Strict Liability

Question 1

Types of Strict Liability

Answer 1

Animals
Abnormally dangerous activities
Strict products liability

Question 2

Wild Animals

Answer 2

There is strict liability for owners of wild animals where the animal causes injury based on the animal’s wild nature (accidents do not count)

Question 3

Domestic Animals

Answer 3

Owner is strictly liable for harm if they knew of or should know of the animal’s dangerous propensity

*This is true even if the owner has taken steps to train or restrain the animal or other reasonable efforts to prevent injury

Question 4

Abnormally Dangerous Activity - Second Restatement (Majority)

Answer 4

Section 519
One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent such harm (*This is limited to the KIND OF HARM)

Section 520
Factors to determine whether something is ADA

1. The existence of a high degree of risk of some harm to the person, land, or chattels of others
2. Likelihood that the harm that results from it will be great
3. Inability to eliminate the risk by the exercise of reasonable care
4. Extent to which the activity is not a matter of common usage
5. Inappropriateness of the activity to the place where it is carried on
6. AND extent to which its value to the community is outweighed by its dangerous attributes

Question 5

ADA - Rest. 1/3 (minority)

Answer 5

Rest.1
An activity is “ultrahazardous” is it (a) necessarily involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) it is not a matter of common usage

Rest.2
“It creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors” and “is not one of common usage”

Question 6

Steps for Strict Products Liability

Answer 6

1. Proper Plaintiff
2. Proper Defendant
3. [OPTIONAL] Theories to preclude use of SPL
4. Did the product leave the defendant’s hands in a defective condition?
5. Is the product defective? (Misuse, manufacturing defect, design defect, warning defect)
6. Cause-In-Fact
7. Proximate Cause
8. Defenses

Question 7

SPL (1): Proper Plaintiff

Answer 7

User or consumer
Bystander

Question 8

SPL (2): Proper Defendant

Answer 8

Someone in the business of selling AND part of the marketing chain (manufacturers and retailers are included)

Question 9

SPL (3): Theories to Preclude Use

Answer 9

Service; not a product
The product injured only itself and nothing else

Question 10

SPL (4): Did the product leave the defendant’s hands in a defective condition?

Answer 10

Where did the defect come about? Manufacturer, distributor, retailer, etc

Question 11

SPL (5): is the product defective?

Answer 11

Misuse: Intended, reasonably foreseeable, or unforeseeable?

Manufacturing defect

Design Defect

Warning defect

Question 12

SPL: Misuse

Answer 12

Was the product used as intended or in a reasonably foreseeable manner?

Was the misuse foreseeable or unforeseeable?
If foreseeable, the misuse does not negate the claim
If unforeseeable, it could negate the claim

Question 13

Manufacturing Defect Tests

Answer 13

Ordinary consumer expectations test

Output test: did the product differ from the manufacturer’s intended output?

Question 14

Ordinary Consumer Expectations Test

Answer 14

Did the product fail to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner?

Question 15

Comment K

Answer 15

Prescription Drugs/Medical Devices

Exempt from liability when
1. the manufacturer knew or should have known of the risks and warned about them,
2. there is no reasonable alternative design,
3. and the product is of great social utility

Majority Approach:
Design defects may be excluded from strict liability under Comment K but evaluated on a case-by-case basis. Essentially uses a risk-utility analysis like any other design defect situation. This is a question for the jury

Minority Approach: CA
Design defects are excluded from strict liability under Comment k if you can prove that the warnings were proper

Question 16

Design Defect Tests

Answer 16

Ordinary consumer expectations test: Did the product fail to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner?

Risk/Utility Balancing test:
Does the risk of the product as designed outweigh the utility of the product?

Factors:
likelihood product will cause injury,
probable gravity of injury,
manufacturer’s ability to eliminate the unsafe character of the product without impairing usefulness;
technological and economic feasibility of alternative design;
user’s anticipated awareness of the dangers inherent in the product;
utility of product as designed to user and public as a whole;
availability of substitute product which would meet same need

Reasonable alternative design

Question 17

Risk Utility Balancing Test

Answer 17

Does the risk of the product as designed outweigh the utility of the product?

Factors:

1. likelihood product will cause injury,
2. probable gravity of injury,
3. manufacturer’s ability to eliminate the unsafe character of the product without impairing usefulness;
4. technological and economic feasibility of alternative design;
5. user’s anticipated awareness of the dangers inherent in the product;
6. utility of product as designed to user and public as a whole;
7. availability of substitute product which would meet same need

Question 18

Types of Warning Defects

Answer 18

1. Failure to Warn
2. Inadequate warning
3. Learned Intermediary

Question 19

Failure to Warn steps

Answer 19

1. What did the D know?
   Reasonableness test (knew or should have known) OR known or knowable (CA approach)
2. Was the lack of warning reasonable? (BPL analysis)

Question 20

Inadequate Warning Steps

Answer 20

1. Is the risk obvious? If so, no warning needed
2. Does the warning reasonably alert foreseeable users of the product of significant dangers? Considering
3. the explicitness of the warning,
4. whether the warning language is comprehensible to typical users,
5. the clarity of the warning,
6. the conspicuousness of the warning, and
7. the means used to convey the warning
8. Was the warning given (even with the inadequate characteristics) reasonable? (Use BPL)
9. The warning must be understandable to the average user of the product, and it must be visible in a way that an expected user would see the warning

Question 21

Learned Intermediary Theory

Answer 21

The manufacturer of a drug must warn the doctor prescribing it, who then must warn the patient (except in cases where there is not a lot of contact between doctor and pt– manufacturer must warn directly: birth control pills, mass innoculations, drug advertising, etc)

Question 22

SPL: Infliction of Emotional Distress

Answer 22

Bystander
Zone of danger
Dillon-Thing-Clohessy
Generic foreseeability test

Direct victim
Impact
Zone of danger
General foreseeability test

Question 23

Defenses to SPL-IED

Answer 23

The derivative plaintiff’s claim can be reduced by the first plaintiff’s comparative fault/contributory negligence AND the derivative plaintiff’s own negligence