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Theories Of Product Liability

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Recommended: General principles applicable to the tort of negligence

Furthering this discussion, Harvard Law argues that previous to the mid-1960s, liability for product-related injuries was determined by reference to other generally applicable causes of action, especially negligence, breach of warranty, and fraud (Goldberg, J. & Zipursky, B. 2006). In 1965, The adoption of section 402A of the Restatement (Second) of Torts, was a turning point for this in product liability. RESTATEMENT (SECOND) OF TORTS § 402A (1965). Section 402A provides: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business …show more content…

There are three primary theories on which a product liability claim can be brought- negligence, breach of warranty, and strict liability. It is important to understand the amount of weight each one of these claims carry. Although negligence and breach of warranty are alleged in most product liability cases, they play a secondary role in comparison to strict liability. Under strict liability, the injured person does not have the burden of proving negligence. Therefore, strict liability is the easiest of the three to prove and used most often in product liability claims. Nonetheless, it is common for plaintiff attorneys to try to prove negligence in addition to strict liability because it can do a better job of setting the stage and will often stir the jury’s emotions, leading to higher amounts in damages …show more content…

An implied warranty of merchantability merely means that the product that is being sold is reliable and that it will do what products of its kind generally do without causing bodily harm anyone. For example, when a shopper is in the cereal aisle at the grocery store, it is natural to assume that no matter what cereal they choose, none of them are going to be poisonous. In the unfortunate event that this is not the case, the shopper would have an implied warranty of merchantability to rely

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