Deck 10: Product Liability

Question 1

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

Answer 1

False

Question 2

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

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

Answer 2

Negligence, strict product liability, and breach of warranty.

Question 3

A product may be found defective if a manufacturer fails to provide adequate warnings about potential dangers associated with the product.

Answer 3

True

Question 4

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

Question 5

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 6

Under the market share theory, a plaintiff may be able to recover in a products liability action even if the plaintiff cannot trace the harmful product to a particular manufacturer.

Question 7

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

Question 8

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 9

Which of the following is a reference to being a party to a contract?

A) Being in privity of contract.
B) Being in association with contract.
C) Being in connect to contract.
D) Being in affiliation with contract.
E) Being connected by contract.

Question 10

Upon which type of law is product liability law primarily based?

A) Contract law.
B) Tort law.
C) Administrative law.
D) Legislative law.
E) Executive law.

Question 11

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 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 12

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

Question 13

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

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

Question 14

When all products of a particular design are defective and dangerous, those products have which of the following type of defects?

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

Question 15

A bystander may not invoke the doctrine of strict-liability in a lawsuit.

Question 16

The statute of limitations is the same thing as the statute of repose.

Question 17

Japanese law fails to recognize fault of the part of the consumer in product liability cases, and manufacturers must bear the full burden when a product is found to be defective.

Question 18

Which of the following was the result in Radford v. Wells Fargo Bank, the case in the text in which the plaintiff sued claiming 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) Recognizing that product liability focuses on tangible items, the court ruled that a loan is not a product for purposes of product liability law.

Question 19

Which of the following 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 20

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

Question 21

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 22

Which of the following is true regarding damages that may be recovered in negligence-based product liability cases if proven?

A) Compensatory damages may be recovered, but punitive damages may not be recovered.
B) Punitive damages may be recovered, but compensatory damages may not be recovered.
C) Compensatory damages and punitive damages may be recovered.
D) Compensatory damages, punitive damages, and administrative damages may be recovered.
E) Compensatory damages, punitive damages, administrative damages, and manufacturing damages may be recovered.

Question 23

Under a strict product liability theory, who is considered a reasonably foreseeable party who may recover if injury is sustained?

A) The buyer only.
B) Only the buyer and the buyer's family.
C) Only the buyer, the buyer's family, and the buyer's guests.
D) Only the buyer and any one present in the buyer's home when injury is sustained.
E) The buyer, the buyer's family, the buyer's guests, and foreseeable bystanders.

Question 24

Which of the following may be sued in product liability actions?

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

Question 25

Which of the following 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) Assumption of the risk.
B) Pure comparative fault.
C) Contributory negligence.
D) Last-clear-chance.
E) Strict behavior.

Question 26

As of the date of text publication, what was the status of the lawsuit Pelman v. McDonald's, the case in which the plaintiffs asserted that McDonald's engaged in a scheme of deceptive advertising that in effect created the impression that McDonald's food products were nutritionally beneficial and part of a healthy lifestyle?

A) The case was dismissed and plaintiffs are appealing.
B) The case settled.
C) The judge had refused to dismiss the plaintiffs' claims, and the case is moving forward as a class action.
D) The judge ruled that only minor plaintiffs could sue, and their case is moving forward on a class action basis.
E) The judge ruled that only plaintiffs who could prove that they had eaten a sufficient amount of food at McDonald's could sue and also that the plaintiffs could not proceed on a class action basis.

Question 27

Under a strict product liability theory, who may be held liable to an injured party?

A) Manufacturers only.
B) Distributors only.
C) Retailers only.
D) Manufacturers and distributors but not retailers.
E) Manufacturers, distributors, and retailers.

Question 28

Section 402A of the Restatement (Second) of Torts applies to which of the following?

A) Negligence.
B) Breach of warranty.
C) Strict product liability.
D) Assumption of the risk.
E) Preemption.

Question 29

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 30

Which of the following is set out in the Restatement (Second) of Torts as a method by which to prove a design defect?

A) The risk-utility test.
B) The consumer expectations test.
C) The feasible alternatives test.
D) The design defect test.
E) The consumer propensity test.

