Strict Liability

Question 1

Products Liability: SL theory

What does the PL strict liability theory NOT focus on?

Answer 1

Does not focus on D’s conduct

Question 2

Products Liability: SL theory

Strict liability test

Answer 2

An “unreasonably dangerous condition.”

Question 3

Products Liability: SL theory

Who can be a P?

Answer 3

Anyone who is within the “foreseeable zone of risk” including bystanders

Question 4

Products Liability: SL Theory

Who can be a D?

Answer 4

Everyone –> note: indemnification up the chain applies.

Question 5

Products Liability: SL theory

Warnings

Answer 5

Adequate warnings will generally insulate from liability– but not always.

Question 6

Products Liability: SL theory

The Feasible Alternatives Approach

Answer 6

If one could have cured a defect for a minor amount of money relative to the risk involved he/she should have done it AND a warning will not insulate.

Question 7

Products Liability: SL Theory

Product Use Incidental to Performance of Services

Answer 7

Strict Liability is Unavailable.
Eg. During course of medical operation, defective blood is administered
NOTE: can always try to recover under a diff tort e.g. negligence.

Question 8

Strict Liability: PFC

Answer 8

Same as for negligence with one exception: The negligence standard of care is replaced by an ABSOLUTE DUTY TO MAKE SAFE.

Question 9

Strict Liability: Defenses

Answer 9

Contributory Negligence State:
1. Knowing Contrib. Negl. = Complete defense
2. Unknowing Contrib. Negl. = No Defense
Comparative Negl. State
1. Knowing and Unknowing Contrib Negl. = P recovers what they would recover under that state’s comp negl. rules.

Question 10

Strict Liability: Specific Situations

Answer 10

Animals:
1. Liability for domestic pets only at second instance; SL for those with INHERENT DANGEROUS PROPENSITIES from the outset (result not changed if tamed).
Abnormally Dangerous Activities
**note super careful D– irrelevant
** Negligent conduct– any alternative that refers to conduct in SL qs–WRONG.

Question 11

Products Liability: Threshold Inquiry - Who can you hold liable?

Answer 11

Any COMMERCIAL SUPPLIER as long as you can establish:

1. The defect causing the injury must have existed at the time the product left that d’s control.
2. P needs a workable theory: Negligence, SL– to determine which one–look to call of qs

Question 12

Products Liability: First Requirement

Answer 12

Rule: Inference the defect existed when it left any given D’s control if since that time the product has moved through normal channels of distribution

Question 13

Products Liability: Negligence

What does PL Negl. focus on?

Answer 13

Focuses on D’s conduct

Question 14

Products Liability: Negligence

Conduct Possibilities

Answer 14

(i) Negligent Design
(ii) Negligent Manufacture
(iii) Negligent Warnings
(iv) Negligent Inspections

Note: Res Ipsa is available.

Question 15

Products Liability: Negligence

Who can be P?

Answer 15

Anyone who is within the “foreseeable zone of risk” including bystanders.

Question 16

Products Liability: Negligence

Who can be D?

Answer 16

Manufacturers? Almost always
Retailers/wholesalers ? Almost never
** But watch out for the obviously negligent retailers fact pattern–they are liable.

Question 17

Side Note Products Liability: Negligence

*Rem JC Penny and Bike Assemblers.

Answer 17

One who labels product as his own or who assembles product from component parts made by others can be liable for negligence even though they were not personally negligent.

Question 18

KANSAS: Liability for Animals

*Trespassing Animals

Answer 18

KS has declared a policy that domestic animal trespass liability be governed by negligence principles and not SL.
By statute, KS requires fencing of domestic animals, excepts dogs and cats.

Question 19

KANSAS: Products Liability

Theories*

Answer 19

Provisions of KS Product Liability Act apply to actions based on SL in tort as well as negligence, breach of express or implied warranty, and breach of a duty to warn or to instruct. [Kan. Stat. Ann. Sec. 60-3302]

Question 20

KS: PL

*Types of Defects– Inadequate warnings

Answer 20

In KS, a manufacturer has a post-sale duty to warn those ultimate consumers who can be readily identified when a defect, which originated at the time of manufacture and was unforeseeable at the time of sale, is discovered to present a life-threatening hazard.

Question 21

KS:PL

*Types of Defects - Design Defects

Answer 21

KS adheres to the consumer expectations test for DD.

Evidence of a reasonable alternative design may be presented but is not required.

Question 22

KS: PL

*Types of Defects - Effect of Govt Safety Standards

Answer 22

PLA creates a rebuttable presumption of non defectiveness when a product complies with legislative or administrative safety standards.
If a medical device complies with applicable federal standards for premarket approval of that device, an action under the PLSA is constitutionally preempted.

Question 23

KS: PL

* Liability based on negligence– Commercial suppliers

Answer 23

KS PLA provides that a seller is NOT liable in a PL action if:
(i) he is not the manufacturer; (ii) he had no knowledge of the defect and could not have discovered the defect through the exercise of reasonable care; (iii)the manufacturer is subject to service of process in KS or in the P’s state of domicile; and (iv) satisfaction of any judgment for the P against the manufacturer is reasonably certain.

Question 24

KS: PL

* Liability based on negligence– nature of damages recoverable

Answer 24

Damage to the product itself is a form of economic loss and NOT recoverable in either SL or negligence.

Question 25

KS: PL

*Liability based on Strict Tort Liability – D must be

Answer 25

D must be commercial supplier [PLA limits liability of a seller who is not manufacturer— a seller under the statute includes seller of used products]

Question 26

KS: PL

*Liability based on Strict Tort Liability– Defenses

Answer 26

KS applies its comparative negligence statute to PL actions based on SL.

Question 27

KS: PL
* Implied Warranties of Merchantability and Fitness
UCC alternatives on horizontal privity

Answer 27

KS follows alternative B allowing personal injury actions by any natural person who may reasonably be expected to use, consume, or be affected by the goods and is injured in person by the breach of the warranty