Strict Liability (SL), Warranties, Nuisance, & Grab Bag Topics

Question 1

Strict Liability PFC

Answer 1

1. nature of Ds activity imposes an absolute duty to make safe
2. the dangerous aspect of the actvity was the actual and proximate cause of Ps injury
3. and the P suffered damage to person or property

Question 2

Areas of Strict Liability

Answer 2

1. SL for Injuries caused by animals
2. SL for Abnormally dangerous activities
3. SL for Defective Products

Question 3

Strict Liability to Animals Groupings

Answer 3

Animals divided into 2 groups

1. Domesticated - Pets and livestock
2. Wild Animals

Question 4

Strict Liability for Domesticated Animals (Pets & Livestock)

Answer 4

• No strict liability - no liability
• Exception:
  
  • If you have knowledge of vicious propensities of the particular domestic animal, then strict liability
    
    • Propensity Cannot be common to the species as a whole

Question 5

Rule for Strict Liability on Dogs

Answer 5

• once your dog has bitten someone, you have knowledge your dog has vicious propensity (every dog gets 1 free bite)
  
  • Exception to this notice:
    
    • No strict-liability to trespasser on your own land

Question 6

Strict Liability on Wild Animals

Answer 6

If you keep wild animals - you are strictly liable

• Ex: Zoos, Carnivals, Tiger owner

Rule:

• Safety precautions are irrelevant because it is strict liability

Question 7

Strict Liability for Abnormally Dangerous Activities Test:

Answer 7

1. Activity creates a serious risk of foreseeable harm even when reasonable care is being exercised; and
   
   • Cannot be made safe with existing tech
2. The activity is not common within the community for which it is done
   
   • Ex: Crop dusting in SF

SAFETY PRECAUTIONS ARE IRRELEVANT

Question 8

Activites that are Abnormally Dangerous for Strict Liability

Answer 8

1. Blasting
2. Dealing w highly toxic chemical or biological material
3. Anything involving high quantities of radiation and nuclear energy (not X-ray machine)

Question 9

Strict Liability for Defective Products and Test

Answer 9

P will probably have multiple COA under these scenarios. SL is one of many

4 elements

1. D must be a merchant
2. Product must be defective
3. Product not altered since leaving Ds hands
4. P was making a foreseeable use of the product at time of accident or injury

Question 10

A merchant for strict liability of Defective Products + Who is/isn’t a merchant

Answer 10

• A merchant is someone who routinely deals in goods of this type
• Who is Not a Merchant:
  
  1. Casual sellers (garage sale, Ebay, newspaper add) are not merchants
  2. Service providers are not merchants for products incidental to the service
• Who is a Merchant:
  
  1. Commercial lessors (someone who rents stuff) are merchants and can be held SL
  2. Every party in a distribution chain is a merchant and thus every party can be held SL
     
     • Not limited to retailer

Question 11

Ways in which a product may be defective for Strict Liability of Product Defects

Answer 11

Look to product, not person

3 ways it may be defective

1. Manufacturing defect
2. Design defect
3. Information defect

Question 12

Manufacturing Defect

Answer 12

If it differs from all the others that came off the same assembly line in a way that makes it more dangerous than consumers would expect

Ignore safety precautions

Question 13

Design Defect and Rule

Answer 13

When there is an alternative way to build it that is a viable safer design

1. The design must be practical
2. It has to be only a little bit more expensive than the original

Comparison of risk v utility of the two designs

Question 14

Information Defect Test

Answer 14

1. When a product has residual risk
2. that cannot be designed out
3. and consumers are unaware of those risks
   
   • Obvious risks don’t need to be warned like a knife
4. and the product lacks adequate warnings
   
   • May need to be in words, multiple locations, in multiple languages

Question 15

Product Not Altered Since Leaving Ds Hands Element to Strict Liability for Product Defects

Answer 15

This element is presumed satisfied if moved in ordinary channels of distribution

BoP switches to D to prove it was altered after it left their hands

Question 16

P was making a foreseeable use of the product at time of accident or injury element to strict liability for product defects

Answer 16

Test is foreseeability

A foreseeable use is not necessarily a proper or intended use

Ex: standing on a chair is foreseeable

Question 17

Affirmative Defense to Strict Liability for Product Defects

Answer 17

Only defense available is comparative responsibility

It’s the same as comparative fault under negligence

Question 18

Damages for Strict Liability

Answer 18

Physical Injury or Property Damage must be shown

Recovery will be denied if the sole claim is for economic loss

Question 19

Implied Warranties

Answer 19

1. Merchantability
2. Fitness

Question 20

Implied Warranty of Merchantability

Answer 20

whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used.

Question 21

Implied Warranty of Fitness

Answer 21

when the seller knows or has reason to know the particular purpose for which the goods are rquired and that the buyer is relying on the seller’s skill and judgment in selecting the goods

Question 22

Nuisance

Answer 22

Harm: An interference with somebody’s ability to use and enjoy somebody’s property to an unreasonable degree

Question 23

Rules for Nuisance

Answer 23

• D can only be liable if intentionally, negligently or engaged in inherently dangerous activity
  
  • Intent is presumed if you know it’ll come to pass
• Degree of interference has to be significant
• Courts will balance the interests of the parties

Question 24

3 grab bag topics that can be used anywhere

Answer 24

1. Vicarious liability
2. Co-Defendants
3. Loss of Consortium Claims

Question 25

Vicarious Liability and Its Relationship

Answer 25

Always triggered by a relationship of some kind (3 parties +)
4 relationships

1. Employer-employee
2. A hiring party- independent contractor
3. Owner-Driver
4. Parents-kids

Vicarious liability is always a doctrine of last resort

Question 26

Employer-employee Vicarious Liability and Its Exceptions

Answer 26

Employer is only vicarious liable if employee was acting within the scope of employment

Intentional torts are outside scope of employment

Exceptions:

1. If job involved an authorized use of force
   
   • when the force is misused there will be vic liability
2. Friction is generated by employement
   
   • Ex: bill collector
3. If it is done out of a misguided desire to serve bosses purposes

Question 27

Independent Contractor Vicarious Liability & Exception

Answer 27

No vicarious liability for IC

Exception:

• If you are a business owner and you hire an IC to work on the property, you are vic liable if an invitee is hurt on that property

Question 28

Owner-driver Vicarious Liability and its Exception

Answer 28

Owner not liable for torts of driver

Exception:

• If you are doing an errand for me

Question 29

Parent-Kids Vicarious Liability

Answer 29

Parents are not vic liable for torts of their kids

No exceptions

Question 30

Co-Defendants

How much can the D who paid get from the co-defendant?

Answer 30

• Comparative contribution
  
  • Collects from other guys based on comparative fault
• Indemnification (full reimbursement)
  
  • Entitled when:
    
    1. Out of pocket party was only vic liable, can get indemnity from the active tortfeasor
    2. Or retailer held strictly liable for a product from the manufacturer

Question 31

Loss of Consortium Claims

Answer 31

• The uninjured spouse gets the same claim against the Ds, the uninjured spouses claim is derivative (can raise the same defense against both Ps)
• Theory is to allow recovery for:
  
  1. Loss of services
  2. Loss of being able to talk to society
  3. Loss of sex