Strict Liability

Question 1

Strict Liability for Wild Animals & “Vicious” Domestic Ones

Answer 1

Possessors of wild animals or abnormally dangerous/vicious domestic animals are subject to strict liability for the harms inflicted by those animals unless the person injured is a trespasser. The strict liability extends to harms caused by the “dangerous propensities” of the animal that are (1) abnormal and (2) either typical of the animal’s class or of which the possessor has reason to know. It does not matter if the possessor has exercised the upmost care to prevent the animal from doing harm.

Question 2

Plaintiff-Oriented Defenses for Strict Liability of wild or vicious animals

Answer 2

The second restatement approach states that ordinary contributory negligence is not a defense to strict liability but assumption of risk is a defense. Assumption of risk applies when a plaintiff knowingly and voluntarily encounters a risk. An encounter is not voluntary if the defendant’s tortious conduct leaves the plaintiff without a reasonable alternative course of conduct (no way to avoid harm).

Question 3

Strict Rationales

Answer 3

A) Internalization: Enterprise liability says that the risky undertaking should pay for the costs of its characteristic risks as a “cost of doing business”
B) Injury Prevention: Tort law should assign liability to the party that is in the best position to take reasonable precautions to against recurrence of the accident, including deep precautions that are hard in practice for a negligence claim to reach.
C) Loss spreading: making the enterprise liable leads to a diffusion of costs among beneficiaries of the risk that gave rise to injury
D) Fairness: An enterprise should pay for the costs of injuries caused by its characteristic risk so that beneficiaries of the risky activity share the accident costs generated by the activity.

Question 4

Actor Spreading Versus Victim Spreading

Answer 4

Accident costs can be spread through loss insurance, which is a form of “victim spreading.” Victim spreading externalizes accident costs from the specific activities that generate them. Enterprise liability is “actor spreading,” which is preferable to victim spreading because internalizing accident costs to the accident-causing activity induces greater safety, improves market allocation, and ensures that beneficiaries of risk share costs proportionately to the benefit.

Question 5

Restatement 519: General principle of ADA

Answer 5

(1) 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. (2) this strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Question 6

Restatement 520: Criteria for ADA Liability (Danger factors and abnormality factors)

Answer 6

1) Danger factors (Hand Formula)
- existence of a high degree of risk (P)
- Likelihood of great harm (L)
- Inability to eliminate risk by reasonable care (B)
2) Abnormality factors (risk/benefit/fairness)
- extent to which activity is not common, as compared to common activities like driving create reciprocal risks
- whether the activity is inappropriate to the place it is carried on
- extent to which the activity’s value to the community is outweighed by its danger
(whether an activity is abnormally dangerous is a question of law for the court)

Question 7

Activities that are most often classified as ADA

Answer 7

• disposal of hazardous wastes
• storing or using explosives
• storage of natural gas
• storage of poisonous substances
• fumigation

Question 8

The restatement regime to defenses and limits to ADA liability

Answer 8

• assumption of risk is recognized as a defense
• ordinary contributory negligence (inadvertently and carelessly exposing oneself to an abnormally dangerous risk) is not recognized as a defense.
• contributory negligence in knowingly and unreasonably subjecting oneself to the risk of harm from the ADA is a defense.
• Assumption of risk requires that the exposure be knowing and voluntary (knowledge of the existence of a risk and a reasonable alternative to accepting the risk)
• In contrast, knowing contributory negligence requires that exposure be knowing and unreasonable.

Question 9

The comparative regime to defenses and limits to ADA Liability

Answer 9

fault and strict liability are “incommensurate” and instructs us not to think of “comparative responsibility” but about “assigning shares of responsibility” after “considering the relevant factors.” (relevant factors refers to factors listed in 520)

Question 10

Strict Liability and Proximate Cause

Answer 10

In strict liability, the basic proximate cause limit is that strict liability is confined to the kind of harm the possibility of which makes the activity abnormally dangerous.

Question 11

Strict Liability and Superseding Cause

Answer 11

Superseding cause principles also apply to ADA claims but:
1) if the result that came to pass was “the particular kind of result threatened by defendant’s conduct,” there is “no superseding cause.”
2) the unexpected negligence or reckless conduct of a third person” does not cut off liability.

Question 12

Abnormal Sensitivity and Strict Liability

Answer 12

There is no strict liability for harm caused by an ADA if the harm would not have resulted for the abnormally sensitive character of the plaintiff’s activity.

