Deck 10: Product Liability

Question 1

A producer of razor blades need not warn consumers that a razor blade may cut someone.

Answer 1

True

Question 2

Anthony is a trained exterminator who received yearly instruction regarding precautions that should be taken in relation to the use of pesticides. After being told that he suffered allergies and other ailments based on exposure to the pesticides, Anthony sued the manufacturers of the pesticides at issue based on a failure to warn theory. The defendants' best argument based on Anthony's prior training is the ________ defense.

A) Trained technician
B) Sophisticated-user
C) Knowledgeable user
D) Unharmed user
E) Workers' compensation

Answer 2

B

Question 3

An implied warranty is a warranty that is clearly stated by the seller or manufacturer.

Answer 3

False

Question 4

Consumers do not have a right to recover damages for pain and suffering or for emotional distress in German product liability cases.

Question 5

The lack of a feasible way to make a safer product prevents liability based upon an alleged defective product as a matter of law.

Question 6

Japanese law does not recognize fault on the part of the consumer in product liability cases, forcing manufacturers to bear the full burden of liability when a product is found to be defective.

Question 7

No duty to warn exists for dangers arising from either unforeseeable misuses of the product or from obvious dangers.

Question 8

The state-of-the-art defense is not available in all states in strict liability cases.

Question 9

Which of the following theories of recovery are commonly used in product liability cases?

A) Negligence per se, and breach of implied warranty.
B) Strict product liability, negligence per se, and breach of express warranty.
C) Breach of warranty, negligence, and negligence per se.
D) Negligence, strict product liability, and breach of warranty.
E) Negligence per se and negligence.

Question 10

Which of the following elements must a plaintiff generally show in order to recover in a product liability lawsuit?

A) Only that the product is defective.
B) That the defect should have been discovered and fixed prior to sale.
C) That the defendant was negligent.
D) That the product is defective and also that the defect existed when the product left the defendant's control.
E) That the product is defective, that the defect existed when the product left the defendant's control, and also that the defendant was negligent.

Question 11

Even if a harmful product cannot be traced back to a particular manufacturer, a plaintiff may still be able to recover in a products liability action under the market share theory.

Question 12

After the landmark 1916 MacPherson case, any foreseeable plaintiff can sue a manufacturer for its breach of duty of care.

Question 13

A manufacturer of a raw material, such as baking soda, has no duty to warn the public of the consequences of using the product in a dangerous or criminal manner.

Question 14

In order to prevail in a product liability action, a plaintiff must establish to a certainty that the product was not damaged after its purchase.

Question 15

Strict product liability focuses on the actions of the manufacturer or seller, not the product.

Question 16

What was the result in Radford v. Wells Fargo Bank, the case from the text in which the plaintiff claimed that a mortgage loan was a defective product?

A) The court allowed the case to proceed on the basis that a loan is a product.
B) The court ruled that while a loan is a product, the plaintiff was barred from proceeding because he had not alleged that he was in mortgage foreclosure, a necessary predicate for a lawsuit alleging defect based on a mortgage loan.
C) The court ruled that while a loan is a product, the plaintiff was barred from proceeding because he had not alleged usury, a necessary predicate for a lawsuit alleging defect based on a mortgage loan.
D) The court ruled that while a loan is a product, the plaintiff was barred from proceeding because he had not alleged that he was in bankruptcy, a necessary predicate for a lawsuit alleging defect based on a mortgage loan.
E) The court ruled that a loan is not a product for purposes of product liability law, recognizing that product liability focuses on tangible items.

Question 17

In a product liability lawsuit, a mere bystander may not invoke the doctrine of strict liability.

Question 18

If parties other than the original purchaser will be likely to use the product, warnings should be placed on the product itself.

Question 19

Product liability law is based on tort law.

Question 20

________ law is based primarily on tort law.

A) Contract
B) Product liability
C) Administrative
D) Negligence
E) International

Question 21

________ is when an individual is a party to a contract.

A) Being a promissory to the contract.
B) Being in association with contract.
C) Being in connect to contract.
D) Being in privity of contract.
E) Being conscious by contract.

Question 22

Which of the following defenses identifies that the harm was caused by the plaintiff's failure to properly use the product rather than by the defendant's negligence?

A) Assumption of the risk.
B) Product misuse.
C) Pure comparative fault.
D) Last-clear-chance.
E) Misapplication.

Question 23

Under the current law, which entities may be sued in product liability actions?

A) Retailers, wholesalers, and manufacturers.
B) Retailers but not manufacturers.
C) Wholesalers but not retailers.
D) Retailers and manufacturers but not wholesalers.
E) Manufacturers.

Question 24

Who could be considered foreseeable plaintiffs in product liability cases?

A) Users and consumers only.
B) Users and bystanders only.
C) Users, consumers, and bystanders.
D) Users only.
E) The purchaser and any family member only.

Question 25

Under strict product liability theory, which of the following would the courts consider a reasonably foreseeable party who may recover if an injury is sustained?

A) The buyer of the product only.
B) The buyer of the product and the buyer's family only.
C) The buyer of the product and any of the buyer's family and the buyer's guests only.
D) The buyer, the buyer's family, the buyer's guests, and foreseeable bystanders.
E) The court would have to rely on expert testimony before they could determine if a person is a reasonably foreseeable party.

