Products Liability, Strict Liability, and Vicarious Liability Flashcards
History for Products Liability
- began as contract law, requiring privity of contract (WINTERBOTTOM)
- Cardozo extended this doctrine so a defendant can be liable for negligence without regard to contractual privity (McPHERSON)
- NOW is a combination of strict liability and negligence (HENNINGSEN and ESCOLA)
General Rule for Products Liability
Refers to the liability of any or all parties along the chain of commerce of damages caused by that product
- in an essay products liability - IF APPLICABLE - should be addressed in the breach section of a negligence claim
- strict liability still requires actual and proximate causation
- comparative fault can still be used as a defense for strict liability
Proximate Cause
Proof of defendant’s proximate cause to the injury is still required in strict liability cases (ALLBRITTON)
Doctrine of Foreseeable Misuse: product is not necessarily defective, but the consumer misused it in a foreseeable manner
* e.g., sticking your hand in a blender; manufacturer should have installed a safety guard on the blade = cheaper cost avoider
Comparative Fault as a defense for Strict Liability
Known as comparing probabilistic fault
Against: we want to protect risk averse individuals
For: based on case law the law is becoming more negligence centralized (NAVISTAR) . . .
Game theory argument -
Allocating fault appropriately is actually MORE crucial in strict liability because it ensures that consumers ALSO act carefully; otherwise strict liability automatically establishes the plaintiff’s prima facie case
2nd Restatement §402A
Announces strict liability in tort for anyone who sells any product in a defective condition that is unreasonably dangerous to the user/consumer
REQUIREMENTS . . .
1) defendant MUST be a seller in the business of selling the product (AMAZON
- can be ANY seller in the chain
* e.g., selling a car off craigslist does NOT count
2) the product MUST have been in a defective condition at the time of sale AND no substantial change has occurred
- 2nd does NOT define “defective” - job for the courts
– courts struggle with this and often look to the 3rd which instead uses “surprisingly dangerous”
* e.g., regular whiskey in comparison to adulterated whiskey
3) the defect MUST make the product “unreasonably dangerous”
- beyond what an ordinary consumer would expect
4) the product MUST be used as intended or foreseeably misused
6) the defect MUST cause physical harm
- privity of contract and negligence are irrelevant
- rejects comparative fault for strict liability cases; court/case law disagrees with this
Product Defect Suit Theories
- production/manufacturing defects
- design defects
i. inherently defective designs
ii. statutory violations - warning defects
- 3rd Restatement expanded on the 2nd Restatement’s §402A and embraced these 3 categories ^^ - U.C.C breach of warranty
a. expressed
b. implied - misrepresentation
- production/manufacturing defects
Product departs from its intended design
- strict liability standard
- has to be defective at the time sold
- can be proven by circumstantial evidence - like a res ipsa loquitur scenario (PLANTERS)
- case law generally agrees with Restatement
- design defects
A defectively designed product whose risks could be avoided/eliminated by an alternative design
- negligence standard (PRENTIS)
Two main tests come into play for determining if a company should be held responsible . . .
a. consumer expectations test
b. risk utility test [RAD]
jurisdictional split
a. consumer expectations test - 2nd Restatement
** only used by CA and maybe a few other states - 3rd Restatement hates this test! **
–> more applicable for 402A
The product MUST be dangerous to an extent beyond that which would be contemplated by the “ordinary consumer” who purchases it, with the ordinary knowledge common to the community as to its characteristics
- surprise element of danger
(SOULE - nobody knows how safe a car should be in an accident)
b. risk utility test [RAD] - 3rd Restatement
Focuses on manufacturers’ decision making, including whether the manufacturer weighed alternatives/trade-odds and ultimately designed a reasonably safe product
Weighing the risk of a product design against how useful it is - utility
* essentially B vs. PL
Does the RAD . .
(1) make the product safer in all reasonably foreseeably situations
(2) substantially impair the usefulness/purpose of the product
(3) present a technically and economically more feasible design
i. inherently defective designs
Just TOO risky by design and CANNOT be fixed with a better design
- courts/3rd Restatement are pretty reluctant to declare entire categories of products inherently defective, but they do leave some room for cases where it is appropriate (MUSKIN CORP.)
ii. statutory violations
- similar to negligence per se
- e.g., putting more lead in your paint then is legally allowed
- warning defects
Product is NOT unreasonably unsafe, but it contains certain dangers the consumers should be made aware of
- negligence standard
* if a company reasonably knew about a risk, they should have warned the consumer
Heeded Presumption: courts will presume that plaintiff would have heeded [followed] the warning if it had been given
RESPONSE
a. State of Art Defense
a. State of Art Defense
Defendant can show that at the time they manufactured the product, they had no knowledge of the thing they needed to warn about
* e.g., asbestos
- breach of warranty - under the U.C.C
Product failed to live up to a safety standard, expressly or impliedly promised by the manufacturer/seller
- strict liability standard
a. expressed
b. implied
a. expressed
Customer MUST have considered or at least seen/heard the express warning
- misrepresentation is also applicable here
b. implied
i. implied warranty of merchantability
ii. implied warranty of fitness for particular purposes
i. implied warranty of merchantability
Merchant who sells the product that is “fit for its ordinary purposes”
ii. implied warranty of fitness for particular purposes
The seller knows about the buyer’s particular purpose and buyer trusts seller’s skill and judgment to select the item
- mistrepresentation
Seller misrepresents something about the product that is false
- refers to expressed warranty
TYPES . . .
a. conscious
b. negligent
a. conscious misrepresentation
Cannot lie or make things up
* e.g., this car was ONLY driven by a little old lady to church on Sundays
- likely to get punitive damages
b. negligent misrepresentation
Should have known better, look at the condition of the product
* e.g., little old lady example again
- technically not lying, but being unreasonable in trusting the information that was given
- unlikely to get punitive damages
Strict Liability Overview
Differs from negligence in determining who should be responsible for an accident/injury
- looks at the type of activity and makes the actor liable even if they exercise reasonable care
REQUIRMENTS . . .
1. defendant’s activity was inherently risky
* 3rd Restatement shortened the 2nd Restatement’s multi-factor test for abnormally dangerous activities
- the risky activity caused the accident [actual and proximate]
- the plaintiff suffered damages
- in an essay strict liability - IF APPLICABLE - should be addressed in the breach section of a negligence claim
Strict Liability 3rd Restatement
Factors -
(1) activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all factors
* e.g., shipping a non-corrosive chemical in proper packaging is NOT strict liability (INDIANA HARBOR)
(2) the activity is not one of common usage (RYLANDS and TURNER)
* may NOT extend to ultrasensitive plaintiffs where the resulting harm was NOT “within the risk” that made the activity ultrahazardous to begin with (FOSTER)
Strict Liability and Animals
Wild: strict liability for owned wild animals
Livestock:
- personal injury from animal with a known vicious propensity = strict liability
- property damage = strict liability
Domestic: if the animal has a known vicious propensity = strict liability
* “one bit rule” can apply otherwise, but it is still important to look at the facts [e.g., is the dog a pitbull] (ZAMBITO and SHELBY)
Exception: zoos
jurisdictional split
Vicarious Liability [respondeat superior]
Employers are viciously liable when an employee commits a tort within the scope of their employment
- i.e., “scope of employment” refers to actions that further the employer’s purpose
How to determine between employee and independent contractor . . .
- Control Over:
* time
* manner
* instrumentalities
* payment
