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Torts > Strict Liability (MBE) ≠ (NC) > Flashcards

Strict Liability (MBE) ≠ (NC) Flashcards

1
Q

Strict Categories

A
  1. Abnormally Dangerous Products
  2. Animals
  3. Defective Product
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2
Q

In strict liability, defendant is liable for?

A

In strict liability, defendant is liable for injuring plaintiff whether or not defendant exercised due care. As to certain activities, the policy of the law is to impose liability regardless of ∆’s fault

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3
Q

Wild Animal Rule

A

If the defendant keeps a wild animal and the plaintiff is injured because
+
the animal does something characteristic of that animal, the keeper
+
Injury
=
is strictly liable for that harm no matter how unforeseeable the result if it comes out of that characteristic

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4
Q

Domestic Pet Rule

A

The keeper of a domestic animal is not liable until

The keeper knows or should know of the animals dangerous propensity

Once dangerous propensity is known, the owner is strictly liable

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5
Q

An activity is abnormally dangerous when

A

The is an unavoidable, high risk, of serious harm
+
Activity is not a common activity

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6
Q

Examples of abnormally dangerous activities

4

A

(1) Blasting or dynamite,
(2) crop dusting,
(3) transporting toxic waste,
(4) fumigating

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7
Q

A πcan recover from ∆’s abnormally dangerous activity

A

If ∆’s activity was the cause in fact of π’s injury

{but for ∆ engaging} in the abnormally dangerous activity, they would not have been injured
or
{it was a substantial factor}

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8
Q

If an activity is abnormally dangerous, ∆ will be held in strict liability only if

A

π has to be injured by a risk that makes the activity abnormally dangerous or no strict liability

If outside of, have to prove negligence

Has to prove the proper type of harm

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9
Q

Where strict liability is applicable, defendant’s use of contributor/comparative negligence as a defense

A

may not raise π’s fault as a defense unless the π assumed the risk

π’s negligence will not effect their recovery

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10
Q

What are the eight elements of strict products liability?

The Checklist

A
  1. Proper Plaintiff
  2. Proper ∆
  3. Proper Context
  4. Defect
  5. Cause-in Fact
  6. Proximate Cause
  7. Damages
  8. SPL Defenses
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11
Q

Strict Products Liability (SPL) focuses on

A

the condition of the product

Not on the ∆’s conduct

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12
Q

SPL Proper Plaintiff is

A

any plaintiff who is a

  1. user,
  2. consumer or
  3. bystander

injured while using a defective product may recover damages from an appropriate defendant.

Do not have to be the purchaser

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13
Q

SPL Proper ∆ is

A

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product are potential ∆’s

Includes

  1. Manufacturer
  2. Wholesaler
  3. Retailer
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14
Q

What type of seller is not a SPL proper ∆

A

A one-time or occasional seller

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15
Q

SPL Proper Context is

A

When there is a product
≠ service
Sometimes in hybrid cases where goods predominate the transaction

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16
Q

Applying SPL when a product and service are given together

A

Which predominates the transaction?
The goods or the service?

If goods > service, then strict liability

If goods

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17
Q

SPL Defect Types

3

A
  1. Manufacturing Defects
  2. Design Defects
  3. Warning Defects
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18
Q

SPL manufacturing defects

A

A product comes out in a condition not intended by the manufacturer
+
Condition makes it more dangerous than the ordinary consumer would expect

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19
Q

For a π to prove a manufacturing defect

A
  1. came out in a condition not intended by manufacture
  2. Condition makes it more dangerous than the ordinary consumer would expect

≠ does not have to prove fault

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20
Q

SPL design defects

A

A product manufactured as the manufacturer intended but the
+
Product has a danger based upon the product design

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21
Q

SPL design defect tests

2

A
  1. Ordinary Consumer Expectation Test

2. Risk-Utility Balancing Test

22
Q

Ordinary Consumer Expectation Test

A

The product is more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

23
Q

If design defects are obvious to consumer, result for SPL

A

No SPL

24
Q

Risk-Utility Balancing Test used when

A

If the risk of the product as designed outweighs the utility of the product as designed, then the product is defective in design

25
Q

What to weigh in Risk-Utility Balancing Test?

A
  1. Likelihood of injury
  2. Gravity of injury

Utility

  1. Availability of a safe alternative design
  2. Impact of a safe alternative design
  3. Cost of a safe alternative design
26
Q

When are products exempt from SPL?