Question 26

A certain toy designed and manufactured by a toy manufacturer is found to have a design that is defective and dangerous. These toys have which of the following types of defect?

A) Manufacturing.
B) Dangerous.
C) Purposeful.
D) Exclusionary.
E) Design.

Question 27

A plaintiff or plaintiffs may be able to recover what type(s) of damages in negligence-based product liability cases?

A) Compensatory damages only.
B) Punitive damages only.
C) Compensatory damages and punitive damages.
D) Loss of use damages.
E) Compensatory damages or punitive damages may be recovered, only a court can decide.

Question 28

Which statement is true regarding punitive damages in product liability cases?

A) Punitive damages are not available in product liability actions.
B) The amount of the punitive-damage award is determined by the wealth of the defendant only.
C) The amount of the punitive-damage award is determined by the maliciousness of the action only.
D) The amount of the punitive-damage award is determined by the wealth of the defendant and the maliciousness of the action.
E) Punitive damages are meant to compensate the plaintiff for injury and to make the plaintiff whole.

Question 29

Which statement is true regarding the application of negligence per se in product liability cases based on negligence?

A) The doctrine of negligence per se is also applicable to product liability cases based on negligence.
B) The doctrine of negligence per se is applicable to product liability cases only if the cases are based on failure to warn.
C) The doctrine of negligence per se is applicable to product liability cases only if the cases are based on design defect.
D) The doctrine of negligence per se is applicable to product liability cases only if the cases are based on manufacturing defect.
E) The doctrine of negligence per se is never available in product liability cases.

Question 30

When an individual product has a defect making it more dangerous than identical products, that individual product is said to have which of the following defects?

A) Design.
B) Warning.
C) Primary.
D) Exclusionary.
E) Manufacturing.

Question 31

What was the result on appeal of the R. J. Reynolds Tobacco case in the text in which the trial court awarded a smoker approximately $200,000 against R. J. Reynolds Tobacco?

A) The appellate court reversed the award, finding the company had no duty to warn smokers of the harm associated with smoking cigarettes.
B) The appellate court reversed the award because harm from smoking cigarettes was unforeseeable.
C) The appellate court affirmed the award against R. J. Reynolds Tobacco, which before 1969 had negligently failed to warn smokers of the harm associated with smoking cigarettes.
D) The appellate court affirmed the award, even though the product was misused.
E) The appellate court reversed the award because consumers were harmed only when they misused the product.

Question 32

Which of the following do courts often consider in determining whether a manufacturer was negligent in failing to warn?

A) The likelihood of the injury only.
B) The seriousness of the injury only.
C) The ease of warning only.
D) The likelihood of the injury and the seriousness of the injury but not the ease of warning.
E) The likelihood of the injury, the seriousness of the injury, and the ease of warning.

Question 33

Under a strict product liability theory, courts can hold liable ________ to any reasonably foreseeable injured party.

A) Manufacturers and retailers only.
B) Distributors only.
C) Retailers and distributors only.
D) Manufacturers only.
E) Manufacturers, distributors, and retailers.

Question 34

A defendant who acts in compliance with federal laws may argue that state tort law is ________ by a federal statute designed to ensure the safety of a particular class of products.

A) Preempted
B) Complimented
C) Refuted
D) Extinguished
E) Upheld

Question 35

A common defense known as ________ arises when a consumer knows that a defect exists but still proceeds unreasonably to make use of the product, creating a situation where the consumer has voluntarily assumed the risk of injury from the defect and thus cannot recover.

A) consumer risk-taker
B) comparative fault.
C) contributory negligence.
D) known danger defense
E) assumption of the risk

Question 36

Which statement is true regarding defenses to negligence-based product liability actions?

A) A defendant may only rely upon contributory negligence.
B) A defendant may only rely upon comparative negligence.
C) A defendant may only rely upon modified comparative negligence.
D) A defendant may rely upon the defense of contributory, comparative, or modified comparative negligence, depending upon which defense is accepted by the state where the case arose.
E) A defendant may not rely upon contributory, comparative, or modified comparative negligence because no defenses are available in such a lawsuit. The only issue will be the amount of damages.

Question 37

Under strict product liability, the actions of the manufacturer or seller are not relevant; rather, strict product liability focuses on ________.

A) The negligence of the parties
B) How the product was sold
C) The product itself
D) Assumption of the risk
E) How the product was paid for

Question 38

Which of the following is a defense used by a defendant to demonstrate that his alleged negligent behavior was reasonable, given the available scientific knowledge existing at the time the product was sold or produced?

A) Assumption of the risk.
B) Scientific knowledge doctrine.
C) State-of-the-art defense.
D) Reasonable behavior defense.
E) Reasonable manufacturer defense.

Question 39

Which of the following was true prior to the landmark 1916 case of MacPherson v. Buick Motor Company?

