Law School Discussion

torts question

torts question
« on: May 06, 2009, 08:48:10 PM »
can a plaintiff sue based on strict products liability and in the alternative for negligence for a defective product?

Thanks

Re: torts question
« Reply #1 on: May 07, 2009, 06:46:21 AM »
Yes--remember from civ pro--a plaintiff can have alternate inconsistent theories that entitle them to relief.

Re: torts question
« Reply #2 on: May 07, 2009, 11:12:54 AM »
Yes--remember from civ pro--a plaintiff can have alternate inconsistent theories that entitle them to relief.

Yup.  Specifically, see Federal Rules of Civil Procedure 8(d)(3). 

ExpLo

Re: torts question
« Reply #3 on: May 12, 2009, 11:09:55 AM »
They can but I have a hard time seeing their chance of winning on a fault based claim if they cannot win on their no-fault claim

Re: torts question
« Reply #4 on: May 12, 2009, 12:02:29 PM »
You would probably not be able to establish that strict liability applied in the situation, so they would have to sue for normal negligence. In other words, the activity that occurred was not one that strict liability applied to, however, that activity might still be negligent. Although it would be nice to win on a strict liability theory, its always good to include alternative theories of liability to protect the claim.

Re: torts question
« Reply #5 on: May 16, 2009, 10:34:48 AM »
Yea, argue that they failed to warn of the products dangerous characteristics and therefore they should be strictly liable for the harm caused and that it was also negligent of them to overlook such a defect and had they acted as a reasonable manufacturer does they would have recognized this obvious danger but at the least they must warn of it. If they say it was unknown well thats heading down negligence street.