Strict Liability

Question 1

What are the three type strict liability?

Answer 1

1. Dangerous activates
2. Wild Animals
3. Defective or dangerous products.

Question 2

What is the basic rule for abnormally dangerous activities?

Answer 2

A defendant engaged in an abnormally dangerous activity will be held strictly liable- without proof of negligence-for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm.

Question 3

What does abnormally dangerous activity (ADA) mean?

Answer 3

An activity that:

1. Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and
2. The activity is not commonly engaged in.

Question 4

What is the scope of risk for ADA?

Answer 4

Liable exist only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.

Question 5

What is a wild animal?

Answer 5

A species or a class, is not by custom devoted to the service of humankind in the place where it is being kept.

Question 6

What is a wild animals dangerous propensity?

Answer 6

In spite of any precautions the possessor has taken to confine the animal or prevent the harm. if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know.

*Also applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal.

Question 7

When is a domestic animal owner strictly liable?

Answer 7

Liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities, and the harm results from those dangerous propensities.

Question 8

When is an owner strictly liable for a trespassing animal?

Answer 8

The owner of any animal, wild or domestic. is strictly liable for any foreseeable damage caused by his animal while trespassing on the land of another.

Question 9

What is a complete defense to Strict liability?

Answer 9

Assumption of the Risk

Question 10

Who can be held liable under strict product liability?

Answer 10

The manufacturer, retailer, or other distributor of a defective product.

Question 11

What must a plaintiff plead and prove to recover under Strict Product Liability?

Answer 11

1. The product was defective (in manufacture, design, or failure to warn)
2. The defect existed at the time the product left the defendant’s control; and
3. The defect caused the plaintiff’s injuries when used in an intended or reasonably foreseeable way.

Question 12

When is a product defective?

Answer 12

When, at the time of the sale or distribution,it contains a manufacturing defect, a design defect, or inadequate instructions or warnings.

Question 13

What is a manufacturing defect?

Answer 13

A deviation from what the manufacturer intended the product to be that causes harm plaintiff.

Question 14

What is the test for the existence of a manufacturing defect?

Answer 14

Whether the product conforms to the defendant’s own specifications.

Question 15

What are the two test for a design defect?

Answer 15

1. Consumer-expectation test

2. Risk-Utility test

Question 16

What does the consumer -expectation test ask?

Answer 16

Does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous to him?

Question 17

What does the risk-utility test ask?

Answer 17

Do the risks posed by the product outweigh its benefits?

*Must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe. The alternative design must be economically feasible.

Question 18

What is failure to warn defect?

Answer 18

Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which risks could have been reduced or avoided by providing reasonable instructions or warnings.

The failure to include the instructions or warning renders the product not reasonably safe.

Question 19

What is the learned-intermediary rule?

Answer 19

The manufacturer of a prescription drug typically satisfies its duty to warn the consumer by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug.

Question 20

What are the exception the learned-intermediary rule?

Answer 20

1. Federal statute
2. If the manufacturer is aware that the drug will be dispensed or administered without the personal intervention or evaluation of a healthcare provider, such as when a vaccine is administered through a mass inoculation

Question 21

Can res ipsa loquitur apply to product defect?

Answer 21

Yes

Usually when the product is lost or destroyed as a consequence of the incident that caused the plaintiff’s harm.

Question 22

Who can bring a cause of action for Strict Product Liability?

Answer 22

Anyone foreseeably injured by the defective product or whose property is harmed by the product.

*Purchasers, other users, and bystanders

Question 23

Is a claim for purely economic loss allowed under strict liability theory?

Answer 23

No

Should be brought as a breach of warranty

Question 24

What are the defenses to Strict Product Liability?

Answer 24

1. Comparative fault
2. Assumption of Risk
3. Product misuse, modification, or alternation by the user (unforeseeable nor intended changes)