Strict Liability Flashcards
Manufacturing or construction defect
Product not in the condition it was intended to be in when it leaves the defendant’s control.
Design defect
Product is in the condition it is meant to be in when it leaves the defendant’s control but it was designed in such a way as the present an undue risk of harm in normal use.
Information defect
Product is in the condition intended when it leaves the manufacturer and it does not present a risk of undue danger when used normally, but its packaging or accompanying literature fails to warm of unexpected dangers from foreseeable misuses.
Defective Condition Unreasonably Dangerous (DCUD)
Strict liability for anyone who sells a product unreasonably dangerous to the user or consumer or his property.
Consumer Expectation Test
A design is defective if the product did not perform as safely as an ordinary consumer would have expected.
Risk Utility Analysis
Product is defective in design where risks outweigh the utility, particularly if it was possible to remove the danger without serious adverse impact on utility and price.
Risk Utility Analysis factors
1) Usefulness of the product
2) Type and purpose of the product
3) Style, attractiveness, and marketability
4) Number and severity of injuries
5) Cost of design changes to alleviate the problem
6) User’s anticipated awareness of inherent dangers
7) Feasibility of spreading the loss
Breach of Warranty
Express warranty made when seller makes a material representation regarding the products composition, durability, performance or safety.
Implied Warranty of Merchantability (UCC §2-314)
Any seller impliedly warrants a product fit for its ordinary services, and conveys with product regardless of sellers statements.
Respondeat Superior
An employer is responsible for the torts of its employees committed within the scope of employment.
A form of vicarious liability (where corporation is liable for someone else’s conduct)
Test - Was a tort committed by an employee in the scope of employment?
Private Contractors
Not considered employee (i.e. no respondeat superior) as it is typically temporary work, contractor provides his own equipment, special expertise, can be discharged at any time
Respondeat Superior Tests
Control Test - Does employer have right to control employee
Motive Test - Intent of employee, was conduct in interest of employer
Foreseeability Test - Is the risk of this incident foreseeable in employment?
(Restatement (3rd) §7.07) - Scope of Employment
An employee acts within scope of employment when performing work assigned by employer or engaging in conduct subject to employer’s control
Not within scope when performed as an independent course of conduct not intended for the employer
Edgewater Motels v. Gatzke
After night of drinking man burns down hotel while smoking and filling out expense forms
Within the scope of employment because smoking was incidental to performing work duties
Smoking did not cause him to abandon purpose of employer
Frolic and Detour Rule
If act is a substantial deviation from work, probably not going to be respondeat superior
If you are on your way to detour, not respondeat superior
If you are on your way back from detour, might be respondeat superior
Strict Liability (Abnormally Dangerous Activities)
Actor is liable for harm caused by their activity or conduct even if actor used due care, i.e. liable even if actor acted like reasonably prudent person in same or similar circumstances
Restatement 2nd §520 (determining abnormally dangerous)
High degree of risk of harm to others or property
Likelihood that harm will result
Inability to eliminate risk by exercise of reasonable care
Extent to which activity is not a matter of common usage
Inappropriateness of activity where it was carried on
Value to community vs. dangerous attributes
Rokicki v. Putnam Fish
Plaintiff hit by bullet while at fairgrounds from range, was “downrange”of policeman practicing
Used the Restatement 2nd §520 factors to above to find no strict liability as shooting ranges not uncommon, risk could be eliminated with due care, guns are commonly used in this country
Strict Products Liability (Restatement Second 402A)
Defendant must be a seller of such products in ordinary course and product must be expected to reach the user without substantial change in the condition in which it was sold
Applies regardless of manufacturer due care and regardless of lack of privity
Manufacturing or construction defect
Product not in the condition it was intended to be in when it leaves the defendant’s control (a lemon or a broken product)
Design defect
Product is in the condition it is meant to be in when it leaves the defendant’s control but it was designed in such a way as the present an undue risk of harm in normal use (every product is defective)
Information defect
Product is in the condition intended when it leaves the manufacturer and it does not present a risk of undue danger when used normally, but its packaging or accompanying literature fails to warm of unexpected dangers from foreseeable misuses
Greenman v. Yuba
Power tool design defect, head injuries
Manufacturer liable because injuries were caused by defective design, the product was used in its intended way and there was a safer alternative design
Product on market so implied that it will safely do job it is made for
