Strict Liability Terms Flashcards
Strict Liability for “Abnormally Dangerous” Activities
‘True’ strict liability in tort
- the intentional aspect of property torts is absent
- common law doctrine not part of a tort replacement scheme (such as workers compensation)
Very limited in application
1. Keeping of wild animals
2. use of explosives, radioactive materials
3. Keeping of artificial reservoirs
4. Plutonium production and production/transport of other highly hazardous chemicals (but not transport of acrylonitrile - Posner)
5. Damage on ground from airline crashes/debris and forced landings
But courts have resisted extending this form of strict liability to other kinds of conduct (ex: oil drilling/fracking, parachuting
Rest 2d 519: a party carrying on an “abnormally dangerous activity” is strictly liable for the ensuing damages
Even if P has proven that D’s conduct constitutes an abnormally dangerous activity, she must still demonstrate that the activity was an actual and proximate cause of her injuries
Rest 2d 520: factors used in determining whether an activity is “abnormally dangerous”
- Existence of a high degree of risk of some harm to the person or land of others;
- Likelihood that the harm that results from it will be great;
- Inability to eliminate the risk by exercise of reasonable care
- Extent to which activity is not a matter of common usage.
- an activity is a matter of common usage if it is carried on by the great mass of mankind or by many people in the community (Ex: driving a tank blasting, explosives, and drilling oil) - Inappropriateness of the activity to the place where it is carried on
- Extent to which its value to the community is outweigh by its dangerous attributes.
Any one of these factors is not dispositive, and it is not necessary that each factor be present. It is not possible to reduce “abnormally dangerous activities” to any definition. However, all factors must be considered an inquiry.
Whether an activity is “abnormally dangerous” as a question of law for the judge
Rest 3d formulation: Abnormally Dangerous Activities
Liability for Physical and Emotional Harm 20(b) (2010)
An activity is “abnormally dangerous” if it:
- Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
- [is] not one of common usage
- 1st torts Rest. Used “non-natural activities” dubbed ultrahazardous, then 2d used “abnormally dangerous” activities, which is what 3d uses
- courts are weary to extend strict liability
Conditional Fault
Judge Robert Keeon wrote Conditional Fault in the Law of Torts and argued that the distinction between negligence liability and liability without fault can be understood by distinguishing two types of fault:
-
negligent conduct = activity that violates norms of behavior, even if actor has made provision for payment for damages his behavior causes
(Ex: careless driving is condemned to injuries even if he has insurance - Liability fault or conditional fault = conduct we treat as permissible if the actor who undertakes it stands ready to provide reasonable compensation to those injured by such conduct
(Ex: blasting is permissible only on the condition that those who engage in it are prepared to compensate those are injured by it)
Limits on Strict Liability for Abnormally Dangerous Activities
- p must be the right kind of victim (a bystander, not a participant
- Right kind of injury—no recovery for emotional distress, at least absent physical injury
- injury must come in the right manner
- intervening act of a third-party do not relieve D’s from strict liability if those acts were reasonably foreseeable (ex: Klein v. Pyrodyne) —> encourages participants in abnormally dangerous activities to take precautions
Defenses such as comparative fault and assumption of risk will typically today apply on the same terms as they do for negligence claims
Products Liability’s Contract Heritage: Warranty
Warranty = an assurance or promise of quality (express or implied)
Pro consumer Aspect
- warranty liability strict, not fault-based
- seller warrants quality, not reasonable care as quality
Pro-Seller Aspects
- source of duty is contract —> privity often retains a limit
- Seller can try to disclaim all warranties “as is”
- Prior to consumer may be required to give timely notice of breach and opportunity to cure
Henningsen (NJ 1960): the Macpherson of warranty law:
- Warranty of fitness is implied with any sale of car
- Warranty disclaimers limits held void against public policy
- warranty extends the product users not in privity
Spectrum of strictness for PL:
Fault-Based, Absolute & Defect-Based Liability
Fault-Based = D’s carelessnessly made product caused harm
Defect-Based = D’s defective product caused harm
Absolute = Requires P to prove that she was actually injured by product, regardless if it had a defect
Why a special rule for injuries caused by products?
Traynor’s Escola concurrence created a tort (special products liability)
Precedent - criminal liability for tainted food sales; warranty
Procedural Fairness - for many product-injuries, fault is too difficult to prove
Judicial candor - “Fault” liability is often strict in practice (juries)
Consumer Protection - Strict liability vindicates the consumer’s right to safety
Deterrence - Strict liability will better promote safe products
Compensation - Strict liability achieved better loss-spreading
Special Liability of Seller of Product for Physical Harm to User or Consumer (R2402A)
(1) one who sells any product in a defective condition and reasonably dangerous to the user of consumer or to his property is subject to liability for physical harm, thereby caused to the ultimate user or consumer or to his property if..
a) the seller is engaged in the business of selling such a product, and
b) it is expected to reach the user or consumer without substantial change in the condition in which it sold
(2) the real subsection 1 applies although
a) the seller has exercised all possible care in the preparation and sale of his product; and (—> no fault)
b) the user or consumer has not bought the product from or entered into any contractual relation with the seller (—> no privity)
Liability of commercial seller or distributor for harm caused by defective products (rest 3d, 1)
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect
- Reaffirms the idea that a commercial seller is subject to liability for causing injury through the sale of a defective product
Who is a potential strict products liability D?
Manufacturer, distributor, commercial retailer
NOT: casual sellers (don’t carry inventory, don’t have an open market), sellers of services (generally), sellers of used goods
Strict Products Liability - Prima Facie Case (and how it’s different than negligence)
- Injury
- Product sold by D
- Product was defective at time of sale
- Causation
-actual
-proximate
*strict products liability eliminates the need to ID unreasonable conduct on the part of D (similar to breach)
Types of Product Defects
Manufacturing Defect = Diverges from the manufacturer’s own specifications for the product, isolated “lemon” (ex: Escola’s Coca Cola bottle)
- easiest to prove
- Doesn’t need to be mass produced to have a manufacturing defect
- Defect will be charged to the manufacturer as long as it emerges while product is in its control or possession
Design Defect = a flaw in the planner specifications for the product, may be small or technical or may go to the essence.
- flawed Product line; usually a class action
- have to claim as a reasonable alternative design (safer way to design it)
- controversial what criteria should be used to determine if design is defection. Some considered:
- Significance of the risks of physical injury posed by design
- How ordinary consumers would expect the product to function
- whether there is a feasible safer affordable alternative design
Circumstantial Evidence Supporting Inference of Product Defect (Rest. 3d, 3)
May be inferred that harm caused by product defect existing at the time of sale without proof of a specific defect when the incident that harmed P:
a) was ** of a kind that ordinarily occurs** as a result of a product defect and
b) was not in the particular case solely the result of causes other than product defect existing at the time of sale or redistribution
*res ipsa (on steroids) WITHOUT exclusive control
