Strict and Products Liability

Question 1

What elements constitute a prima facie case of strict liability?

Answer 1

1. The nature of D’s activity imposes an absolute duty to make safe;
2. The dangerous activity was the actual and proximate cause of P’s injury;
3. P suffered damage to person or property

Question 2

What is the extent of liability for a trespass by your animal?

Answer 2

A person is liable for the reasonably foreseeable damage caused by the trespass of his animals

Question 3

Is a person strictly liable for personal injuries caused by a domestic animal?

Answer 3

Generally, no, unless the person has knowledge of the animals dangerous propensities.

Question 4

Is a person strictly liable for personal injuries caused by wild animals?

Answer 4

Yes. He is liable for injuries on his own land with regards to invitees and licensees.

Question 5

Is a person strictly liable for personal injuries caused by an animal and suffered by a trespasser?

Answer 5

Strict liability is not available. However, the owner may be liable for an intentional tort for injures caused by a vicious watchdog.

Question 6

What are the three requirements to recovery for an injury caused by abnormally dangerous activity?

Answer 6

1. The activity creates a foreseeable risk of harm even when reasonable case is exercised;
2. The activity is not a matter of common usage in the community;
3. The injury is caused by the activity’s dangerous propensity

Question 7

What is the duty owed with respect to animals and abnormally dangerous activities?

Answer 7

Strict liability.
An absolute duty to make safe the normally dangerous characteristics of the animal or activity. The duty is owed to all foreseeable plaintiffs.

Question 8

What defenses, if any, are available for strict liability claims in a contributory negligence jurisdiction?

Answer 8

None, unless P knew of the danger and caused the harm by acting unreasonably.

Question 9

What defenses, if any, are available for strict liability claims in a comparative negligence jurisdiction?

Answer 9

Apply whatever the state’s comparative negligence rules are.

Question 10

Is assumption of the risk a good defense to strict liability?

Answer 10

Yes. (Probably need some more here)

Question 11

What are the theories of liability upon which products liability may be proven?

Answer 11

Intent, Negligence, Strict Liability (easiest to prove!), Implied warranties of merchantability and fitness, and express warranties and misrepresentation.

Question 12

What are the elements of a prima facie strict products liability claim?

Answer 12

1. D is a merchant who ordinarily deals in goods of this type.
2. Product is defective
3. Product has not been altered since leaving D’s control
4. P was using the product in a foreseeable way

Question 13

What are the three types of product defects that can be shown to meet the second prong of a strict products liability claim?

Answer 13

Manufacturing - the particular product is different and more dangerous than others
Design - All products in same line are dangerous
Inadequate Warnings - failure to warn of risks involved with foreseeable use

Question 14

How do you prove a manufacturing defect?

Answer 14

P must show that the product failed to perform as safely as an ordinary customer would expect. D must anticipate reasonable misuse by P.

Question 15

How do you prove a design defect?

Answer 15

P must show all products have the same dangerous propensity.

Question 16

Is noncompliance with government safety standards sufficient to show a defect?

Answer 16

Yes. However, compliance with safety standards is only persuasive evidence that there is no defect.

Question 17

What kind of risks are manufacturer’s liable for?

Answer 17

Scientifically knowable risks at the time of marketing.

Question 18

Is there liability when a product is obviously dangerous and there is no way to make it safer?

Answer 18

No. Example: knives

Question 19

How can P prove that the defect existed when the product left D’s control?

Answer 19

It may be inferred if the product moves through normal channels of distribution. Be aware of any alterations made by P.

Question 20

How can P prove liability on a theory of intent?

Answer 20

P must show:
1. D intended the consequences or knew that they were substantially certain to occur.

NOTE: This is extremely rare.

Question 21

Who may sue on a theory of intent?

Answer 21

Anyone who is injured by the product. No privity is required.

Question 22

What type of damages are available under a theory of intent?

Answer 22

Punitive and Compensatory

Question 23

What defenses, if any, apply to a claim based on a theory of intent?

Answer 23

The same as to an intentional tort:
Consent (most likely)
Self-Defense / Defense of Others
Defense of Property
Privilege of Arrest
Necessity
Discipline

Question 24

How can P prove liability on a theory of negligence?

Answer 24

The elements are the same as regular negligence:
Duty - owed to any foreseeable P
Breach - negligent conduct leading to the supplying of the defective product
Causation - Intermediary’s failure to discover defect supersedes ONLY if failure exceeded ordinary foreseeable negligence.
Damages - physical injury or property damage required

Question 25

What defenses are available to a claim based on negligence?

Answer 25

Contributory negligence (less common)
Assumption of risk
Comparative negligence (more common)

Question 26

How can P prove liability on a theory of strict products liability?

Answer 26

1. Strict duty owed by a commercial supplier
2. Production or sale of a defective product
3. Actual and proximate cause
4. Damages - physical injury or property damage

Question 27

What is the duty owed by a commercial supplier?

Answer 27

A duty to supply safe products. This does not extend to services and the product must reach P without substantial alteration.

Question 28

Are retailers liable for the sale of a defective product under a theory of strict tort liability?

Answer 28

Yes, even if there was no opportunity to inspect.

Question 29

What defenses are available to a claim based on strict products liability?

Answer 29

Contributory negligence - not a defense where P merely failed to discover a defect or guard against it’s existence, or where P’s misuse was reasonably foreseeable.
Comparative negligence
Assumption of risk (best defense)

Question 30

Do disclaimers have any effect regarding liability in negligence or strict products liability claims?

Answer 30

No, if property damage or personal injuries occur.

Question 31

What is the merchantability requirement?

Answer 31

The goods are of average acceptable quality and fit for ordinary use

Question 32

What is the fitness requirement?

Answer 32

The seller knows or has reason to know the buyer has a particular purpose for the goods and the buyer relies on the seller

Question 33

How does one breach the implied warranties of fitness or merchantability?

Answer 33

Failure to live up to either standard.

Question 34

What damages are recoverable for a breach of the implied warranties of fitness and merchantability?

Answer 34

Personal injury, property damage, and economic loss

Question 35

What defenses are available to a claim of breach of the implied warranties of merchantability and fitness?

Answer 35

Contributory negligence - same as strict tort liability

Assumption of risk (using a product when aware of the breach)

Question 36

When is a seller liable for fraud?

Answer 36

When he:

1. makes a statement of material fact concerning quality or uses of goods; and
2. seller intended to induce reliance by the buyer in a particular transaction

Question 37

When P is attempting to prove a design defect, what three requirements must they show in offering an alternative design?

Answer 37

The alternative design is:

1. safer than the marketed version
2. cost effective
3. practical (i.e. doesn’t create new safety issues or undermine the product’s utility)