Strict Liability Flashcards
Liability for animals - domesticated animals
An owner is not strictly liable for injuries caused by domestic animals, including farm animals, unless they have knowledge of that particular animals, dangerous propensities that are not common to the species. Injury caused by the normally dangerous characteristics of domesticated animals, for example, bulls or honeybees, does not create strict liability. 
However, don’t forget to consider that the landowner may be liable on intentional tort grounds for injuries inflicted by a vicious watchdog
Liability for animals - domesticated animals - trespassing animals
An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
Liability for animals - wild animals
An owner is strictly liable to licensees and invitees for injuries caused by wild animals, even those kept as pets.
Liability for animals - wild animals - strict liability not available for trespassers
Strict liability will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal, or abnormally, dangerous domestic animal, a trespasser must prove the owners negligence.
Abnormally dangerous activities - foreseeable plaintiffs
As with negligence, the defendants liability extends only to foreseeable plaintiffs. Also, the harm must result from the kind of danger to be anticipated from the dangerous activity or animal, including harm caused by flinging from the perceived danger. 
Abnormally dangerous activities - generally
Courts generally impose two requirements for finding an activity to be abnormally dangerous:
The activity must create a foreseeable risk of serious harm, even when reasonable cares exercised by all actors
The activity is not a matter of common usage in the community.
Common examples of abnormally, dangerous activities include blasting, or manufacturing, explosives, storing a transporting dangerous chemicals, or biological materials, and anything involving radiation or nuclear energy.
Abnormally dangerous activities - cause other than the dangerous aspect
Strict liability does not apply when the injuries caused by something other than the dangerous aspect of the activity.
Product liability - theories
There are five theories of liability that are plaintiff may use:
Intent
Negligence
Implied warrantees of merchantability and fitness for a particular purpose
Representation theories like express warranty and misrepresentation
Strict liability
Product liability - elements for strict liability
The defendant is a merchant (in other words, a commercial supplier of the product)
The product is defective
The product was not substantially altered since leaving the defendants control
The plaintive was making a foreseeable use of the product at the time of the injury
Product liability - strict liability - only merchants can be held liable
Does not extend a casual sellers (used goods or not in the regular business)
Does not extend it to services, only products. (Even where a product is provided incident to a service, there is no strict liability. The plaintiff may still sue in negligence)
Includes commercial lessors (in other words, those who rent rather than sell products also can be held strictly liable)
Includes the entire distribution chain. Privity is not required: users, consumers, and bystanders can sue (the fact that there was no contractual privity between the plaintiff and defendant will prevent the plaintiff from recovering.)
Product liability - strict liability - types of defects - manufacturing defects
If a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect. The defendant will be liable if the plaintiff can 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. 
Product liability - strict liability - types of defects - design defects
When all products of a line are the same, but have dangerous propensities, they may be found to have a design defect. Manufacturers will not be held liable for some dangerous products like knives, if the danger is a parent, and there is no safer way to make the product. The plaintiff usually must show that defendant could have made the product safer, without serious impact on the products utility or price. (the feasible alternative approach)

Product liability - strict liability - types of defects - design defects - government safety standards
A products noncompliance with government safety standards establishes that is defective, while compliance with safety standards including label requirements is evidence, but not conclusive, that the product is not defective.
Product liability - strict liability - misuse of product may be foreseeable
The plaintive 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 foreseeable at the time of marketing.
However, remember that a foreseeable use does not mean an intended or appropriate use. Many products are commonly misused in ways that could be considered for seeable. For example, people stand on chairs in order to get something off a shelf, even though that’s not their intended purpose. 
Product liability - strict liability - nature of damages recoverable
Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.
Product liability - strict liability - types of defects - information defects
A product may be defective as a result of the manufacturers failure to give adequate instructions or warnings, asked to the risks involved in using the product that may not be a parent to users.
For prescription drugs, and medical devices, warnings given to learned in intermediaries, for example, of prescribing physician, will usually suffice in lieu of warnings the patient.
Warning must be prominent, comprehensible, and provide information about mitigating the risk,
like should use in an open area.
Product liability - strict liability - existence of defect when product left defendant’s control
The plaintiff must show that the product has not been significantly altered since it left the defendants control. If the product move 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 defendants control. Not usually tested because there’s a presumption. 
Product liability - strict liability - disclaimers ineffective
Disclaimers are irrelevant and strictly liability cases if personal injury or property damages occur.
