product liability

This is for the discussion post peer response. Each must be at least 100 words. 

(2021 Fall A18 Term) PL131-7

Unit 5 Discussion – Products Liability

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This is a graded discussion: 40 points possible

due Oct 6

Unit 5 Discussion – Products Liability

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Discussion: Unit 5, Due Wednesday by 11:59 pm CTProducts LiabilityInstructions:Your initial posts should be at a minimum of 200 words.Your posts should demonstrate an understanding of the assigned readings and include references to at least two (2) sources outside of your textbook. Please strive to use primary sources of law such as statutes, cases, and/or administrative rules and regulations. You may also cite secondary sources of law such as treatises.

Mowumdown Company manufactures a revolutionary lawnmower that mows lawns without a human operator. The lawnmower starts selling like hotcakes and Harry, the owner of a hardware store, can barely keep the item in stock. Fast Stocker, Inc., delivers new shipments of the lawnmower to the store at least weekly, sometimes twice a week, if it can be managed, in order to keep up with demand. The lawnmower has a design defect in that while it does mow lawns by itself, it also mows indiscriminately over small objects, including household pets and garden gnomes. Customers begin returning the mower to Harry’s store, telling him horror stories of how the machine ran over garden hoses, dogs’ tails, and in one instance, a prize chihuahua. Harry’s response is to tell customers to take their concerns to Mowumdown Co. Harry does not remove the product from his store. Most recently, a customer bought the lawnmower only to have it run over his bare foot while he was relaxing on his patio enjoying a cold beverage and the fact that the lawn was being mowed without him.

From whom may the customer successfully receive compensation for his injury if he brings a products liability lawsuit? Discuss each possible defendant in the lawsuit and the chance of liability being found for each. What possible defenses, if any, may exist for each defendant? What is your jurisdiction’s law regarding product liability in this scenario?

The post and responses are valued at 40 points. Please review post and response expectations. Please review the rubric to ensure that your response meets criteria.

Estimated time to complete: 2 hours

Peer Response: Unit 5, Due Sunday by 11:59 pm CTInstructions:Always construct your response in a word processing program like Word. Check for grammar, spelling, and mechanical errors. Make the corrections and save the file to your computer.Find the post that you are going to reply to.Submit your peer response.Your responses to your classmates should be a minimum of 150 words and include a greeting with name.

Include in your response:

Compare and contrast between your response and your peer’s, or something about them that you find interesting.Have you encountered any research, articles, or news on this subject you could share?

Please be sure to validate your opinions and ideas with citations and references in APA format.

Estimated time to complete: 1 hour

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Collapse SubdiscussionJane Paglino

Jane Paglino

MondayOct 4 at 5:40am

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Collapse SubdiscussionJane Paglino

Jane Paglino

MondayOct 4 at 5:40am

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Collapse SubdiscussionJane Paglino

Jane Paglino

MondayOct 4 at 5:42am

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Great job by everyone discussing attractive nuisances last week. This week, we’ll focus on the tort of products liability. I look forward to seeing you all on the board!

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:32am

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What is Product Liability?

Defective or dangerous products are the cause of thousands of injuries every year in the U.S. “Product liability law (Links to an external site.)” is the set of legal rules concerning who is responsible for defective or dangerous products but they are different from ordinary injury law. This set of rules sometimes makes it easier for an injured person to recover damages.

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. In general terms, the law requires that a product meet the ordinary expectations of the consumer. When a product has an unexpected defect or danger, the product cannot be said to meet the ordinary expectations of the consumer.

There is no federal product liability law. Typically, product liability claims are based on state laws and brought under the theories of negligence (Links to an external site.), strict liability (Links to an external site.), or breach of warranty (Links to an external site.). In addition, a set of commercial statutes in each state, modeled on the Uniform Commercial Code, will contain warranty rules affecting product liability.

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:32am

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Product Defects: Responsible Parties

For product liability to arise, at some point the product must have been sold in the marketplace. Historically, a contractual relationship, known as “privity of contract (Links to an external site.),” had to exist between the person injured by a product and the supplier of the product in order for the injured person to recover. In most states today, however, that requirement no longer exists, and the injured person does not have to be the purchaser of the product in order to recover. Any person who foreseeably could have been injured by a defective product can recover for his or her injuries, as long as the product was sold to someone.

Liability for a product defect could rest with any party in the product’s chain of distribution, such as:

The product manufacturer;A manufacturer of component parts;A party that assembles or installs the product;The wholesaler; andThe retail store that sold the product to the consumer.

For strict liability to apply, the sale of a product must be made in the regular course of the supplier’s business. Thus, someone who sells a product at a garage sale would probably not be liable in a product liability action (Links to an external site.).

