Strict Liability (Liability Without Fault) Flashcards
1
Q
Liability for Animals
A
- Owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species.
- Injury caused by normally dangerous characteristics of domestic animals (ex. bulls/honeybees) does not create strict
liability.
2
Q
Tip:
A
Landowner may be liable for intentional tort for injuries caused by vicious watchdogs
3
Q
Trespassing Animals
A
- Owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
4
Q
Wild Animals
A
- Owner is strictly liable to licensees & invitees for injuries caused by wild animals (even pets).
5
Q
Strict Liability Not Available to Trespassers
A
- Strict liability will generally not be imposed in favor of trespassers.
- To recover for injuries from wild animal (or abnormally dangerous domestic animal) trespasser must prove owner’s negligence.
6
Q
Abnormally Dangerous Activities
A
- Cts generally impose 2 requirements for finding an activity to be abnormally dangerous:
(1) Activity must create foreseeable risk of serious harm even when reasonable care is exercised by all actors
(2) Activity is not a matter of common usage in the community
Exs: Blasting/manufacturing explosives, storing/transporting dangerous chemicals/biological materials, & anything involving radiation/nuclear energy. - As w/ negligence, D’s liability extends only to foreseeable Ps.
- Also, harm must result from the kind of danger to be anticipated from dangerous activity (or animal) including harm caused by fleeing from perceived danger.
- Strict liability does not apply when injury is caused by something other than dangerous aspect of activity (ex. dynamite truck suddenly blows tire & hits pedestrian but does not explode).
7
Q
Tip:
A
- Questions testing on abnormally dangerous activities will not require you to speculate as to whether the activity falls under this rule. Unless the activity is clearly abnormally dangerous like the ones listed above, or the question specifies that the jurisdiction considers the activity abnormally dangerous, you should not apply strict liability to the activity.
8
Q
Tip:
A
- Exam questions testing on strict liability often include a statement in facts/in an answer choice that D exercised reasonable care. Remember that the exercise of reasonable care will not relieve D of liability in a strict liability situation.
9
Q
Products Liability
A
- Products liability refers to liability of supplier of defective product to someone injured by product.
10
Q
Theories of Liability
A
- 5 theories of liability that P may use:
(1) Intent
(2) Negligence
(3) Implied warranties of merchantability & fitness for a particular purpose
(4) Representation theories (express warranty & misrepresentation)
(5) Strict liability
11
Q
Tip:
A
If question does not indicate what theory of
liability P is using, apply strict liability
b/c that is easiest to prove.
12
Q
Elements for Strict Liability
A
P must show:
(1) D is a merchant (commercial supplier of product)
(2) Product is defective
(3) Product was not substantially altered since leaving D’s control
(4) P was making foreseeable use of product at time of injury
13
Q
Only Merchants Can Be Held Liable
A
Any commercial supplier can be held liable.
14
Q
Does Not Extend to Casual Sellers
A
Casual sellers will not be held strictly liable.
15
Q
Does Not Extend to Services
A
- Strict products liability applies only to products.
- Even if provided incident to a service (ex. blood during an operation), no strict liability.
- P may, however, sue in negligence.
16
Q
Includes Commercial Lessors
A
- Most states include commercial lessors.
- Those who rent rather than sell products also can be held strictly liable.
17
Q
Includes Entire Distribution Chain
A
- Commercial suppliers include manufacturers, wholesalers, & retailers.
- Privity is not required—users, consumers, & bystanders can sue.
18
Q
Tip:
A
- In virtually all products liability actions, the fact that there was no contractual privity between P & D will not prevent P from recovering.
- Nevertheless, it is still a favorite wrong choice in products liability questions based on negligence/strict liability theories.
- Remember that any foreseeable P, including a bystander, can sue any commercial supplier in chain of distribution regardless of absence of contractual relationship between them.
19
Q
Types of Defects: Manufacturing Defects
A
- Product comes from manufacturing different from & more dangerous than products that were made properly
- D will be liable if P can show product failed to perform as safely as an ordinary consumer would expect (D must anticipate reasonable misuse). (Also applies to defective food products.)
20
Q
Design Defects
A
- All products of a line are the same but have dangerous propensities
- Manufacturers will not be held liable for some dangerous products (ex. knives) if danger is apparent & there is no safer way to make product.
- P usually must show that D could have made product safer, w/o serious impact on product’s utility/ price (“feasible alternative” approach).
21
Q
Government Safety Standards
A
- Product’s noncompliance w/ gov safety standards establishes defectiveness, while compliance w/ safety standards (including labeling requirements) is evidence—not conclusive—product is not defective
22
Q
Information Defects
A
- Product may be defective if manufacturer fails to give adequate instructions/ warnings for risks involved in using product that may not be apparent to users.
- Prescription drugs & medical devices: warnings given to “learned intermediaries” (ex. prescribing physician) will usually suffice in lieu of warnings to patient.
23
Q
Existence of Defect When Product Left D’s Control
A
- P must show that product has not been significantly altered since it left D’s control.
- If product went through normal channels of distribution, it will be inferred that product was not altered & defect existed when product left D’s control.
24
Q
Misuse of Product May Be Foreseeable
A
- P must have been making a foreseeable use of product at time of injury.
