Strict Liability (Liability Without Fault)

Question 1

Liability for Animals

Answer 1

• 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.

Question 2

Tip:

Answer 2

Landowner may be liable for intentional tort for injuries caused by vicious watchdogs

Question 3

Trespassing Animals

Answer 3

• Owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Question 4

Wild Animals

Answer 4

• Owner is strictly liable to licensees & invitees for injuries caused by wild animals (even pets).

Question 5

Strict Liability Not Available to Trespassers

Answer 5

• 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.

Question 6

Abnormally Dangerous Activities

Answer 6

• 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).

Question 7

Tip:

Answer 7

• 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.

Question 8

Tip:

Answer 8

• 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.

Question 9

Products Liability

Answer 9

• Products liability refers to liability of supplier of defective product to someone injured by product.

Question 10

Theories of Liability

Answer 10

• 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

Question 11

Tip:

Answer 11

If question does not indicate what theory of
liability P is using, apply strict liability
b/c that is easiest to prove.

Question 12

Elements for Strict Liability

Answer 12

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

Question 13

Only Merchants Can Be Held Liable

Answer 13

Any commercial supplier can be held liable.

Question 14

Does Not Extend to Casual Sellers

Answer 14

Casual sellers will not be held strictly liable.

Question 15

Does Not Extend to Services

Answer 15

• 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.

Question 16

Includes Commercial Lessors

Answer 16

• Most states include commercial lessors.
• Those who rent rather than sell products also can be held strictly liable.

Question 17

Includes Entire Distribution Chain

Answer 17

• Commercial suppliers include manufacturers, wholesalers, & retailers.
• Privity is not required—users, consumers, & bystanders can sue.

Question 18

Tip:

Answer 18

• 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.

Question 19

Types of Defects: Manufacturing Defects

Answer 19

• 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.)

Question 20

Design Defects

Answer 20

• 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).

Question 21

Government Safety Standards

Answer 21

• 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

Question 22

Information Defects

Answer 22

• 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.

Question 23

Existence of Defect When Product Left D’s Control

Answer 23

• 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.

Question 24

Misuse of Product May Be Foreseeable

Answer 24

• 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.

Question 25

Tip:

Answer 25

• Remember “foreseeable” use does not mean an “intended”/“appropriate” use. Many products are commonly misused in ways that could be considered foreseeable.

Question 26

Nature of Damages Recoverable

Answer 26

• Physical injury/property damage must be shown.
• Recovery will be denied if sole claim is for economic loss.

Question 27

Disclaimers Ineffective

Answer 27

• Disclaimers are irrelevant in strict liability cases if personal injury/property damages occur.

Question 28

Liability Based on Negligence

Answer 28

• 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.

Question 29

LBN: Who Can Sue?

Answer 29

• Privity w/ D is no longer required, so any
  foreseeable P can sue.

Question 30

LBN: Nature of Damages Recoverable

Answer 30

• Physical injury/property damage must be shown.
  (Recovery will be denied if sole claim is for economic loss.)

Question 31

LBN: Disclaimers Ineffective

Answer 31

• As w/strict liability, disclaimers are irrelevant in cases based on negligence if personal injury/property damages occur.

Question 32

Implied Warranties of Merchantability & Fitness

Answer 32

• 2 warranties implied in every SOGs that can serve as basis for suit by buyer against seller:

Question 33

Merchantability

Answer 33

• 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.

Question 34

Fitness for a Particular Purpose

Answer 34

• 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

Question 35

IWMF: Who Can Sue

Answer 35

• 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.

Question 36

IWMF: What Constitutes Breach?

Answer 36

• 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.

Question 37

IWMF: Causation

Answer 37

• Actual cause & proximate cause are handled as in ordinary negligence cases.

Question 38

IWMF: Damages

Answer 38

• Personal injury & property damages, & purely economic loss, are recoverable

Question 39

IWMF: Defenses

Answer 39

• 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).

Question 40

IWMF: Effect of Disclaimers

Answer 40

• Disclaimers are generally rejected in personal injury cases but upheld for economic loss.

Question 41

Representation Theories

Answer 41

• D may be liable when product does not live up to some affirmative representation.
• 2 representation theories are:
• Express warranty
• Misrepresentation of fact

Question 42

RT: Express Warranty

Answer 42

• 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.

Question 43

EW: Who Can Sue

Answer 43

• 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.

Question 44

EW: Breach

Answer 44

• Fault need not be shown to establish breach.
• P need only show product did not live up to EW

Question 45

EW: Causation, Damages, & Defenses

Answer 45

• Causation, damages, & defenses are treated just as under implied warranties

Question 46

EW: Disclaimers

Answer 46

• A disclaimer will be effective only in unlikely event that it is consistent w/ warranty.

Question 47

Misrepresentation of Fact

Answer 47

• 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.

Question 48

MOF: Justifiable Reliance

Answer 48

• Justifiable reliance required (representation was substantial factor in inducing purchase).
• Reliance need not be vic’s (may be prior purchaser’s).
• Privity is irrelevant.

Question 49

MOF: Causation & Damages

Answer 49

• Actual cause is shown by reliance.
• Proximate cause & damages: same as for strict liability.

Question 50

MOF: Defenses

Answer 50

• AOR not a defense if P is entitled to rely on representation.
• Contributory negligence: same as in strict liability unless D intentionally misreped

Question 51

Affirmative Defenses

Answer 51

• 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.