(4) Torts: Strict Liability Flashcards
General Rule
Strict Liability
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.
When does Strict Liability Apply?
The 3 general situations in which strict liability is imposed is (a) dangerous activities; (b) wild animals; AND (c) defective or dangerous products.
Definition:
Wild Animals
A wild animal is that by custom not devoted to the service of the humankind in the place where it is being kept.
Rule:
Wild Animals
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.
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
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.
Is a possessor of wild animals strictly liable to trespassers, licensees, and invitees?
Only to licensees and invitees.
Domestic Animals Rule
Strict Liability - Wild Animals
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.
Dog Bite Statute
Strict Liability - Wild Animals
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).
Definition:
Abnormally Dangerous Activity (/Ultra Hazardous Activities)
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.
Rule:
Abnormally Dangerous Activity (/Ultra Hazardous Activities)
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.
Defenses to Strict Liability (to discuss)
- Contributory Negligence (not a defense)
- Comparative Fault (jurisdictions are split)
- Assumption of Risk
- Statutory Privilege
Contributory Negligence
Defenses
P’s contributory negligence is not a defense to strict liability and does not bar recovery.
Comparative Fault
Defenses
Courts are split and in some jurisdictions P’s contributory negligence does not reduce their recover under strict liability but others do.
Assumption of Risk
Defenses
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.
Statutory Privilege
Defenses
Performance of an essential public service (construction of utility or sewage lines) exempts one from strict liability but may still be liable under negligence.
Product Liability
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.
Strict Products Liability
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.
Who does Strict Products Liability apply to?
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.
Types of Defect
Strict Products Liability
- Manufacturing Defect
- Design Defect
- Failure to Adequately Warning
Manufacturing Defect
Strict Products Liability
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.
Design Defect
Strict Products Liability
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.
Oridinary Consumer Expectation Test
Strict Products Liability - Design Defect
Does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous?
Risk Utility Balancing Test
Strict Products Liability - Design Defect
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.
Failure to Adequately Warning
Strict Products Liability
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.
What type of cause is needed for Strict Products Liability?
Actual Cause
Proximate Cause
Damages
Strict Products Liability
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.
Defenses to Strict Products Liability
- Misuse/Alteration/Modification
- Substantial Change
- Contributory Negligence
- Comaprative Fault
- Assumption of Risk
- Compliance with Government Regulations
Misuse/Alteration/Modification
Strict Products Liability - Defenses
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.
Substantial Change
Strict Products Liability - Defenses
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.
Contributory Negligence
Strict Products Liability - Defenses
Not a defense unless P’s fault consisted of unreasonably proceeding in the face of a known product defect.
Comparative Fault
Strict Products Liability - Defenses
Same rule as in negligence situations.
Assumption of Risk
Strict Products Liability - Defenses
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.
Compliance with Government Regulations
Strict Products Liability - Defenses
Failure to comply is conclusive that there is a defect. Whereas complying is evidence that the product may not be defective.
Overview
Negligence
Products Liability
- Duty (to all foreseeable users and to act as a reasonable supplier)
- Breach (supplying defective product or foreseeable misuses)
- Causation (actual and proximate)
- Damages
- Defenses
Duty
Products Liability - Negligence
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.
Breach
Products Liability - Negligence
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
Types of causes needed & superseding cause:
Causation
Products Liability - Negligence
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.
Damages
Products Liability - Negligence
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.
Defenses
Products Liability - Negligence
Standard negligence defenses of contributory; comparative and assumption of risk apply.
Types of Warranty Breaches
Products Liability - Breach of Warranty
- Implied Warranty of Merchantability
- Implied Warranty of Fitness for a Particular Purpose
- Express Warranty
Implied Warranty of Merchantability
Products Liability - Breach of Warranty
All goods sold by a merchant must be fit for their ordinary purpose.
Implied Warranty of Fitness for a Particular Purpose
Products Liability - Breach of Warranty
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.
Express Warranty
Products Liability - Breach of Warranty
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.
Damages
Products Liability - Breach of Warranty
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.
Types of Defenses to Warranty Claims
Products Liability - Breach of Warranty
- Disclaimers
- Assumption of Risk
- Comaprative Fault
- Contributory Negligence
- Product Misuse in Implied Warranty Claims
- Failure to Provide Notice of a Breach
Disclaimers
Products Liability - Breach of Warranty - Defenses
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.
Assumption of Risk
Products Liability - Breach of Warranty - Defenses
P’s unreasonable, voluntary encountering of a known product risk will affect their recovery as in a strict products liability claim.
Comparative Fault
Products Liability - Breach of Warranty - Defenses
Same as strict liability.
Contributory Negligence
Products Liability - Breach of Warranty - Defenses
Does not bar except when the contributory negligence consists of the unreasonable encountering of a known risk.
Product Misuse in Implied Warranty Claims
Products Liability - Breach of Warranty - Defenses
Product misuse prevents recover under implied warranty of merchantability and fitness for a particular purpose.
Failure to Provide Notice of a Breach
Products Liability - Breach of Warranty - Defenses
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.
