Strict Liability Flashcards
Name the kinds of strict liability
Vicarious (employers)
Products
Animals - trespassing, abnormally dangerous, wild
Abnormally Dangerous Activities
Lateral and Subjacent Support of Property
Name the defenses for strict liability for abnormally dangerous activities and which restatement says which
Restatement 2nd
- contributory negligence = no
- assumption of the risk = yes
Restatement 3rd
- comparative responsibility = yes
All pretty irrelevant though because π must be innocent and uninvolved
What are the kinds of animal strict liability?
Trespassing - applies to barnyard animals and personal injury or property damage as long as it’s typical of the animal/ situation
(Except if it’s needed for community’s economy)
Abnormally dangerous
Wild
What are the elements of strict liability for Abnormally Dangerous Activities?
- Activity creates foreseeable and highly significant risk of physical harm even with reasonable care
- Not an activity of common usage
- π must be uninvolved and innocent
What is lateral and subjacent support of property?
Strict liability for undermining foundation of someone’s property
How does proximate cause factor into abnormally dangerous activities?
∆ is only liable for harms from abnormally dangerous activities that fall within the scope of risk that Ade those activities dangerous to begin with (ex: explosion + minks ≠ harm within the risk)
What are the types of product liability?
Manufacturing defect, design defect, warning defect
What are the kinds of products liability and who/what does it apply to?
Manufacturing, design, warning
Does not apply to casual sellers. Products = tangible goods. Not services. Not blood and tissue
What are the elements of a manufacturing defect?
- Product is defective
- Product was defective when it left the manufacturer
- Defect was cause in fact and proximate cause of injury
What are the tests for manufacturing defect?
Restatement second, minority = CET
Restatement third, majority = Departed from original design
What are the tests for food products liability?
Minority: foreign v. natural
Majority and restatement third: CET
How can π use circumstantial evidence in manufacturing defects?
Kind of res ipsa– π can use to show
- event ordinarily doesn’t occur without defect
- other causes have been ruled out
How does the restatement third define products liability?
Products are defected when there is a manufacturing defect, design defect, or inadequate warning
What is the effect of establishing strict liability?
Don’t have to show duty or breach
Must still show causation and harm was in scope of risk that made strict liability apply in the first place
Who counts as a servant for vicarious liability?
Employees, but not all servants are paid.
Key question: is person carrying out employer’s plan?
What is the borrowed servant doctrine?
The first employer is presumably vicariously liable but key question is who was better positioned at the time to prevent the harm?
Fact intensive, length of employment, custom, what employee thought
How do some courts solve the borrowed servant doctrine problem?
Say both are liable
What can you always still try to do instead if having a hard time establishing vicarious liability?
Say employer was negligent in hiring/ training/ retention
Are employers liable for employee’s intentional torts?
Generally no, but will be liable if
- the conduct is required by or incidental to employee’s duties
- if reasonably foreseeable in light of employer’s business (like bartender getting in fight with unruly patron)
When can an employer be liable for an independent contractor?
- Employer retains control over the details of the work
- Hires incompetent contractor
- Work contracted for is inherently dangerous (risk is way more than ordinary risk)
What is Non Delegable Duty Doctrine?
Employer may be liable for torts of independent contractor if the duty is non delegable (basically doing your dirty work). Or if statute
Are employers vicariously liable for independent contractors?
No
How do you assess if a contractor is independent?
Consider
- Extent of control over details of work
- If it’s a distinct occupation (plumber)
- Who supplied the tools
- Duration of employment
- Payment (hourly or per job)
- Whether work is part of employer’s regular business operation
- Parties’ intent (Uber– might be drivers don’t consider themselves independent)
How do you assess if employee is on the job?
Course and scope of employment
What is course of employment?
Whether the job has started but not ended. Look at time, location, circumstance
What is the coming and going rule?
Majority rule - employee is not within course of employment when commuting to and from work
What are the exceptions to the coming and going rule?
- Incidental benefit to employer
- On call personal
- Driving personal car to work so it can be used
- Dual purpose doctrine (sugar shack)
- Special hazards (me)
When is scope of employment an issue?
