Strict Liability Torts Flashcards
Note: to recover for a strict liability tort, the plaintiff still must show duty (in this case, absolute), actual and proximate causation, and damages.
1) Animals
a) Wild animals
i) Definition: The following are wild animals: Bears, tigers, lions, bobcats, killer bees, monkeys, and skunks. This list is not exhaustive.
ii) Rule: strict liability applies to injuries caused by wild animals if such injuries are the foreseeable result of having a wild animal.
(1) Note that any safety precautions are irrelevant in a strict liability case. Knowledge of the animal’s tendencies for violence is irrelevant. (It does not matter if the animal had never shown any violent tendencies). And the fact that the animal is secretly not dangerous is irrelevant (e.g., an animal that has been declawed, etc.).
(a) Ex.: Defendant has a pet tiger named Tigger. Tigger has been raised in captivity, has no teeth, and is extremely friendly. Everyone in the neighborhood knows Tigger. One day, a friend of a neighbor sees Tigger sitting on the driveway. Terrified, the friend runs away and breaks his leg.
Tigger’s owner is liable. Even if Tigger was not dangerous, Tigger is a wild animal and it is foreseeable someone could run away upon seeing him and hurt themselves during the escape.
(b) Ex.: Compare—same as above except while Tigger is laying out in the sun on the driveway, a neighborhood child (who knows Tigger and is not afraid of him) trips over his tail. The child will not be able to recover against the owner in strict liability because the harm the child suffered
(tripping over a wild animal) is not the harm that the law seeks to avoid. That is, proximate cause is missing.
iii) Note that strict liability is not available to a discovered or undiscovered trespasser. (If a trespasser is on someone’s land, he can sue under a theory of negligence but not strict liability!)
(1) Note: a landowner cannot use deadly force to protect his property (e.g., a vicious guard dog) and could be liable for using such deadly force.
b) Domestic animals
i) Definition: Domestic animals and farm animals are not wild animals. Thus, the following are domestic animals: dogs, cats, rabbits, horses, cows, sheep, and honey bees.
ii) Rule: There is no strict liability. Show negligence.
(1) The owner of a domestic animal (and farm animal) is not strictly liable for injuries it causes. The owner is strictly liable only if the owner has knowledge of the particular animal’s abnormally dangerous propensities (this applies even if the animal has never actually hurt anyone) and harm results from the animal’s dangerous propensity, although he has exercised the utmost care to prevent it from doing the harm.
2) Abnormally dangerous activities
a) Definition:
i) an abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised, and
ii) the activity is not a matter of common usage in the community.
b) Key words: look for a nuclear power plant, explosives, dynamite, blasting, mining, etc.
i) Ex.: A defendant drives a truck full of explosives. If the truck crashes and hits a pedestrian (but does not explode), strict liability will not apply. However, if the truck explodes and the pedestrian is hit by debris,
strict liability applies. The type of harm suffered must be what made the activity abnormally dangerous in the first place.
ii) Ex.: Many courts find that lighting fireworks is an abnormally dangerous activity. However, some courts find that they are a matter of common usage. The Second Restatement (which analyzes several factors in determining if an activity is abnormally dangerous, including “value to the community”) would likely not find that lighting fireworks is abnormally dangerous.
3) Products liability
a) Besides strict liability, there are other causes of action for injuries caused by products. Read the call of the question carefully when answering a question about a defective product. The most common claims are negligence with respect to the product or breach of warranty.
b) Strict products liability: (mnemonic = PDF)
i) Proper parties (proper plaintiff and proper defendant)
(1) Proper plaintiff
(a) The plaintiff can be any consumer, user, or bystander who suffers an injury as a result of the product. There is no “privity” requirement for strict products liability.
(2) Proper defendant
(a) Defendant must be a merchant.
(i) A merchant is someone who routinely deals in goods of this kind.
1. Casual sellers of goods are not merchants (e.g., a person selling
something in a bake sale or a student selling a book on Amazon is not a
merchant).
