strict liability & product liability

Question 1

strict liability

Answer 1

animals, abnormally dangerous activities, product liability, private nuisance, public nuisance

Question 2

strict liability - animals

Answer 2

SL for foreseeable harm cause by trespassing animals (other than household pets)
SL for personal injury for domesticated animals ONLY IF you know of the animal’s dangerous propensity in advance.
SL for personal injury for wild animals AS LONG AS P doesn’t do something knowingly or voluntarily to cause her own harm.

Question 3

strict liability - abnormally dangerous activities

Answer 3

3 attributes:
1. The activity is incapable of being conducted except with high risk.
2. If harm occurs, it is likely to be severe
3. The activity must be uncommon, atypical, unusual in the community where it takes place
Harm must be within the risk (proximate cause - foreseeable)

Question 4

strict liability - product liability (product related injury)

Answer 4

1. D must be a merchant seller.
2. Product must be defective.
3. Defect must be in the same condition as when it left seller’s hands.
4. P made a foreseeable use of the product.

Question 5

strict liability - product liability (product related injury)
defective product

Answer 5

1. Manufacturing defect - product departs from its intended design
2. Design defect - product is made as intended but defectively designed

Question 6

strict liability - product liability (product related injury)
defenses

Answer 6

Contributory negligence will not bar recovery (No defense - bad for D, good for P)
Assumption of risk will bar recovery (valid defense - good for D, bad for P)

Question 7

strict liability - product liability (product related injury)
hints

Answer 7

1. When theory is negligence, wholesalers and retailers are off the hook.
2. An adequate warning usually insulates a D from SL.
3. If there is a “feasible alternative” for making a product safer, D is liable on a design defect theory WITHOUT REGARD TO A WARNING.
4. Foreseeable use is NOT the same as intended use.
5. If product use is incidental to performance of a service, SL is unavailable.

Question 8

strict liability - private nuisance

Answer 8

Conduct that causes substantial and unreasonable interference with the use and enjoyment of land.
Substantial and unreasonable interference - unreasonable vibrations, noise, smells, etc.
Remedies - Balance of utility of Ds conduct against gravity of harm to P. If U of D > H to P = no injunction, yes damages

Question 9

strict liability - public nuisance

Answer 9

Conduct that causes physical or moral harm to the public in general.
A private plaintiff can maintain a public nuisance action if he suffers harm different in nature than the general public at large.

Question 10

Vicarious liability - employer-employee

Answer 10

Employer is vicariously liable for employees’ torts committed WITHIN the scope of employment (frolic and detour)
Not liable for intentional torts unless violence is part of the job.
Not liable for independent contractors unless engaged in an inherently dangerous activity or public policy

Question 11

Vicarious liability - auto owner-auto driver

Answer 11

Generally, no VL
When driver is performing an errand for owner, liability may be premised on agency principles.
minority rules:
Family car states - owner is VL for the torts of any household member driving the car w/owner’s permission
Permissive use states - owner is VL for the torts of anyone using the car w/permission

Question 12

Vicarious liability - parent-child

Answer 12

No VL

Question 13

Multiple D’s - adjustment of rights

Answer 13

Joint and several liability - each D can be liable to P for the entire damage incurred (concert of action or indivisible harm)
Indemnity - passive D receives full reimbursement from active D
Contribution - paying D recovers proportional shares from other Ds

Question 14

Wrongful death and survival actions

Answer 14

NOT separate causes of action.
They are labels that apply to tort actions when the tort results in the victim’s death.
Wrongful death - lawsuits brought by a decedent’s beneficiaries for their own loss of support that deceased would have provided. (defenses still available)
Survival - lawsuits brought by a decedent’s estate for claims that deceased could have brought if she survived (subject to defenses had there not been a death.)

Question 15

immunity

Answer 15

Family immunity - none
Government immunity
a. No immunity when govt engaged in proprietary function (function that a private party would normally carry out)
b. Retains immunity when engaging in traditional government activity unless abrogated by statute
Charitable immunity - mostly abolished

Question 16

wrongful death

definition and remedy

Answer 16

Wrongful death - lawsuits brought by a decedent’s beneficiaries for their own loss of support that deceased would have provided. (defenses still available)
Recovery allowed only to the extent that the deceased could have recovered had she lived.