Deck 10: Product Liability.

Question 1

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

Answer 1

False

Question 2

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

Answer 2

True

Question 3

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

Answer 3

False

Question 4

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 5

The European Union applies strict liability to services.

Question 6

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

Question 7

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

Question 8

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

Question 9

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

Question 10

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.

Question 11

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

Question 12

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 13

Product liability is the legal liability manufacturers and sellers have for defective products that cause injury to purchasers,users,bystanders,or their property.

Question 14

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

Question 15

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 16

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

Question 17

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 18

The main holding in CASE 10.1,MacPherson v.Buick Motor Co.(1916),was Buick's liability without privity of contract with the buyer,MacPherson.

Question 19

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

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 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 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

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 24

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 25

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 26

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 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

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 29

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 30

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 31

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 32

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 33

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 34

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

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

Question 35

Which of the following is NOT true 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 36

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 37

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 38

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 these choices because any such law would be unconstitutional.

Question 39

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 40

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 41

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 42

A court might consider a product to be unreasonably dangerous if:

A) a less dangerous alternative was commercially feasible but was not produced.
B) the product was less dangerous than was expected by the ordinary consumer.
C) the product was frequently misused by consumers, despite adequate warnings about the dangers of misusing the product.
D) the product was adequately labeled with warnings for the ordinary consumer.

Question 43

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 44

The main question for the U.S.Supreme Court in CASE 10.4 Mutual Pharmaceutical Co.,Inc.v.Bartlett (2013)was whether:

A) New Hampshire's "risk-utility" analysis was Constitutional.
B) New Hampshire had properly licensed Mutual Pharmaceutical to dispense medications within its boundaries.
C) the generic drug Clinoril was properly prescribed to patient Bartlett.
D) consumers could sue generic drug manufacturers for defectively designed drugs that makes them unreasonably dangerous.

Question 45

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 46

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 successor liability.

Question 47

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 48

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 49

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 50

In 1963,the state of __________ became the first state to adopt the __________ theory,after the state supreme court decided the __________ case.

A) California, strict liability, Greenman v.Yuba Power Products
B) California, product negligence,Greenman v.Yuba Powder Products
C) New York, strict liability,Greenman v.Yuba Power Products
D) Florida, breach of warranty, Petito v.A.H.Robins Co.

Question 51

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 52

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 53

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 54

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 55

ThePLIVA,Inc.v.Mensing case discussed in the text,involved theissue 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.What was the holding by the US Supreme Court?

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 56

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

Question 57

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 58

CASE 10.2 Branham v.Ford Motor Co.(2010)was reversed and remanded for a new trial,with plaintiff ordered to prove the __________ approach,after the court adopted the __________ regarding defective product claims.

A) unavoidably safe product, Restatement (Third)
B) inadequate warnings, Restatement (Third)
C) reasonable alternative design, Restatement (Third)
D) reasonable alternative design,Restatement (Fourth)

Question 59

The FDA requires that manufacturers provide full labeling in __________ for nonprescription drugs sold in the United States mainland.

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

Question 60

CASE 10.3James v.Meow Media,Inc.(2002)addressed whether a video game manufacturer was strictly liable for a teenager's shooting spree.What was the court's holding?

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 61

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

Question 62

Set forth the elements of a strict liability claim.

Question 63

Fred sued Document Security Company,alleging he had suffered injuries to his hands as a result of attempting to fix a jam in one of Document Security's paper shredders.Fred alleged the shredder was defective because it failed to contain warnings regarding the dangers to fingers and hands while attempting to fix jams.In order to succeed,Fred will have to show:

A) all risk of harm could have been reduced or avoided by the provision of reasonable instructions or warnings by Document Security Company.
B) paper shredders are inherently dangerous products.
C) his injuries would not have occurred but for the absence of the warnings.
D) foreseeable risks of harm could have been reduced or avoided by the provision of reasonable instructions or warnings by Document Security Company.

Question 64

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 65

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.