Strict liability

Question 1

3 kinds of SL

Answer 1

• injury caused by animals
• abnormally dangerous activities
• product liabiilty

remember– for strict liability the precautions taken don’t matter

Question 2

Injury caused by animals SL

Answer 2

b. Wild animals—strictly liable for keeping wild animals.
SL against licensees and invetees – so precautions taken don’t matter

a. Not strictly liable for domesticated animals UNLESS you have knowledge of animals’ dangerous or vicious propensities.
i. Only strictly liable for dog if it previously bit someone. first time it bites you can pretend you don’t know its violent

i. Exception: landowner has a public duty to keep those animals, for ex. a public zookeeper

c. Tresspassers must prove negligence
i. but if you keep a guard dog w is vicious, may be liable even for tresspasers. Spring gun case—can’t use a machine w deadly force to defend property.

Question 3

Abnormally dangerous activity SL

Answer 3

b. Defining abnormally dangerous
i. foreseeable risk of serious harm EVEN WHEN reasonable care is excersised
ii. the activity is not common where it is being carried out.

Person who engages is held strictly liable for anything that relates to the fundamental danger of the activity.

c. examples of abnormally dangerous
i. use of explosives.
ii. handling of toxic/biohazards.
iii. involving nuclear power or high dose radiation.

Question 4

product defect theories of recovery (not all are tort claims)

Answer 4

• negligence in making
• misrepresentation (claiming its safe when it’s not)
• breach of warranty under the UCC for merchants
• SL

Question 5

Elements of Strict products liability

Answer 5

My drill keeps a fever

MDKAF: merchant + defective + known risk + no alterations + foreseeable use

– ∆ is a merchant, product is defective, the risk is scientifically known, product hasnt been altered since leaving the ∆’s control, πwas making a foreseeable use of the product at the time of injury

i. ∆ must be a merchant—someone who routinely deals in goods of this type. 4 ways the bar tests whether someone is a merchant.
- casual sellers are not merchants. service providers who use that product are not merchants.
3. commercial lessors—ARE merchants and can be held SL. rental car company for ex.
4. chain of distribution—every party is a merchant and therefore potentially SL. have claim against both home depot AND black and decker.

ii. product must be defective and π must show it.
3 kinds of defects, any can be proven
a. manufacturing defect—it differs from all the others on the assembly line making it more dangerous than consumers would expect.
b. design defects—product is defective if the risk of the products’ design outweigh the utility of the product so much so that a reasonable person wouldn’t market it.
i. π proves by showing practical alternative design that is safer, economocially practical, and practical in the utilitarian sense for π to succeed.
c. information defect—product has residual risks that cant be designed out in practical way AND that are hidden from the consumer/ not apparent AND the product lacks adequate warnings.
i. exam focuses on adequacy of the warning. must be prominent. may need multiple languages, sticker at the point of use
no duty to warn of obvious risks
d. noncompliance with gov’t standards establishes defect. But compliance is not conclusive evidence that the product is not defective.

4. the risk must be scientifically known—
   a. not liable for unforeseen dangers.
   b. some products like knives are unavoidably unsafe, bc danger is apparent, no strict liability

iii. product has not been altered since leaving the ∆’s control. defect must have existed when product left ∆’s hands.
1. presumption for πs that if the product moved in ordinary channels of distribution that the product has not been altered.
2. ∆ can rebut.

iv. π must have been making a foreseeable use of the product at the time of injury.
1. does not have to be appropriate/ proper use.
2. If the manufacturer know people use the product in an unintended way→ definitely foreseeableq

Question 6

Defenses for SL

Answer 6

Comparative responsibility.

π contributory negligence only if π knew of the danger and proceeded. NOT if π was unaware

Question 7

Damages

Answer 7

5. Damages
   a. personal injury damages and property damages
   b. not damages for economic losses

Question 8

SL extent

Answer 8

∆ only liable to foreseeable πs.

2) harm must result from normally dangerous propensity.
3) proximate cause, intervening forces are unforeseeable