Strict Liability

Question 1

Strict liability for domestic animals

Answer 1

An owner is not strictly liable for injuries caused by domestic animals unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species

Injury caused by the normally dangerous characteristics of domestic animals does not create strict liability

But landowner can be liable on intentional tort grounds for injuries inflicted by vicious watchdogs

Question 2

Strict liability and trespassers

Answer 2

Strict liability is not available to trespassers

To recover for injuries from animals, a trespasser must prove the owner’s negligence

Question 3

Strict liability for wild animals

Answer 3

An owner is strictly liable to licensees and invitees for injuries caused by wild animals

Question 4

Liability for trespassing animals

Answer 4

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals

Question 5

Abnormally dangerous activities

Answer 5

Two requirements for finding an activity to be abnormally dangerous
- activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors
- the activity is not a matter of common usage in the community

Common examples of activities
- blasting or manufacturing explosives,
- storing or transporting dangerous chemicals or biological materials, and
- anything involving radiation or nuclear energy, high dose

Clearly dangerous or specifies that jurisdiction considers this a dangerous activity

Question 6

Extent of defendant’s liability for dangerous activities- what plaintiffs and what harm

Answer 6

Defendant’s liability extends only to foreseeable plaintiffs

And harm must result from the kind of danger to be anticipated from the dangerous activity (or animal) including harm caused by fleeing from the perceived danger

Does not apply when the injury is caused by something other than the dangerous aspect of it

Question 7

Products liability generally

Answer 7

Refers to the liability of a supplier of a defective product to someone injured by the product

5 theories of liability that a pl may use
- intent
- negligence
- implied warranties of merchantability and fitness for a particular purpose
- representation theories
- strict liability

If the question does not indicate what theory of liability the pl is using, apply a strict liability theory

Question 8

Elements for strict liability in products liability (4)

Answer 8

The defendant is a merchant - commercial supplier of the product
- does not include casual sellers

Product is defective

Product was not substantially altered since leaving the defendant’s control

Plaintiff was making a foreseeable use of the product at the time of the injury

Question 9

Merchant for products liability and services

Answer 9

Strict liability only applies to goods, not services
- even when a product is provided incident to service, no strict liability
- but can sue in negligence

Question 10

Merchant for products liability and lessors

Answer 10

Includes commercial lessors
- those who rent, rather than sell, can also be held strictly liable

Question 11

Merchant for products liability and distribution chain

Answer 11

Includes entire distribution chain
- commercial suppliers include manufacturers, wholesalers, and retailers
- privity is not required

Question 12

Products liability and privity

Answer 12

In virtually all products liability actions, the fact that there was no contractual privity between the plaintiff and defendant will not prevent plaintiff from recovering

Still a favorite wrong choice in products liability based on negligence or strict liability

Any foreseeable plaintiff, including bystander can sue any commercial supplier in the chain of distribution regardless of an absence of a contractual relationship

Question 13

Types of defects generally

Answer 13

Manufacturing defects

Design defects

Information defects

Question 14

Manufacturing defect

Answer 14

Emerges from manufacturing different from and more dangerous than the products that were made properly

Plaintiff needs to show that the product failed to perform as safely as an ordinary consumer would expect
- the defendant must anticipate reasonable misuse

This also applies to defective food products

Question 15

Design defects

Answer 15

All products of a line are the same but have dangerous propensities, may be found to have a design defect
- risks associated with product’s design outweigh utility of design

Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product

Feasible alternative approach

Not really truly strict liability - form of negligence now

Question 16

Feasible alternative design - design defects

Answer 16

Plaintiff usually must show alternative design
- would have been safer
- was practical alternative, utility
- was economically feasible, price

Question 17

Compliance and noncompliance with government safety standards

Answer 17

A product’s noncompliance with government safety standards establishes that it is defective

Compliance with safety standards is evidence, but not conclusive, that the product is not defective

Question 18

Information defects

Answer 18

A product may be defective as a result of the manufacture’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users
- hidden risks without adequate warnings / instructions
- tend to test on whether the warnings are sufficient

For prescription drugs and medical devices, warnings given to learned intermediaries will usually suffice in lieu of warnings to the patient

Question 19

When product left defendant’s control

Answer 19

The plaintiff must show that the product has not been significantly altered since it left the defendant’s control

If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the defendant’s control

Question 20

Foreseeable use of product

Answer 20

The plaintiff must have been making a foreseeable use of the product at the time of the injury

A defendant will not be held liable for dangers not forseeable at the time of marketing

Foreseeable use does not mean intended or appropriate use
- many products are commonly misused in ways that could be considered foreseeable

Question 21

Adequacy of a warning

Answer 21

Prominent

Comprehensible

Provide information about mitigating risk

Question 22

Damages recoverable in products liability

Answer 22

Physical injury or property damage must be shown

Recovery will be denied if the sole claim is for economic loss

Question 23

Disclaimers and products liability

Answer 23

Disclaimers are irrelevant in strict liability cases if personal injury or property damages occur

Question 24

Affirmative defenses

Answer 24

Traditional rule is knowingly encountering dangerous situation bars recovery
- only use this rule if traditional appears in the problem

Contributory negligence states
- no defense if the plaintiff has failed to realize the danger or guard against it
- but is a defense if pl knew of the danger and their unreasonable conduct was the very cause of the harm

Comparative negligence
- states apply their comparative negligence rules to strict liability
- use this unless question mentions traditional

Assumption of risk is a good defense to strict liability

Question 25

Product liability on negligence theory

Answer 25

Negligence in a products case is proved the same as in a standard negligence case

Very difficult to hold the intermediaries liable for negligence
- intermediary’s negligent failure to discover a defect does not supersede the original manufacturer’s negligence unless the intermediary’s conduct exceeds ordinary foreseeable negligence

Question 26

Opportunity to inspect

Answer 26

Products liability cases based on negligence require that suppliers have an opportunity to inspect
- but not for strict liability

So, retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it

Question 27

Strict liability for products liability and intermediary discover defect

Answer 27

The failure of an intermediary to take action after discovering a dangerous defect may prevent establishing causation against a manufacturer in a strict products liability action

Same concepts of proximate cause apply to strict liability actions for defective products