Deck 14: Relationship of Tort Law to Contract Law

Question 1

Because strict liability is a tort doctrine,privity does not apply,so that even bystanders can recover under strict liability.

Answer 1

True

Question 2

The manufacturer of a subcomponent of a product cannot be sued if the product is defective and causes an injury.

Answer 2

False

Question 3

Strict liability applies only to products,not services.

Answer 3

True

Question 4

In a negligence action,all parties in the product's chain of distribution are liable for the injury,even if only one party was negligent.

Question 5

Fraud is often used as the basis for product liability actions.

Question 6

To be successful in a negligence cause of action,the plaintiff must prove that the defendant breached a duty of care that caused the plaintiff's injuries.

Question 7

Strict liability for products liability requires that the plaintiff show there was a defect in the product causing the injury.

Question 8

The failure of the manufacturer of a product to warn users of the dangerous propensities of a product can be negligence.

Question 9

Greenman v.Yuba Power Products,Inc.is a landmark case that adopted the doctrine of strict liability in tort as a basis for product liability actions.

Question 10

A homeowner not in the business of selling products could be sued for the sale of a defective product at a garage sale.

Question 11

All parties in the chain of distribution of a defective product are not strictly liable for injuries caused by the product.

Question 12

Damages recoverable in a strict liability action are uniform throughout the United States.

Question 13

The doctrine of strict liability applies to sellers and lessors of products.

Question 14

The defendant generally bears the burden of proving his or her negligence.

Question 15

The most widely recognized articulation of the doctrine of strict liability is found in Section 402A of the Restatement (Second of Torts).

Question 16

In a product liability action based on strict liability,the plaintiff must prove the existence of a defect and who caused the defect.

Question 17

Strict liability would not apply to the sale of blood required for a blood transfusion.

Question 18

A seller who conceals a defect in a product,but who does not affirmatively misrepresent the quality of the product,cannot be sued for intentional misrepresentation.

Question 19

Negligence is a possible theory under which to recover for injuries caused by products.

Question 20

Strict liability does not require the injured person to prove that the defendant breached a duty of care.

Question 21

The failure of a manufacturer to properly test a product can be a defect in manufacture.

Question 22

Comparative negligence is more widely recognized as a defense in product liability actions than contributory negligence.

Question 23

In evaluating the adequacy of a product's design,the courts apply a risk-utility analysis.

Question 24

The doctrine that imposes liability on a seller of a product only if the seller sold the defective product directly to the injured party is known as:

A)Privity of contract.
B)Resolution of contractual relationships.
C)Doctrine of direct commercial contacts.
D)Doctrine of merchants' liability limitations.

Question 25

The injured party must prove who caused the product to become defective.

Question 26

Failure to warn about a product's dangers can make an otherwise safe product defective.

Question 27

Under comparative negligence,if a plaintiff is found by the jury to be 25 percent negligent and the damages are $400,000,the plaintiff would only recover $300,000.

Question 28

Contributory negligence is a defense to negligence actions but not generally in strict liability actions.

Question 29

A toy for a child under 3 years of age that contains parts small enough for the child to swallow is defective in terms of product liability law.

Question 30

The concept of "defect" is expanding in the law.

Question 31

A statute of repose sets a limited time after an injury occurs in which a product liability suit can be brought.

Question 32

The maker of a product is required to warn about all dangers associated with using the product including dangers that are generally known.

Question 33

A household appliance that works fine but that is designed without proper safeguards would be defective in terms of product liability law.

Question 34

The original seller of the product is liable for an injury caused by a modification of the product even if the modification occurred after it left the seller's possession.

Question 35

Drug manufacturers have a duty to place their products in containers that cannot be opened by children.

Question 36

Manufacturers of over-the-counter drugs such as aspirin must warn consumers of possible side effects of the drug or they can be sued for selling a defective product.

Question 37

The crashworthiness doctrine requires that vehicles be designed to take into account the possibility of a second collision.

Question 38

A proper and conspicuous warning placed on a product protects the manufacturer from strict liability.

Question 39

Failure to provide adequate instructions for the safe assembly of a product is a defect.

Question 40

Under comparative negligence,if a plaintiff is found by the jury to be 25 percent negligent and the damages are $100,000,the plaintiff would only recover $25,000.

