Strict Liability & Products Liability

Question 1

In Torts, strict liability is only imposed in which 3 scenarios?

Answer 1

1. Abnormally Dangerous activities;
2. Wild Animals; and
3. Defective products

Remember “DAD”

Question 2

What type of duty does D have in strict liability situations?

Answer 2

To make activities absolutely safe. D will be liable for P’s injuries even if D was not negligent.

Question 3

Elements needed to establish a prima facie case for strict liability

Answer 3

1. D’s activities impose an absolute duty to make safe;
2. Breach of duty;
3. Actual cause;
4. Proximate cause; and
5. Damages

Question 4

When is D strictly liable for injuries resulting from a wild animal?

Answer 4

When P’s injuries are:

1. Unprovoked; and
2. Caused by the animal’s foreseeable dangerous propensities or characteristics

⚠️ Note: D is only liable for injuries caused by the animal’s dangerous propensity. For example, if D owns a lion, and P is injured because she is allergic to the lion’s hair, D will not be strictly liable.

Question 5

Define

wild animal

Answer 5

Animals that, as a matter of common knowledge, are naturally:

• Ferocious;
• Unpredictable;
• Dangerous;
• Mischievous; or
• Not by custom devoted to the service of mankind where they are kept

Question 6

Is D liable to undiscovered trespassors for injuries from wild animals on their property?

Answer 6

No, D’s do not owe a duty to undiscovered trespassers for injuries from a wild animal, but may be liable for injuries from a vicious watchdog.

Question 7

Is D strictly liable for injuries caused by domesticated pets?

Answer 7

D is only liable for negligence unless:

• D knows or should know of the animal’s dangerous propensity; and
• Harm is caused by dangerous propensity

Question 8

Is D strictly liable for harm caused by his animal trespassing on another’s land?

Answer 8

Yes, for reasonably foreseeable harm

⚠️ Exception: D is not strictly liable for damage caused by household pets

Question 9

Define

abnormally dangerous activity

Answer 9

1. Not of common usage; and
2. Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors (i.e. cannot be performed safely no matter how much care is exercised)

Question 10

What are common abnormally dangerous activities?

Answer 10

• Blasting
• Mining
• Transporting toxic waste
• Fumigating
• Using explosives

⚠️ Not an exhaustive list

Question 11

Is D strictly liable for all injuries resulting from abnormally dangerous activities?

Answer 11

No, only for harm that made the activity abnormally dangerous

Ex. If Max is hit by shrapnel in an explosives accident, D will be held strictly liable.

However, if Max is injured b/c D dropped the box of explosives onto Max’s foot and broke it, D will not be held strictly liable because that isn’t the sort of harm that makes explosives abnormally dangerous.

Question 12

Is contributory negligence a defense to strict liability?

Answer 12

Contributory negligence jurisdictions: No

Comparative-fault jurisdictions: Yes, can reduce recovery

Question 13

Is assumption of risk a defense to strict liability?

Answer 13

Yes, bars recovery

Question 14

Products liability claims can be brought on what 3 legal bases?

Answer 14

1. Strict liability;
2. Negligence, or
3. Breach of warranty

Question 15

Elements of a strict products liability claim

Answer 15

1. D is a commercial manufacturer or supplier of the product;
2. Product was defective;
3. Defect existed when D sold the item;
4. P used the product in an intended or foreseeable way; and
5. Defect was an actual and proximate cause of P’s injuries

Question 16

What type of seller cannot be sued on a strict products liability claim?

Answer 16

One-time or occasional seller

Question 17

Who has standing to sue on a products liability claim?

Answer 17

Any foreseeable:

• User
• Consumer
• Bystander

Question 18

What are the 3 types of product defects?

Answer 18

• Manufacturing defects;
• Design defects; and
• Warning defects

Question 19

Define

manufacturing defect

Answer 19

Exists when:

1. The product is not produced in an condition intended by the manufacturer; and
2. The condition makes it more dangerous than the ordinary consumer would expect

Question 20

Define

design defect

Answer 20

Defect that makes the product inherently dangerous because of its design

Question 21

What are the 2 tests to determine whether there are a design defects?