A) Negligence was rarely used as a theory of recovery for an injury caused by a defective product because of the difficulty of establishing the element of duty.
B) Negligence was rarely used as a theory of recovery for an injury caused by a defective product because of the difficulty of establishing causation.
C) Negligence was often used as a theory of recovery because of the ease in establishing privity of contract.
D) Causes of actions against manufacturers of products were barred under federal law.
E) Causes of actions against manufacturers of products were barred by an amendment to the U.S. Constitution that has since been repealed.

Question 40

Following the case of MacPherson v. Buick Motor Company, any ________ plaintiff can sue a manufacturer for its breach of duty of care.

A) contracting
B) adult
C) unforeseeable
D) foreseeable
E) believable

Question 41

When an individual glass bottle of soda shatters in someone's hand causing a cut, and most bottles of the same type do not ordinarily shatter in that manner, the most likely type of defect in that bottle is a ________ defect.

A) Design
B) Warning
C) Punitive
D) Manufacturing
E) Negligent

Question 42

[Allergy Injuries] Drug company ABC Drugs introduced a new over-the-counter allergy pill guaranteed to prevent sneezing and sniffling for twenty-four hours after the consumption of one pill. The packaging contained warnings of the drug's side effects, including nausea and headache. After it was initially put on the market, the company became aware of a risk of dizziness from the drug in people with high blood pressure. However, the company did not warn of the additional risk because the company was concerned that individuals might not buy the pill. The risk of dizziness for the average person was extremely low. Julia had suffered allergies for years and had tried nearly every new product on the market. She even maintained a blog called "Ask the Expert About Allergies." She thought that ABC's pill was a great idea and purchased it at her local convenience store. She purchased the product after the date the company became aware of the issues involving dizziness. She took one pill and felt fine for a few days. Then, however, she began feeling dizzy. Her dizziness caused her to fall and break her leg on a flight of steps. She later discovered that the allergy pill likely made her dizzy. Julia sued under state law alleging failure to warn of the dangerous side effect of the drug. The drug company claimed that it had no duty to list dizziness as a risk because it was an over-the-counter drug and the risk of dizziness to the average person was extremely rare.
Is the company correct that it had no duty to warn of the risk of dizziness?

A) Yes. Although the company knew or should have known about the risk to individuals with high blood pressure, the drug was an over-the-counter drug and the company thus had no duty to protect every person in every situation.
B) No, because the drug contained an ingredient which adversely affected some people with high blood pressure and the company knew or should have known about the risk to individuals with high blood pressure.
C) Yes, because it was an over-the-counter drug.
D) Yes because it was an over-the-counter drug and the risk of dizziness to the average person was extremely low.
E) No, but only if the plaintiff can show the drug adversely affected all individuals with high blood pressure and she was a member of that group.

Question 43

What is another name for the risk-utility test?

A) The consumer expectations test.
B) The retailer expectations test.
C) The feasible alternatives test.
D) The design defects test.
E) The manufacturing purposes test.

Question 44

Since states are not in agreement as to how to establish a design defect, what two theories have evolved to determine when a product is so defective as to be dangerous?

A) The consumer expectations test and the feasible alternatives test.
B) The consumer expectations test and the breached warranty test.
C) The feasible alternatives test and the consumer user test.
D) The design defect test and the market expectations test.
E) The consumer propensity test and the market expectation test.

Question 45

What did the Hawaiian court determine about mortgages as a product under product liability law in the Case Nugget Radford v. Wells Fargo Bank?

A) That the case was properly dismissed because the defendant did not have a duty of care to protect the plaintiff from a bad mortgage loan.
B) That a mortgage is in fact "a product" under product liability law.
C) That mortgages are not a "product" that can be subject to a product liability suit.
D) That mortgages are a question of fact and a jury trial is warranted to determine if the mortgage should be considered a product.
E) That federal law placed mortgages in a special category for product liability cases.

Question 46

Which of the following causes of action stem from contract theory?

A) Breach of warranty.
B) Negligence.
C) Strict liability in tort.
D) Failure to warn.
E) Failure to warn and breach of warranty.

Question 47

In a product liability action in which strict liability is alleged, courts focus on ________.

A) Whether the product was in a defective condition and unreasonably dangerous when sold
B) Whether the manufacturer was negligent
C) Whether the seller exercised all possible care in the preparation and sale of the product
D) Whether the consumer had a contractual relationship with the seller
E) Whether the manufacturer knew of a problem with the product

Question 48

Which of the following is true regarding proof of design defect?

A) States are not in agreement concerning what proof is required to establish a design defect.
B) State law across the country is generally uniform concerning what proof is required to establish a design defect.
C) State law is irrelevant because federal law dictates what proof is required to establish a design defect.
D) Each local county in each state determines what proof is required to establish a design defect.
E) Because of the amount of international trade, there are international treaties establishing for each U.S. state concerning what proof is required to establish a design defect.

Question 49

As recognized by the court in Sperry-New Holland v. John Paul Prestage and Pam Prestage, which of the following is true under the risk-utility analysis of product liability?

A) That if the plaintiff, applying the knowledge of an ordinary consumer, sees a danger and can appreciate that danger, then he cannot recover for any injury resulting from that appreciated danger.
B) That a plaintiff must show that a retailer failed to do a proper risk-utility analysis before the plaintiff can recover against the retailer.
C) That a plaintiff must show that a manufacturer failed to do a proper risk-utility analysis before the plaintiff can recover against the manufacturer.
D) That a product is unreasonably dangerous if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of product.
E) That a reasonable person must conclude that the use-in-fact of a product outweighs the risk-utility of the product.

