Strict Liability & Multiple Defendants Issues Flashcards
strict liability - what it is; PF case
• Strict liability means liability without fault. It is imposed in three types of cases: wild animals, abnormally dangerous (ultrahazardous) activities, and products liability.
• Strict liability requires the same four elements as negligence, except the defendant has an absolute “duty” to make the item or activity safe.
»> so you still need to show CAUSATION and DAMAGES
strict liability - animals (wild animals)
• Wild Animals (e.g., tigers, venomous snakes, bears). The defendant is strictly liable for injuries caused by his or her wild or dangerous animals.
– This liability is limited to the normally dangerous propensity of the wild animal (a bite by an alligator or a scratch by a tiger, but not chlorine damage to clothes caused by the splashing of a pet shark).
»> INCLUDES damages suffered by a person attempting to flee from the animal!
– Strict liability for dangerous animals is limited to licensees and invitees. Intentional trespassers (e.g., those who ignore “no trespassing” signs) must prove NEGLIGENCE
– Strict liability also does not apply to zoos.
strict liability - animals (domestic animals - SL and N)
• Domestic Animals (e.g., dogs, cats, livestock)
– Strict Liability: The possessor of a domestic animal with a KNOWN dangerous propensity (e.g., biting) is strictly liable for harm done as a result of that dangerous propensity. This includes animals trained to be vicious (e.g., guard dogs).
»> **the propensities must be more dangerous than normal for that species
– Strict liability for dangerous animals is limited to licensees and invitees. Intentional trespassers (e.g., those who ignore “no trespassing” signs) must prove NEGLIGENCE
– Negligence: If the domestic animal has no known dangerous propensities and has not been trained to be vicious, there is no strict liability but the possessor may be liable for negligence if her maintenance of the animal is unreasonable.
strict liability - animals (trespass of livestock)
• 3. Livestock (e.g., cattle, sheep, horses, but not cats and dogs). Landowners are strictly liable for damage done by the REASONABLY FORESEEABLE TRESPASS of their domestic animals.
(the reasonably foreseeable part sounds wrong - sounds like negligence)
strict liability - abnormally dangerous/ultrahazardous activities (examples; culpability; defenses)
• 1. Examples of such activities. manufacturing, using or storing explosives; crop dusting; fumigating; operating nuclear reactors; manufacturing, using or storing toxic chemicals or hazardous (and probably flammable) materials.
• 2. Culpability. Defendant’s conduct is IRRELEVANT; in other words, if a defendant is involved in an abnormally dangerous activity and the plaintiff is injured as a natural consequence of that activity (e.g., blasting damage or irradiation), the defendant is strictly liable.
»> The injury MUST, however, be caused by the normally dangerous propensity of the activity; in other words, an explosives manufacturer is not strictly liable for normal truck accidents that do not involve explosions.
• 3. Defenses. Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not.
»> remember, for implied assumption of the risk, plaintiff must be AWARE of the risk and VOLUNTARILY PROCEED anyway
»> Many states apply comparative fault principles to strict liability cases.
»> TRADITIONAL RULE said that knowingly encountering a dangerous situation BARS recovery
strict liability - products liability (res ipsa loquitor)
• Res Ipsa Loquitur. A jury may infer that a product was defective at the time of sale if the accident was of a kind that ordinarily occurs as a result of a defect and no other cause was identified.
strict liability - products liability (negligent products liability - rule; PF case; defenses)
• 1. Negligent Products Liability. Anyone who negligently designs, manufactures, or inspects a product, or negligently fails to provide adequate warnings, may be sued for negligence.
– In a negligence products liability case, the plaintiff must prove the four elements of negligence.
– The traditional negligence defenses apply to negligent products liability claims.
strict liability - products liability (negligent products liability - who may be the parties)
– a. Who may be a defendant?
• Manufacturers: Manufacturers of products may generally be sued for negligent products liability if the finished product or any component therein is defective due to the manufacturer’s negligence.
• Others: As a general rule, wholesalers and retailers MAY NOT BE SUED for negligent products liability because they rarely commit negligent acts in the design, manufacture, or inspection of a product, or in the provision of adequate warnings.
»> Thus, unless the facts of a question clearly provide that a wholesaler or retailer committed a negligent act (e.g., negligently modifying a product, failing to detect an obvious defect, or selling a product with actual knowledge of the defect), those parties are not liable for negligence.
»> A negligent inspection by a retailer does not absolve a manufacturer of liability.
– c. Who may be a plaintiff?
