Strict Liability

Question 1

Strict liability (products liability)

Answer 1

Plaintiff must show:
1. Defendant is a merchant
-Not casual sellers or service providers
-Includes everyone in the distribution chain
-Includes lessors (i.e., rental car company)
2. The product is defective
-Manufacturing defect: when a manufactured product is different and more dangerous than the other products that were properly made (negligent failure of retailer to take action after discovering the defect may cut off liability)
-Design defect: when the risks outweigh the utility of the design (P must show that there was an economically feasible, safer alternative)
-Information defect: must have adequate warnings and/or instructions that are prominently displayed and comprehensible to target customer
3. The product was not substantially altered since leaving D’s control
-Presumption that products moving through normal channels of distribution were not altered
4. Plaintiff used the product foreseeably at the time of the injury
-Foreseeable use is NOT an “intended” or “appropriate” use
-i.e., standing on a chain to reach something is a foreseeable use

Question 2

Strict liability for domesticated animals

Answer 2

No strict liability for injuries caused by domesticated animals unless D had knowledge of the animal’s danger propensities that are not common to the species (i.e., farm animals, bulls, dogs, etc.)
-No strict liability for injuries to trespassers, but the owner is strictly liable for damage done by his animal’s trespass

A dog is allowed one bit, but the owner is strictly liable for any subsequent bites

Question 3

Strict liability for wild animals

Answer 3

A owner is strictly liable to licensees and invitees for injuries caused by wild animals (even if “pets”)
-Includes harm caused by fleeing from the wild animal
-No strict liability for injuries to trespassers, but the owner is strictly liable for damage done by his animal’s trespass

Question 4

Abnormally dangerous activities

Answer 4

Plaintiff must show:
1. Activity creates a foreseeable risk of serious harm even when reasonable care is exercised
2. Activity is not a matter of common usage
-i.e, explosive, dangerous chemical or biological materials, nuclear energy, or radiation

Liability only extends to foreseeable plaintiffs and the harm must result from the kind of danger anticipated from the dangerous activity, including harm caused by fleeing from the danger
-Injury caused by explosion, not from car wreck with truck that had a defective tire carrying explosives that did not explode
-Exercising reasonable care is irrelevant!

Question 5

Five theories of products liability

Answer 5

1. Intent
2. Negligence
3. Implied warranties of merchantability and fitness for a particular purpose
4. Representation theories (express warranties and misrepresentations)
5. Strict liability

Question 6

Negligence (products liability)

Answer 6

Products liability based on the ordinary negligence standard
-Its difficult to hold intermediaries in the distribution chain liable for negligence because they satisfy their duty through a cursory inspection
-Failure to discover a defect does not cut off manufacturer’s liability unless its gross negligence

Question 7

Affirmative defenses

Answer 7

Comparative negligence (MBE default): P’s own negligence proportionally reduces the recovery

Traditional contributory negligence: contributory negligence is no defense to strict liability, but a plaintiff who assumes of risk is a defense to strict liability, completely barring recovery