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T&D.Edits.Torts > Strict Liability > Flashcards

Strict Liability Flashcards

1
Q

What are the categories of tort strict liability?

A
  1. Abnormally dangerous activities
  2. Animals
  3. Defective products
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2
Q

In strict liability, when is the defendant liable?

A

Defendant is liable for injuring plaintiff whether or not defendant exercised due care. The policy of the law is to impose liability regardless of a defendant’s fault.

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3
Q

What is the wild animal rule?

A

If the defendant keeps a wild animal and the plaintiff is injured because:

  1. The animal does something characteristic of that animal

And

  1. The animal action results in an Injury. Then, the keeper of the animal is strictly liable for that harm no matter how unforeseeable the result if it comes out of that characteristic animal act.
    * More Info:* Wild Animal Rule
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4
Q

What is the domestic pet rule?

A

The keeper of a domestic animal is not strictly liable for the animal’s actions until the keeper knows or should know of the animal’s dangerous propensity. Once dangerous propensity is known, the owner is strictly liable for all further actions.

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5
Q

When is an activity abnormally dangerous?

A
  1. The is an unavoidable, high risk of serious harm

And

  1. Activity is not a common activity in the area
    * More Info:* Abnormally Dangerous Activities
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6
Q

What are the common abnormally dangerous activities?

A
  1. Blasting with dynamite
  2. Crop dusting
  3. Transporting toxic waste

or

  1. Fumigating
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7
Q

When can a plaintiff recover from defendant’s abnormally dangerous activity?

A

If defendant’s activity was the cause in fact of plaintiff’s injury:

  1. But for defendant engaging in the abnormally dangerous activity
  2. The plaintiff would not have been injured or the activity was a substantial factor contributing to the injury.
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8
Q

If an activity is abnormally dangerous, when will the defendant be held in strictly liable?

A

Plaintiff has to be injured by a risk that makes the activity abnormally dangerous. If they are injured by a part of the activity that does not make it abnormally dangerous, then there is no strict liability.

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9
Q

In strict liability, can contribution or comparative negligence be used as a defense?

A

Can only raise plaintiff’s fault if the plaintiff assumed the risk

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10
Q

What are the 8 elements of strict products liability?

A
  1. Proper Plaintiff
  2. Proper defendant
  3. Proper context
  4. Defect
  5. Cause-in fact
  6. Proximate cause
  7. Damages
  8. Defenses
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11
Q

What is the focus of strict products liability (SPL)?

A

The condition of the product. Not on the defendant’s conduct.

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12
Q

Who is a proper plaintiff in SPL?

A

Any plaintiff who is a

  1. User
  2. Consumer

or

  1. Bystander injured while using a defective product may recover damages from an appropriate defendant. Does not have to be the purchaser.
    * More Info:* SPL - Plaintiff
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13
Q

Who is a proper defendant in SPL?

A

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product are potential defendant’s, including:

  1. Manufacturer
  2. Wholesaler

And

  1. Retailer
    * More Info:* SPL - Defendant
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14
Q

What type of seller is not a proper defendant in SPL?

A

A one-time or occasional seller.

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15
Q

What is the proper context in SPL?

A

The case must involve a product ≠ service

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16
Q

How is SPL applied when a product and service are given together?

A

If the products dominate the transaction, their weight is greater than the service offer, then strict liability attaches.

If the services predominate the transaction, then strict liability does not attach.

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17
Q

What are the types of SPL defects?

A
  1. Manufacturing defects
  2. Design defects
  3. Warning defects
    * More Info:* SPL - Defects
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18
Q

What is a SPL manufacturing defect?

A
  1. When a product is produced in a condition not intended by the manufacturer

And

  1. The condition makes it more dangerous than the ordinary consumer would expect.
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19
Q

What is a plaintiff’s burden of proof for a manufacturing defect?

A
  1. The product was out in a condition not intended by manufacturer

And

  1. Condition makes it more dangerous than the ordinary consumer would expect (≠ proving fault).
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20
Q

What is a SPL design defect?

A
  1. A product manufactured as the manufacturer intended

And

  1. Product is dangerous because of the product’s design
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21
Q

What are the tests for defects?

A
  1. Ordinary Consumer Expectation Test

And

  1. Risk-Utility Balancing Test
    * More Info:* Defect Tests
22
Q

What is the Ordinary Consumer Expectation test?

A

Is the product more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics?

23
Q

What are the consequences of design defects that are obvious to consumers?

A

No design defect SPL will attach for obvious defects

24
Q

What is the Risk-Utility Balancing Test for design defects?

A

If the risk of the product as designed outweighs the utility of the product as designed, then the product is defective in design.

25
Q

What should be weighed in the Risk-Utility Balancing Test?

A

Risk:

  1. Likelihood of injury
  2. Gravity of injury

Utility:

  1. Availability of a safe alternative design
  2. Impact of a safe alternative design
  3. Cost of a safe alternative design
26
Q

When are products exempt from SPL?

