Strict Liability Flashcards
Strict Liability Prima Facie Case
- Absolute duty to make safe
- Dangerous nature of activity was actual and proximate cause of injury.
- Damage to person or property
Animals
- Trespassing animals - owner strictly liable except for household pets
- Wild animals - strictly liable
- Domestic animals - S/L if knowledge - i.e. Fido has bit before
Defenses to S/L
1) knowing contributory negligence - complete defense
2) Unknowing contributory negligence - no defense
In a comparative negligence state, BOTH knowing and uinknowing can be asserted against the recovery
Fault and S/L?
S/L has NOTHING to do with what D did wrong - ignore conduct (conduct is fault and that is a negligence theory, not S/L)
Products Liability
Threshold inquiry: Who can be held liable? - ANY commercial supplier as long as you establish two requirements.
Two requirements to be held liable for Products Liability
1) The defect causing the injury must have existed at the time the product left THAT D’s control.
2) Plaintiff needs a workable theory of either S/L or negligence
The Rule to show D’s control?
There is an inference the defect existed when it left any given D’s control if since tht time the product has moved through normal channels of distribution. very pro P, not hard to show
Negligence Theory
1) Focus is on D’s conduct
2) Negligent condcut possibilities include (1) negligent design, (2) negligent manufacture, (3) negligent warnings, and (4) negligent inspections
* *Res Ipsa is available**
Neg Theory - Who can be plaintiff?
Anyone who is within the forseeable zone of risk including bystanders.
Neg Theory - Who can be a defendant?
1) manufacturers - almost always
2) retailers/wholesalers - almost never
Strict Liability Theory
1) Focus is NOT on D’s conduct
2) S/L Test - unreasonably dangerous condition
S/L Theory - who can be plaintiff?
Same as neg theory - Anyone who is within the foreseable zone of risk including bystanders.
S/L Theory - who can be defendant?
EVERYONE - Manufacturers, retailers and wholesalers - indemnification up the chain applies.
Exam Favorits (Prod Liab)
1) Warnings
2) The feasible alternatives approach
3) Products use incidental to services
Warnings (Prod Liab)
Adequate warnings will generally insulate from liability.
Feasible Alternatives (Prod Liab)
General warnings rule holds true UNLESS D could have cured defect for a minor cost relative ot hte risk involved and D should have, the warning will not save him.
Product Incidental (Prod Liab)
The S/L theories are not available - fault based, go to negligence.
Private Nuisance
Substantial, unreasonable, interference with one’s use and enjoyment of land.
Public Nuisance
Act which unreasonably interferes with health, safety or property rights of the community.
Who can bring nuisance claim?
Private - P must have possession or right to immediate possession.
Public - private person can only recover if he/she has suffered unique damage not suffered by the general public.
Essence of Nuissance
Involves the balancing of competing interests
Defenses to Nuisance
- Legislative authority
- Conduct of others
- Contributory negligence (usually not available unless using a negligence theory)
- Coming to the nuisance - this is allowed.
General Considerations for all Torts Cases
- Vicarious Liability
- Multiple Defendant issues
- Survival and Wrongful Death
- Tortious interference with family relationships
- Tort immunities
Vicarious liability
General Rule - ER’s are liable for torts of EE’s committed within the scope of employment. Generally no liability for independent contractors.
Intentional torts generally NOT w/in scope unless (i) force authorized, (ii) friction is generated by this type of employment, (iii) EE is trying to further ER’s business.
Abnormall Dangerous Activity (for S/L)
Activity that creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and the activity is not a matter of common usage.
Tort Immunities
Governmental - Immunity is available for governmental functions; it’s not available for proprietary functions.
To determine if function is proprietary ask would private business normally perform function.
Automobile vicarious liability
General rule, auto owners are NOT vicariously liable for the torts of other drivers EXCEPT - family car doctrine (household member using with permission) and Permissive use doctrine - anyone using with permission.
Parents/Children vicarious liability
Parents generally NOT liable for torts of their children EXCEPT intentional torts up to a certain amount.