Question 41

Which of the following is true about statutes of limitation and statutes of repose?

A)Statutes of limitation,but not statutes of repose,set time limits on bringing legal actions.
B)Neither type of statute applies in the event of serious injuries.
C)These statutes are federal law and apply nationwide even to state law actions.
D)A statute of repose requires that a claim be brought within the specified number of years that the product was originally sold.

Question 42

As Betty is riding her new "LogLeaper XRTSHX 10,000 GTI" mountain bike,the front axle breaks and she is injured.She decides to sue Generalized,the maker of the bike,after learning that all LogLeapers have this problem.She would most likely sue on the basis of:

A)Negligence in assembly.
B)Failure to warn.
C)Manufacturing defect.
D)Design defect.
E)Defect in packaging.

Question 43

When a product is found to be defective because of a failure to warn,it means:

A)That the manufacturer made an unreasonably dangerous product about which consumers should have been told.
B)That the product would not have been unreasonably dangerous if consumers had been warned about certain dangers of the product.
C)A state of the art design is accepted so long as consumers are warned that there are no safer designs available.
D)That the manufacturer did not meet its duty to warn against all possible dangers that might exist in connection with a product.

Question 44

Someone who is injured by a product that he/she purchased new could recover on the basis of:

A)Breach of warranty.
B)Breach of warranty or negligence.
C)Breach of warranty or strict liability.
D)Negligence or strict liability.
E)Breach of warranty,negligence,or strict liability.

Question 45

A wholesale distributor who is named in a product liability suit based on strict liability could avoid liability if:

A)The plaintiff had not purchased the product causing the injury.
B)The distributor exercised reasonable care in all ways with respect to the product causing the injury.
C)This product had been used for many years by other users without injury.
D)This defect which caused the injury occurred after the product left the distributor.
E)The product has been redesigned to eliminate the problem which caused the injury in this case.

Question 46

Who can recover for their injuries under product liability law?

A)Someone who purchases a product new.
B)Someone who uses a product with the owner's permission.
C)A nonuser such as a bystander.
D)A and B only.
E)A,B,and C.

Question 47

If a manufacturer produces a defective product,sells it to a wholesaler,who sells it to a retailer,who sells it to a consumer,who is injured,which parties in the chain of distribution are potentially liable under strict liability?

A)Only the manufacturer.
B)Only the manufacturer and wholesaler.
C)The manufacturer,wholesaler,and retailer.
D)Only the party at fault.

Question 48

Which of the following is true in a products liability case?

A)The plaintiff must prove the existence of a duty.
B)The plaintiff must have purchased the product from the defendant.
C)The plaintiff must prove her case with a preponderance of the evidence.
D)The plaintiff will lose if she cannot prove proximate causation.

Question 49

A public policy reason for imposing strict product liability on all in the chain of distribution is:

A)These parties are able to insure against product liability costs.
B)These parties should be punished for putting dangerous products on the market.
C)Consumers should be able to choose dangerous products if they want to.
D)Negligence was making it too easy for plaintiffs to recover.

Question 50

Justin buys a computer from a retailer and his son is injured when the glass on the monitor shatters while he is using it.He sues the wholesaler only and the jury determines that this was a manufacturing defect that existed when the computer left the factory and caused the son's injury.The jury determined that the wholesaler was only 5-percent responsible,the retailer 20-percent,and the manufacturer 75-percent.Justin can:

A)Recover the full amount of his damages from the wholesaler.
B)Recover only 5 percent of his damages from the wholesaler.
C)Recover 20 percent from the retailer,but none from the parties he did not deal with.
D)Not recover because he (the son)was not the one who bought the computer.

Question 51

In order to recover in a products liability case based on strict liability,the plaintiff must prove that the product had a defect:

A)That was caused by the defendant.
B)Of any type.
C)That made the product unreasonably dangerous.
D)That affected the value of the product.
E)That the defendant knew existed.

Question 52

Which of the following could not give rise to a strict liability in tort action for products liability?

A)Buying a new car from a Genard Motors dealer.
B)Buying food at a Joke-in-the-Box restaurant.
C)Buying a prescription which was filled in a drug store.
D)Buying legal services for the drafting of a will.

Question 53

What are sellers responsible to provide for regarding the assembly of products they sell?