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:32am

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Types of Product Defects

Under any theory of liability, a plaintiff in a product liability case must prove that the product that caused injury was defective and that the defect made the product unreasonably dangerous. There are three types of defects that might cause injury and give rise to manufacturer or supplier liability:

Design Defects (Links to an external site.) – Present in a product from the beginning, even before it is manufactured, in that something in the design of the product is inherently unsafe.Manufacturing Defects (Links to an external site.) – Those that occur in the course of a product’s manufacture or assembly.Marketing Defects (Links to an external site.) – Flaws in the way a product is marketed, such as improper labeling, insufficient instructions, or inadequate safety warnings.

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:33am

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Who’s Responsible?

The doctrine, known as “res ipsa loquitur (Links to an external site.),” shifts the burden of proof in some product liability cases to the defendant(s). Translated, this Latin term means “the thing speaks for itself,” and indicates that the defect at issue would not exist unless someone was negligent. If the doctrine is successfully invoked, the plaintiff is no longer required to prove how the defendant was negligent; rather, the defendant is required to prove that it was not negligent.

The second rule that helps plaintiffs in product liability cases is that of strict liability (Links to an external site.). If strict liability applies, the plaintiff does not need to prove that a manufacturer was negligent, but only that the product was defective. By eliminating the issue of manufacturer fault, the concept of no-fault, or “strict” liability allows plaintiffs to recover where they otherwise might not.

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:33am

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Unavoidably Unsafe Products

By their nature, some products simply cannot be made safer (Links to an external site.) without losing their usefulness. For example, an electric knife that is too dull to injure anyone would also be useless for its intended purpose. It is generally believed that, as to such products, users and consumers are the best equipped to minimize risk. Thus, while a product might not be deemed unreasonably dangerous, manufacturers and suppliers of unavoidably unsafe products must give proper warnings of the dangers and risks of their products so that consumers can make informed decisions regarding them.

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:33am

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Common Defenses to Product Liability Claims

A defense often raised in product liability cases is that the plaintiff has not sufficiently identified the supplier of the product that allegedly caused the injury. A plaintiff must be able to connect the product with the party(ies) responsible for manufacturing or supplying it. There is an exception to this rule, known as the “market share liability” exception, which applies in cases involving defective medications. Where a plaintiff cannot identify which of the pharmaceutical companies that supply a particular drug supplied the drug he/she took, each manufacturer will be held liable according to its percentage of sales in the area where the injury occurred.

Another defense a manufacturer might raise is that the plaintiff substantially altered the product after it left the manufacturer’s control, and this alteration caused the plaintiff’s injury. A related defense is that the plaintiff misused the product in an unforeseeable way and that his/her misuse of the product cause the injuries alleged.

https://www.findlaw.com/injury/product-liability/what-is-product-liability.html#:~:text=Product%20liability%20refers%20to%20a,are%20in%20the%20distribution%20chain (Links to an external site.)

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:34am

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Proving a Defective Product Liability Claim

Here’s what you need to prove to win a product liability claim.

If you’ve been injured or suffered other damages because of a dangerous product or prescription drug (Links to an external site.), you might have a viable product liability claim (Links to an external site.). In evaluating and preparing your case, it’s helpful to get familiar with what the law requires you to prove in order to win.

Although the particulars vary from state to state, products liability law usually requires that you prove all of the following things (these are called the “elements” in your claim) in order to win:

You were injured or suffered losses.The product is defective.The defect caused your injury.You were using the product as it was intended.

Let’s look at each of these in a little more detail.

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:34am

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You Were Injured or Suffered Losses

All sorts of horrible things may have almost happened to you, but without an actual injury or monetary loss (“damages (Links to an external site.)” in legalese), you are missing a critical element of a products liability claim.

For example, say your fancy new electric tea kettle explodes the first time you use it because of a hairline crack in its base. You jump out of the way just in time, avoiding the burning hot steam and water, but you accidentally knock a hand-carved crystal vase—which happens to be your most valuable wedding gift—onto the floor. But the vase survives the fall without a scratch.

Although the defective and dangerous tea kettle almost caused third-degree burns and the destruction of your most prized wedding gift, without actual injury or damage, you have no claim. Learn more about damages in a product liability case (Links to an external site.).

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:34am

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The Product Is Defective

You must also prove that the product that injured you is defective. How easy this is to prove depends on the type of claim you are making. (Learn about different types of defective product claims. (Links to an external site.))

Manufacturing Error

If you are claiming that the product was flawed because of an error in making it—for example, the tea kettle developed a hairline crack during its manufacture—proving that it’s defective may be fairly easy.

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Collapse SubdiscussionJane Paglino

Jane Paglino

TuesdayOct 5 at 8:34am

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Design Defect: Is the Product Unreasonably Dangerous?

If you are claiming that the product was manufactured correctly,