• There is no real privity requirement for negligence actions; any foreseeable plaintiff may sue. This includes purchasers of the product, family members, guests, and even bystanders.
strict liability - products liability (liability for product used as minor part of service)
• There is no strict liability (but possibly negligence liability) if the product is used as a minor part of a service (e.g., blood in an operation).
strict liability - products liability (premise & elements)
Strict Products Liability. This liability is imposed where a “defective” condition of a product renders it “unreasonably dangerous.”
Elements:
– defendant is a MERCHANT
»> i.e. any “commercial” supplier, including the manufacturer, wholesaler, retailer of new or reconditioned/rebuilt/re-manufactured goods or components and commercial lessors
»> *****SO NOT NON-COMMERCIAL SUPPLIERS (e.g., a consumer selling in a garage sale or any consumer down the line!; or an auctioneer; or a service provider like someone administering a shot; or the product’s designer!).
»> ask yourself: WHO IS BEING SUED
– product is DEFECTIVE (making it unreasonably dangerous), AND
(1) defective design
(2) defective manufacture, and/or
(3) failure to warn or inadequate warnings (a/k/a informational defect)
– product was NOT SUBSTANTIALLY ALTERED since leaving defendant’s control
»> product will be PRESUMED to have been defective when it left each defendant’s control if it moved in the normal chain of commerce (i.e. privity of contract between plaintiff and defendant not required)
»> if a retailer or wholesaler is held liable, that person will generally have a claim for indemnity against the manufacturer.
strict liability - products liability (2 defenses and trend)
– a. Misuse. Misuse of a product is NOT A DEFENSE, UNLESS the misuse was unforeseeable or unreasonable.
»> ex) it’s not necessarily unforeseeable that someone would stand on a chair and potentially injure themself - REALLY JUST FOCUS ON THE FACTS AVAILABLE TO THE MANUFACTURER
– b. Implied Assumption of the Risk. Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not.
»> remember, for implied assumption of the risk, plaintiff must be AWARE of the risk and VOLUNTARILY PROCEED anyway
– c. Trend. Many jurisdictions use comparative fault in strict products liability cases, where the jury apportions responsibility for the defendant’s defective product, the plaintiff’s assumption of the risk, and the plaintiff’s reasonable misuse.
»> According to the Restatement (Third) of Torts, “unreasonable misuse” is still a complete bar to recovery.
»> TRADITIONALLY, knowingly encountering a dangerous situation BARS recovery
strict liability - products liability (warranty liability)
• 3. Warranty Liability. A defendant may also be held strictly liable for breach of an express or implied warranty (e.g., the implied warranty of merchantability or the implied warranty of fitness for a particular purpose). Warranty liability is governed by the U.C.C.
»> Warranty claims require HORIZONTAL PRIVITY between the plaintiff and defendant (e.g., no bystander liability) and pre-suit notice of the claim.
– In most states, if the plaintiff seeks only direct economic loss (i.e., loss of value to the goods themselves) or consequential economic loss (e.g., lost profits), the plaintiff must sue under contract law (i.e., breach of warranty), and not tort law. **i.e. you need an injury for tort law
vicarious liability - premise
• There are some situations where one person is strictly liable for the torts of another person, regardless of fault (the person who actually committed the tort would also be liable).
vicarious liability - respondeat superior
– Respondeat Superior.
– An employer is secondarily responsible for the torts (NEGLIGENCE) of its employees that occur within the scope of the employment relationship
– As a general rule, an employer is NOT vicariously liable for the INTENTIONAL TORTS of its employees, UNLESS such torts were committed in the furtherance of the employer’s business (e.g., a bouncer, security guard, bill collector, repo man).
• In some jurisdictions, an employer is vicariously liable for the intentional torts of its employees, unless such torts are “wholly unforeseeable and personal” or “so unusual or startling that it is unfair to hold the employer liable.”
• ***An employer may be held DIRECTLY (not vicariously) liable for the intentional tort of an employee if the employer negligently hired, retained, or supervised the employee.
»> example: the hypo with the mall security guard who was off duty and shot someone in a bar – employer was DIRECTLY liable because it failed to do a proper background check
– In addition, an employer is NOT liable for an employee’s tort if the tort occurs while the employee is engaged in a FROLIC (e.g., a major deviation from employee’s duties), BUT the employer is liable if the tort occurred during a DETOUR (e.g., a minor deviation from employee’s duties).
vicarious liability - 4 relationships where it exists; 4 relationships where it DOES NOT exist
Where there IS vicarious liability:
- employer/employee
- Officers and Directors of a corporation (if the tort is committed in the scope of the corporation’s business)
- Partners (if the tort is committed in the scope of the partnership’s business)
- Joint Venturers (if the tort is committed in furtherance of the joint venture)
Where there IS NOT vicarious liability (with exceptions!):
- Car owner - driver
- Parent - child
- Independent Contractor - Principal
- Bailor – bailee
