Strict Liability

Front 1

what are the three contexts of strict liability?

Back 1

1. dangerous animals
2. abnormally dangerous activities
3. products liability

Front 2

Is a keeper of a wild animal always liable?

Back 2

yes

Front 3

Generally, can you recover punitive damages for strict liability?

Back 3

no

Front 4

May a plaintiff recover for emotional distress for strict liability when the defendant kept a wild animal?

Back 4

yes

Front 5

Do inetional intervening forces cut off strict liability in most jurisdiction?

Back 5

yes

Front 6

what is the barf for an abnormally dangerous activitiy?

Back 6

Defendant engaged in an activity, which has been identifed as an abnormally dangerous activity, and it caused actual and legal damages to plaintiff

Front 7

what are some factors we look at to see if an activity is abnormally dangerous?

Back 7

1. the risk of harm is great
2. the harm that would ensue if the risk materialized could be great
3. cant be eliminated by reasonable care
4. innappropriate to the area in which the activity took place
5. not common usage
6. some utility to society

Front 8

what type of activies are subject to strict liability?

Back 8

1. toxic chemicals
2. pile driving
3. crop dusting
4. poisonous gases
5. fireworks display
6. hazardous waste disposal site
7. oil wells
8. water escape

Front 9

What is the term for a stream of distribution of a commercial product?

Back 9

vertical distribution or vertical privity

Front 10

what are the three theories actually sued under a products liability case?

Back 10

1. strict liability in tort (strict products liability)
2. negligence
3. warranties

Front 11

what is the barf for strict liability in tort?

Back 11

a commercial supplier who puts a product in the stream of commerce in a defective condition unreasonably dangerous will be liable for injuries cause by that product. (restatement 402A)

Front 12

Is a commercial supplier in the chain of distribution liable?

Back 12

yes they are liable if:
1. the seller is engaged in the business of selling such a product and;
2. it is expect to and does reach the user or consumer without substantial change in the condition in which it is sold. this applies although the seller has exercised all possible care in the preparation and sale of his product, and the user or consumer has not bought the product from or entered into any contractual relation with the seller, and the plaintiff is injured.

Front 13

if an injury results from a misuse of a product, which is safe if normally handled, is the seller liable?

Back 13

yes, pursuant to 402A

Front 14

Is the manufactuer liable for injuries resulting from abnormal or unintended use of his product?

Back 14

no, not if such use was not reasonably foreseeable.

Front 15

What is the fundamental difference between strict products liability and negligence?

Back 15

the difference is that if the manufacture puts a product in the stream of commerece with a defect, every person in that chain of commerce is also liable.

Front 16

in a products liability action, what must the plaintiff be prepared to show?

Back 16

1. that the product that injured him ws in fact manufactured by defendant.
2. that the product was defective and he was injured as a result
3. that the defect existed in the product or was incipiently in it when it was sold by the particular plaintiff

Front 17

Generally, is it reasonable for a retailer to inspect every single product that they sell?

Back 17

no, in order for them to be negligent, they had to actually have done something negligent themselves (like something that put the retaier on notice that something was wrong with the product)

Front 18

Will a wholesaler or retailer who neither creates nor assumes the risk entitled to indemnity ?

Back 18

yes, but he will still be held liable in the underlying action because he passed the product along the distribution line

Front 19

are sellers of used goods subject to strict liability?

Back 19

no, because they are outside of the original marketing chain and it would be too difficult to prove that the defect left the retailer.

Front 20

Can reconditioners be subject to products liability?

Back 20

yes, especially if they advertises or portrays it as such, then they are liable just as if it was a new product.

Front 21

Are the commercial lessors of chattels subject to strict liability?

Back 21

yes, it has been adopted with almost uniformly

Front 22

Are the makers of component parts subject to further proceedings in strict liability?

Back 22

no, the maker of a component part is not subject to further proceedings or substantial change in the manufacturing process is likely to be subjected to strict liability if there is a defect in that part or material

Front 23

Will courts apply strict liability if the transaction is predominantly a service, with only a indicental transfer of goods?

Back 23

no

Front 24

are charts and maps subject to strict liability?

Back 24

yes

Front 25

are endorsers generally subject to strict liability?

Back 25

no, but they can still be subject to negligence

Front 26

Can tract home builders be subject to strict liability?

Back 26

yes

Front 27

What are the three ways a product can have a defect under strict liability theory?

Back 27

1. manufacturing defect
2. design defects
3. warning defects

Front 28

what is the barf for a manufacturing defect?

Back 28

a manufacturer shall be strictly liable in tort when an article he places on the market, knowing that it will be used without an inspection for defects proves to have a defect that causes injury to a human being

Front 29

what is a manufacturing defect?

Back 29

when a product edeviates from how the product is supposed to be based under the manufacturers design.

Front 30

what is a design defect?

Back 30

argument that the product created is inherently created with with a danger.

Front 31

are prescription drugs subject to design defects?

