranty.
C) Ultrahazardous activity.
D) Strict liability.

Question 26

Which of the following allows the filing of a lawsuit previously barred by the running of the statute of limitations?

A) A statute of repose
B) A recommence statute
C) A revival statute
D) None of the above because any such law would be unconstitutional.

Question 27

The preemption defense involves certain ________,which set minimum safety standards for products.

A) federal laws
B) court decisions
C) state laws
D) private guidelines

Question 28

If a product valuable to society is unavoidably unsafe,the ________ determines whether the dangerous product is also defective.

A) adequacy of the warning label
B) obviousness of the risk
C) care in design and manufacture
D) extent of the danger

Question 29

A product that was sold without a component part properly fastened to the product is an example of a ________ defect.

A) design
B) manufacturing
C) non-liability forming
D) design and manufacturing

Question 30

Which of the following is true under the UCC regarding the requirement of privity in regard to a breach of warranty action?

A) The UCC limits liability to those in privity with the seller who are injured by the goods.
B) The UCC extends protection to those in privity with the seller who are injured by the goods and also to those in the buyer's household reasonably expected to use, consume, or be affected by the goods and who are injured by the goods.
C) The UCC extends protection not only to those in privity with the seller, but also to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by the goods.
D) The UCC has alternate provisions regarding the need for privity from which adopting states may choose.

Question 31

Which of the following products has traditionally been viewed as "unavoidably unsafe" by the courts?

A) Medical services
B) Outdoor consumer goods
C) Some vaccines
D) Automobiles

Question 32

Which state court was the first to adopt the doctrine of strict product liability?

A) New York.
B) Michigan.
C) California.
D) Pennsylvania.

Question 33

Which of the following is false regarding product liability in the European Union according to the European Union product liability directive?

A) Both a statute of limitations and a statute of repose are available.
B) A manufacturer will not be liable if the defect was due to compliance of the product with mandatory regulations.
C) The directive applies to services as well as products.
D) A supplier or wholesales is not strictly liable unless the injured party is unable to identify the manufacturer.

Question 34

Which of the following is not a rationale of strict product liability?

A) Manufacturers should not escape liability simply because they typically do not sign a formal contract with the end-user.
B) The law should protect consumers against unsafe products.
C) Manufacturers should not escape liability simply because they acted negligently as opposed to intentionally.
D) Manufacturers and sellers of products are in the best position to bear the costs of injuries caused by their products.

Question 35

A ________ cuts off the right to assert a cause of action after a specified period of time from the delivery of the product or the completion of the work.

A) statute of limitations
B) statute of repose
C) revival statute
D) statute of resolution

Question 36

Under the doctrine of _________,the plaintiff's damages in a strict liability action may be reduced by the degree to which his or her own negligence contributed to the injury.

A) comparative fault
B) contributory negligence
C) assumption of risk
D) both comparative fault and contributory negligence

Question 37

A statute of ________ prevents recovery for product injuries by limiting the time period for recovery from the date when the injury occurred.

A) limitations
B) repose
C) recovery
D) discovery

Question 38

Following several injuries,a manufacturer of a chain saw installed an additional safety guard. In a lawsuit based on products liability,which of the following is the company's best position in opposition to a plaintiff's efforts to introduce evidence of the modification?

A) That the modification was just recently designed.
B) That the modification involved a subsequent remedial measure.
C) That the company was not negligent.
D) There is no best position because it is well established that the evidence would be admitted.

Question 39

Under the doctrine of _________,when a person voluntarily and unreasonably assumes the risk of a known danger,the manufacturer is not liable for any resulting injury.

A) assumption of risk
B) comparative negligence
C) contributory negligence
D) assumption of harm

Question 40

In regard to strict liability in tort,which of the following is true in the case of a seller of used goods?

A) Sellers of used goods are not usually held strictly liable for goods sold.
B) A seller of used goods is strictly liable for defective repairs made by the seller.
C) A seller of used goods is usually held strictly liable only for inherently dangerous items such as power tools.
D) A seller of used goods is usually held strictly liable only for inherently dangerous items such as power tools or for defective repairs made by the seller.

Question 41

What was the result in James v.Meow Media Inc.,the case in the text addressing whether a video game manufacturer was strictly liable for a teenager's shooting spree?