Question 31

Which of the following do courts focus on when a strict product liability action is involved?

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 32

Which of the following 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 they 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 33

Which test for determining design defect is also referred to as 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) None of these.

Question 34

Which of the following defenses is an argument that harm was caused not by the defendant's negligence but by the plaintiff's failure to properly use the product?

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

Question 35

Which of the following 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 damage.

Question 36

Which of the following are considered foreseeable plaintiffs in product liability cases?

A) Users and consumers but not bystanders.
B) Users, consumers and bystanders.
C) Users but not consumers or bystanders.
D) The purchaser only.
E) The purchaser and the purchaser's immediate family only.

Question 37

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

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

Question 38

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 because negligence in manufacture of the jar could not be established.
C) That the plaintiff was unable to recover because he was not the actual purchaser of the jar of peanuts.
D) That the plaintiff would be allowed to proceed because negligence was established.
E) That the plaintiff would be allowed to proceed with the lawsuit because of a lack of evidence that the jar had been damaged after its purchase.

Question 39

Compliance with federal laws may lead to the defense that use of 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 40

Which of the following is true regarding punitive damages in product liability cases?

A) They 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 also by the maliciousness of the action.
E) Punitive damages are meant to compensate the plaintiff for injury and to make the plaintiff whole.

Question 41

What was the result at the Supreme Court level in Wyeth v. Levine, the case in the text in which the defending drug company took the position that the plaintiff's jury verdict on her state law claim alleging that the defendant improperly labeled a drug was preempted by federal law and should be overturned?

A) That the case should be dismissed because the defendant could not be subjected to both federal and state law.
B) That the case should be dismissed because it was impossible for the defendant to comply with both state and federal law.
C) That the case should be dismissed because complying with state law would obstruct the purposes and objectives of federal drug labeling regulation.
D) That the jury verdict would be upheld because the defendant could have complied with its state and federal law obligations.
E) That the jury verdict would be upheld because Wyeth failed to submit evidence that the plaintiff was guilty of comparative negligence.

Question 42

"Squirt Gun Mishap." Zora decided to purchase a large squirt gun for her son, Rambo, to use while playing in the pool. The squirt gun was of the 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 eleven, and that nothing should be put into the squirt gun except water. Rambo had a party for his tenth birthday at the pool. A number of children came. One of the children, Sam, who was ten years old at that time, decided to load pebbles along with water into the gun. He began shooting with the pebbles and hit Alice in the eye, requiring an emergency room visit. Alice required some minor surgery, but sustained no permanent injury. Alice's parents complained that they looked at the squirt gun when they initially arrived at the party but did not notice any warnings whatsoever affixed directly to the product. Alice's parents want to sue someone for something, but they do not particularly want to sue Rambo's mother.

-Which of the following is true regarding a lawsuit brought by Alice's parents against the manufacturer for strict liability as the theory is applied under Section 402A of the Restatement?

A) Because neither Alice 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 Alice 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, Alice's parents would be unable to prevail in a strict-liability action because Alice did not sustain permanent physical injury.
D) Although privity of contract is not an issue, Alice'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) Alice'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 43

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 44

Under which of the following is the breach of warranty theory of liability established?

A) The Uniform Commercial Code.
B) The Federal Contract Guide.
C) The Federal Commercial Code.
D) The Restatement (Second) of Torts.
E) The Restatement (Third) of Torts.

Question 45

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 46

"Disappointing Boat Purchase." Sally went to purchase a new boat. She wanted a boat that she could use in both a nearby lake and also a boat that she could take to the coast for use in ocean waters. Sally saw a boat that she liked and told the sales representative at the dealership that she wanted a boat for both lake usage and ocean usage. She told the sales representative that she particularly liked a boat that they were looking at in the showroom. The representative 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 at all regarding whether or not the boat was appropriate for ocean waters. Sally 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 among other things. Additionally, after Sally attempted to take the boat out into ocean waters and had significant difficulty, she discovered that it was not an ocean-going vessel. It was only appropriate for lake usage.