2. Service providers that make a product available incidental to service are not merchants.
a. Ex.: A dentist surgically puts a new tooth in a patient. If there is a problem with the tooth, the dentist is not strictly liable as she is not a merchant.
(ii) Note that every party in the distribution chain is liable! The manufacturer, wholesaler, supplier, and retailer are all merchants and can be sued for a product defect.
Bar Exam Tip: A retailer can be held liable even if it used all due care
and even if there is no way it could have discovered the defect. This
may seem unfair, but remember that if a retailer is sued, the retailer
can seek indemnity from his supplier, etc., all the way up the chain to
the manufacturer.
ii) Product is defective from the time it left the manufacturer’s hands.
(1) This is presumed if it travelled through ordinary channels of distribution.
(2) Kinds of defects:
(a) Manufacturing defect:
(i) The product comes out in a condition that was not intended by the
manufacturer and it is more dangerous than expected.
(ii) Note: safety precautions are irrelevant!
(b) Design defect
(i) The product came out exactly as the manufacturer intended. However, there is an alternative design that is:
1. safer,
2. practical, and
3. cost-effective.
(ii) Other factors will also be examined, e.g., how obvious the danger is, how avoidable it is, how likely injury is to result, etc.
(iii) A product is deemed to be defective if it fails to comply with government regulations. However, if it does comply with government regulations, the compliance is evidence (but not conclusive proof) that the product is not defective.
(c) Absence of warning or instructions
(i) Case where there is no warning: If there is a hidden risk, there should be a warning. If the risk is obvious, then no warning is necessary.
(ii) Case where there is a warning: examine the size of the warning, the color, the languages, whether there are pictures, etc. to see if it is adequate.
(iii) Note: evidence that the plaintiff failed to read the warnings that were already there or evidence that the plaintiff would have ignored the warnings anyway will defeat a “failure to warn” claim (as the plaintiff will not be able to prove the failure to warn caused her harm).
(3) What products are generally not considered defective?
(a) Unavoidably dangerous products (e.g., a sharp knife, fireworks, vaccines, drugs)
(b) Unknowably dangerous products (there was no way the manufacturer could have known about the danger at the time of production—e.g., a drug with unforeseeable long-term side effects).
iii) Plaintiff has to make foreseeable use of the product at the time of the injury.
(1) It can even be a foreseeable misuse (using a screwdriver to open a lid).
Market share liability doctrine
i) This doctrine comes up when someone has an injury caused by a product (e.g., a pharmaceutical drug) but cannot prove which manufacturer made the exact product that caused the harm. The market share liability doctrine allows a jury to apportion damages based on the market shares of the manufacturer’s defective product. Thus, if
the plaintiff was injured by a pharmaceutical drug and the plaintiff can prove five manufacturers all sold the drug in identical form, the plaintiff could sue all five and recover a percentage from each based on how much of the market share the manufacturer had.
ii) Note: this does not apply if each manufacturer used a different formula.
(1) Ex.: The market share liability doctrine would not apply in a lead paint case where lead paint was produced using various formulas with different amounts of lead and therefore each differed in potential toxicity.
(2) Ex.: A man consumed large quantities of tea that had pesticides in it. Apparently, all five sellers of tea in the United States had sold tea that had pesticides (some batches had no pesticides, some had
a lot of pesticides). These pesticides caused cancer. There are some doctrines that would allow a plaintiff to find a specific company liable. The market share liability doctrine may help him, but for this to apply, the toxicity needs to be equal. (July 2016)
Bar Exam Tip: for strict liability, the focus is on the product (not the
defendant’s actions).
4) Affirmative defenses for strict liability and pure economic loss doctrine
a) Affirmative defenses: the defendant can use the same as defenses used in negligence (e.g., comparative fault can be used as a defense if the plaintiff was partly at fault).
b) Pure economic loss: if the plaintiff suffered a pure economic loss (that is, if he was not injured but instead only his property was injured), he cannot sue for negligence or strict products liability and must bring a contract claim instead (e.g., a warranty claim).
