1. Construct a fact pattern [an example] to clearly delineate:
a. A Manufacturing Defect: A car’s braking system that does not work properly and causes the driver to get into an accident.
b. A Design Defect: A type of sunglasses that fail to protect the eyes from ultraviolet rays.
c. A Marketing Defect: Prescription drugs advertised as “virtually non-toxic,” “safe,” and “free of significant side effects” when they are not. They failed to state the warnings.
2. Describe how the issue of privity was determined under English common law.
Privity under English common law does not apply to third party members who are not involved in the original agreement. It only covers the relationship between the parties in the contract agreement. This applies to consumers who purchase the product from a retailer who buys it from the manufacturer. Since the manufacturer is not a part of the original agreement, they are not liable for any damages that the consumer has about the defective product. They can only be liable if the consumer bought the goods from the manufacturer directly. If the consumers did not buy the goods directly from the manufacturer, then the manufacturer would be considered a third party. This is under the privity doctrine.
3. Explain the importance of MacPherson and Henningsen in the development of law of products liability.
The first changing views on product liability were in MacPherson v. Buick Motors where the judge rejected the privity rule in negligence cases. The judge held that the nature of automobiles is such that probable danger is foreseeable if they are constructed defectively. MacPherson began the development of what now is the modern law of negligence in products liability cases. It applied negligence to one who supplies directly or through a third person for another to use.
In Henningsen v. Bloomfield Motors, based upon an implied warranty of fitness, the court extended protection of that warranty to the “ultimate purchaser” and to other foreseeable users of the product – family, household, and guests. This case resolved the privity dilemma and articulated the rationale upon which the total transition from special warranty to strict liability in tort would ultimately be made.
4. What is strict liability in tort? Describe at least three problems inherent in the three common law theories of recovery that strict liability was designed to “fix.”
A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is used without inspection for defects, proves to have a defect that causes injury to a human being. The three common law theories are negligence, misrepresentation and fraud, and warranty actions.
Negligence involves proof that a product was designed or manufactured in an “unreasonable manner.” Drawbacks to a suit based on negligence in the specific area of products liability involve the requirement of expert proof, the existence of the doctrine privity, the defense of contributory negligence and the sometimes torture standard of a “reasonable man.”
Misrepresentation and fraud actions focus on the proof of a false representation of a material fact, upon which a plaintiff reasonably relied in entering into a contract. A drawback to a suit based on fraud was the common belief that all sellers would in fact engage in a certain amount of exaggeration regarding their products, and the common notion that no matter how careful a manufacturer might be, no one could absolutely guaranty the safety of any product, thus negating the element of reasonable reliance.
Warranty actions were essentially based on contract promises, either express or implied. Drawbacks were only applied to the sale of goods. In common law, the manufacturer’s liability was limited to the actual purchaser of the product and not to any other parties.
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