Question 50

Which of the following codes highlights a breach of warranty theory of liability?

A) The Federal Commercial Code.
B) The Federal Contract Code.
C) The State's Rights Commercial Code.
D) The Uniform Commercial Code.
E) The Warranty Liability Commercial Code.

Question 51

Under the Restatement (Third) of Torts, which of the following results in strict liability?

A) A manufacturing defect but not a design defect or a failure to warn.
B) A design defect and a failure to warn but not a manufacturing defect.
C) A design defect but not a manufacturing defect or a failure to warn.
D) Both a manufacturing defect and a design defect but not a failure to warn.
E) A manufacturing defect, a design defect, and a failure to warn.

Question 52

[Squirt Gun Mishap] Marie decided to purchase a large squirt gun for her son, Alex, to use while playing in the pool. The squirt gun was of a very elaborate variety and had a number of different attachments for different sprays of water. The squirt gun came with instructions for assembly and use, and provided warnings against various types of misuse. The pamphlet that came with the squirt gun advised that the squirt gun should be used only under adult supervision, that it must not be used by children under 11 years old, and that nothing should be put into the squirt gun except water. Alex had a party for his tenth birthday at the pool. A number of children came. A guest, Sophie, age 10, decided to load pebbles along with water into the gun. She began shooting the gun and hit Rachel, another guest, in the eye, requiring treatment at an emergency room. Rachel required some minor surgery, but sustained no permanent injury. Rachel's parents stated that they looked at the squirt gun when they initially arrived at the party, but did not notice any warnings affixed directly to the product. Rachel's parents want to sue someone for something, but they do not particularly want to sue Marie, their friend and hostess of the party.
Which statement is true regarding a lawsuit brought by Rachel's parents against the manufacturer of the squirt gun for strict liability?

A) Because neither Rachel nor her parents were in privity of contract with the seller, a lawsuit based on strict liability in tort is barred.
B) Privity of contract is not necessary in order to sue based on strict liability, so the fact that neither Rachel nor her parents were in privity of contract with the seller would not prevent a strict liability-based action.
C) Although privity of contract is not an issue, Rachel's parents would be unable to prevail in a strict liability action because Rachel did not sustain permanent physical injury.
D) Although privity of contract is not an issue, Rachel's parents would be unable to prevail in an action against the manufacturer for strict liability because they did not read the instruction booklet.
E) Rachel's parents would be prohibited from suing the manufacturer because of the federal law prohibiting lawsuits for failure to warn in cases involving children.

Question 53

[Squirt Gun Mishap] Marie decided to purchase a large squirt gun for her son, Alex, to use while playing in the pool. The squirt gun was of a very elaborate variety and had a number of different attachments for different sprays of water. The squirt gun came with instructions for assembly and use, and provided warnings against various types of misuse. The pamphlet that came with the squirt gun advised that the squirt gun should be used only under adult supervision, that it must not be used by children under 11 years old, and that nothing should be put into the squirt gun except water. Alex had a party for his tenth birthday at the pool. A number of children came. A guest, Sophie, age 10, decided to load pebbles along with water into the gun. She began shooting the gun and hit Rachel, another guest, in the eye, requiring treatment at an emergency room. Rachel required some minor surgery, but sustained no permanent injury. Rachel's parents stated that they looked at the squirt gun when they initially arrived at the party, but did not notice any warnings affixed directly to the product. Rachel's parents want to sue someone for something, but they do not particularly want to sue Marie, their friend and hostess of the party.
Which statement is true regarding warnings and the usage of products by children?

A) There is no duty to warn when children are involved because it is assumed that parents are responsible.
B) There is a duty to warn when children are involved, but it is no different from the duty to warn when only adults are expected to use a product.
C) Picture warnings could be required if children are likely come into contact with the product and risk harm from its use.
D) Warnings are only required for children whose parents actually purchased the product.
E) Warnings are only required for minors above the age of twelve because it is assumed that children under that age will not be able to comprehend warnings.

Question 54

What was the ruling of the court in the case of Welge v. Planters Lifesavers Co., the case in which the plaintiff injured his hand when a jar containing peanuts broke?

A) That the case would be dismissed because the plaintiff could not establish that the jar was maintained in a pristine condition after its purchase.
B) That the plaintiff was unable to recover on his claim because negligence in manufacture of the jar could not be established.
C) That the plaintiff was unable to recover on his claim because he was not the actual purchaser of the jar of peanuts.
D) That the plaintiff would be allowed to proceed on his claim because negligence was established.
E) That the plaintiff would be allowed to proceed on his claim because the defendant was unable to establish that the jar had been damaged after its purchase.

