Products Liability - Next Generation Bar Exam

1. What is the general rule on recovery in products liability for damage only to the product itself?

   It is not recoverable in tort under the economic loss rule; the remedy lies in warranty. Under East River Steamship, damage to the product itself is economic loss.

2. What is the implied warranty of merchantability?

   A merchant seller's implied promise that goods are fit for their ordinary purposes. Breach supports a contract-based products claim under the UCC.

3. Under the learned intermediary doctrine, to whom must a prescription drug manufacturer give warnings?

   To the prescribing physician. The physician then advises the patient.

4. What are the three types of product defects?

   Manufacturing defects, design defects, and inadequate warnings or instructions. Each type has its own test for defectiveness.

5. Under the state-of-the-art defense, what may a manufacturer show in a design or warning case?

   That the risk or alternative design was not reasonably knowable or feasible when the product was sold. The defense does not apply to manufacturing defects.

6. A bottle of soda explodes because of a hairline crack not present in other bottles from the same line. What type of defect is present?

   A manufacturing defect. The bottle departed from its intended design.

7. When is a product defective for inadequate warnings?

   When reasonable warnings or instructions would have reduced foreseeable risks and their omission makes it not reasonably safe. There is no duty to warn of obvious or generally known risks.

8. Under the risk-utility test, when is a product's design defective?

   When a reasonable alternative design would have reduced foreseeable risks at reasonable cost. The Third Restatement adopts this test; some states also use consumer expectations.

9. Who may be strictly liable for a defective product?

   Any commercial seller in the chain of distribution, including manufacturers, distributors, and retailers. Occasional sellers, such as a person selling at a garage sale, are not covered.

10. Under MacPherson v. Buick Motor Co., what is the effect of lack of privity on a negligence claim against a manufacturer?

    It does not bar the claim when the product is reasonably certain to be dangerous if negligently made. MacPherson abolished the privity requirement for negligence claims.

11. What is the effect of product misuse on a strict products liability claim?

    Unforeseeable misuse defeats liability; foreseeable misuse does not. Under comparative fault, foreseeable misuse may reduce damages.

12. What is the effect of a substantial alteration of a product after it leaves the seller's control?

    It defeats liability if the alteration, not the original defect, caused the harm. Foreseeable alterations may not relieve the seller.

13. What is a manufacturing defect?

    A product that departs from its intended design. Liability is strict even if all possible care was used.

14. Under the consumer expectations test, when is a product's design defective?

    When it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable way. Many courts limit this test to simple products or obvious design failures.

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