Chapter 16Interactive

Element of scienter and intent to deceive.

1. Misrepresents the quality of a product.

2. Conceals a defect in it.

adj. description of a condition in a sales contract in which the buyer agrees to take the property (e.g. house, horse, auto, or appliance) without the right to complain if it is faulty. However, the buyer must have had the right to reasonable inspection, so that he/she has a chance to find any obvious deficiency. Intentionally hiding a known defect will make a seller liable for fraud and serves to cancel the "as is" provision.

Black’s Law Dictionary

Restatement of the Law Third, Torts: Products Liability

Deals with the liability of commercial product sellers and distributors for harm caused by their products.

Cost of ripping apart a chair? $65.00

Cost of professional salaries per hour? $450.00

Catching your kid on camera doing something stupid?

Priceless

“The American Association of Pediatricians (AAP) is recommending not just a warning label on franks but a recall of foods that pose a choking risk, and a commitment from food manufacturers to redesign existing foods to minimize that risk.”

REALLY???

Defective product causes injury

Negligence

lawsuitlawsuit

Strict liability

Consumer

Retailer

Distributor

Manufacturer (negligent)

Defective product

DefendantDefendant

Defendant

DefendantAll in the chain of distribution are liable

Negligent party is liable

To recover for strict liability, the injured party must first show that the product that caused the injury was somehow defective.

Plaintiffs can allege multiple product defects in one lawsuit.

The most The most common common types of types of defects:defects:

ManufactureManufacture DesignDesign

PackagingPackagingFailure to WarnFailure to Warn

Manufacturing Defects — when the product departs from its intended design, even if all possible care was exercised.

Design Defects — when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, and failure to use the alternative design renders the product not reasonably safe.

Inadequate Instructions or Warnings Defects — when the foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings, and their omission renders the product not reasonably safe.

NAACP v. American Arms Inc.

Defect that occurs when the manufacturer fails to:

1. Properly assemble a product

2. Properly test a product, or

3. Adequately check the quality of a product

Defect that occurs when a product is improperly designed.

Design defects include:1. Toys designed with removable

parts that could be swallowed by children.

2. Machines and appliances designed without proper safeguards.

3. Trucks designed without a backup warning device.

Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown.

Proper and conspicuous warning insulates all in chain of distribution

The Dangers of Spray on Sunscreen - New York CBS Local w/Debra Jaliman - YouTube

Generally Generally Known DangersKnown Dangers

Supervening Supervening EventEvent

Assumption of Assumption of the Riskthe Risk

Misuse of the Misuse of the ProductProduct

Statute of Statute of LimitationsLimitations

Government Government Contractor Contractor DefenseDefense

Contributory & Contributory & Comparative Comparative NegligenceNegligence

Defenses Defenses to Product to Product LiabilityLiability

Assumption of the risk Government contractor Defense- Misuse of Product- unforeseeable

misuse of product Superseding event – Alteration of

the product after it leaves the seller.

1. Contractor who was provided specifications by the government is not liable for any defect in the product that occurs as a result of those specifications

2. Product must conform to specifications

3. Contractor must have warned of known defects or dangers

Applies to such things as Aircraft, Aerospace, weapons technology etc.

A carrier for a well known service delivery company was delivering packages out in the West Herndon area. He had a break coming, so he decided to stop into Starbucks and get a latte. On his way out of the parking lot, he failed to stop, and went colliding into a car carrying a women and two young children. Although the children were alright, the women driver claimed to suffer neck injuries and her car was badly damaged. She sued the delivery company for a total sum of $450,000 dollars claiming bodily injury and compensatory damages.

1. Why would the company be held liable?2. Would the carrier driver be responsible and

liable?3. Since the carrier was driving, was he still on

his break or back on the job? 4. Since the carrier had the company shirt and

logo patch, does he represent the company?5. Should the carrier be responsible solely for

his actions?6. Is the sum of $450,000 dollars, claiming bodily

injury and compensatory damages, reasonable in this case?

.

Master = Employer = Respondeat Superior

Respondeat Superior: Let the master answer! The master is held responsible for the servants conduct

Servant = Employee Joint and Several = both master and

servant are held responsible and liable for the servants conduct.

The master will make a better choice next time in servants

The master will be more careful in the supervisory role.

The liability of a servant is the cost of conducting business.

The master can purchase liability insurance. The master can afford the costs.

Vicarious Liability: Legal responsibility for the wrong committed by another person.

Strict Liability: Liability for an action because it occurred and caused damage, not because it is the fault of the person who must pay.

“Deep Pockets”: Expression used to describe those who have large sums of money.

No one factor controls the court decision.

Every court case is different, but can be based and judged on precedent setting cases.

Fact situations that seem very similar may result in different decisions.

The “Scope of Employment” issue will always play a role in the decision of the case.

Determining whether a servant is within the scope of his or her employment.