Question 55

[Squirt Gun Mishap] Marie decided to purchase a large squirt gun for her son, Alex, to use while playing in the pool. The squirt gun was of a very elaborate variety and had a number of different attachments for different sprays of water. The squirt gun came with instructions for assembly and use, and provided warnings against various types of misuse. The pamphlet that came with the squirt gun advised that the squirt gun should be used only under adult supervision, that it must not be used by children under 11 years old, and that nothing should be put into the squirt gun except water. Alex had a party for his tenth birthday at the pool. A number of children came. A guest, Sophie, age 10, decided to load pebbles along with water into the gun. She began shooting the gun and hit Rachel, another guest, in the eye, requiring treatment at an emergency room. Rachel required some minor surgery, but sustained no permanent injury. Rachel's parents stated that they looked at the squirt gun when they initially arrived at the party, but did not notice any warnings affixed directly to the product. Rachel's parents want to sue someone for something, but they do not particularly want to sue Marie, their friend and hostess of the party.
Which statement is true regarding any assertion by Rachel's parents that a warning should have been affixed to the product itself to warn adults as well as children?

A) There is a federal law that provides that manufacturers are not required to affix warnings directly to a product.
B) Most state laws provide that manufacturers are not required to affix warnings directly to a product.
C) Rachel's parents cannot complain because they did not purchase the squirt gun.
D) If parties other than the original purchasers will likely use the product, a warning should be placed directly on the product itself.
E) Court cases hold that warnings on a product are not required so long as the purchaser is given an instructional pamphlet setting forth warnings.

Question 56

Kobi was a budding young tennis star. He purchased several new state of the art tennis rackets from a local tennis merchant. Each racket cost Kobi over $600. As Kobi went to serve with his new racket, as soon as the ball contacted the racket head, the racket head splintered causing the strings to become unbound. Each of Kobi's new rackets responded the same way, rendering them useless. If Kobi sues, what warranty theory would he sue on?

A) Defective condition warranty.
B) Implied warranty of merchantability.
C) Warranty of use.
D) End-user warranty.
E) Consumer use warranty.

Question 57

As recognized by the court in Sperry-New Holland v. John Paul Prestage and Pam Prestage, which of the following is true regarding the consumer expectations test for product defect?

A) That if the plaintiff, applying the knowledge of an ordinary consumer, sees the danger and can appreciate that danger, then he cannot recover for any injury resulting from that appreciated danger.
B) That a plaintiff cannot recover if a reasonable person would conclude that the danger in fact of the product, whether foreseeable or not, outweighs the utility of the product.
C) That a plaintiff may only recover if the plaintiff was the purchaser of the product causing injury.
D) That a plaintiff may only recover if consumer oriented household goods are involved.
E) That a plaintiff may only recover if the plaintiff reasonably expected the manufacturer to have insurance, that the manufacturer did have insurance of the type to cover the injury at issue, and that the plaintiff had no part in causing the injury.

Question 58

When is expert testimony admissible in product liability suits?

A) Expert testimony is never allowed in product liability cases.
B) Expert testimony can be used if the judge believes the case can only be understood if an expert testifies and the case must deal with scientific subject matter.
C) Expert testimony is allowed but only in product design product liability cases.
D) Expert testimony is allowed if the subject matter is scientific or technical or other specialized knowledge would help the finder of fact and the expert offering the testimony is qualified as an expert.
E) Expert testimony is allowed only if the expert offering the testimony is qualified as an expert and has advanced degrees in the areas he or she is testifying in.

Question 59

Which theory might allow a plaintiff to recover when a plaintiff cannot trace an injury caused by a defective product to any particular manufacturer?

A) The unknown maker theory.
B) The marginal theory.
C) The reciprocal theory.
D) The market share theory.
E) The shared production theory.

Question 60

[Squirt Gun Mishap] Marie decided to purchase a large squirt gun for her son, Alex, to use while playing in the pool. The squirt gun was of a very elaborate variety and had a number of different attachments for different sprays of water. The squirt gun came with instructions for assembly and use, and provided warnings against various types of misuse. The pamphlet that came with the squirt gun advised that the squirt gun should be used only under adult supervision, that it must not be used by children under 11 years old, and that nothing should be put into the squirt gun except water. Alex had a party for his tenth birthday at the pool. A number of children came. A guest, Sophie, age 10, decided to load pebbles along with water into the gun. She began shooting the gun and hit Rachel, another guest, in the eye, requiring treatment at an emergency room. Rachel required some minor surgery, but sustained no permanent injury. Rachel's parents stated that they looked at the squirt gun when they initially arrived at the party, but did not notice any warnings affixed directly to the product. Rachel's parents want to sue someone for something, but they do not particularly want to sue Marie, their friend and hostess of the party.
Which statement is true regarding a lawsuit brought by Rachel's parents against the manufacturer of the squirt gun for negligence?

A) Because neither Rachel nor her parents were in privity of contract with the seller, no one other than Marie may be sued for negligence.
B) Privity of contract is not necessary in order to sue for negligence, so the fact that neither Rachel nor her parents were in privity of contract with the seller would not prevent a negligence-based action.
C) Although privity of contract is not an issue, Rachel's parents would be unable to prevail in a negligence action because Rachel did not sustain permanent physical injury.
D) Although privity of contract is not an issue, Rachel's parents would be unable to prevail in an action against the manufacturer for negligence because they did not read the instruction booklet.
E) Rachel's parents would be prohibited from suing the manufacturer because of the federal law prohibiting lawsuits for failure to warn in cases involving children.

