Strict Liability

Question 1

What is the standard of care for trespassing animals?

Answer 1

Strict liability for foreseeable harm. (This does not apply to household pets.)

Question 2

What is the standard of care for personal injury from domesticated and wild animals?

Answer 2

• domesticated: no strict liability unless defendant knows of the animal’s dangerous propensities in advance
• wild animals: defendant is always strictly liable (as long as the plaintiff didn’t do something to cause the harm)

Question 3

What is the test for applying strict liability to abnormally dangerous activities?

Answer 3

(1) the activity is incapable of being conducted except with high risk
(2) if any harm occurs, it is likely to be severe
(3) the activity is uncommon/unusual in the community where it takes place

Question 4

What effect do the defendant’s precautions have on the strict liability standard for abnormally dangerous activities?

Answer 4

None

Question 5

What are the elements of a prima facie case for products liability?

Answer 5

(1) defendant is a merchant of the type of goods involved
(2) defective product
(3) defect existed when left seller’s hands
(4) plaintiff made a foreseeable use of the product

Question 6

What distinguishes a manufacturing defect from a design defect?

Answer 6

• manufacturing defect – (1) product is an anomaly and (2) the difference is what made it dangerous
• design defect – (1) a problem common to each unit (2) that the seller could have eliminated through a reasonable alternative design

Question 7

How does one raise the presumption that a product defect existed when it left the seller’s hands?

Answer 7

Show the product moved in ordinary channels of distribution

Question 8

Who are commonly merchant sellers for purposes of products liability?

Answer 8

manufacturers, wholesalers, and retailers

Question 9

What are the effects of contributory negligence and assumption of the risk on products liability?

Answer 9

• Contributory negligence will not bar recovery

* assumption of the risk will bar recovery

Question 10

Under what products liability theory are retailers and wholesalers off the hook?

Answer 10

negligence

Question 11

What effect does an adequate warning have on products liability?

Answer 11

It insulates a defendant from strict liability

Question 12

When a product has a “feasible alternative” for making it safer, what defect theory probably applies?

Answer 12

design defect

Question 13

In products liability, is foreseeable use the same as intended use?

Answer 13

No

Question 14

Does strict liability apply when a product’s use is incidental to performance of a service?

Answer 14

no

Question 15

What effect does a third party’s negligence have on strict products liability?

Answer 15

none, as long as the use of the product was foreseeable

Question 16

What is the test for private nuisance?

Answer 16

• Conduct causing
• a substantial and unreasonable interference
• with the use and enjoyment of land

Question 17

How will a court decide whether to issue an injunction to enjoin a defendant’s nuisance?

Answer 17

it will weigh the equities

Question 18

What is the test for public nuisance?

Answer 18

• conduct causing
• physical or moral harm
• to the public in general

Question 19

When can a private citizen bring a public nuisance action?

Answer 19

When his injury is different in nature or character than the public’s at large