Torts - Strict Liability

Front 1

Strict Liability

Back 1

For strict liability the plaintiff must show that the nature of the defendant's activity imposes and absolute duty to make safe, the dangerous aspect of the activity was the actual cause of the plaintiff's injury and the plaintiff suffered damage to person or property.

Front 2

Strick Liability - PAW

Back 2

Three common types of strict liability are:
P = Products
A = Abnormally dangerous activities W = Wild animals

Front 3

Wild Animals

Back 3

A possessor of a wild animal is subject to strict liability to another for harm done by the animal to the other person's body, land or chattel.

Liability is limited to harm that results from the dangerous propensity of the animal.

Trespassers may not generally recover in strict liability for such animal-inflicted injures, however they may recover under negligence if landowner knew of their presence and fails to post warnings.

Hint 3

Remember for purpose of MBE's don't be tricked by statements such as domesticated monkey, toothless tiger, harmless boa, these are still wild animals and strict liability applies.

Front 4

Domestic Animals

Back 4

One is not strictly liable injuries caused by domestic animals unless the defendant has knowledge of the dangerous propensities of the animal.

Trespassers may not generally recover in strict liability for such animal-inflicted injures, however they may recover under negligence if landowner knew of their presence and fails to post warnings.

Land owner may be liable for injuries inflicted on trespassers by vicious watch dogs under intentional torts, use of excessive/deadly force to protect property.

Hint 4

Domestic animals include cats, dogs, cows, horses, mules, and bees.

Front 5

Abnormally Dangerous Activities

Back 5

A person who either maintains a dangerous object or engages in an activity involving a great risk of harm to persons and property of others is strictly liable for the harm such object caused, even if reasonable care was used.

Blasting, crop-spraying with airplane, manufacture of explosives, and fumigating all considered ultra-hazardous activities.

Hint 5

Abnormally dangerous activities involves serious risk of harm, impossible to eliminate the risk of harm, and not a matter of common usage in community (refer to slide 6 SERB).

Front 6

Abnormally Dangerous Activities -SERB

Back 6

S = Safety, no way regardless of care taken
E = Engagement, not common usage in the community
R = Risk, high risk to people and property
B = Balance of danger to community utility.

Front 7

Defenses to Strict Liability

Back 7

Assumption of Risk

Contributory negligence in limited situations.

Comparative negligence

Hint 7

Contributory negligence is not a defense if the plaintiff failed to realize the danger or guard against it. It is a defense if the plaintiff knew of the danger and his unreasonable conduct was the very cause of the abnormally dangerous activity miscarrying.

Comparative negligence rules generally apply to strict liability cases.

Front 8

Products Liability

Don't Come Crying to me Because of the Crummy Product

Back 8

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate consumer or his property if 1) the seller is engaged in the selling of such a product and 2) product reached the user or consumer without substantial alteration.

The term products liability covers several different theories of liability for injury or property damage caused by a defective product.

Hint 8

D = defect unreasonably dangerous to user/consumer
C = Control, when left control of the defendant
C = Changes, no significant changes
B = Business, defendant in the business of selling the product, not a casual user.
C = Causation, damages resulted from defect.
P = Privity, not required, proper plaintiff anyone foreseeable endangered by the product.

Front 9

Theories of Product Liability - Fit RNS

Fit = Fitness for a specific purpose
R= Representations (implied and expressed warranties)
N = Negligence
S = Strict liability

Back 9

There are five possible theories upon which a products liability claim may be made. The five theories of product liability 1) intentional, 2) strict products liability, 3) negligence, 4) implied warranty and 5) expressed warranty. More than one theory may apply for a given fact pattern.

Front 10

Strict Products Liability

Back 10

Plaintiff must show that the seller was a commercial supplier and the product was unreasonably dangerous at the time it left the defendants control.and the defendant is only liable for non-economic damages.

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Proper Defendant

Back 11

Commercial suppliers at all level of the distribution chain (i.e. manufacturer, distributor, retailer) as well as commercial lessors, new home developers, and sellers of used goods are potential defendants.

Hint 11

Occasional sellers and those supplying services cannot be strictly liable but can be sued in negligence.

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Proper Plaintiff

Back 12

A proper plaintiff is a user, consumer or bystander of the product. The proper plaintiff extends beyond the actual purchaser of the product and includes family and friends and anyone who might foreseeable come in contact with the product.

Front 13

Proper Defendant

Back 13

A proper defendant is a manufacturer, retailer, or seller of the product and is thus liable under strict liability for the defective product when it left their hands.

Front 14

Strict Products Liability - Types of Defects

Back 14

Manufacturing defect, design defect and/or inadequate warning defect

Front 15

Manufacturing Defect

Back 15

A manufacturing defect occurs when a product is not in the condition that the manufacturer intended at the time of manufacturer, i.e. product does not conform to the manufacturer's own production standards.

Hint 15

Defect results from some error in its assembly, construction, packaging, or handling that are not shared by other units of the same make and model.

