(4) Torts: Strict Liability

Question 1

General Rule

Strict Liability

Answer 1

A prima facie case for strict liability requires (1) an absolute duty to make the P’s person or property safe; (2) breach; (3) actual and proximate causation; AND (4) Damages.

Question 2

When does Strict Liability Apply?

Answer 2

The 3 general situations in which strict liability is imposed is (a) dangerous activities; (b) wild animals; AND (c) defective or dangerous products.

Question 3

Definition:

Wild Animals

Answer 3

A wild animal is that by custom not devoted to the service of the humankind in the place where it is being kept.

Question 4

Rule:

Wild Animals

Answer 4

The possessor of a wild animal is strictly liable for the harm it does to others in spite of any precautions taken to mitigate harm if the harm arises from (1) a dangerous propensity; (2) that is a characteristic of such a wild animal (3) or of which the owner has reason to know.

Question 5

Is the owner of the wild animal strictly liable for the victims fearful reaction to the sight of the unrestrained wild animal?

Strict Liability - Wild Animal

Answer 5

Strict liability applies to harm caused by P’s fearful reaction to the sight of the unrestrained wild animal in addition to direct injuries caused by the wild animal.

Question 6

Is a possessor of wild animals strictly liable to trespassers, licensees, and invitees?

Answer 6

Only to licensees and invitees.

Question 7

Domestic Animals Rule

Strict Liability - Wild Animals

Answer 7

Strict liability also applies to domestic animals the owners knows or has a reason to know has dangerous propensities and harm results from those dangerous propensities.

Question 8

Dog Bite Statute

Strict Liability - Wild Animals

Answer 8

An owner may be liable for a dog bite after they know or have reason to know the dog will bite (so after the first bite).

Question 9

Definition:

Abnormally Dangerous Activity (/Ultra Hazardous Activities)

Answer 9

Fumigation, explosives, blasting, excavating, high voltage electricity, crop dusting, disposing of hazardous waste, storing gasoline in residential areas, storing toxic chemicals and gases, storing large quantities of water and other liquids, and mining are all considered abnormally dangerous activities.

Question 10

Rule:

Abnormally Dangerous Activity (/Ultra Hazardous Activities)

Answer 10

A D engaged in an abnormally dangerous activity is held strictly liable for any injuries caused by the activity regardless of precautions taken to prevent the harm. To evaluate whether an activity is abnormally dangerous consider the following elements: (1) poses a serious risk of severe harm; (2) the risk of harm cannot be eliminated no matter how much care is taken; AND (3) the activity is uncommon in the community where it is being conducted.

*Only liable if the harm that occurs results from the risk that made the activity abnormally dangerous in the first place.

Question 11

Defenses to Strict Liability (to discuss)

Answer 11

1. Contributory Negligence (not a defense)
2. Comparative Fault (jurisdictions are split)
3. Assumption of Risk
4. Statutory Privilege

Question 12

Contributory Negligence

Defenses

Answer 12

P’s contributory negligence is not a defense to strict liability and does not bar recovery.

Question 13

Comparative Fault

Defenses

Answer 13

Courts are split and in some jurisdictions P’s contributory negligence does not reduce their recover under strict liability but others do.

Question 14

Assumption of Risk

Defenses

Answer 14

P’s assumption of risk bars their recover in a strict liability action. Under wild animals if P is aware of the dangerous propensity of the animal and taunts the animal then they may be prohibited from recovering.

Question 15

Statutory Privilege

Defenses

Answer 15

Performance of an essential public service (construction of utility or sewage lines) exempts one from strict liability but may still be liable under negligence.

Question 16

Product Liability

Answer 16

A product may be defective because of its (a) design; (b) manufacture; or (c) failure to adequately warn (the consumer of a hazard related to a foreseeable use of the product). There are 3 possible claims a P has when bringing a Products liability action (a) Negligence; (b) Strict Products Liability or (3) Breach of warranty. If the D had intended or knew to a substantial certainty of the consequences of the defect then the P must bring an intentional tort coa.