Back 31

no they are prescription drugs because the are dangerous

Front 32

can prescription drugs be subject to manufacturing defects

Back 32

yes

Front 33

what is the barf for warning defects?

Back 33

the manufacturer of a product must warn of all risks known or knowable at the time of manurfactur based on the state of the art

Front 34

in a warnning defect, do we look at only the forseeable risks?

Back 34

yes, you cant put a warning on a product for risks that you can appreciate.

Front 35

what is the majority position for a warning defect analylisi?

Back 35

majlrity position is a totality negligence analysis PGBU.
1. what risks are forseeable
2. how likely is the injury to occur
3. how serious is the potential injury
4. how burdensome would it be on the defendant to make the warning?

Front 36

what is the majority test for a warning defect?

Back 36

its a pure negligence test and there are a number of ways a product can be defective in regards to a warning:
1. there was no warning at all
2. the warning given was inadequate

Front 37

what is the learned intermediary rule?

Back 37

manuf of a prescription drug only has to give warnigns to the doctor. legally your doctor is supposed to warn you about the drugs (as long as the warning to the doctor was adequate)

Front 38

In most jurisdictions, is the plaintiff entitled to a presumption that the user would have read and heeded an adequate warning?

Back 38

yes, this shifts the burden of proof to defendant to prove that plaintiff would not have rad the warning and headed it. there is a rebuttable presumption

Front 39

are pure economic loss recoverable in S/L?

Back 39

no, the only cause ofa ction available sometimes is warranty

Front 40

In warranty, to recover pure economic loss, must you have privity?

Back 40

yes

Front 41

In strict liability, is privity necessary to recover property or personal injury?

Back 41

no

Front 42

In a majority of jurisdictions, is damage to the product itself and lost profits considered pure economic loss?

Back 42

yes

Front 43

Is economic loss flowing out of physical injury recoverable under a S/L theory?

Back 43

yes

Front 44

In strict liability, can one recover for pure emotional distress under the same restrictions that one can recover it in negligence?

Back 44

yes

Front 45

are contributory and comparative negligence defenses in strict liability?

Back 45

no

Front 46

Is assumption of the risk a defense in S/L?

Back 46

yes, assujmption of the risk acts as a complete defense to a strict liability claim

Front 47

what must be proven to show that a person assumed the risk?

Back 47

that they appreciated the risk, they knew about it and voluntarily assume it

Front 48

what is an express warranty?

Back 48

it is simply a statement of fact about the goods. When that statement of fact turns out to be false, then the defendant is liable.

Front 49

what is the barf for express warranty?

Back 49

an express warranty requires an affirmation of fact that becomes part of the basis of the bargain which proves untrue in a way that injury results.

Front 50

In regards to express warranty, does the plaintiff have to prove that the defendant made a specific factual statement abut the product and that particular thing result resulted in plaintiffs injuries?

Back 50

yes

Front 51

In regards to express warranty, may only a commercial seller make an express warranty?

Back 51

no, even a private seller can make one

Front 52

In express warranty, can anyone that the maker of the statement anticipates is gong to hear or read and rely on that statement, sue?

Back 52

yes

Front 53

what are the two implied warranties?

Back 53

1. ucc 2-314 warranty of merchantability
2. ucc 2-315 warranty of fitness for a particular purpose

Front 54

what is ucc 2-314 warranty of merchantability?

Back 54

a warranty that the goods shall be merchantable is implied in the contract for their sale if the seller is a merchant with respect to the goods of that kind. They must be fit for the ordinary purpose for which such goods are used.

Front 55

What is the barf for commercial suppliers in regards to implied warranties?

Back 55

a commercial supplier passing the product along the chain of distribution impliedly assets that the product is fit for its ordinary purpose.

Front 56

Do implied warranties apply only to merchants?

Back 56

yes

Front 57

What is the question that we ask in regards to warranty of merchantability?

Back 57

Is the product fit for the ordinary purposes of that product?

Front 58

what is ucc 2-315 warranty fitness for a particular purpose?

Back 58

where the seller at the time of contrating has reason to know any particular purpose for which the goods are required and the buyer is relying on the sellers skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section, an implied warranty that the goods shall be fir for such purpose. (ie buying shoes appropriate to climb half dome and sellers sells you birkenstocks)

Front 59

Discuss ucc 2-316 exclusion or modification of warranties

Back 59

in regards to implied warranties, you can make a statement and then take it away. to disclaim implied warranty, you must merchantability by name or be specific for what you are disclaiming.

Front 60

is it possible to recover pur economic loss under warranty?

Back 60

yes

Front 61

Discuss ucc 2-318 third party beneficiaries of warranties express or implied

Back 61

1. alternative a- limited to the household and foreseeable guest, but only for personal injuries
alternative b- not limited to the household, but still limited to personal injury
alternative c- any person, corporation, etc not limited to personal injury (most common alternate)

Front 62

For pure economic loss under warranty, if it is only your damage, must you have privity?

Back 62

yes

Front 63

In express warranty, which of the following can you recover? personal injury, property damage, or economic loss?

Back 63

all of them