A

Unavoidably Unsafe Products/Comment K

Some products have extraordinary social utility and no alternatives.

EXAMPLES: Vaccines, prescription drugs, medical devices,

27
Q

Unavoidably Unsafe Products/Comment K are exempt from?

A

only design defect SPL

Still liable for other types of defects

28
Q

Types of warning defects

2

A
  1. Failure to Warn

2. Inadequate Warning

29
Q

A warning is inadequate if

A

The warning does not

1. Reasonably inform a foreseeable user of significant risk
it should reasonably inform the foreseeable audience

30
Q

There is a failure to warn if

2

A

If the manufacturer does not

a.   warn about significant risks of which it knows or should know; or,
b.   Gravity and probability of harm.

31
Q

Who may be sued for defects stemming from failure to warn?

A

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product can be sued for failure to warn.

Includes

  1. Manufacturer
  2. Wholesaler
  3. Retailer
32
Q

If a ∆ down the distribution chain is sued in SPL for failure to warn, then ∆ can recover by

A

right to indemnity to manufacturer

33
Q

When to use ordinary expectation test v. risk-utility balancing analysis?

A

Ordinary expectation test = manufacturing defects

Risk-Utility balancing analysis = design defects

34
Q

In SPL, the “cause in fact” element is satisfied

A

By connecting the ∆’s product to π’s injury by showing that

  1. But for the defect, the π would not have suffered the injury; or,
  2. If multiple causes of injury, then that the product defect was a substantial factor in the π’s injuries
35
Q

Proximate cause relationship to causing in fact

A

There is none

36
Q

Cause-in-fact is

A

The relationship between the conduct/product and the injury

37
Q

Proximate Cause in SPL, look for

A

An unforeseeable force that is so culpable that it will be seen as superseding and cuts off ∆’s liability

  1. A member of the distribution chain knowing of a defect and still selling the product.
38
Q

Learned Intermediary Doctrine

A

a proximate cause doctrine whereby
if a manufacturer provides a warning to a doctor, they can expect that the doctor will pass it on to the patient. If he does not do so, the doctor is a superseding cause.

39
Q

Can a π bring a SPL claim against a doctor for providing a defective drug?

A

No, because the doctor is providing a service

40
Q

Damages can be recovered in SPL

A

π suffers personal injury or property damage

> than just to the product itself

41
Q

When damage is limited just to the product itself, π can only bring a claim for?

A

for breach of warranty

≠ SPL nor negligence

42
Q

Defenses to SPL

3

A
  1. Misuse
  2. Alteration
  3. Assumption of Risk
43
Q

Defense of misuse is available for ∆in SPL if

A

If the π uses a product that is no
1. Intended; nor,
2. Foreseeable
Then the πhas misused the product and cannot recover in strict products liability

44
Q

Defense of Alteration is available for ∆in SPL if

A

A 3rd party unforeseeably changes the product
+
Change makes it dangerous

Then π cannot recover in strict products liability

45
Q

Defense of Assumption of the Risk is available for ∆in SPL, if?

A

Has to be > unreasonable

  1. Know of the defect,
  2. Comprehends the consequences of the defect,
  3. Voluntarily elects to expose himself to that danger
46
Q

How to analyze a products liability claim on a negligence theory
(4)

A
  1. Any foreseeable plaintiff is entitled to bring an action.
  2. Analyze the conduct of each defendant and ask whether it was reasonable.
    a. Differentiate from strict products liability, which considers the product rather than the person.
  3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory.
  4. Negligence defenses apply.
47
Q

Focus for claiming products liability in negligence v. SPL

A

Negligence focuses on: acts of ∆’s

SPL focuses on: product

48
Q

Express warranty exists where

A

Any ∆ makes a representation as to the nature or quality of the product
+
Representation becomes the basis of the bargain

49
Q

Products Liability on a Warranty Theory can be found upon

2

A
  1. Violation of an express warranty

2. Violation of a implied warranty

50
Q

Implied warranty of merchantability

A

Where a merchant deals in goods of a particular kind,
+
sale of such goods constitutes an implied warranty that those goods will be merchantable, that is,
1. they are of average quality for goods of that kind; and,
2. generally fit for their intended use

51
Q

Problems with advancing a implied warranty of merchantability in a products claim
(2)

A

There a privity and notice requirements (only buyer will likely have a claim)

The warranty can be disclaimed by merchant

52
Q

When the harm is just to the product itself, what is the cause

A

Breach of warranty

Torts (5 decks)

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