Jenny rides her bike to work from college every day. One day after school, she couldn’t find a place to lock up her bike because the bike rack was full. She decided to lock the bike up to a city meter just outside the shop where she works.

Her employer saw Jenny’s bike there but didn’t mention to her that it was against the cities ordinance to lock bikes up to meters. A police officer saw the bike and decided to write the

ticket out to the shop owner, rather than to Jenny. The officer claimed that since the owner knew it was against city ordinance, and Jenny was officially at work, then the shop owner should pay for the ticket.Was the officer right?

Again, was the officer right in this case? Should the officer just asked Jenny to

move her bike and not written the ticket? Should the shop owner have told Jenny to

move her bike? Should Jenny have known not to lock her

bike up the the meter? Should Jenny pay the ticket even though

it is made out to the shop owner? Since Jenny was at work, does this fall

under “Scope of Employment” guidelines?

Employee: Time and place of

occurrence. Failure to follow

directions. Failure to Act Acting on own accord

outside of the duties and responsibilities of the job.

Questions regarding the Employer’s Actions Include:

Failure to Act Responsibility of

the servant to whom? (What if there is more than one boss?)

Who Pays What?

Greg believed in the old fashioned way of giving service at the gas station. He treated customers like he wanted to be treated. He would wipe the windows and check to make sure that customer’s tires were always filled with the proper air pressure, and ready for the road. One day, as he was working on a customer’s

car, he noticed that the tires seemed a bit low. He filled them up to the regular level, not realizing that these tires were Italian, and meant to have less pressure in them then tires made in the U.S. Shortly after the customer leaves, the tires blow, causing the car to spin out of control, killing the driver and the passenger.

Who’s fault was this?

Was a crime committed? Should Greg have realized that these tires

were not made in the states? Should that have been reason for him to question?

Should the driver have said something to Greg about his tires?

Did Greg commit a crime unknowingly? Should the company Greg works for be

sued? Should the owner be sued for not training

Greg properly? Could this have been avoided?

Was the person acting as a servant for the hiring party?

Did the servant commit a tort? Was the servant acting within the

course and scope of the job? Is the master entitled to

indemnification from the servant? Is the servant entitled to indemnification from the master?

Battery: Unauthorized touching of another person without legal justification or consent.

Conspiracy: A plan to engage in criminal behavior involving two or more persons.

Solicitation: Influencing a person to engage in criminal activity.

Accessory to Crime: Assistance in a crime. i.e., driving the “get-away” car.

Indemnification: The right to be repaid by a servant, if the master has had to pay for his servant’s crime.

Worker’s Compensation

Karen is a Personal Fitness Trainer for one of the well known fitness centers in town. She has worked as a trainer for six years, and is ready for a promotion.

Karen was recently assigned as a personal fitness trainer to a new club member. Jim, Karen’s boss, felt that this particular individual needed a male trainer, due to his size, but for fear of being seen as a male chauvinist, he decided to let Karen have him. During a recent session, Karen was assisting the new member, and while spotting him on the free-weights, she hurt her back. She is now claming that her boss should have known better, and should have let one of the male fitness trainers handle this new member. Does Karen have a case?

Should Karen have said something from the beginning regarding this new member?

Could Karen have felt that because she was up for a promotion, her refusal to work with this new member could have been detrimental?

Should Karen claim workers compensation? Should Jim have given Karen the new member

or should he have given this new member to a male trainer, despite how it looked?

Does Karen have a lawsuit against Jim? Against the company?

Under common law, if an employee is hurt at work, the employer can utilize a number of defenses to avoid an obligation to the employee:These are two such defenses… Negligence by the employee The employee’s assumption of the

risk

Chapter 33, page 870

Must prove that the injury occurred on the job.

The injury was caused in the course and scope of the job.

Some statutes vary:Some cover only major industrial occupations.Some exclude small shops w/few employeesSome exclude injuries caused intentionally by the employer or other workers.

List of fatal dog attacks in the United States

National Geographic’s Dr. Brady Barr’s Bite Pressure Tests

The owner of the animal has a duty of care to anyone who might possibly come in contact with the animal.

The issue of “foreseeability” always plays a role because there is always an issue of the animal escaping. Therefore great care and caution is of the utmost importance when handling the animal as it interfaces with the public.

All parties will be held liable despite the issue of fault. Strict Liability is imposed .

*Warning signs, although helpful to those who heed

them, does not indemnify the owner/handler from

liability. (Joint and Several)http://survivalstore.com/r3s14ldb3.html?utm_source=googlepepla&utm_medium=adwords&id=18283950120&utm_content=pla

http://www.dogbitelaw.com/

http://www.eff.org/pub/legal.com

http://wwwsecure.law.cornell.edu/topics/workers_Compensation.html.com

http://www.workcompsite.com

http://www.getareferral.com

http://www.opm.gov/oca/index.htm