A) That the shooting was so aberrant as to be unforeseeable by the video game producer.
B) That the products were defective.
C) That the video game manufacturer was liable for the shooting.
D) That the shooting was so aberrant as to be unforeseeable by the video game producer but also that the products at issue were defective.

Question 42

Under the ______ defense,a manufacturer is not liable to a sophisticated user of its product for failure to wan of a risk harm,or danger if the sophisticated user knew or should have known of the risk,harm,or danger.

A) excused warning
B) unnecessary warning
C) sophisticated user
D) absolute user

Question 43

A few years ago Bernice purchased some medication through her veterinarian for her aging pet iguana,Scales,who had a skin disease. Scales died a few months after beginning the medication. At the time of the death,Bernice thought that Scales had died of natural causes.She just read in the newspaper,however,that a number of reptilian type animals had been harmed by the drug Scales ingested. Bernice immediately talked to her veterinarian who told her that while she now believes the medication was harmful to Scales,it was manufactured by a number of different manufacturers,and there is no way to determine the exact manufacturer of the medication given to Scales. Which of the following is Bernice's best chance at recovery?

A) Market-share liability
B) Joint and several liability
C) Product-line theory
D) Continuity theory

Question 44

A ________ defect occurs when,even though the product is manufactured according to specifications,it is unreasonably dangerous to users.

A) design
B) contractor's
C) manufacturing
D) state of the art

Question 45

Fact Pattern 10-1
Polly buys a new iron and uses it for a few months without incident. She was surprised, however, when one day the iron gave her a significant shock. She suffered no lasting damages, but did have some pain from the incident. A few weeks later she read in the newspaper that the manufacturer had known for over a year about the iron's propensity to shock users, but had refused to take recall measures. She also read that some users had been severely shocked. Polly was outraged but wondered if she could sue because she really did not have significant injuries.
Refer to fact pattern 10-1. Which of the following would be an advantageous type of action with which Polly should become associated?

A) A unified action
B) A class action
C) A remedial action
D) A compensatory action

Question 46

Fact Pattern 10-1
Polly buys a new iron and uses it for a few months without incident. She was surprised, however, when one day the iron gave her a significant shock. She suffered no lasting damages, but did have some pain from the incident. A few weeks later she read in the newspaper that the manufacturer had known for over a year about the iron's propensity to shock users, but had refused to take recall measures. She also read that some users had been severely shocked. Polly was outraged but wondered if she could sue because she really did not have significant injuries.
Refer to fact pattern 10-1. What type of damages would likely give Polly the most significant recovery?

A) Punitive
B) Compensatory
C) Nominal
D) Benefit of the bargain

Question 47

ABC Company manufactures a contraption meant to enable a rider to fly behind a ski boat. After a few months,ABC begins to hear of injuries when riders crash into water or boats. In hopes of escaping liability,the president of ABC Company decides to discontinue business and sell all assets to XYZ Company. The president of XYZ Company is excited to purchase the assets at a bargain price and help ABC avoid liability based upon the assertion of the president of ABC that XYZ cannot legally be held liable for the flying accidents. Which of the following is true in a majority of states applying the traditional successor liability rule?

A) XYZ Company will not be held liable for the accidents so long as there is no contractual agreement by which it agrees to accept liability.
B) XYZ Company will only be held liable if it continues to manufacture the same product lines as ABC.
C) XYZ Company will only be held liable if it keeps the same tax number as ABC Company.
D) XYZ Company will likely be held liable for the accidents based upon the transaction being entered into wrongfully in order for ABC Company to escape liability.

Question 48

Sally purchased a used toaster at a yard sale. The seller told Sally that although the toaster was over ten years old,she had not had any problems with it. Sally takes the toaster home and uses if for a few months. One day,however,as Sally was using the toaster,it malfunctioned and caused a small fire in Sally's kitchen along with significant smoke damage. Sally decides that she wants to sue the manufacturer of the toaster and that she is going to do so within one month of the fire. What would likely be the manufacturer's best defense in a strict liability in tort action brought by Sally?

A) The statute of limitations
B) The statute of repose
C) The fact that Sally bought the toaster at a yard sale, not from a recognized retailer
D) There would be no viable defense.