Question 61

[Disappointing Boat Purchase] Ava went to purchase a new boat. She wanted a boat she could use in a nearby lake and also take to the coast for use in ocean waters. Ava saw a boat she liked in the showroom. She showed the boat to Brock, the sales representative at the dealership, and stated that she wanted a boat for both lake usage and ocean usage. Brock told her that the dealership had the best boats in the state, that the engine was great in the boat she liked, and that she would have no problem with steering or with the carburetor. He said nothing about whether or not the boat was an appropriate vessel for ocean waters. Ava purchased the boat. She immediately began to have significant problems with it. The engine did not perform adequately, and there were problems with the steering and carburetor. Additionally, Ava attempted to take the boat onto ocean waters and had significant difficulty. She later discovered that it was not an ocean-going vessel. It was only appropriate for lake usage.
Under the market share theory, which of the following is not true?

A) All defendants are tortfeasors.
B) The allegedly harmful products are identical and share the same defective qualities.
C) The plaintiff is unable to identify which defendant caused her injury through no fault of her own.
D) The manufacturers were using the exact same patented design product information.
E) The manufacturers of substantially all the defective products in the relevant area and during the relevant time are named as defendants.

Question 62

[Allergy Injuries] Drug company ABC Drugs introduced a new over-the-counter allergy pill guaranteed to prevent sneezing and sniffling for twenty-four hours after the consumption of one pill. The packaging contained warnings of the drug's side effects, including nausea and headache. After it was initially put on the market, the company became aware of a risk of dizziness from the drug in people with high blood pressure. However, the company did not warn of the additional risk because the company was concerned that individuals might not buy the pill. The risk of dizziness for the average person was extremely low. Julia had suffered allergies for years and had tried nearly every new product on the market. She even maintained a blog called "Ask the Expert About Allergies." She thought that ABC's pill was a great idea and purchased it at her local convenience store. She purchased the product after the date the company became aware of the issues involving dizziness. She took one pill and felt fine for a few days. Then, however, she began feeling dizzy. Her dizziness caused her to fall and break her leg on a flight of steps. She later discovered that the allergy pill likely made her dizzy. Julia sued under state law alleging failure to warn of the dangerous side effect of the drug. The drug company claimed that it had no duty to list dizziness as a risk because it was an over-the-counter drug and the risk of dizziness to the average person was extremely rare.
If the product packaging had contained a warning regarding dizziness in individuals with high blood pressure and Julia proceeded to take the drug despite its warning, what would be the company's best defense?

A) Assumption of the risk.
B) Misuse.
C) Sophisticated-user.
D) State-of-the-art.
E) Statute of limitations.

Question 63

[Lead paint] Alessia grew up in an old house. When Alessia was 25 years old, she was diagnosed with permanent kidney and nervous system damage, which doctors determined was linked to the lead paint she chipped off her windows and digested when she was a younger child. In order to offset some of the continuing medical costs, Alessia wants to sue the lead paint manufacturer, however, she doesn't know what brand of paint was used in her home. The most popular brand of lead paint in her area at the time the interior of her house was painted was made by ColorCo, but PaintCo and BrightCo were significant producers also with PaintCo having sales just behind ColorCo.
Which paint manufacturers can Alessia sue?

A) ColorCo, the largest manufacturer and the most popular brand.
B) Only the manufacturer that produced the paint that harmed her if it can be proven by scientific evidence which company produced the paint.
C) ColorCo or PaintCo, not BrightCo because their market share was less.
D) ColorCo, PaintCo, and BrightCo, but only if their products were identical, shared the same defective qualities and were sold in Alessia's area during the relevant time.
E) None of the manufacturers, it is impossible to determine fault in a case that is this old.

Question 64

[Lead paint] Alessia grew up in an old house. When Alessia was 25 years old, she was diagnosed with permanent kidney and nervous system damage, which doctors determined was linked to the lead paint she chipped off her windows and digested when she was a younger child. In order to offset some of the continuing medical costs, Alessia wants to sue the lead paint manufacturer, however, she doesn't know what brand of paint was used in her home. The most popular brand of lead paint in her area at the time the interior of her house was painted was made by ColorCo, but PaintCo and BrightCo were significant producers also with PaintCo having sales just behind ColorCo.
BrightCo wants to ask the court to dismiss it from the lawsuit. Which argument, if true, would cause the court to deny the motion to dismiss BrightCo?

A) BrightCo's product was not identical to the product that harmed Alessia.
B) BrightCo has never sold the product in Alessia's area.
C) BrightCo sold the product in Alessia's area, but not until last year.
D) Alessia cannot prove that BrightCo's product was the product that caused Alessia harm.
E) There is no evidence that BrightCo's products ever contained lead.