A)Rebates
B)Adequate instructions for safe assembly.
C)Adequate instructions for use of the product.
D)A and B.
E)B and C.

Question 54

Based on the law of products liability,which of the following is correct?

A)A manufacturer should design its products to take into account foreseeable misuse.
B)A manufacturer should design its products to take into account all possible misuse.
C)A manufacturer should design its products to take into account all possible misuse by the initial purchaser,but need not worry about misuse by other users.
D)A manufacturer need only take into account the intended use of its products.

Question 55

Paul purchased a deluxe motor home from Wide Open Spaces Motor Homes.In a products liability suit against Wide Open Spaces Motor Homes Corporation,Paul must show which of the following in order to recover?

A)That Wide Open Spaces was the manufacturer of the motor home,and not just a dealer.
B)That the negligence of Wide Open Spaces led to Paul's injury.
C)That a "defect" made the motor home unreasonably dangerous,leading to an injury.
D)That Paul was not misusing the motor home when the injury occurred.
E)That the motor home was new when Paul purchased it.

Question 56

Under the judicial philosophies developed in the area of product liability:

A)It does not pay to sue because of the high cost of legal expenses.
B)The doctrine of privity of contract will prevent liability.
C)The doctrine of privity of contract has been greatly reduced in importance.
D)Most consumers cannot recover because the UCC has been written to protect merchants.

Question 57

Little Bobby,5 years old,finds his older brother's "Extendo Sword," which is a toy sword about a foot long which springs out to 5 feet long when a button is pushed on the handle.His mother tells him to put it down because he will hurt someone if he's not careful.Bobby pushes the button when the sword is pointed toward his face and,just as all properly functioning "Extendo Swords" do,the sword shoots out.Bobby is injured and,under products liability,sues the toy store which sold the toy.Bobby will most likely:

A)Lose because of contributory negligence by playing with the sword after being told not to.
B)Lose if he cannot prove negligence on the part of the toy store.
C)Win on the basis of a manufacturing defect.
D)Win on the basis of a design defect.
E)Lose if the defendant can show that the sword was a state-of-the-art design.

Question 58

What is the significance of a "defect" in a products liability case based on strict liability?

A)It is not necessary,but can be used to eliminate the need to prove that there was an injury.
B)It is a required element in the proof of such a case.
C)Its presence would allow punitive damages to be awarded.
D)Its presence would eliminate liability for the defendant.
E)The party who caused the defect is the only one who can be held liable.

Question 59

Which of the following best describes the defense of correction of a defect?

A)The defense applies if a product is redesigned such that future production does not contain the defect.
B)The defense applies only if the particular sample of the item was repaired,thus fixing the defect.
C)The defense applies in a situation where a user received a recall notice to correct the defect but did not comply with the notice.
D)It applies only if the manufacturer replaces the defective product at no additional charge to the owner.

Question 60

Irma bought a new Zenith car from the Zenith dealership.As Irma was driving it,one of the wheels fell off,causing the car to crash and Irma to be injured.It can be shown that the manufacturer negligently attached the wheel to the axle.Irma wants to sue the Zenith manufacturer.Under which of the following causes of action can Irma sue the dealership?

A)Breach of warranty of merchantability.
B)Negligence.
C)Strict Liability.
D)A,B,and C.
E)A and C only.

Question 61

Smith purchased the latest kitchen counter top appliance,the Wonderslicer.It was designed to slice any type of dry food with amazing speed in a variety of settings.In the owner's manual that came with the Wonderslicer it clearly warned that it should not be used on wet food.The Wonderslicer itself contained a warning to read the owner's manual.Smith's 10-year-old daughter used the Wonderslicer to slice some oranges.In the process,she received a severe electrical shock which caused burns to her hand.

Question 62

Bob is at the Boston Biceps Bodybuilding Club riding an exercise bike.Bob wants to change the channel on the television that is mounted high on a nearby wall.He reaches for the remote control device and finds that another member has accidentally taken the remote control and left behind a cellular phone.Bob drags the exercise bike over to the television.He stands on the seat of the exercise bike in order to reach the television,but the seat post breaks and Bob falls to the floor.Bob is injured and cannot control his temper.He puts his entire 170 pounds into destroying the bike and throws it across the room against the wall,breaking off several pieces,with the handlebars landing on the running track.Half an hour later,another patron,Randy,trips over the handlebars as he is running on the track and is injured.Randy and Bob both sue the manufacturer and the health club under products liability for their injuries.Discuss their cases.