Question 17

Strict Products Liability

Answer 17

P must prove that (1) the product was defective (in design, manufacture, or failure to warn); (2) the defect existed at the time the product left the D’s control; AND (3) the defect caused the P’s injuries when the product was used in the way it was intended or a reasonably foreseeable way.

Question 18

Who does Strict Products Liability apply to?

Answer 18

Only applies to Commercial Suppliers who are commercial sellers, distributors or any person or entity that is engaged in the business of selling goods of the type.

Question 19

Types of Defect

Strict Products Liability

Answer 19

1. Manufacturing Defect
2. Design Defect
3. Failure to Adequately Warning

Question 20

Manufacturing Defect

Strict Products Liability

Answer 20

A deviation from what the manufacturer intended the product to be. The test is to determine if the product conforms to the D’s own specifications.

Question 21

Design Defect

Strict Products Liability

Answer 21

Depending on the jurisdiction one must apply either the (1) ordinary consumer expectation test or the (2) risk utility balancing test to determine if a design defect exists.

Question 22

Oridinary Consumer Expectation Test

Strict Products Liability - Design Defect

Answer 22

Does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous?

Question 23

Risk Utility Balancing Test

Strict Products Liability - Design Defect

Answer 23

Do the risks posed by the product outweigh its benefits? The P must also prove that a reasonably alternative design was available to the D that is safer, more practical and of a similar cost.

Question 24

Failure to Adequately Warning

Strict Products Liability

Answer 24

Inadequate Warning: A failure to warn defect exists if there were foreseeable risks of harm not obvious to an ordinary user of the product which could have been reduced or avoided by providing reasonable warnings or instructions.

No Warning: The failure to include instructions or warnings renders the product not reasonably safe.

Question 25

What type of cause is needed for Strict Products Liability?

Answer 25

Actual Cause
Proximate Cause

Question 26

Damages

Strict Products Liability

Answer 26

Must be damages other than to the product.

P is entitled to recover for any personal or property damages but a claim for purely economic loss is generally not allowed under strict liability.

Question 27

Defenses to Strict Products Liability

Answer 27

1. Misuse/Alteration/Modification
2. Substantial Change
3. Contributory Negligence
4. Comaprative Fault
5. Assumption of Risk
6. Compliance with Government Regulations

Question 28

Misuse/Alteration/Modification

Strict Products Liability - Defenses

Answer 28

The misuse, alteration or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates liability. However foreseeable misuse, alteration, or modification usually does not. In comparative fault jurisdictions it will just reduce recovery by p’s fault.

Question 29

Substantial Change

Strict Products Liability - Defenses

Answer 29

If the product substantially changes between the time it is distributed by the manufacture and the time it reaches the consumer then this change is a superseding cause and cuts off liability of the original manufacturer.

Question 30

Contributory Negligence

Strict Products Liability - Defenses

Answer 30

Not a defense unless P’s fault consisted of unreasonably proceeding in the face of a known product defect.

Question 31

Comparative Fault

Strict Products Liability - Defenses

Answer 31

Same rule as in negligence situations.

Question 32

Assumption of Risk

Strict Products Liability - Defenses

Answer 32

P must have been aware of the danger and knowingly subjected themselves to it. In contributory-negligence jurisdictions this is a complete bar to recovery whereas in comparative fault jurisdictions it reduces the recover to the proportion of P’s fault.

Question 33

Compliance with Government Regulations

Strict Products Liability - Defenses

Answer 33

Failure to comply is conclusive that there is a defect. Whereas complying is evidence that the product may not be defective.