- D will not be held liable for dangers not foreseeable at time of marketing.
25
Q
Tip:
A
- Remember “foreseeable” use does not mean an “intended”/“appropriate” use. Many products are commonly misused in ways that could be considered foreseeable.
26
Q
Nature of Damages Recoverable
A
- Physical injury/property damage must be shown.
- Recovery will be denied if sole claim is for economic loss.
27
Q
Disclaimers Ineffective
A
- Disclaimers are irrelevant in strict liability cases if personal injury/property damages occur.
28
Q
Liability Based on Negligence
A
- Negligence in products case is proved same as “standard” negligence case.
- P may invoke res ipsa loquitur if defect is something that would not usually occur w/o manufacturer’s negligence.
- It is very difficult to hold intermediaries (ex. retailers & wholesalers) liable for negligence b/c they can usually satisfy duty by quick inspection.
- Intermediary’s negligent failure to discover defect does not supersede original manufacturer’s negligence unless intermediary’s conduct exceeds ordinary foreseeable negligence.
29
Q
LBN: Who Can Sue?
A
- Privity w/ D is no longer required, so any
foreseeable P can sue.
30
Q
LBN: Nature of Damages Recoverable
A
- Physical injury/property damage must be shown.
(Recovery will be denied if sole claim is for economic loss.)
31
Q
LBN: Disclaimers Ineffective
A
- As w/strict liability, disclaimers are irrelevant in cases based on negligence if personal injury/property damages occur.
32
Q
Implied Warranties of Merchantability & Fitness
A
- 2 warranties implied in every SOGs that can serve as basis for suit by buyer against seller:
33
Q
Merchantability
A
- Whether goods are of average acceptable quality & are generally fit for ordinary purpose for which goods are used.
- Goods that are likely to injure users even when handled properly are in breach of warranty & will subject seller(s) to liability.
34
Q
Fitness for a Particular Purpose
A
- Arises when seller knows/has reason to know particular purpose for which goods are required & that buyer is relying on seller’s skill & judgment in selecting goods
35
Q
IWMF: Who Can Sue
A
- Most cts no longer require vertical privity.
- Most states adopted narrow version of horizontal privity requirement.
- This means buyer, family, household, & guests can sue for personal injuries.
- These warranties also generally apply to a lease of goods.
36
Q
IWMF: What Constitutes Breach?
A
- If product fails to live up to either of the above standards, warranty is breached & D will be liable.
- P does not have to prove any fault on part of D.
37
Q
IWMF: Causation
A
- Actual cause & proximate cause are handled as in ordinary negligence cases.
38
Q
IWMF: Damages
A
- Personal injury & property damages, & purely economic loss, are recoverable
39
Q
IWMF: Defenses
A
- Defenses include AOR (using product w/ knowledge of BOW) & contributory negligence to same extent as strict liability cases.
- Failure to give notice of breach is defense under UCC (even in personal injury cases).
40
Q
IWMF: Effect of Disclaimers
A
- Disclaimers are generally rejected in personal injury cases but upheld for economic loss.
41
Q
Representation Theories
A
- D may be liable when product does not live up to some affirmative representation.
- 2 representation theories are:
- Express warranty
- Misrepresentation of fact
42
Q
RT: Express Warranty
A
- Any affirmation of fact/promise about goods that becomes part of the basis of the bargain is express warranty.
- EW may be made in lease of goods.
43
Q
EW: Who Can Sue
A
- Any consumer, user, or bystander can sue.
- If buyer sues, warranty must have been “part of the basis of the bargain.”
- If P is not in privity (ex. bystander), they need not have relied on representation as long as someone did.
44
Q
EW: Breach
A
- Fault need not be shown to establish breach.
- P need only show product did not live up to EW
45
Q
EW: Causation, Damages, & Defenses
A
- Causation, damages, & defenses are treated just as under implied warranties
46
Q
EW: Disclaimers
A
- A disclaimer will be effective only in unlikely event that it is consistent w/ warranty.
47
Q
Misrepresentation of Fact
A
- Seller will be liable for misreps of facts about product where:
(1) Statement was of material fact about good’s quality/uses (mere puffery insufficient)
(2) Seller intended to induce buyer’s reliance in purchase - Liability is usually based on strict liability but may also arise for intentional/negligent misreps.
48
Q
MOF: Justifiable Reliance
A
- Justifiable reliance required (representation was substantial factor in inducing purchase).
- Reliance need not be vic’s (may be prior purchaser’s).
- Privity is irrelevant.
49
Q
MOF: Causation & Damages
A
- Actual cause is shown by reliance.
- Proximate cause & damages: same as for strict liability.
50
Q
MOF: Defenses
A
- AOR not a defense if P is entitled to rely on representation.
- Contributory negligence: same as in strict liability unless D intentionally misreped
51
Q
Affirmative Defenses
A
- In contributory negligence states, contributory negligence is no defense if P failed to realize danger/ guard against it.
- It is a defense if P knew of danger & their unreasonable conduct was the very cause of harm from wild animal/abnormally dangerous activity/ defective product.
- AOR is good defense to strict liability.
- Many comparative negligence states apply their comparative negligence rules to strict liability cases.