Question 13

The 3 principles that support strict liability for product liability

Answer 13

1) accident avoidance
2) loss-spreading
3) fairness

Question 14

Section 402A Products Liability approach

Answer 14

It imposes liability that is (1) strict and (2) independent of contract for (3) defective products that (4) harm ultimate users or consumers or their property if (a) the seller is engaged in the business of selling such a product and (b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Question 15

Can strict liability extent to bystanders?

Answer 15

Yes, under the enterprise liability conception of product liability, liability is extended to bystanders.

Question 16

How to determine the seller under 402A liability

Answer 16

The court considers 4 factors:
1) whether the actor is the only member of the marketing chain available to the injured plaintiff for redress
2) whether imposition of strict liability upon the actor serves as an incentive to safety
3) whether the actor is in a better position than the consumer to prevent the circulation of defective products; and
4) whether the actor can distribute the cost of compensating for injuries resulting from defects by charging for it in their business.

Question 17

Manufacturing defects

Answer 17

These are easy to identify because the defective product deviates from the manufacturer’s own norm for the product.

Question 18

Design Defects

Answer 18

Design defects are harder to identify because (1) they affect an entire product line and so can’t be identified by comparing the allegedly defective product to a “normal” product, and (2) they can’t be identified with design features that cause injury

Question 19

3 main tests for determining defectiveness in products

Answer 19

1) consumer expectation test
2) risk-utility test
3) the two-pronged (CE and R-U) test

Question 20

The consumer expectation test

Answer 20

This test asks: do the risks of the design meet the expectations of a reasonable consumer? Or does the product’s performance disappoint those expectations?

Question 21

The risk-utility test

Answer 21

This test asks: is the design of the product, on balance, reasonably safe? Or do the design’s risks outweigh its benefits?

Question 22

Factors to apply in the risk-utility test

Answer 22

(1) the usefulness/desirability of the product
(2) the likelihood that it will cause injury and the probable seriousness of the injury
(3) the availability of a substitute product that would meet the same need and not be as unsafe
(4) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive
(5) the user’s ability to avoid danger by the exercise of reasonable care in the use of the product
(6) the user’s anticipated awareness of the dangers inherent in the product
(7) the feasibility of the manufacturer spreading loss by setting the price of the product or by carrying liability insurance.

Question 23

The two-pronged (CE and R-U) Test

Answer 23

Under the two-pronged test, both the CE and R-U tests of defectiveness are recognized as independent grounds of liability.
Under the CE prong, a product may be found defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
Under the RU prong, the adequacy of a product’s design is evaluated using the following factors: gravity of the danger posed by the design, likelihood of danger, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.
(involves a hindsight version of the R-U test)

Question 23

The two-pronged (CE and R-U) Test

Answer 23

Under the two-pronged test, both the CE and R-U tests of defectiveness are recognized as independent grounds of liability.
Under the CE prong, a product may be found defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
Under the RU prong, the adequacy of a product’s design is evaluated using the following factors: gravity of the danger posed by the design, likelihood of danger, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.
(involves a hindsight version of the R-U test)

Question 24

Second Restatement vs Third Restatement approach to products liability

Answer 24

The second restatement follows more of the consumer expectation test but also follows risk-utility (two-pronged) test. The third restatement is more of a risk-utility approach and has rejected the consumer expectation test but has made the risk-utility more of a negligence test.

Question 25

Third Restatement and the resurgence of negligence

Answer 25

3rd restatement retains a strict definition of manufacturing defect, but adopts a negligence definition of design defect: A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design [RAD] by the seller or other distributor. The omission of the alternative design renders the product not reasonably safe.

Question 26

What are state of the art provisions?

Answer 26

statutes that shield a manufacturer from design liability, presumptively or completely, if its product conformed to the state of the art at the time of manufacture or marketing

Question 27

What are alternative design provision?

Answer 27

statutes that require a design defect claimant to show that an alternative, safer design was available at the time the challenged product was manufactured or sold.

Question 28

Statute of limitations/reprose limiting manufacturer liability

Answer 28

Another way of limiting manufacturer liability for defective products is the blunt method of limiting the time during which a claim may be brought. A statute of limitations does this by saying that claims for product injury must be brought tot court within some number of years after the date of the injury, or the date of injury, or the date the cause of action arises. The statute of repose says a product claim must be brought within so many years after the injuring product was manufactured or sold.