Product liability - liability based on negligence - generally
Negligence in a products case is proved the same as in a standard negligence case. The plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer and negligence. Note that it is very difficult to hold intermediary such as retailers and wholesalers liable for negligence because they can usually satisfy their duty through a cursory inspection. In addition, an intermediary is negligent. Failure to discover a defect does not supersede the original manufacturer negligence, unless the intermediary conduct exceeds ordinary, foreseeable negligence.
Product liability - liability based on negligence - who can sue
Privity with the defendant is no longer required, so any foreseeable plaintiff can sue 
Product liability - liability based on negligence - nature of damages recoverable
Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.
Product liability - liability based on negligence - disclaimers ineffective
As with strict liability, disclaimers are a relevant in cases based on negligence if personal injury or property damages occur
Product liability - implied warranties of merchantability and fitness - merchantability
Merchant ability, which refers to whether the goods are average acceptable quality, and are generally fit for the ordinary purpose for which the goods are used. Goods that are likely to injure users, even when handled properly are quite obvious and breach of this warranty and will subject the sellers to liability.
Product liability - implied warranties of merchantability and fitness - FFPP
Fitness for a particular purpose arises when the seller knows or has reason to know the particular purpose for which the good are required and that the buyers were lying on the seller skill and judgment in selecting the goods. 
Product liability - implied warranties of merchantability and fitness - who can sue
Most courts no longer require vertical privity. Most states adopted a narrow version of the horizontal gravity requirement. This means the buyer, family, household, and guests can sue for personal injuries. These warranties also generally apply to a lease of goods.
Product liability - implied warranties of merchantability and fitness - what constitutes breach
If the product fails to live up to either of the above standards, the warranty is breached, and the defendant will be liable. The plaintiff does not have to prove any fault on the part of the defendant. 
Product liability - implied warranties of merchantability and fitness - causation
Actual cause and proximate cause are handled as in ordinary negligence cases
Product liability - implied warranties of merchantability and fitness - damages
Personal injury and property damages, and purely economic loss are recoverable
Product liability - implied warranties of merchantability and fitness - defenses
Defense is include assumption of risk (using a product while knowing of breach of warranty), and contributory negligence to the same extent as in strict liability cases. Failure to give notice of breach is a defense under the UCC, even in personal injury cases. 
Product liability - implied warranties of merchantability and fitness - effect of disclaimers
Disclaimers are generally rejected in personal injury cases, but upheld for economic loss
Product liability - representation theories - generally
A defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are: express warranty and misrepresentation of fact. 
Product liability - representation theories - express warranty
Any affirmation effect, or promised concerning goods that become part of the basis of the bargain creates an express warranty. An express warranty may also be made in a lease of goods.
Product liability - representation theories - express warranty - who can sue
Any consumer, user, or bystander consume. If a buyer says, the warranty must’ve been part of the basis of the bargain. If the plaintiff is not privy, they need not have relied on the representation as long as someone did.
Product liability - representation theories - express warranty - breach
Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.
Product liability - representation theories - express warranty - causation, damages, and defenses
Causation, damages, and defenses are treated just as they are under implied warranties
Product liability - representation theories - express warranty - disclaimers
A disclaimer will be effective only in the unlikely event that it is consistent with the warranty
Product liability - representation theories - misrepresentation of fact - generally
A seller will be liable for misrepresentations of fact concerning a product where:
The statement was of a material fact concerning quality or use of goods (mere puffery insufficient)
The seller intended to induce reliance by the buyer in a particular transaction.
Liability is usually based on strict liability, but may also arise for intentional or negligent misrepresentations
Product liability - representation theories - misrepresentation of fact - justifiable reliance
Justifiable reliance is required. In other words, the representation was a substantial factor in inducing the purchase. Reliance need not be the victim’s, it may be a prior purchaser’s. Privity is irrelevant.
Product liability - representation theories - misrepresentation of fact - causation and damages
Actual causes shown by reliance. Approximate cause and damages are the same as for strict liability. 
Product liability - representation theories - misrepresentation of fact - defenses
Assumption of risk is not a defense if the plaintiff is entitled to rely on the misrepresentation. Contributory and negligence is the same as in strict liability unless the defendant committed intentional misrepresentation.
Affirmative defenses
In contributory negligence states, contributory negligence is no defense, if the plaintiff has failed to realize the danger or guard against it. It is a defense, if the plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally, dangerous activity or defective product.
Assumption of risk is a good defense to strict liability.
Comparative negligence states apply their comparative negligence rules to strict liability cases.
If “no traditional defenses” language - use comparative negligence not contributory negligence.
