- Watch the signal!
- --Products can trigger liability under a range of theories.
- --Signal may allude to specific theories (“P sues store for negligence.”). Only answer SL if asked (or on essays).
2. There must be evidence that the product is defective.
- 1. D must be a merchant.
- Merchant=routinely deals in goods of this type. Issues:
- --Casual Sellers. Not merchants; not SL (ebay sellers).
- --Service Providers. Primary business is offering a service; not merchants of goods/tangible products that are collateral to the service (collapsed chair in doc’s waiting room (but premises liability)).
- --Commercial Lessors. =merchants: even though they don’t part with title (rental cars).
- --Merchant Includes Every Merchant in Dist Chain. No requirement of privity with P (but P must still be a foreseeable victim for PC purposes).
Ok design, but actual product differs from design.
- There exists a safer, practical, and cost-effective alternative way to build the product. P must posit the alternative and show why it satisfies.
- --Practical=would not make more difficult to use or undermine effectiveness (bladeless knife).
- --Cost effective=a little more expensive is ok; not significantly.
Subset of design defect (because a warning (or better warning) is an alternative design). Not all warnings are equal.
--Must eliminate physical risks where possible.
Cannot warn away. This is policy consideration: get safest feasible physical design; warn of remaining risks.
- 3. Product has not been altered since it left D’s hands.
- --Manufacturers are not insurers for their products. If a product is tampered with, there is no SL.
- --Proof difficulties=Presumption that if product has moved in ordinary channels of distribution, it has not been altered. D must prove otherwise.
- --Does not apply to sale of used goods; not ordinary channels.
- 4. P must be making a foreseeable use of product when injured.
- --Foreseeable uses; not intended uses/misuse (standing on chair; speeding in car).