Question 29

Situations that call for warnings (warning liability)

Answer 29

1) unreasonably dangerous products
2) unavoidably unsafe products

Question 30

unreasonably dangerous products

Answer 30

unreasonably dangerous means its dangerous to the extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Sellers must warn if they know or should know of the danger. A product bearing such a warning is not in defective condition or unreasonably dangerous.

Question 31

When is warning liability appropriate for unreasonably dangerous products

Answer 31

1) when the greater than expected risks of the product serve some important consumer interest or
2) user precautions are the best way to minimize the risk at issue
The warnings here serve the purposes of enabling informed consumer choice and alerting users to the need for special precautions.

Question 32

Unavoidably unsafe products

Answer 32

Products that in the present state of human knowledge are quite incapable of being made safe for their intended and ordinary use. Such a product, properly prepared, and accompanied by proper directions and warning is not defective, nor is it unreasonably dangerous. Risks of these products are known but apparently reasonable. For these products, warning liability enables informed consumer choice whereas imposing defect liability will not lead to a safer product and harm to the user.

Question 33

Third Restatement Single Test Approach to determining warning liability

Answer 33

A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor… and the omission of the instructions or warnings renders the product not reasonably safe. There is also no duty to warn about open and obvious risks because the product itself does the warning.

Question 34

MacDonald Extent of Duty rule for warning liability

Answer 34

the duty extends to all persons who it is foreseeable will come into contact with and consequently be endangered by that product.

Question 35

Learned Intermediary Doctrine (warning liability)

Answer 35

in most prescription drug cases, the manufacturer may be relieved of the duty to warn the user directly “because of a justified reliance upon the prescribing physician. However, Macdonald did not apply this doctrine due to the special circumstances surrounding the use of oral contraceptives (taken for long periods of time w/out regular doctor’s visits).

Question 36

The standard for assessing the adequacy of a warning (MacDonald)

Answer 36

A reasonable warning only conveys a fair indication of the nature of the dangers involved, but also warns with a degree of intensity demanded by the nature of the risk. A warning may be found to be unreasonable in that it was unduly delayed, reluctant in tone or lacking in a sense of urgency.

Question 37

Manufacturer/User perspectives of assessing the adequacy of a warning

Answer 37

Manufacturer perspective: was this a reasonable attempt to convey the nonobvious risks of the product?
User perspective: did this warning make the nature of the risk reasonably comprehensible to the average consumer?

Question 38

Strict Liability for affirmative misrepresentations 402B second restatement

Answer 38

The second restatement imposes strict liability for affirmative misrepresentations. The elements of a 402B claim are a:
1) material misrepresentation
2) justified reliance upon it
3) causation
4) injury
reasonable foreseeability of reliance is NOT required and the representation need not be made fraudulently or negligently.

Question 39

Determining user negligence with design or warning defects

Answer 39

First identify the design or warning defect and then ask what conduct is reasonable or unreasonable absent those design or warning defects.

Question 40

Second Restatement vs Third Restatement defenses to product/warning liability

Answer 40

Second restatement looks more to misuse and foreseeable misuse.
Third restatement looks to see if plaintiff did anything unreasonable.

Question 41

Second Restatement Foreseeable Misuse approach

Answer 41

The foreseeable misuse doctrine applies to a number of different kinds of circumstances that typically involve foreseeable user negligence as much as foreseeable user misuse and often involve the absence of a safety decide. Examples include:
1) where the use is incidental to the ordinary use of the product (car crashes)
2) where the use is induced and/or expected by the manufacturer (chasing hickeys)
3) where the manufacturer is the superior accident or injury avoider over the long run

Question 42

duty to warn vs duty to instruct

Answer 42

The duty to warn is the duty to alert prospective users and purchasers to product risks of which they would otherwise be reasonably unaware and the duty to instruct is the duty to explain to product users how to minimize product risks through user precautions. Both warnings and instructions raise issues of user conduct, particularly with respect to causation.

Question 43

Punitive Damages and Products Liability

Answer 43

There are arguments for and against awarding punitive damages in products liability cases. There are several types of restrictions on punitive damage awards:
1) standard of proof - clear and convincing
2) process of adjudication - preliminary screening, judicial review, etc.
3) limitations on amount recoverable.