Question 63

Barbara purchases a Radartel cellular phone.One of the reasons she bought this was for security because she lives alone and often travels alone.After using the phone for about a week,she noticed that the rechargeable batteries (supplied in the phone by the maker)lasted a shorter time than claimed by the manufacturer.One evening a few days later,Barbara was in bed,but not yet asleep,and heard someone in her living room.She picked up the cellular phone from beside her bed and attempted to make an emergency call to 911,but the batteries were dead.She panicked and stayed in her bed motionless.About 5 minutes later,the burglar came into her bedroom,at which point she screamed.As he then tried to climb out the bedroom window she hit him with a lamp,but he kicked it back at her and injured her.The burglar got away and was never caught.Barbara sues Radartel,the maker of the phone.Prior to the lawsuit she returned the phone to the store where she bought it and learned that the batteries were defective,at which point she was provided with new batteries which have worked properly since then.Discuss the likely basis for Barbara's suit,the defenses that Radartel might raise,and the likely outcome.

Question 64

Barry buys a new sports car.The car sits low to the ground and because of the styling,visibility,to the rear is limited.About a month after Barry has the car he backs over his pet poodle as he is leaving for work.In his strict liability suit against the car manufacturer,Barry will:

A)Win because driving a sports car is an inherently dangerous activity.
B)Win on the basis of design defect.
C)Win on the basis of packaging defect because the car could have been packaged in a differently styled body.
D)Lose because he assumed the risk of backing up in a car when he could not see to the rear.
E)Lose because he is not in privity of contract with the car manufacturer.

Question 65

Should plaintiffs be able to recover from cigarette manufacturers for smoking-related illnesses? Are there variables that should affect the manufacturers' liability? What are they? What effect should the warnings on cigarette packages have on the outcome?

Question 66

Sean has a 6-year-old car which he bought 2 years ago directly from its original owner.Eight months ago he received a recall notice about a safety problem with the brakes.He never responded to the notice.Yesterday Sean was driving when the brakes failed and caused him to strike and injure a pedestrian.Which of the following is true in lawsuits against the car's manufacturer?

A)The pedestrian cannot recover due to the fact that the pedestrian was not using the car.
B)Sean can recover despite having received the recall notice.
C)The pedestrian cannot recover because the correction of a defect defense will apply even though Sean did not take the car in for the repair.
D)Neither party can recover if Sean's car was one of only a few of these cars that actually had a brake defect.
E)The pedestrian could not recover due to assumption of the risk.

Question 67

Power Tool Company manufactures table saws.These saws have several safety devices including a permanent blade guard.This guard keeps the user's hands from touching the blade while it is moving.Ralph buys a Power table saw,but he takes off the blade guard because it inhibits the type of work he wants to do.Later,Ralph is injured while using the saw.If the blade guard had been left on,Ralph would not have been injured.Ralph sues Power Tool Co.under a strict liability theory.The best defense that Power could raise based on these facts is:

A)Supervening event.
B)Assumption of risk.
C)Generally known dangers.
D)State of the art.
E)Misuse of the product.

Question 68

Which of the following would be a supervening event from the standpoint of a car manufacturer that has been sued in strict liability for an injury caused by one of its cars?

A)A redesign of the particular model car such that the ones being currently manufactured do not have the defect which led to the injury.
B)A recall notice sent to the car owner which was ignored.
C)An enactment,after the date of the injury,of a new safety regulation that would have prevented the injury.
D)The fact that the defect was caused by the car dealer when the car dealer was installing accessories for the purchaser.

Question 69

Dangerous Products,Inc.is currently the defendant in several products liability cases.Which of the following situations would provide the weakest defense for the manufacturer?