Question 49

Scuba manufacturer designs and sells the best scuba gear on the market. All industry and governmental standards are met,and there is no better technologically feasible design than that used by the manufacturer. There had been no previous problems with the gear,but on one unfortunate day,the breathing apparatus on a unit malfunctioned resulting in a diver needing medical care. Assuming recognition in the jurisdiction involved,which of the following is the best defense to a lawsuit alleging a design defect brought by the diver?

A) Comparative fault
B) Assumption of the risk
C) State-of-the-art
D) Ultrahazardous activity

Question 50

Which of the following was the result in Pliva,Inc.v.Mensing,the case in the text before the U.S.Supreme Court involving the issue of whether the federal law requirement that generic drugs must bear the same FDA-approved labels as their brand-name counterparts preempts state law claims for failure to warn?

A) That federal law did not preempt state law claims for failure to warn.
B) That federal law preempted state law claims for failure to warn.
C) That federal law preempted state law claims for failure to warn based on strict liability but that failure to warn claims based on negligence could proceed.
D) That federal law preempted state law claims for failure to warn based on negligence but that failure to warn claims based on strict liability could proceed.

Question 51

If the societal value of an inherently dangerous product outweighs the risk of harm from its use,it is known as a(n)________ product.

A) state-of-the-art
B) unavoidably unsafe
C) obvious risk
D) abnormal

Question 52

Which of the following members of the chain of distribution cannot be strictly liable in a products lawsuit?

A) The manufacturer.
B) The wholesaler.
C) The retailer.
D) The occasional seller.

Question 53

What are the four basic parts of the rationale for strict product liability?

Question 54

Under what circumstances will a successor corporation be held liable in a product liability action under the traditional successor liability rule?

Question 55

Paula recently went to see her doctor for severe glaucoma.He told her that her vision is in danger and prescribed Seerite made by Drugco. Seerite was the newest and most promising treatment for glaucoma that exists.The product literature stated,"When used as directed,Seerite is 100% safe and effective for glaucoma." After Paula read this she put the literature in the trash.She overlooked a small statement on the back reading "Warning: in 2% of the population this product may produce uncontrollable weight gain." Three weeks after using Seerite,Paula had gained 50 pounds and continued to gain weight rapidly.Paula has stopped using Seerite,but she cannot lose the weight and this condition is now a separate health risk.Is Seerite a defectively designed drug? What defenses would be available to Drugco against this claim? Is there any other theory under strict product liability law that Paula may use to recover against Drugco? Discuss fully.

Question 56

Sam wants to sue a book publisher based on strict product liability in tort because he became ill after eating food he prepared based on a book containing information regarding herbs that were safe for consumption. Which of the following is the publisher's best defense?

A) That the information in the book was akin to a specialized instrument and, therefore, not subject to strict liability.
B) That the information contained in the book was not a good subject to strict liability.
C) That the injury stemmed from food which is not considered subject to strict liability.
D) There is no good defense, and the publisher should settle.

Question 57

Set forth what a manufacturer of products under contract to the government must show in order to avoid product liability based on the government-contractor defense along with the rationale for the government-contractor defense.

Question 58

Which of the following is true regarding computer software is considered a product subject to state product liability law?

A) Courts examining the issue have ruled that computer software is a product subject to state product liability law.?
B) Courts examining the issue have ruled that computer software is not a product subject to state product liability law.
C) Courts examining the issue have reached varying results regarding whether computer software is a product subject to state product liability law.
D) Courts examining the issue have found that computer software is a product subject to state product liability law only if the software is marketed to children.

Question 59

Which of the following provides some protection to defendants in that they establish a rebuttable presumption about how long consumers can continue to safely use a product?

A) Discovery-of-injury statutes
B) Statutes of limitation
C) Useful life statutes
D) Statutes of repose

Question 60

In Ramirez v.Plough,Inc.,the case in the text involving the provision of warnings for non-English-speaking Hispanics,the California Supreme Court held that a manufacturer of nonprescription drugs has a duty to warn purchasers about the dangers of its products in ______.

A) English only.
B) English and Spanish.
C) English, Spanish, and Chinese.
D) All spoken languages in California.

Question 61

Set forth the elements of a strict liability claim.