-Without considering any statements made by either the salesperson or Sally 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 47

"Squirt Gun Mishap." Zora decided to purchase a large squirt gun for her son, Rambo, to use while playing in the pool. The squirt gun was of the 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 eleven, and that nothing should be put into the squirt gun except water. Rambo had a party for his tenth birthday at the pool. A number of children came. One of the children, Sam, who was ten years old at that time, decided to load pebbles along with water into the gun. He began shooting with the pebbles and hit Alice in the eye, requiring an emergency room visit. Alice required some minor surgery, but sustained no permanent injury. Alice's parents complained that they looked at the squirt gun when they initially arrived at the party but did not notice any warnings whatsoever affixed directly to the product. Alice's parents want to sue someone for something, but they do not particularly want to sue Rambo's mother.

-Which of the following is true regarding any assertion by Alice's parents that a warning should have been affixed to the product 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) Alice'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 48

Under which of the following theories may a plaintiff be able to proceed even if the plaintiff cannot trace an injury caused by a product to any particular manufacturer?

A) The shared liability theory.
B) The market share theory.
C) The trade theory.
D) The shared market liability theory.
E) The shared production theory.

Question 49

"Contraceptive Injuries." Drug company ABC Drugs came out with a new birth control pill guaranteed to prevent pregnancy for one year after the consumption of one pill. The FDA approved warnings of the drug's side effects including nausea and headache to be provided with the pill. After it was initially put on the market, the company became aware of some risks of dizziness from taking the drug. The company, however, did not warn of that risk because the company was concerned that individuals might not buy the pill, and federal law did not specifically require a warning regarding dizziness. Belinda thought the pill was a great idea and obtained a prescription for it at a date after the company became aware of the issues involving dizziness. She took one and felt fine for a few days. Then, however, she began feeling dizzy. Her dizziness caused her to fall breaking her leg on some steps. She later discovered that the birth control pill likely made her dizzy. Belinda decided to sue under a state law claim for failure to warn, however, she waited a number of years before bringing her action. The drug company claimed that it had no duty to list dizziness as a risk because its warning complied with all FDA requirements. The drug company also claimed that the time in which it could be sued had expired both because Belinda waited too long after she was injured and also too long from the date of product purchase.

-The defense that Belinda waited too long to bring suit from the time that she was injured is a defense based upon which of the following?

A) The statute of limitations.
B) The statute of repose.
C) The statute of perpetuity.
D) The statute of time.
E) The statute of dates.

Question 50

"Squirt Gun Mishap." Zora decided to purchase a large squirt gun for her son, Rambo, to use while playing in the pool. The squirt gun was of the 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 eleven, and that nothing should be put into the squirt gun except water. Rambo had a party for his tenth birthday at the pool. A number of children came. One of the children, Sam, who was ten years old at that time, decided to load pebbles along with water into the gun. He began shooting with the pebbles and hit Alice in the eye, requiring an emergency room visit. Alice required some minor surgery, but sustained no permanent injury. Alice's parents complained that they looked at the squirt gun when they initially arrived at the party but did not notice any warnings whatsoever affixed directly to the product. Alice's parents want to sue someone for something, but they do not particularly want to sue Rambo's mother.

-Which of the following 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 51

"Contraceptive Injuries." Drug company ABC Drugs came out with a new birth control pill guaranteed to prevent pregnancy for one year after the consumption of one pill. The FDA approved warnings of the drug's side effects including nausea and headache to be provided with the pill. After it was initially put on the market, the company became aware of some risks of dizziness from taking the drug. The company, however, did not warn of that risk because the company was concerned that individuals might not buy the pill, and federal law did not specifically require a warning regarding dizziness. Belinda thought the pill was a great idea and obtained a prescription for it at a date after the company became aware of the issues involving dizziness. She took one and felt fine for a few days. Then, however, she began feeling dizzy. Her dizziness caused her to fall breaking her leg on some steps. She later discovered that the birth control pill likely made her dizzy. Belinda decided to sue under a state law claim for failure to warn, however, she waited a number of years before bringing her action. The drug company claimed that it had no duty to list dizziness as a risk because its warning complied with all FDA requirements. The drug company also claimed that the time in which it could be sued had expired both because Belinda waited too long after she was injured and also too long from the date of product purchase.