Question 65

[Allergy Injuries] Drug company ABC Drugs introduced a new over-the-counter allergy pill guaranteed to prevent sneezing and sniffling for twenty-four hours after the consumption of one pill. The packaging contained warnings of the drug's side effects, including nausea and headache. After it was initially put on the market, the company became aware of a risk of dizziness from the drug in people with high blood pressure. However, the company did not warn of the additional risk because the company was concerned that individuals might not buy the pill. The risk of dizziness for the average person was extremely low. Julia had suffered allergies for years and had tried nearly every new product on the market. She even maintained a blog called "Ask the Expert About Allergies." She thought that ABC's pill was a great idea and purchased it at her local convenience store. She purchased the product after the date the company became aware of the issues involving dizziness. She took one pill and felt fine for a few days. Then, however, she began feeling dizzy. Her dizziness caused her to fall and break her leg on a flight of steps. She later discovered that the allergy pill likely made her dizzy. Julia sued under state law alleging failure to warn of the dangerous side effect of the drug. The drug company claimed that it had no duty to list dizziness as a risk because it was an over-the-counter drug and the risk of dizziness to the average person was extremely rare.
With regard to Julia's blog, what defense could the company claim?

A) Misuse.
B) Sophisticated-user.
C) Assumption of the risk.
D) State-of-the-art.
E) Statute of limitations.

Question 66

[Disappointing Boat Purchase] Ava went to purchase a new boat. She wanted a boat she could use in a nearby lake and also take to the coast for use in ocean waters. Ava saw a boat she liked in the showroom. She showed the boat to Brock, the sales representative at the dealership, and stated that she wanted a boat for both lake usage and ocean usage. Brock told her that the dealership had the best boats in the state, that the engine was great in the boat she liked, and that she would have no problem with steering or with the carburetor. He said nothing about whether or not the boat was an appropriate vessel for ocean waters. Ava purchased the boat. She immediately began to have significant problems with it. The engine did not perform adequately, and there were problems with the steering and carburetor. Additionally, Ava attempted to take the boat onto ocean waters and had significant difficulty. She later discovered that it was not an ocean-going vessel. It was only appropriate for lake usage.
Which of the following is true concerning Brock's statement that the boats at the dealership were the best in the state?

A) The statement constituted an express warranty but not any other type of warranty.
B) The statement constituted a warranty of merchantability but not any other type of warranty.
C) The statement constituted an implied warranty of fitness for a particular purpose but not any other type of warranty.
D) The statement was opinion and did not establish any type of warranty.
E) The statement established both a warranty of merchantability and a warranty of fitness for a particular purpose, but not any other type of warranty.

Question 67

________ is a theory of negligence that teaches that an accident that is unlikely to occur unless the defendant was negligent is itself circumstantial evidence that the defendant was negligent.

A) Strict liability
B) Res ipsa loquitur
C) Warranty of fitness
D) Comparative negligence
E) Negligence per se

Question 68

[Disappointing Boat Purchase] Ava went to purchase a new boat. She wanted a boat she could use in a nearby lake and also take to the coast for use in ocean waters. Ava saw a boat she liked in the showroom. She showed the boat to Brock, the sales representative at the dealership, and stated that she wanted a boat for both lake usage and ocean usage. Brock told her that the dealership had the best boats in the state, that the engine was great in the boat she liked, and that she would have no problem with steering or with the carburetor. He said nothing about whether or not the boat was an appropriate vessel for ocean waters. Ava purchased the boat. She immediately began to have significant problems with it. The engine did not perform adequately, and there were problems with the steering and carburetor. Additionally, Ava attempted to take the boat onto ocean waters and had significant difficulty. She later discovered that it was not an ocean-going vessel. It was only appropriate for lake usage.
Without taking into account any statements made by either the salesperson or Ava regarding uses for the boat, what type of warranty did the seller make by merely selling the boat?

A) The sale itself constituted an implied warranty of merchantability but not an express warranty or a warranty of fitness for a particular purpose.
B) The sale itself constituted a warranty of fitness for a particular purpose but not an express warranty or an implied warranty of merchantability.
C) The sale itself constituted an express warranty but not an implied warranty of merchantability or a warranty of fitness for a particular purpose.
D) The sale itself constituted both an express warranty and a warranty of fitness for a particular purpose but not an implied warranty of merchantability.
E) The sale itself constituted both an express warranty and an implied warranty of merchantability but not an express warranty.

Question 69

If Alessia is awarded one million dollars in her lawsuit, how would the judge apportion liability under the market share theory?

A) ColorCo, PaintCo, and BrightCo would each be liable for 1/3 of the judgment.
B) ColorCo, PaintCo, and BrightCo would be liable for their share of the market at the time of the judgment.
C) ColorCo, PaintCo, and BrightCo would be liable for their share of the market at the time the product was produced.
D) ColorCo, PaintCo, and BrightCo would be liable for their share of the market at the time the paint was purchased.
E) ColorCo, PaintCo, and BrightCo would be liable for their share of the market at the time of Alessia's injury.

Question 70

[Lead paint] Alessia grew up in an old house. When Alessia was 25 years old, she was diagnosed with permanent kidney and nervous system damage, which doctors determined was linked to the lead paint she chipped off her windows and digested when she was a younger child. In order to offset some of the continuing medical costs, Alessia wants to sue the lead paint manufacturer, however, she doesn't know what brand of paint was used in her home. The most popular brand of lead paint in her area at the time the interior of her house was painted was made by ColorCo, but PaintCo and BrightCo were significant producers also with PaintCo having sales just behind ColorCo.
Can Alessia sue only ColorCo, the largest lead paint manufacturer who manufactured the type of paint in her home, even though there are other paint manufacturers who produced an identical defective product?