Usually comes up when employee is pursing some personal ends
What do you consider for scope of employment?
- Is the conduct of a kind the employee is authorized to do?
- Is it something that usually occurs in authorized time and space?
Also
- Courts generally require that it be fairly a risk of the business
- Temporary personal breaks are probably within scope
When is the frolic and detour rule at issue?
Combo of course and scope
Happens in cases where employee is on the clock but no where supposed to be geographically, usually for a personal reason
What is the frolic and detour rule?
Detours = responsibility of employer
Frolics = not responsibility of employer
What is a detour?
Trivial departure from job (like driving a few blocks to get dutch bros)
What is a frolic?
Personal mission (like driving to Eugene to meet your whore)
When has an employee reentered employment after a frolic or detour?
Highly factual inquiry. Key question =
Has employee renewed intent to act for employer?
What is the second restatement test for Design Defects?
CET - product may be defective if π demonstrates that it failed to perform as safely as an ordinary consumer would expect when used in an intended or foreseeable way
Only real limit on CET is what manufacturer could foresee as a use (butterknife as screwdriver)
What is the restatement third test for Design Defects?
RAD - product may be defective if foreseeable risk of harm could’ve been reduced or avoided by adoption of reasonable alternative design
π must show what the RAD would be – Big burden
What is a RAD?
Reasonable Alternative Design that is feasible with cost and utility. Must have same aesthetic, maintenance, utility, etc. Requires π to do risk utility and expert testimony
When does a π not have to do a RAD for design defects?
- If in a second restatement CET jurisdiction
- Safety regulations make it clear
- Very simple design
- Manifestly unreasonable design
When is a warning defective under the restatement third?
When a foreseeable risk of harm could’ve been avoided or reduced by provision of reasonable instructions or warnings
What do you have to warn about?
Only need to warn about foreseeable risk
When are warnings just not enough?
Might need warning AND instructions.
Might be that product is so dangerous that no warning is good enough and you need to redesign it
When do you not need to warn?
Restatement third says no duty to warn if the danger is obvious.
Don’t need to warn if learned intermediaries get the warning to consumers (unless manufacturer knows they aren’t doing it)
What is π’s burden to prove in a warning defect case? How can ∆ rebut that?
π must prove the lack of warning is but for cause of injury.
∆ can rebut by saying π wouldn’t have read and heeded the warning anyway.
What are the rules for Post Sale Warnings?
Restatement second - no duty to warn unless defect was known at time of manufacture
Restatement third - duty is to warn when a reasonable person would do so
When would a reasonable person give a post sale warning under restatement third?
- Knew or should know defect poses substantial risk of harm
- Those who need warning can be identified and don’t already know
- Warning can be effectively communicated
- Risk of harm outweighs burden of warning
Name the defenses to products liability
- Contributory/ comparative negligence
- Assumption of the risk
- Misuse
- Proximate cause
- Preemption
What is the defense of contributory/ comparative negligence in products liability?
π’s negligence can reduce but not bar. Some jurisdictions say failing to discover the risk is negligence.
What is the assumption of the risk defense in products liability?
Treated as part of comparative negligence.
Minority rule = complete defense
What should you consider for assumption of the risk in products liability?
- π’s knowledge is relevant - compare with what reasonable person knows or should know
- Could be Bexiga
- ∆ had no duty because not foreseeable
- π’s fault is sole proximate cause
What is the misuse defense in products liability?
∆ is not liable and product is not defective if the way π used the product was not foreseeable
What is the proximate cause defense for products liability?
Some jurisdictions will consider π’s use as a superseding cause (ex: ∆ sells faulty tires, but then π gets hit by a plane while changing the tire)
What is the preemption defense for products liability?
The feds have said that this is their domain, either implicitly or explicitly
What kinds of products does strict liability apply to?
Products = tangible personal property distributed commercially for use or consumption
Services ≠ products
Blood and tissue ≠ products
What are hybrid transactions?
Product + a service
hair dye at salon
What are the tests for strict liability for hybrid transactions?
- Professional/ commercial
- no liability if ∆ is a professional (dentist, etc) - Sale/ service
- if the most important part of the transaction is the sale of the product = strict liability