A)The plaintiff had received a recall notice addressing the defect which caused the injury,but did not respond to the recall and continued to use the product.
B)The plaintiff was misusing the product,an electric sander,to remove the outer layer of his facial skin in order to improve his facial complexion.
C)The plaintiff had taken one of the company's lawn mowers and modified it to be a ceiling fan which he attached to his bedroom ceiling.
D)The injury occurred when a boy used a drill to drill a hole in his younger brother's arm because the younger brother had broken the older brother's toy car.
E)The plaintiff was misusing an electric wood saw because the owner's manual said to only use it to cut with (along)the grain of the wood and the plaintiff was using it to cut across the grain,causing it to kick up and injure the plaintiff.

Question 70

Decisions in product liability cases sometimes make headlines,with much of the public outraged over what seems to be an excessive recovery for action seen to be the fault of the plaintiff.Is it too easy to recover in product liability? Why has the law changed over the past several decades to eliminate the need to prove negligence? Who wins and who loses as a result of these changes? What changes would you make if you could?

Question 71

In the case where General Motors was found liable for defective design of the fuel tank in a Chevrolet Malibu from the late 1970s,General Motors was not allowed to introduce evidence at the trial about the car's safety history or that the driver was intoxicated when the accident occurred.Should this evidence have been able to be introduced?

Question 72

In 1995,Congress passed a law affecting products liability actions relating to single-engine airplanes.Among other provisions,this law sets an 18-year statute of repose.In 1996,Cessna resumed production of several models of single-engine airplanes which had been stopped several years earlier,in part because of products liability exposure.Is this law ethical? Was this needed legislation,or was this a special favor given to one industry that makes a product known to lead to death and injury? How does the fact that flight training schools were unable to replace the single-engine planes they were using for training with newer ones affect your analysis?

Question 73

It is a hot summer afternoon so Rob takes his brand new Rocketski (a personal watercraft similar to a Jet Ski)out to a local park at a reservoir to try it out.The Rocketski has a built-in CD stereo sound system,with speakers,but also with a headphone jack.The owner's manual contains a warning that the headphones should only be used in light traffic areas and with extreme caution.Rob takes the Rocketski out on the water and puts the headphones on with his new CD,the greatest hits of the Ultradeath Slashers and Destroyers.He takes the machine out to the open area of the reservoir and tries it out.He's never done this before,is having lots of fun,and then wants to show his friends back on shore how fast the Rocketski can go.He comes close to shore at full speed where there are many swimmers and sailboarders in the water.Several swimmers are yelling at him to stop,but he doesn't hear anyone because he's listening to his favorite song,"Destroy Me Bad,My Love," at full volume on the headphones.He is rapidly approaching Sally on her sailboard,but doesn't see her because he's looking for his friends on shore.He would have missed Sally (just barely),but just as he got near her the engine on the Rocketski suddenly failed,causing the machine to lurch to the left and into Sally and her sailboard.Sally suffers severe injuries and sues Rocketski,Inc.Discuss the likely basis of the suit,claims raised,possible defenses,and likely outcome,assuming that the engine defect occurred in the manufacture of the Rocketski.

Question 74

Pat is pledging at the Delta Upsilon Delta (DUD)fraternity in order to become a member.As part of his initiation,he must eat a piece of cheese that is on a mousetrap that has been set to trap a mouse.He tries,but the trap slams shut on his nose,injuring him.Pat files a products liability suit against the hardware store which sold the mousetrap to the fraternity members.Which of the following,if true,would allow the hardware store to avoid liability?

A)The store exercised reasonable care in selling the mousetrap.
B)It was an unforeseeable misuse for anyone to use a mousetrap in this way.
C)Any defect in the mousetrap was caused by the manufacturer,not the hardware store.
D)Pat was not the purchaser from the hardware store.

Question 75

George bought a power handsaw from a local hardware store.The manufacturer had made the saw with a blade guard,which surrounds the blade,helping to prevent blade contact with the user.The manufacturer sold the saw to a wholesaler,which sold it to the hardware store.The hardware store removed the blade guard from the saw,but put it in the box that contained the saw.When George got home,he noticed that the blade guard was off.He could have reattached it,or he could have taken it back to the store,but George was in a hurry,so he used it the way it was.While sawing,he hit a knot in the wood,the saw kicked back,and the blade hit George's hand,seriously injuring it.Kickbacks are a relatively common occurrence,but if the blade guard had been installed,George would not have between injured.George wants to sue everyone in the chain of distribution under a strict liability theory.Discuss the potential liability of each member in the chain of distribution,and any possible defenses that may be raised.