A) No, she must sue all manufacturers of lead paint.
B) No, she must sue all manufacturers who may have produced the paint in her home.
C) Yes, at least one court has held the plaintiff need sue only one maker of the allegedly defective product and the defendant may join other defendants to the suit.
D) Yes, because the defendant was probably the one who sold the paint.
E) Yes, only if she can prove the defendant sold lead paint in her area.

Question 71

Which of the following is true in regards to Scandinavian countries in light of product liability insurance?

A) Manufacturers, producers, and importers of similar products form cooperative groups and obtain an insurance policy.
B) Product liability insurance is paid for by their respective country's governments.
C) Only importers are allowed to have product liability insurance.
D) manufacturers must cover importers' liability premiums.
E) Producers and importers must pay at least half of the manufacturers' costs for product liability premiums.

Question 72

Which of the following products would likely have the lowest cost for product liability insurance?

A) Cook top stove.
B) Toaster oven.
C) Window blinds with cords.
D) Decorative wall art.
E) Child's car seat.

Question 73

Quinton is excited to start a new company that manufactures outside yard ornaments. If you are advising Quinton about product liability insurance, which of the following is true?

A) Start-up companies like Quinton's often have difficulty obtaining product liability insurance.
B) Quinton's company's annual sales is not relevant in obtaining product liability insurance.
C) Quinton's product is not relevant in obtaining product liability insurance.
D) Quinton's insurance premiums for his start-up company will be relatively low.
E) Start-up companies like Quinton's can always meet the insurance company's requirements for product liability insurance.

Question 74

A statute violation that causes the harm that the statute was enacted to prevent constitutes ________.

A) Strict negligence
B) Strict scrutiny
C) Assumption of the risk
D) Comparative negligence
E) Negligence per se

Question 75

Theo is an aspiring young scientist who agrees to testify at his friend Luminar's trial. Theo has a college degree in chemistry but has not worked in the field, but has a lab in his basement where he conducts experiments. The courts would consider Luminar's testimony as:

A) Expert testimony because he has a college degree.
B) Expert testimony because he has a lab in his basement.
C) Qualified testimony because he has a college degree.
D) Limited testimony because he has not worked in the field.
E) Junk science.

Question 76

Which of the following is true about expert witnesses?

A) Expert witnesses are widely used because of the low cost involved.
B) Judges are responsible for assessing the admissibility of an expert's opinion.
C) Expert witnesses are not deposed during litigation.
D) Only the plaintiff hires an expert in order to show causation.
E) The defendant usually hires an expert whose testimony is limited to evaluating the age of the defective product.

Question 77

[Disappointing Boat Purchase] Ava went to purchase a new boat. She wanted a boat she could use in a nearby lake and also take to the coast for use in ocean waters. Ava saw a boat she liked in the showroom. She showed the boat to Brock, the sales representative at the dealership, and stated that she wanted a boat for both lake usage and ocean usage. Brock told her that the dealership had the best boats in the state, that the engine was great in the boat she liked, and that she would have no problem with steering or with the carburetor. He said nothing about whether or not the boat was an appropriate vessel for ocean waters. Ava purchased the boat. She immediately began to have significant problems with it. The engine did not perform adequately, and there were problems with the steering and carburetor. Additionally, Ava attempted to take the boat onto ocean waters and had significant difficulty. She later discovered that it was not an ocean-going vessel. It was only appropriate for lake usage.
Which of the following is not a factor that a trial court may find helpful when balancing a product's utility against the risk the product creates, as set forth in the text from the Sperry-New Holland v. Prestage case?

A) The product's safety aspects.
B) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
C) The product's design, look and feel.
D) The availability of a substitute product that would meet the same need and not be as unsafe.
E) The usefulness and desirability of the product.

Question 78

What is the term used by courts for testimony by researchers that includes biased data, spurious inferences, data dredging, and sometimes fraud?

A) Biased science.
B) Circumstantial evidence.
C) Dredging.
D) Junk science.
E) Expert testimony.

Question 79

How can a plaintiff prove that a defect exists in a product?

A) Through the introduction of expert testimony only.
B) Through the introduction of expert testimony and/or circumstantial evidence.
C) Through the introduction of circumstantial evidence.
D) Through the introduction of expert testimony, which is always required, and sometimes circumstantial evidence.
E) Through evidence other than expert testimony, which is never reliable because experts are paid.

Question 80

What was the result in the text's case involving a plaintiff who suffered permanent liver damage as a result of drinking a glass of wine with a Tylenol capsule?

A) For plaintiff, because no comparative negligence was found.
B) For plaintiff, because the degree of potential harm was substantial and it would have been easy to place a warning on the product label.
C) For defendant, because it had no duty to warn.
D) For defendant, because there was no proof of market share.
E) For defendant, because the plaintiff's adverse reaction from the ingestion of only one capsule was extremely rare.