Strict Liability

Question 1

Manufacturing or construction defect

Answer 1

Product not in the condition it was intended to be in when it leaves the defendant’s control.

Question 2

Design defect

Answer 2

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.

Question 3

Information defect

Answer 3

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.

Question 4

Defective Condition Unreasonably Dangerous (DCUD)

Answer 4

Strict liability for anyone who sells a product unreasonably dangerous to the user or consumer or his property.

Question 5

Consumer Expectation Test

Answer 5

A design is defective if the product did not perform as safely as an ordinary consumer would have expected.

Question 6

Risk Utility Analysis

Answer 6

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.

Question 7

Risk Utility Analysis factors

Answer 7

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

Question 8

Breach of Warranty

Answer 8

Express warranty made when seller makes a material representation regarding the products composition, durability, performance or safety.

Question 9

Implied Warranty of Merchantability (UCC §2-314)

Answer 9

Any seller impliedly warrants a product fit for its ordinary services, and conveys with product regardless of sellers statements.

Question 10

Respondeat Superior

Answer 10

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?

Question 11

Private Contractors

Answer 11

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

Question 12

Respondeat Superior Tests

Answer 12

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?

Question 13

(Restatement (3rd) §7.07) - Scope of Employment

Answer 13

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

Question 14

Edgewater Motels v. Gatzke

Answer 14

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

Question 15

Frolic and Detour Rule

Answer 15

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

Question 16

Strict Liability (Abnormally Dangerous Activities)

Answer 16

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

Question 17

Restatement 2nd §520 (determining abnormally dangerous)

Answer 17

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

Question 18

Rokicki v. Putnam Fish

Answer 18

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

Question 19

Strict Products Liability (Restatement Second 402A)

Answer 19

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

Question 20

Manufacturing or construction defect

Answer 20

Product not in the condition it was intended to be in when it leaves the defendant’s control (a lemon or a broken product)

Question 21

Design defect

Answer 21

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)

Question 22

Information defect

Answer 22

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

Question 23

Greenman v. Yuba

Answer 23

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