Strict Liability

Question 1

What is the test for determining whether an activity is an abnormally dangerous activity? Examples? What effect does it have on liability?

Answer 1

• Activity is abnormally dangerous if :
  (1) the activity creates a foreseeable risk of serious harm even when reasonable care is exercised; and
  (2) the activity is not a matter of common usage in the community (more dangerous that what everyone else is doing; unusual in the community).
• Examples: Blasting explosives; toxic chemicals and hazardous materials; nuclear activities (nuclear energy or radioactive material)
• Safety precautions are irrelevant.
• Any one who engages in abnormally dangerous activities is strictly liable.

Question 44

What is the affirmative defense to strict liability claims?

Answer 44

Comparative Negligence - D can offer evidence that P failed to exercise care for his own safety. Jury assigns D and P a number that reflects the percentage of fault. The P’s recovery is reduced based on the percentage number.

Question 45

In what cases will there be strict liability?

Answer 45

1. Liability for injuries cause by wild animals or domestic animals with dangerous propensities which the owner has knowledge of.
2. Abnormally dangerous activities (e.g. blasting explosives; toxic chemicals and hazardous materials; nuclear activities (nuclear energy or radioactive material)
3. Strict Products Liability

Question 46

What is strict products liability? What are the elements of a strict liability cause of action?

Answer 46

Refers to the liability of a supplier of a defective product to someone injured by the product.

Elements:

• D must be a merchant, someone who routinely deals in goods of the type of the Ps.
• P must show that the product is defective. Three kinds of defects. Proving any one of these satisfies this requirement.
  
  • Manufacturing defect
  • Design defect
  • Information defect
• P must show that the defect existed when the product left D’s control/ the product has not been altered. There is a presumption that if the product moved in ordinary channels of distribution, then it has not been altered. This element is only relevant for second hand goods.
• P must be making a foreseeable use of the item. The question is not whether the product was used properly.

Question 47

In a strict products liability case, what is foreseeable use?

Answer 47

P must be making a foreseeable use of the item. The question is not whether the product was used properly. A use can be foreseeable even if not the proper use. (e.g. it is foreseeable that someone will stand on a chair).

Question 48

Who is and isn’t considered a merchant for products liability cases?

Answer 48

• Causal sellers are NOT merchants
• Service provider - NOT merchants of items made available incidental to the service provided (e.g. chair at doctor’s office breaks, doctor is not liable)
• Commercial lessors - they ARE considered merchants, and can be liable (e.g. car rental companies routinely deals in cars)
• Every part/firm in the distribution chain IS a merchant and is vulnerable to a strict liability claim. Not limited to suing the party that you dealt with directly. No privity of contract required.

Question 49

For proving a product is defective in a products liability case, what is a manufacturing defect?

Answer 49

When it differs from all the others that came off that same assembly line in a way that makes it more dangerous than consumers would expect (e.g. “the one in a million” hair dryer that sets your hair on fire first time you dry your hair). Safety precautions are irrelevant.

Question 50

In a products liablity case, what is a design defect?

Answer 50

when the product could have been built a different way that meets a three part test:

the hypothetical alternative design (HAD) must be:

(1) safer
(2) economical,
(3) practical.

If there is an HAD or “feasible alternative,” then any one hurt by the design defect will have a strict liability claim.

CANNOT escape liability by putting warning on product.

Question 51

What is an information defect in products liability case?

Answer 51

If a product has residual risks that can’t be designed out and the risks are not obvious to consumers, that product must have adequate warnings of those risks. If it lacks adequate warnings then the product has an information defect.

Not all warnings are created equally. Warnings must be conspicuous AND easily understood (consider icons, pictures, language, font, location of the warning).

Pictures can used to reach a broad populations regardless of language.

Can’t escape liability by putting warning on a product with a design defect.