strict liability Flashcards
abnormally dangerous activity
▪ There is a high risk of serious harm to others;
▪ D cannot engage in the activity without risk, and cannot eliminate the risk with care; and
▪ It is not a commonly undertaken activity in the community.
o P can recover absent proof of fault as long as D was involved and the activity caused the harm.
o Proximate Cause: P must be injured by the risk that makes the activity dangerous.
includes crop dusting
manufacturing defect
Product is more dangerous than a consumer would reasonably expect when using in its intended manner OR
it is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands.
Design Defect - ORDINARY CONSUMER TEST
Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community.
Design Defect - risk/utility test
danger the design threatens (cost in human injury and property damage), outweighs its utility to society
alternative design, at same cost, that would reduce the danger
warning
is the warning adequate; prominent, location, clear language
no warning
A manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm.
1% risk of death - warn
1% risk of tooth discoloration- no warning
defenses to product liability
Misuse - neither intended nor foreseeable
Assumption - Where P has used the product with knowledge of the risk.
alteration- products altered after leaving the manufactueres hands
who is liable
Commercial suppliers at all levels of the distribution chain and those in the market of selling the product are potential defendants.
does not include ocassional sellers and service suppliers
implied warranty of merchantability
only applies to merchants selling goods of the kind. can be disclaimed.
requirements to disclaim- implied warranty of merchantability
may be excluded or modified by language mentioning “merchantability” and need not be in a writing. However, if it is in a writing, it must be conspicuous [UCC Sec. 2-316(2)].
domesticated animals
any known dangerous propensities does not have to specifically a dog bite.
knowledge for strict liability
an individual will not be responsible for risks that he is unaware of.
