Torts: Strict Liability

Question 1

Strict liability (generally)

Answer 1

Strict liability means liability without fault.

It is imposed in three types of cases:

1) wild animals,
2) abnormally dangerous (ultrahazardous) activities,
and
3) products liability.

Strict liability requires the same four elements as negligence, except the defendant has an absolute “duty” to make the item or activity safe.

Question 2

Wild animals

Answer 2

1. Wild Animals (e.g., tigers, venomous snakes, bears).

The defendant is strictly liable for injuries caused by his or her wild or dangerous animals. This liability is limited to the normally dangerous propensity of the wild animal (a bite by an alligator or a scratch by a tiger, but not chlorine damage to clothes caused by the splashing of a pet shark).

Strict liability for dangerous animals is limited to licensees and invitees. Intentional trespassers (e.g., those who ignore “no trespassing” signs) must prove negligence. Strict liability also does not apply to zoos.

2. Domestic Animals (e.g., dogs, cats, livestock)

Strict Liability: The possessor of a domestic animal with a known dangerous propensity (e.g., biting) is strictly liable for harm done as a result of that dangerous propensity. This includes animals trained to be vicious (e.g., guard dogs).

Negligence: If the domestic animal has no known dangerous propensities and has not been trained to be vicious, there is no strict liability but the possessor may be liable for negligence if her maintenance of the animal is unreasonable.

3. Livestock (e.g., cattle, sheep, horses, but not cats and dogs). Landowners are strictly liable for damage done by the trespass of their domestic animals.
4. Defenses. Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not. Many states apply comparative fault principles to strict liability cases.

Question 3

Abnormally Dangerous (Ultrahazardous) Activities

Answer 3

1.  Examples of such activities:
 manufacturing, 
using or storing explosives; 
crop dusting; 
fumigating; 
operating nuclear reactors; 
manufacturing, 
using or storing toxic chemicals or hazardous (and probably flammable) materials.

2. Culpability.
   Defendant’s conduct is irrelevant; in other words, if a defendant is involved in an abnormally dangerous activity and the plaintiff is injured as a natural consequence of that activity (e.g., blasting damage or irradiation), the defendant is strictly liable.

The injury must, however, be caused by the normally dangerous propensity of the activity; in other words, an explosives manufacturer is not strictly liable for normal truck accidents that do not involve explosions.

3. Defenses.
   Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not.

Many states apply comparative fault principles to strict liability cases.

Question 4

Products liablity

Answer 4

There are three types of products liability claims: negligence, strict liability, and warranty liability.

Product liability claims may be based on:

(1) defective design

for defective design claims, the defendant is not liable (in some states) if the best scientific evidence at the time of manufacture could not have foreseen the danger.

(2) defective manufacture and/or
(3) failure to warn or inadequate warnings (a/k/a informational defect)

Cause-in-Fact: for failure to warn claims, the plaintiff must show that she would not have used the product had the warning been adequate. In some jurisdictions, plaintiff is entitled to a presumption that an adequate warning would have been read and heeded.

Res Ipsa Loquitur. A jury may infer that a product was defective at the time of sale if the accident was of a kind that ordinarily occurs as a result of a defect and no other cause was identified

Question 5

Negligent product liability

Answer 5

Anyone who negligently designs, manufactures, or inspects a product, or negligently fails to provide adequate warnings, may be sued for negligence.

In a negligence products liability case, the plaintiff must prove the four elements of negligence.

a. Who may be a defendant?

Manufacturers: Manufacturers of products may generally be sued for negligent products liability if the finished product or any component therein is defective due to the manufacturer’s negligence.

Others: As a general rule, wholesalers and retailers may not be sued for negligent products liability because they rarely commit negligent acts in the design, manufacture, or inspection of a product, or in the provision of adequate warnings.

unless the facts of a question clearly provide that a wholesaler or retailer committed a negligent act (e.g., negligently modifying a product, failing to detect an obvious defect, or selling a product with actual knowledge of the defect), those parties are not liable for negligence.

b. A negligent inspection by a retailer does not absolve a manufacturer of liability.
c. Who may be a plaintiff? any foreseeable plaintiff may sue. This includes purchasers of the product, family members, guests, and even bystanders.
d. The traditional negligence defenses apply to negligent products liability claims.

Question 6

Strict product liability

Answer 6

This liability is imposed where a “defective” condition of a product renders it “unreasonably dangerous.”

a. Who may be a defendant? Any “commercial” supplier, including the manufacturer, wholesaler, retailer of new or reconditioned/rebuilt/re-manufactured goods or components and commercial lessors, but not non-commercial suppliers (e.g., a consumer selling in a garage sale or an auctioneer).

To be held liable, the product must have been in an unreasonably dangerous condition when it left the control of that defendant (in other words, the dangerous condition did not occur as a result of a subsequent alteration).

A product will be presumed to have been defective when it left each defendant’s control if it moved in the normal chain of commerce.

If a retailer or wholesaler is held liable, that person will generally have a claim for indemnity against the manufacturer.

b. Who may be a plaintiff? There is no real privity requirement for strict products liability; any foreseeable plaintiff may sue. This includes purchasers of the product, family members, guests, and even bystanders.
c. There is no strict liability (but possibly negligence liability) if the product is used as a minor part of a service (e.g., blood in an operation).
d. Where it is feasible to make a dangerous product safe, warnings of danger will not suffice.

Question 7

Strict product liability defences

Answer 7

a. Misuse. Misuse of a product is not a defense unless the misuse was unforeseeable or unreasonable.
b. Implied Assumption of the Risk. Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not.

.

According to the Restatement (Third) of Torts, “unreasonable misuse” is still a complete bar to recovery.

Question 8

Warranty Liability

Answer 8

A defendant may also be held strictly liable for breach of an express or implied warranty (e.g., the implied warranty of merchantability or the implied warranty of fitness for a particular purpose). Warranty liability is governed by the U.C.C. Warranty claims require horizontal privity between the plaintiff and defendant (e.g., no bystander liability) and pre-suit notice of the claim.

In most states, if the plaintiff seeks only direct economic loss (i.e., loss of value to the goods themselves) or consequential economic loss (e.g., lost profits), the plaintiff must sue under contract law (i.e., breach of warranty), and not tort law.
 P purchases a new truck from X for use in P’s delivery business. Because of a defect in the electrical system, the truck catches fire and is totally destroyed. There were no personal injuries and no other property was damaged. P sues X for negligence and strict tort liability, seeking damages for the cost of the truck and for the profits P lost by not having a delivery truck. X moves to dismiss both claims. How should the court rule?
• The court should grant the motion because P seeks only economic loss, which may not be recovered in a tort action.