A

Unavoidably unsafe products. Some products have extraordinary social utility and no alternatives. Examples: Vaccines, prescription drugs, and medical devices.

27
Q

Unavoidably unsafe products are exempt from what types of SPL?

A

Only design defect SPL. The products are still liable for other types of defects: manufacturing and warning defects.

28
Q

What are the types of warning defects?

A
  1. Failure to Warn

And

  1. Inadequate Warning
29
Q

When is a warning inadequate?

A

The warning does not reasonably inform a foreseeable user of significant risk

30
Q

When is there a failure to warn?

A

If the manufacturer does not:

  1. Warn about significant risks of which it knows or should know

Or

  1. Does not warn about the gravity and probability of harm
31
Q

Who may be sued for defects stemming from failure to warn?

A

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product can be sued for failure to warn. Includes:

  1. Manufacturer
  2. Wholesaler
  3. Retailer
32
Q

If a defendant down the distribution chain is sued in SPL for failure to warn, then how can the defendant recover any damages paid?

A

Through their right to indemnity of the manufacturer

33
Q

When do you use the Ordinary Expectation Test v. Risk-Utility Balancing Analysis?

A

Ordinary Expectation Test: manufacturing defects

Risk-Utility Balancing Analysis: design defects

34
Q

When is a product the cause-in-fact of a plaintiff’s injury?

A

Defendat’s product is connected to plaintiff’s injury by showing that:

  1. But for the defect, the plaintiff would not have suffered the injury
  2. If multiple causes of injury, then that the product defect was a substantial factor in the plaintiff’s injuries.
35
Q

What is the cause-in-fact?

A

The relationship between the product and the injury

36
Q

What should be examined for proximate cause in SPL?

A

An unforeseeable force that is so culpable that it will be seen as superseding and cuts off the defendant’s liability.

Example: A member of the distribution chain knowing of a defect and still selling the product.

More Info: SPL - Proximate Cause

37
Q

What is the learned intermediary doctrine?

A

A proximate cause doctrine whereby if a manufacturer provides a warning to a reseller, they can expect that the reseller will pass it on to the consumer. If he does not do so, the reseller is a superseding cause.

38
Q

Can a plaintiff bring a SPL claim against a doctor for providing a defective drug?

A

No, because the doctor is providing a service

39
Q

When can damages be recovered in SPL cases?

A

When a plaintiff suffers personal injury or property damage ( > than damage to the product itself)

40
Q

When damage is limited to the product, a plaintiff can only bring a claim for what?

A

Breach of warranty (≠ SPL nor negligence)

41
Q

What are the defenses to SPL?

A
  1. Misuse
  2. Alteration
  3. Assumption of Risk
42
Q

When is the defense of misuse available to a defendant in SPL?

A

If the plaintiff uses a product in a way that is not:

  1. Intended

nor

  1. Foreseeable, then the plaintiff has misused the product and cannot recover in strict products liability.
43
Q

When is the defense of alteration available to a defendant in SPL?

A
  1. 3rd party or plaintiff unforeseeably changes the product

And

  1. Change makes it dangerous

Then plaintiff cannot recover in strict products liability

44
Q

When is the defense of assumption of risk available to a defendant in SPL?

A

Plaintiff’s actions must be unreasonable:

  1. Plaintiff knows of the defect
  2. Plaintiff comprehends the consequences of the defect

And

  1. Plaintiff voluntarily elects to expose himself to that danger
45
Q

What are the steps to analyzing a products liability claim on a negligence theory?

A
  1. Any foreseeable plaintiff is entitled to bring an action.
  2. Analyze the conduct of each defendant and ask whether it was reasonable
  3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory
  4. Negligence defenses apply.
46
Q

Differentiate the focus for claiming products liability in negligence v. SPL

A

Negligence: focus on defendant’s actions

SPL: focuses on product’s condition

47
Q

When does an express warranty exist?

A

When any defendant makes

  1. A representation as to the nature or quality of the product

And

  1. Representation becomes the basis of the bargain
48
Q

When can a warranty theory be used for products liability?

A
  1. Violation of an express warranty

Or

  1. Violation of an implied warranty
49
Q

What is the implied warranty of merchantability?

A

If a merchant deals in goods of a particular kind, then the sale of such goods constitutes an implied warranty that those goods will be merchantable:

  1. They are of average quality for goods of that kind

And

  1. Generally fit for their intended use
    * More Info:* Implied Warranty of Merchantability
50
Q

What are the problems with advancing an implied warranty of merchantability in a products claim?

A
  1. There a privity and notice requirements; thus, only the buyer will have a claim.
  2. The warranty can be disclaimed by a merchant
51
Q

When the harm is just to the product itself, what cause of action should a plaintiff take?

A

Breach of warranty

T&D.Edits.Torts (4 decks)

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