Deck 10: Product-Liability

Question 1

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

Answer 1

True

Question 2

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

Answer 2

False

Question 3

Because the defect in the product is the basis for liability,under strict liability in tort,the injured person may recover damages even if the seller exercised all possible care.

Answer 3

True

Question 4

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

Question 5

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

Question 6

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 7

Under federal law,manufacturers and sellers may be held strictly liable for a defective product but only if negligence can be shown.

Question 8

In no states are a plaintiff's damages reduced by comparative fault on the part of the plaintiff's negligence.

Question 9

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 10

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

Question 11

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 12

According to the Restatement (Third)formulation of product liability law,a product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor.

Question 13

Lack of cohesiveness does not affect certification for class action in product liability cases.

Question 14

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 15

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

Question 16

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

Question 17

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

Question 18

The European Union applies strict liability to services.

Question 19

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 20

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

Question 21

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 is correct,because any such law would be unconstitutional.

Question 22

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 23

Following several injuries,a manufacturer of a chain saw installed an additional safety guard.In a lawsuit based on product 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) The modification was just recently designed.
B) The modification involved a subsequent remedial measure.
C) The company was not negligent.
D) There is no best position because it is well established that the evidence would be admitted.

Question 24

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 25

In an extreme case,a judge may set aside a jury verdict on causation grounds,if:

A) the plaintiff can prove that the defendant intentionally refused to warn of known dangers.
B) the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized information.
C) labeling does not meet the needs of non-English speakers.
D) no reasonable person could have deemed the failure to warn a proximate cause of the plaintiff's injury.

Question 26

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 27

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

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

Question 28

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 29

In which of the following cases would a manufacturer or seller be held liable for a user's injuries?

A) The user was not considered a sophisticated user at the time of the product's manufacture but was considered a sophisticated user at the time of his or her use of the product.
B) The user was injured while engaging in a misuse of the product that was unforeseeable by the manufacturer.
C) The user was a sophisticated user.
D) The user was injured while engaging in an unusual use of the product that was reasonably foreseeable by the manufacturer.

Question 30

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 31

Which of the following is true under the UCC regarding the requirement of privity in 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 32

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 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

A person voluntarily and unreasonably assumes the risk of a known danger regarding a product.In such a case the manufacturer is not liable for any resulting injury,based on the doctrine of:

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

Question 35

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

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

Question 36

The National Vaccine Injury Compensation Program is a "no-fault alternative to the traditional legal system" to resolve claims that individuals were injured by certain vaccines,which is based on:

A) the reasonable-alternative-design requirement.
B) contributory negligence.
C) the societal value of using an unavoidably unsafe product.
D) the properly manufactured and causation requirement.

Question 37

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 38

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 39

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 wholesaler is not strictly liable unless the injured party is unable to identify the manufacturer.

Question 40

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) nonliability-forming
D) design and manufacturing

Question 41

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 42

In 1963,the state of __________ became the first state to adopt the __________ theory,after the state supreme court decided the Greenman v.Yuba Power Products case.

A) California; strict product liability
B) California; product negligence
C) New York; strict liability
D) Florida; breach of warranty

Question 43

Glade recently went to see an ophthalmologist for severe glaucoma.The doctor stated that Glade's vision was 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 reading this literature,Glade put it in the trash.Glade's examination of the pamphlet had overlooked a small statement on the back that read "Warning: In 2% of the population this product may produce uncontrollable weight gain." Three weeks after using Seerite,Glade had gained 50 pounds and continued to gain weight rapidly.Glade has stopped using Seerite but cannot lose the weight,which has created 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 Glade may use to recover against Drugco? Discuss fully.

Question 44

Perhaps the most significant and controversial of the defenses to product liability is the preemption defense,according to which the Supreme Court explained in Mutual Pharmaceutical Co.v.Bartlett the Supremacy Clause makes federal law preemptive.Therefore,state laws:

A) determine the extent of damages that may be pursued.
B) apply when they are stricter than federal law,particularly in the case of pharmaceuticals.
C) govern and regulate the distribution of pharmaceuticals over and above any federal laws.
D) that conflict with federal law are "without effect."

Question 45

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 46

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

Question 47

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 48

Although disclaimers of liability are generally ineffective,parties in the chain of distribution should enter into contracts that _____ for defects caused by other members of the distribution chain.

A) place entire assumption of risk upon buyers
B) put into writing the failure to warn
C) invoke the statute of limitations
D) give them the right to indemnity

Question 49

A few years ago Bennie purchased some medication through a veterinarian for an aging pet iguana,Scales,who had a skin disease.Scales died a few months after beginning the medication.At the time of the death,Bennie thought that Scales had died of natural causes.Bennie later read in the newspaper that a number of reptilian-type animals had been harmed by the drug Scales ingested.Immediately Bennie talked to Scale's veterinarian who admitted the medication was most likely 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 Bennie's best chance at recovery?

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

Question 50

Courts examining the issue have reached varying results regarding whether computer software is a product subject to state product liability law.In which of the following situations have courts ruled it subject to liability law?

A) A user adapted a software program to calculate payment and interest for various scenarios; the program then provided software that appeared to overcharge customers buying lower-priced items.
B) Software calculated probabilities of various stocks to significantly increase in value and they,in fact,decreased.
C) Software caused damage to a subscriber's computer and loss of its use.
D) Software marketed to increase children's vocabularies did not show substantial increases among test subjects.

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

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 53

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 54

The PLIVA,Inc.v.Mensing case involved the issue of whether the federal law requirement that generic drugs must bear the same FDA-approved labels as their brand-name counterparts preempts state law claims for failure to warn.What was the holding by the U.S.Supreme Court?

A) Federal law did not preempt state law claims for failure to warn.
B) Federal law preempted state law claims for failure to warn.
C) 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) 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 55

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 56

CASE 10.3 Savage Arms,Inc.v.Western Auto Supply Co.(2001)addressed the issue of whether a company be held liable for personal injury caused by a defect in the product purchased as assets as part of another company.How did the court rule?

A) The case was remanded for a determination of whether the acquisition of assets met the requirements for either the "mere continuation" or "continuity of enterprise" theory of successor liability.
B) The court ruled that the sale of assets precluded indemnification on the part of Western Auto Supply Co.
C) The court ruled that permitting successor liability under the "continuity of enterprise" exception would discourage large-scale transfers and allowed Western Auto to recover from Savage Arms.
D) The court threw out the earlier judgment for the original plaintiff's suit for recovery based on reasonable use of the rifle and assumption of risks.

Question 57

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

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

Question 58

Sal purchased a used toaster at a yard sale.The seller told Sal that although the toaster was more than 10 years old,she had not had any problems with it.Sal takes the toaster home and uses it for a few months.One day,however,as Sal was using the toaster,it malfunctioned and caused a small fire in Sal's kitchen along with significant smoke damage.Sal decides to sue the manufacturer of the toaster and will 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 Sal?

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

Question 59

Under the __________ defense,a manufacturer is not liable to a sophisticated user of its product for failure to warn 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 60

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

Question 61

Fran sued Document Security Company,alleging injuries to both hands as a result of attempting to fix a jam in one of Document Security's paper shredders.Fran 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,Fran 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) Fran's 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 62

List and describe the common law defenses in a product liability case.