-What is the most likely result regarding the company's position that it had no duty to warn of the risk of dizziness because it complied with FDA requirements?

A) That the Federal Food, Drug, and Cosmetic Act (FDCA) establishes both a floor and a ceiling for drug regulation and that no additional warning requirements regarding dizziness could be imposed.
B) That absent clear evidence that the FDA would not have approved a change in the warning to include dizziness, a state law cause of action based on failure to warn would be allowed.
C) That no warning regarding dizziness could be required in addition to FDA approved warnings because dizziness is not a serious condition causing a "black box" type of warning involving risk of serious injury death.
D) That a state law cause of action would be allowed to go forward only upon the submission of clear evidence that a regulatory agency of the state had requested that the warning label be revised to warn of dizziness.
E) That while the plaintiff could go forward with a federal claim in relation to the lack of a warning regarding dizziness, a state law cause of action would be barred because of the company's compliance with FDA regulations.

Question 52

"Contraceptive Injuries." Drug company ABC Drugs came out with a new birth control pill guaranteed to prevent pregnancy for one year after the consumption of one pill. The FDA approved warnings of the drug's side effects including nausea and headache to be provided with the pill. After it was initially put on the market, the company became aware of some risks of dizziness from taking the drug. The company, however, did not warn of that risk because the company was concerned that individuals might not buy the pill, and federal law did not specifically require a warning regarding dizziness. Belinda thought the pill was a great idea and obtained a prescription for it at a date after the company became aware of the issues involving dizziness. She took one and felt fine for a few days. Then, however, she began feeling dizzy. Her dizziness caused her to fall breaking her leg on some steps. She later discovered that the birth control pill likely made her dizzy. Belinda decided to sue under a state law claim for failure to warn, however, she waited a number of years before bringing her action. The drug company claimed that it had no duty to list dizziness as a risk because its warning complied with all FDA requirements. The drug company also claimed that the time in which it could be sued had expired both because Belinda waited too long after she was injured and also too long from the date of product purchase.

-The defense that Belinda waited too long after the product was purchased in which to sue is a defense based upon which of the following?

A) The statute of limitations.
B) The statute of repose.
C) The statute of perpetuity.
D) The statute of time.
E) The statute of dates.

Question 53

"Disappointing Boat Purchase." Sally went to purchase a new boat. She wanted a boat that she could use in both a nearby lake and also a boat that she could take to the coast for use in ocean waters. Sally saw a boat that she liked and told the sales representative at the dealership that she wanted a boat for both lake usage and ocean usage. She told the sales representative that she particularly liked a boat that they were looking at in the showroom. The representative 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 at all regarding whether or not the boat was appropriate for ocean waters. Sally 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 among other things. Additionally, after Sally attempted to take the boat out into ocean waters and had significant difficulty, she discovered that it was not an ocean-going vessel. It was only appropriate for lake usage.

-What type of warranty, if any, did the salesperson make by selling the boat to Sally knowing that she wanted it to be ocean-going?

A) An implied warranty of merchantability.
B) An implied warranty of fitness for a particular purpose.
C) An express warranty.
D) A strict liability warranty.
E) A federal law warranty.

Question 54

Which of the following is the type of defect most likely involved when an individual glass bottle of soda shatters in someone's hand causing a cut, although most bottles do not shatter in that manner?

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

Question 55

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 56

What was the result in the case opener involving the lawsuit against the sperm bank for providing sperm with a genetic defect?

A) The lawsuit was dismissed because of the court's decision that sperm is not a product.
B) The lawsuit was dismissed because of the court's decision that the plaintiffs had suffered no damages.
C) The lawsuit was dismissed because of the court's decision that the sperm was not defective.
D) The lawsuit was not dismissed, and the court ruled that a sperm bank could be sued under product liability laws.
E) The lawsuit was not dismissed although the court ruled that the plaintiff could proceed only under a negligence theory.

