Products Liability It is the PRODUCT that is so very, very important in these cases. If you don't have the product= problem
• All started with Mcpherson v. Buick: first case of negligence in the country, expanding to other products. Stated that you do NOT need privity to make a claim, can rely on negligence. ○ Prior Law from England was that to hold seller's liable for negligence would carry "absurd results" ○ Brought action against Buick motor company for negligent wheel house- early 1900's § This was during the time of mass production ○ Question? Can an action be brought against a manufacturer for a failure to inspect a part properly? Cardozo Opinion- Says "YES" negligence can be used as a claim against a manufacturer if a product was defective and the manufacturer should have known of the defect ○ Negligence became a claim that could be made against a manufacturer due to problems in industry in those days. ○ Any number of claims could happen in a product: negligent quality control, post production testing and inspection, negligent dist., sale, etc. ○ Today: Negligence is STILL a very big theory in product liability. MAJOR theory of product liability- BECAUSE if you can prove negligence, you can ALSO get to punitive damages- because it is how the manufacturer or seller ACTS. The seller must act reasonably. The question is whether the actions were reasonable under the circumstances. You must act with reasonable care. § To get to punitive damages: □ Willful & Wanton Disregard for the public ® These used to be a MAJOR slap to manufacturers, now punitive damages have been limited by the legislature § Negligence is a good way to get to something juror's get. Juror's understand negligence and then understand how to get to punitive damages ○ The first real theory of products liability. Mcpherson caught on throughout the whole country. Cases started to become decided on a warranty basis, due to the fact that it was often hard to get to documents in old injuries and lawyers were trying to hide cases ○ Started to look at breach of warranty as a claim. Looked to old british sales law, and started to develop warranties. If you went to a food from a restaurant- you had a warranty of wholesomeness, if you rented an apartment you had a warranty of habitability. These warranties started to become prevalent. ○ Then it was codified in the UCC. It became a place to rely on for people that got defective products, as well as a place to rely on. Example: § If the seller made an express warranty- then you could rely on it. NY then expanded these ideas to include § Implied warranties: □ Ex: if there is a seller, and the seller sells something that you buy than you are entitled to a "warrant of merchantability": the product is just as good as a product can be on an average level. If it's a toaster- it will toast □ And "warranty of fitness for a particular purpose"- average product, but something that is fit for the purpose that you will rely on. It must be during the course of business (they must sell you something that they hold out as a regular sale)(can't be a casual sale, must be something usual and customary in business) ○ States view: states looked at warranties, realizing negligence was difficult to prove, so they said "alright lets let the warranty attach to a product defect" ○ Henningsen Case: § Court said: a buyer can rely on a breach of warranty, and SO can someone in the buyers family. (NJ supreme court). § The fact that either a user, someone in the vehicle or a family member can bring suit, expands breach of warranty AND allows for additional members to bring suit § Disclaimer Case: the company gave an express warranty, AND all other warranties were disclaimed □ Court said: this transaction IS NOT fair. All of the manufacturers were using the same language. They had banded together and banned breach of warranty. The court
M3 Tort Law 1. A) The four elements necessary to prove negligence are Actual Jury (did the plaintiff suffer real loss? If it did, how should it be valued?), Causation (was the defendant’s conduct a direct cause of the plaintiff’s injury?), Duty of Care (Did the defendant have a duty or legal responsibility to the plaintiff to avoid causing an injury which could have been foreseen?), and Standard of Care (did the defendants behaviour fall below a standard which society considers reasonable?). The…
In your project this week, you will explore advanced directives, torts and your role in healthcare while respecting patient’s rights. You will be evaluated on each project on the accuracy of your responses, the completeness of your responses, your ability to think critically about each situation and your overall writing ability. Your responses to the questions below should be constructed in complete sentences using proper grammar, spelling and punctuation. In addition to the grading standards found…
Chapter 18 Agency Law 18-2 Agency A fiduciary relationship “which results from the manifestation of consent by one person to another that the other shall act in his behalf and subject to his control, and consent by the other so to act” Agency relationships are formed by the mutual consent of a principal and an agent. Principal Agent Agency The party who employs another person to act on his or her behalf The party who agrees to act…
as being so affected when I am directing my mind to the acts or omissions which are called in question.'' This `neighbour principle' was, and to a certain extent still is, the foundation of the modern law of negligence. http://www.lawteacher.net/tort-law/essays/neighbour-principle.php "In the law of negligence, the neighbour principle enunciated by Lord Atkin in Donoghue v Stevenson (1932) AC 562, 580 provides an adequate basis on which to resolve duty of care questions" Discuss. Answer The…
Assets Acquisition FACTS On December 1, 2012, Environmental Solutions Inc., (“Environmental”) offered to buy Joel Freedman’s (“Freedman”) company, Advanced Technologies. After discussing the offer with his attorney, he accepted to sell his company on August 1, 2013. On August 15, 2013, attorneys from both companies signed a letter of intent to acquire Advanced Technologies assets and liabilities for $5million. On September 30, 2013, the letter of intent was presented and approved by Environmental Solution’s…
(JAMA), medical malpractice follows only heart disease and cancer as a leading cause of death in the United States. More than 225,000 lives are claimed each year due to this medical neglect2. To set the foundation for medical malpractice, the tort of negligence must be established. Four elements are necessary when proving a malpractice claim; a duty of care, a breach of duty, a proximate cause, and damages. A duty of care relationship must be demonstrated between the health care provider…
Accountability in Practice Introduction In this assignment I intend to critically analyse the developing role of the advanced nurse practitioner in relation to analysing the professional accountability when making clinical judgement. The Royal College of Nursing informs us that ‘as a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions’ (NMC 2008) Accountability can be defined as ‘required or expected to be able…
The law relating to contracts in India is contained in Indian Contract Act, 1872.Under Section 2 (H) of this act, it is said that an agreement enforceable by law is said to be a contract when documented and signed. For the first time in 1903, the Privy Council held that the minor’s contract is void and not merely voidable. The Privy Council reached this conclusion on the basis of various Sections of the Indian Contract Act. CASE BRIEF The plaintiff, Dharmodas Ghose, while he was a minor, mortgaged…
Intent…………………………………………………………………………………….13 9. Areas Of Potential Dispute……………………………………………………………………14 10. Liability Of Each Party In A Contract Dispute……………………………….15 11. Health & Safety……………………………………………………………………………..17 11.1. Title to Property…………………………………………………………18 11.2. Tort Law……………………………………………………………………..19 12. Good Commercial Practice……………………………………………………………..21 12.1. Project planning and Scheduling…………………………………21 13. Conclusion……………………………………………………………………………………..23 14. Recommendation…………………………………………………………………………..23…
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