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Products Liability
University of Kansas School of Law
Westerbeke, William E.

Introduction
Products liability includes: negligence, strict liability, warranty, and misrepresentation.
Positives of strict products liability: Π can recover without showing fault
Π must prove: 1) the product was defective when it left Δ 2) product was used in a foreseeable manner 3) defect was cause in fact and proximate cause of damages
Breach of warranty: 1) Privity of contract, prompt notice of breach, disclaimers 2) Only pure economic loss 3) Statute of limitations starts at time of sale.
 
Negligence
Π must prove a reasonable manufacturer would have appreciated the harm, i.e. It was foreseeable and unreasonable
No privity of contract after McPherson: manufacturer has an independent duty to test and inspect the
Any product likely to be dangerous if negligently made can give rise to a cause of action without privity.
 
Misrepresentation
402B strict liability/public misrepresentation + 3r nine — no fault necessary
402B — same as intentional misrepresentation, it’s just tailored to product cases, i.e. Statements of safety = a fact. Generic praise/opinion not equal a fact
Leads to true strict liability, i.e. If you say that it is not addictive and one individual becomes addicted = liability under 402B, but not under defect 402A
Must be held out to the public, if info only goes to “relevant pub” still liable. Comment H.
Must be actual and justifiable reliance
Seller must be merchant
No privity problems, but you can’t get economic loss
Innocent misrepresentation = strict liability
Must be a material fact concerning the character quality of the product
Failure to perform a promise does not equal misrepresentation
 
Warranty
A2 + common law warranties
Πs can join warranty and product liability claims
You can recover purer economic damages
Three types
o       Implied warranty of merchantability
o       Implied warranty of fitness for a particular purpose
o       Express warranties
Covers the sale of goods only
Expre

t it → you’re bound by it.
 
Implied Warranty Of Merchantability 314
o       Has been swallowed up by strict liability in tort 402a
o       Is implied if seller is a merchant. Seller of goods of the kind
o       Applies to remote sellers and doesn’t have to be a basis of the bargain. No liability if buyer is given an opportunity to inspect and doesn’t.
o       Issue: is merchantability the same as the effectiveness under strict products liability?
o       Π can only recover if product was used for its ordinary purpose.
o       Two cases when 314, but not 313 can be used:
§         When a label isn’t part of the basis of bargain, i.e. Wasn’t read
§          if Δ is a retailer and hasn’t adopted manufacturers express warranties
Δ can exclude or modify it. Seller must be a merchant.