Strict and Products Flashcards
What is strict liability?
Means that the defendant must pay damages although the defendant neither acted intentionally nor failed to use reasonable care. (liability without fault).
Who is liable for an animals strict liability?
Those who keep/possess/harbor, not just the owner.
Wild animals, domestic animals, and trespassing animals strict liability
Wild animals = strictly liable (wild = not domesticated or not native to area).
This does not apply to animals who live in the wild but on your property (if you own a lot of land).
Domesticated animals = probably lots of local laws of liability.
Strict liability if the owner knows or has reason to know their animal has vicious propensities.
Some jurisdictions apply the “one bite” rule = not held liable for first bite (or attempt) but after you were on notice of vicious propensities.
Negligence standard can always still be used.
Trespassing animals = owner of animals likely to roam and do damage is strictly liable for their damage.
Some jurisdictions have fencing-in statutes = requiring those animals to be contained.
Some jurisdictions have fencing-out statutes = liability if they break through another’s properly fenced-out land.
Think about why one jurisdiction would have one rule over another (where am I?)
Abnormally dangerous activity analysis & limitations
Restatement 2d §520:
a. existence of a high degree of risk of some harm to the person, land, or chattels of others (severity)
b. Likelihood that the harm that results from it will be great (likelihood)
c. inability to eliminate the risk by the exercise of reasonable care
d. extent to which the activity is not a matter of common usage
e. inappropriateness of the activity to the place where it is carried on
f. extent to which its value to the community is outweighed by its dangerous attributes.
Limitations:
Foreseeability (no hypersensitivity). Things need to be natural result (not minks).
Acts of god
Assumption of risks
Comparative fault (walk through pure, 49 & 50)
Three theories of liability for products liability
Negligence
Breach of warranty
Strict products liability
Who is can be sued in negligence products liability?
Manufacture’s negligent assembly
Sellers failure to inspect or warn
Breach of express warranty
Liable for breach if
1. seller made a representation to the buyer of a material fact
2. with respect to the products quality, performance, construction or durability
3. preceding or accompanying sale
Can be powerful tool to show jury. Look what they said.
Implied warranty
Implied warranty of merchantability = in every sale of a product by a merchant there is an implied warranty that the product is fit for its intentional use.
Implied warranty of fitness = A buyer who relies on the knowledge/insight of a professional seller has an implied warranty that the seller will provide them with something adequately suits what they are looking for.
Strict Product Liability general elements
§402A
1. one who sells defective product in an unreasonably dangerous condition is subject to liability for physical or property harm if
a. the seller is engaged in the business of selling such a product AND
b. it is expected to and does reach the consumer without substantial change in the condition in which it is sold.
Applies regardless of degree of care or warranty.
Manufacturing defect
Defect as a result of a departure form the products intended design even though all possible care was exercised.
Must trace defect back to manufacturer (not altered) and show cause.
Design Defect Consumer Expectations Test
Product is defective when it is “in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”
Unreasonably dangerous if it is dangerous to an extend beyond which would be contemplated by the ordinary consumer.
Design Defect Risk-Utility Test
Factors:
a. the usefulness and desirability of the product
b. the safety aspects of the product (likelihood and seriousness of injury)
c. the availability of a substitute product that is safer
d. the manufacturers ability to design safer without impairing usefulness or making it too expensive (RAD).
e. Users ability to avoid danger by exercise of care
f. user’s anticipated awareness of dangers inherent in product based on general knowledge or warnings
g. feasibility of the manufacturer spreading loss.
USSR CAL
Utility
Safety
Substitute safer product
Reasonable Alternative design
Care (users ability to eliminate risk with use of care)
Anticipated awareness of user of the dangers inherent by knowledge or warning
Loss (ability to spread loss)
Warnings defect products liability
The defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and its distribution (does NOT look at reasonableness of the defendant’s failure to warn).
Warnings defect - sophisticated user defense
If your product is marketed to licensed electricians, the warnings can be rather minimal because they know a majority of the risks due to their experience and knowledge.
Warnings defect - learned intermediaries
Specifically with prescriptions - when product is not directly sold to the consumer but is prescribed, then duty to warn goes to physician and the physician is expected as the learned intermediary to make the judgment and give warnings on behalf of the drug.
