Study guide
Products Liability
California Bar Exam Exam
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1 Exam Format and Core Skills
California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy
2 Civil Procedure
Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion
3 Constitutional Law
Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause
4 Contracts
Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies
5 Criminal Law and Procedure
Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights
6 Evidence
Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)
7 Real Property
1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures
8 Torts
Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities
9 Business Associations
Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))
10 Community Property
General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property
11 Professional Responsibility
Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties
12 Remedies
Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection
13 Trusts
Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)
14 Wills and Succession
Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes
15 Performance Test
The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution
Products Liability
Key Takeaways Explain This Topic AI
Products liability can be pursued on five theories: negligence, strict products liability, implied warranty of merchantability, express warranty/misrepresentation, and intentional misrepresentation.
Strict products liability requires a commercial seller in the chain of distribution, a product that was defective when it left the defendant's control, and that the defect caused the plaintiff's injury while the product was used in a foreseeable manner.
There are three types of defects: manufacturing defects (product departs from its intended design), design defects, and warning defects (failure to warn of non-obvious dangers).
California uses TWO alternative tests for design defects: the consumer-expectation test and the risk-benefit test, under which the burden shifts to the defendant to justify the design (Barker v. Lull Engineering).
California pioneered strict products liability in Greenman v. Yuba Power Products; privity is not required and any foreseeable plaintiff (including bystanders) may recover from any commercial seller in the chain.
Last updated: June 2026
The Five Theories and the Three Defects
A plaintiff injured by a product may sue on five theories , and a strong essay canvasses each: (1) negligence , (2) strict products liability , (3) implied warranty of merchantability (and fitness for a particular purpose), (4) express warranty , and (5) intentional/negligent misrepresentation . Each has distinct elements, defendants, and defenses, but most share a common factual core: a defective product caused harm.
There are three types of defect across all theories:
Defect Definition Test
Manufacturing defect The product departs from its intended design (a flaw on the assembly line) Does the product differ from others off the same line? Strict liability applies straightforwardly.
Design defect The entire product line is unreasonably dangerous as designed Consumer-expectation test and/or risk-benefit (risk-utility) test
Warning defect (failure to warn) The product lacks adequate warnings/instructions for non-obvious dangers Was the danger foreseeable and not obvious, and would a warning have reduced the risk?
Manufacturing defects are the easiest for plaintiffs: the product is compared to the manufacturer's own design, and any deviation that makes it more dangerous suffices. Design defects and warnings are litigated harder because the plaintiff attacks the whole product line or the adequacy of instructions.
California's foundational role: California created strict products liability in Greenman v. Yuba Power Products Co. (1963), holding that a manufacturer is strictly liable when an article it places on the market, knowing it will be used without inspection, proves to have a defect that causes injury. The doctrine spread nationwide via Restatement (Second) § 402A .
Strict Products Liability Elements and California's Design-Defect Tests
Prima facie strict products liability requires:
The defendant is a commercial seller of the product (manufacturer, distributor, or retailer in the business of selling such goods — NOT a casual/one-time seller);
- The product was defective (manufacturing, design, or warning) when it left the defendant's control;
- The product reached the plaintiff without substantial alteration ;
- The defect was the actual and proximate cause of injury; AND
The plaintiff suffered damages while making a foreseeable use (including foreseeable misuse ) of the product.
No privity required. Any commercial seller in the distribution chain is liable, and any foreseeable plaintiff — buyer, user, or even a bystander — may recover. A retailer with no fault can be held strictly liable (and seek indemnity up the chain). Note that service providers and casual sellers are generally not subject to strict products liability.
California's two design-defect tests ( Barker v. Lull Engineering Co. , 1978): A plaintiff may establish a design defect under either :
The consumer-expectation test: The product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. (Best for products whose ordinary use produces clear safety expectations.)
The risk-benefit test: The benefits of the challenged design are outweighed by the risk of danger inherent in that design. Critically, once the plaintiff shows the design proximately caused injury, the burden SHIFTS to the defendant to prove the benefits outweigh the risks (considering gravity of danger, likelihood of harm, feasibility of a safer alternative design, financial cost, and adverse consequences of an alternative).
The burden-shifting of Barker 's risk-benefit prong is a defining California distinction — note it on any California design-defect essay. (For complex products beyond ordinary consumer experience, courts may require the risk-benefit test rather than consumer expectations.)
Warning Defects, Warranty Theories, and Defenses
Warning defects: A product is defective if it carries non-obvious dangers that could be reduced by adequate warnings or instructions, and the seller failed to provide them. The danger must be one the seller knew or should have known about. Learned-intermediary rule: for prescription drugs and medical devices, the manufacturer's duty to warn generally runs to the prescribing physician (the learned intermediary), not directly to the patient. Obvious dangers (a knife is sharp) need no warning.
Warranty theories:
Implied warranty of merchantability (UCC § 2-314): Goods sold by a merchant must be fit for their ordinary purpose. Breach is essentially strict liability in contract; privity rules are relaxed and personal-injury plaintiffs may recover.
Implied warranty of fitness for a particular purpose (§ 2-315): Arises when the seller knows the buyer's particular purpose and the buyer relies on the seller's skill.
Express warranty (§ 2-313): Any affirmation of fact or promise about the goods that becomes part of the basis of the bargain. Breach is strict.
Misrepresentation: A seller is liable for material misrepresentations of fact about a product on which the plaintiff justifiably relied (intentional, negligent, or even innocent in some formulations under § 402B).
Defenses (California, pure comparative fault):
Comparative fault reduces recovery: a plaintiff's unreasonable failure to discover a defect or unreasonable use diminishes damages ( Daly v. General Motors ).
Assumption of risk (knowingly using a product known to be defective) reduces or bars recovery.
Product misuse that is unforeseeable defeats the claim — but foreseeable misuse does not.
Substantial alteration by a third party after sale can break causation.
State-of-the-art evidence (the danger was scientifically unknowable at the time) is relevant to design and warning claims.
MBE trap: A plaintiff need not be the purchaser — bystanders recover in strict liability. And a faultless retailer IS liable in strict products liability even though it could not have discovered the defect; that is the point of strict liability (the retailer's remedy is indemnity against the manufacturer).