Question 57

"Disappointing Boat Purchase." Sally went to purchase a new boat. She wanted a boat that she could use in both a nearby lake and also a boat that she could take to the coast for use in ocean waters. Sally saw a boat that she liked and told the sales representative at the dealership that she wanted a boat for both lake usage and ocean usage. She told the sales representative that she particularly liked a boat that they were looking at in the showroom. The representative 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 at all regarding whether or not the boat was appropriate for ocean waters. Sally 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 among other things. Additionally, after Sally attempted to take the boat out into ocean waters and had significant difficulty, she discovered that it was not an ocean-going vessel. It was only appropriate for lake usage.

-Which of the following is true regarding the representation of the sales representative 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 58

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 59

Paul was very excited about his first new vehicle purchase. He borrowed funds from his bank with which to purchase the car. Unfortunately, just a few days after he purchased the vehicle, the pistons in the engine overheated causing the engine to seize rendering the vehicle unusable. No one was injured, but Paul is very upset about his vehicle and plans to sue based on strict liability under the theory set forth by Section 402A of the Restatement (Second) of Torts. Which of the following is the most likely resolution of his claim?

A) He will be allowed to proceed because the vehicle was in a defective condition.
B) He will be allowed to proceed only if he can establish that he did appropriate research prior to purchasing the vehicle and had no reason to know that it was likely to be defective.
C) He will be allowed to proceed so long as he is up-to-date on his loan payments.
D) He will not be allowed to proceed because there is no recovery under a strict liability theory for solely economic damages.
E) He will not be allowed to proceed because the only avenue for this type of claim is through a negligence action.

Question 60

"Squirt Gun Mishap." Zora decided to purchase a large squirt gun for her son, Rambo, to use while playing in the pool. The squirt gun was of the 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 eleven, and that nothing should be put into the squirt gun except water. Rambo had a party for his tenth birthday at the pool. A number of children came. One of the children, Sam, who was ten years old at that time, decided to load pebbles along with water into the gun. He began shooting with the pebbles and hit Alice in the eye, requiring an emergency room visit. Alice required some minor surgery, but sustained no permanent injury. Alice's parents complained that they looked at the squirt gun when they initially arrived at the party but did not notice any warnings whatsoever affixed directly to the product. Alice's parents want to sue someone for something, but they do not particularly want to sue Rambo's mother.

-Which of the following is true regarding a lawsuit brought by Alice's parents against the manufacturer for negligence?

A) Because neither Alice nor her parents were in privity of contract with the seller, no one other than Rambo's mother may be sued for negligence.
B) Privity of contract is not necessary in order to sue for negligence so the fact that neither Alice 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, Alice's parents would be unable to prevail in a negligence action because Alice did not sustain permanent physical injury.
D) Although privity of contract is not an issue, Alice's parents would be unable to prevail in an action against the manufacturer for negligence because they did not read the instruction booklet.
E) Alice'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

Define and describe the three commonly used theories of recovery in product liability cases and set forth the two common elements that a plaintiff must generally show in order to prevail under a product liability theory.

Question 62

What four considerations did the U.S. Supreme Court identify in the case of Daubert v. Merrill Dow Pharmaceutical for relevant and reliable expert opinions?

Question 63

For his birthday, Paul's family purchased for Paul, who tips the scales at over 250 pounds, an exercise bicycle from a popular sports retailer in his community. The first time that Paul hopped on the bike, it collapsed, throwing him to the floor and severely bruising his ankle. Paul wants to sue for his injuries. He has an expert in exercise equipment examine the bicycle. The expert tells him that the bike was properly manufactured. It was not, however, designed for individuals weighing over 250 pounds. There was a warning to that effect in the brochure that came with the bicycle, but Paul's family threw that away along with the packaging; and Paul never saw it. Is there any negligence theory under which Paul can recover? If so, what is it, and what must Paul demonstrate to win?

Question 64

List the seven factors set forth in the text from the Sperry-New Holland v. Prestage case, involving injuries caused by a combine, that a trial court may find helpful when balancing a product's utility against the risk the product creates.

Question 65

Describe the two approaches taken by courts in negligent failure-to-warn cases involving drugs and cosmetics causing adverse reactions in regard to consumers who would not be considered sophisticated users.

Question 66

Courts using the market share theory generally require that the plaintiff prove which of the following?

Question 67

In most states, what must a plaintiff prove to succeed in a strict-liability action alleging a defective product?