Answer 21

1. Consumer Expectation test; and
2. Risk-Utility test

Question 22

What is the consumer expectation test?

Answer 22

Asks: Is the product more dangerous than the ordinary consumer would expect? If yes, a defect likely exists.

Question 23

What is the risk-utility test?

Answer 23

P must prove:

1. Reasonable alternative design was available to D; and
2. Failure to use that design rendered the product not reasonably safe

Question 24

When is there a failure to warn?

Answer 24

When there is an inadequate warning of foreseeable, non-obvious risks of harm

Question 25

How is the duty to warn satisfied for prescription drugs?

Answer 25

“Learned intermediary” rule: If prescription drug is administered by a medical professional, duty to warn is satisfied if medical professional is informed of the risks b/c there is a presumption the doctor will inform patient.

⚠️ Exception: Company still has duty to warn if company knows medication will be administered w/o physican oversight or if required by federal law

Question 26

How is the duty to warn satisfied if the product is unavoidably unsafe?

Answer 26

D must provide:

1. Instructions for usage; and
2. Sufficient warning of foreseeable dangers

Question 27

Who is included in the chain of distribution?

Answer 27

• Manufacturer;
• Distributor; and
• Commercial/retail seller

Question 28

Is the supplier of a component part liable for product defects?

Answer 28

Yes, if:

1. Component itself was defective; or
2. Supplier substantially participated in the manfucturing of the product and participation was integral to the defect

Question 29

When are damages allowed in strict products liability cases?

Answer 29

When there is either personal injury or property damage.

⚠️ Note: Recovery for only economic loss is not allowed

Question 30

What are the defenses to strict products liability claim?

Answer 30

1. Unforeseeable user misuse/alteration/modification
2. Assumption of risk; or
3. Product changed significantly after it left D’s control

⚠️ Note: whether or not defense is a complete bar will depend whether or not it is a comparative fault or contributory negligence jurisdiction. Make sure to read the question carefully.

Question 31

When is P considered to have “assumed the risk”?

Answer 31

1. P knew of the defect/danger;
2. P comprehended the consequences of the defect/danger; and
3. P voluntarily exposed himself to that danger

Question 32

Is compliance with governmental regulations conclusive evidence that the product is not defective?

Answer 32

No, there must be other evidence showing lack of defect to absolve D of liability

Question 33

Elements of a products liability negligence claim

Answer 33

1. Commercial seller owes a duty of care to foreseeable users/P’s (bystanders, etc);
2. Seller breached duty by failing to reasonably inspect product;
3. Breach was actual and proximate cause of injury; and
4. P suffered physical damages or property damages (economic losses are insufficient)

Question 34

Define

express warranty

Answer 34

D makes a representation as to the nature or quality of the product that becomes the basis of the bargain

Question 35

What are the 2 implied warranties?

Answer 35

1. Merchantability; and
2. Fitness for a particular purpose

Question 36

Define

implied warranty of merchantability

Answer 36

Warrants that the goods being sold are of acceptable quality and fit for their intended use

Question 37

Define

warranty of fitness for a particular purpose

Answer 37

Exists when the seller knows the product is being purchased for a specific purpose and the buyer relies on the seller’s expertise.

Ex. Max goes to Home Depot and asks the plant specialist to recommend the best food for his indoor orchids. The plant specialist recommends Orchids Alive, and Max buys the product in reliance on the plant specialist’s recommendation.

Question 38

Can a seller disclaim warranties?

Answer 38

Yes, but cannot limit consequential damages for personal injury

Question 39

What are the defenses to breach of warranty?

Answer 39

1. Assumption of risk;
2. Comparative fault;
3. Contributory negligence; and
4. Misuse (breach of implied warranty of merchantability only)