Strict & Product Liability

Question 1

Strict Liability Generally

Answer 1

D is liable for injuring P regardless of whether D exercised due care –> P does not have to show proof of fault

Question 2

Strict Liability: Possession of Animals

Answer 2

i) Wild Animal Rule –> If D keeps a wild animal and P gets injured because it does something characteristic of that animal, D is strictly liable no matter how unforeseeable the harm
ii) Domestic Pet Rule –> One free bite. Not liable unless on notice of danger

Question 3

Strict Liability: Abnormally Dangerous Activity

Answer 3

(Ex: Blasting, explosives, or chemicals)

i) Abnormally dangerous when:
(1) There is a high risk of serious harm to other +
(2) D cannot engage in the activity without risk, and cannot eliminate the risk with care +
(3) It is not a commonly undertaken activity in the community

ii) P can recover absent proof of fault as long as D was involved and the activity caused the harm
iii) Proximate cause = P must be injured by the risk that makes the activity dangerous

Question 4

Strict Liability: Defenses

Answer 4

i) Contributory Negligence – D generally cannot raise this defense with strict liability
ii) Exception: P knew of the danger that justified imposition of strict liability and his contributory negligent action caused exactly that danger to manifest –> Here, P could be said to have assumed the risk; P will be completely barred from recovery

Question 5

Strict Products Liability Generally

Answer 5

Focus on the condition of the product, not on D’s conduct

Question 6

Strict Products Liability

Who is a proper Plaintiff?

Answer 6

Any P who is a user, consumer, or bystander physically injured using the defective product –
No requirement of contract/privity

Question 7

Strict Products Liability

Who is a proper Defendant?

Answer 7

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product – manufacturer, wholesaler, and retailer

Question 8

Strict Products Liability

What is the proper context for Products Liability?

Answer 8

Generally, services alone are not enough. When both a product and services are present, the goods/product must dominate

Question 9

Strict Products Liability: Defect

Manufacturing Defect

Answer 9

(easiest) = Manufactured in a form other than intended by manufacturer. P must show:
(1) Product is more dangerous than a consumer would reasonably expect when using the product in its intended manner OR it is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands

Question 10

Strict Products Liability: Defect

Design Defect

Answer 10

Made as intended by manufacturer but still presents a danger of personal injury or property damage to P because of a flawed design.

Two tests:

 (1) Ordinary consumer expectation test – Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community
 (2) Risk-utility balancing – Jury determines whether the danger the design threatens (cost in human injury and property damage) outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost. Questions to ponder: How easy would it be to swap out the defective design for the alternatives? How high is the likelihood of harm and how bad would the harm be if it happened? How important/useful is the product?

Question 11

Strict Products Liability: Defect

Warnings

Answer 11

(1) P is asserting a warning is inadequate –The test here is reasonableness. Does the warning reasonably inform a reader of the risks of the product and how to reduce them? Look at language, placement, size of font, and clarity

(2) P is asserting there is no warning – manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm
(a) 1% risk of death – should warn
(b) 1% risk of tooth discoloration – probably not

Question 12

Strict Products Liability: Cause in Fact

Answer 12

Usually proven by showing that the defect that injured P was in existence at the time it left D’s control

Question 13

Strict Products Liability: Proximate Cause

Answer 13

Look for superseding causes which might cause the defect and break the chain of causation. For instance, did P alter the product in an unforeseeable way?

Question 14

Strict Products Liability: Damages

Answer 14

Recoverable when there is personal injury or property damage other than to the product itself

i) Where the harm is only to the product itself, can only claim a breach of warranty Consequential/subsequent economic losses are not enough
(1) Example: Car won’t start; lose $5k in deliveries. Not enough for strict product liability unless for example, the car blew up and also damaged the garage

Question 15

Strict Products Liability: Defenses

Answer 15

i) Misuse—P’s use of the product is neither intended nor foreseeable
ii) Alteration—Employer removes safety devices to increase efficiency
iii) Assumption of the risk— Where P has used the product with knowledge of the risk

Question 16

Product Liability on Negligence Theory

Answer 16

a) Any foreseeable P can bring an action
b) Analyze the conduct of each D and ask whether D acted reasonably (This is different from strict products liability, which focuses on the product—not the actions of D)
c) Res ipsa loquitur takes the place of manufacturing defect in negligence theory (e.g., toe in tobacco)
d) All negligence defenses apply

Question 17

Products Liability on Warrant Theory

Express Warranty

Answer 17

a) Express Warranty: Where D makes a specific representation as to the quality/nature of the product which becomes a basis of the bargain
i) Any seller can make this warranty (manufacturer, distributor, seller)
ii) Can occur via advertising, during negotiations, or as a contract provision

Question 18

Products Liability on Warrant Theory

Implied Warranty

Answer 18

b) Implied Warranty / Warranty of Merchantability: Where a merchant deals in goods of a particular kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable –> i.e., the goods are of average quality for goods of that kind and are generally fit for the purpose of which such goods are normally used
i) Warranty of merchantability = Fit for intended use
(1) Requires privity and notice
(2) Can be disclaimed by contract

c) Where harm is to the product itself, the only claim P can pursue is for warranty