Question 34

Overview

Negligence

Products Liability

Answer 34

1. Duty (to all foreseeable users and to act as a reasonable supplier)
2. Breach (supplying defective product or foreseeable misuses)
3. Causation (actual and proximate)
4. Damages
5. Defenses

Question 35

Duty

Products Liability - Negligence

Answer 35

The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable P (i.e., purchaser, user or bystander) and to act as a reasonable supplier.

Question 36

Breach

Products Liability - Negligence

Answer 36

Failure to exercise reasonable care in the inspection or sale of a product constitutes breach of that duty. P must establish that the defect exists and that D’s lack of reasonable care led to the P’s harm.

Ex. If the D would have inspected the product the defect would have been found.

AKA: Supply of defective products & foreseeable misuses

Question 37

Types of causes needed & superseding cause:

Causation

Products Liability - Negligence

Answer 37

P must prove factual but for causation and legal proximate cause.

Ex of a Superseding cause: When a retailer sells a product with a known defect without proper warning this failure to warn is a superseding cause breaking the chain of causation between the manufacturer and the injury.

Question 38

Damages

Products Liability - Negligence

Answer 38

P is entitled to recover for any personal or property damages.

Recovery for purely economic loss claims can only be brought under breach of warranty actions.

Question 39

Defenses

Products Liability - Negligence

Answer 39

Standard negligence defenses of contributory; comparative and assumption of risk apply.

Question 40

Types of Warranty Breaches

Products Liability - Breach of Warranty

Answer 40

1. Implied Warranty of Merchantability
2. Implied Warranty of Fitness for a Particular Purpose
3. Express Warranty

Question 41

Implied Warranty of Merchantability

Products Liability - Breach of Warranty

Answer 41

All goods sold by a merchant must be fit for their ordinary purpose.

Question 42

Implied Warranty of Fitness for a Particular Purpose

Products Liability - Breach of Warranty

Answer 42

Applies when (1) the seller knows of the buyer’s particular purpose for purchasing the goods AND (2) the buyer relies on the seller’s skill or judgement in selecting or supplying the products.

Question 43

Express Warranty

Products Liability - Breach of Warranty

Answer 43

An express warranty is created when a seller makes (1) an affirmation of fact or a promise, or description, or provides a sample; (2) which relates to the goods; AND (3) it becomes part of the basis of the bargain.

Question 44

Damages

Products Liability - Breach of Warranty

Answer 44

P must not prove any fault on D’s part just that a breach occurred. P can recover purely economic damages as well as personal and property harm.

Question 45

Types of Defenses to Warranty Claims

Products Liability - Breach of Warranty

Answer 45

1. Disclaimers
2. Assumption of Risk
3. Comaprative Fault
4. Contributory Negligence
5. Product Misuse in Implied Warranty Claims
6. Failure to Provide Notice of a Breach

Question 46

Disclaimers

Products Liability - Breach of Warranty - Defenses

Answer 46

A seller can generally disclaim warranties it is unconscionable for personal injury damages and in the case of express warranties a disclaimer is only valid if it is consistent with the warranty, and it usually is not.

Question 47

Assumption of Risk

Products Liability - Breach of Warranty - Defenses

Answer 47

P’s unreasonable, voluntary encountering of a known product risk will affect their recovery as in a strict products liability claim.

Question 48

Comparative Fault

Products Liability - Breach of Warranty - Defenses

Answer 48

Same as strict liability.

Question 49

Contributory Negligence

Products Liability - Breach of Warranty - Defenses

Answer 49

Does not bar except when the contributory negligence consists of the unreasonable encountering of a known risk.

Question 50

Product Misuse in Implied Warranty Claims

Products Liability - Breach of Warranty - Defenses

Answer 50

Product misuse prevents recover under implied warranty of merchantability and fitness for a particular purpose.

Question 51

Failure to Provide Notice of a Breach

Products Liability - Breach of Warranty - Defenses

Answer 51

A warranty claim generally fails if the P fails to provide the seller with notice of the breach of warranty within the statutorily requires time period (when applicable) or a reasonable period of time.