Front 16

Design Defect

Back 16

A design defect occurs when the product was in the condition that the manufacturer intended, but the design was such that it presented an undue risk of harm in normal use. All are potentially harmful.

Front 17

Test to Determine Design Defect

Back 17

The three most common tests used to determine if there is a design defect are 1) Consumer Expectation test and 2) Risk/Utility Analysis test and 3) Reasonable Alternative Design test.

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Consumer Expectation Test

Back 18

If a product is dangerous beyond what a reasonable consumer who purchases the product would expect.

The obviousness of a products danger is a factor in determining ordinary consumer's expectations.

Hint 18

An ordinary carving knife or glass soda bottle that breaks when dropped can be dangerous but no more than an ordinary consumer would expect.

Front 19

Risk-Utility Test

Back 19

A product may be considered defective if it's risk (i.e. personal injury or property damage) outweighs its utility to society. This test balances the product's utility, its dangerousness as designed, the cost for alternative safer designs (either in terms of increased price or impaired utility).

Hint 19

Factors to consider:
Usefulness of product, type and purpose of the product, number and severity of injuries actually resulting from the product, cost of design changes to alleviate the problem, users anticipated awareness of the inherent dangers, etc.

Front 20

Reasonable Alternative Design Test

Back 20

A product is defective if foreseeable risk of harm could have been reduced or eliminated by the adoption of a reasonable alternative design, provided the greater safety provided by the alternative design, outweighs its disadvantages ( increased cost, less attractive, etc.)

Front 21

Warning Defect

Back 21

A product may be defective if it has some inherent, non-obvious danger about which the supplier failed to provide adequate warning. The warning may be inadequate if it does not specify the risk the product presents, it is inconsistent with how the product is used, or it does not give the reason for the warning.

Front 22

Causation

Back 22

The plaintiff must show that the injuries were caused by a defect in the product that existed at the time it left the control of the defendants and reached the consumer without substantial change.

Hint 22

The fact that an intermediary failed to discover a defect does not avoid the defendant's strict liability.

Front 23

Damages

Back 23

Personal injury or property damage caused by the defect. Generally economic damage (loss of profits) are not allowed.

Front 24

Defenses

Back 24

Defenses to strict product liability include: 1) Alteration, 2) Misuse of the product (unforeseen), 3) Assumption of Risk, and 4) highly unusual reaction to the product. In addition while a plaintiff's contributory negligence does not bar liability, comparative fault principles may be applied to reduce plaintiff's claim.

Front 25

Unreasonable Misuse

Back 25

Unreasonable misuse (not foreseeable) of a product in a manner or for a purpose for which no reasonable person would use the product is a defense for product liability.

Front 26

Assumption of Risk

Back 26

One who knows of the danger or risk involved, and with such knowledge continues to use the product may be held to have assumed the risk.

Hint 26

Goes to proximate cause as well in negligence as the danger did not cause the injury because the plaintiff, knowing fully the danger, undertook to encounter it anyway.

Front 27

Alteration

Back 27

A defendant may have a defense if there was an unforeseeable alteration of the product by someone subsequent to the defendant in the chain of distribution, or by some other third party.

Hint 27

This is an issue of intervening causation.

Front 28

Highly Unusual Reaction

Back 28

A highly unusual reaction to a product does not render it defective if it refers to a situation where the plaintiff's reaction is so bizarre or unexpected that it could not have been anticipated or guarded against.

Front 29

Breach of Warranty

Back 29

Users of defective products can also attempt recovery under a warranty theory. Warranty recovery is based on the theory that the seller misrepresented the product or a material fact. Warranty recovery does not require fault of the seller.

Front 30

Expressed Warranty

Back 30

Expressed warranties are any representations of fact about the product upon which the buyer relied upon.

When a seller expressly represents something about the product to the buyer, and the product is not as represented and causes damage or injury to the buyer who relied on the representation, the buyer has a direction action for breach of expressed warranty.

Hint 30

Information in a sales brochure can be considered a expressed warranty.

When a seller expressly represents something about the product to the buyer, and the product is not as represented and causes damage or injury to the buyer who relied on the representation, the buyer has a direction action for breach of expressed warranty.

Front 31

Implied Warranty

Back 31

An assurance, implied in law, from the seller to the buyer that the product purchased will do no harm in normal use.

Two types of implied warranties; 1) Merchantability and 2) Fit for a particular purpose.

Front 32

Merchantability

Back 32

When goods are supplied by a seller who deals in goods of that kind, a warranty is implied that they are generally fit for ordinary purposes.

Front 33

Fit of a Particular Purpose

Back 33

When the seller knows, or has reason to know, that the buyer is purchasing the product for a particular purpose and is relying on the sellers skills/knowledge in supplying the appropriate goods there is an implied warranty of fit for that purpose.

Front 34

Defenses to Warranty Actions

Back 34

Defenses to breach of warranty are: 1) Assumption of risk, 2) Disclaimers, 3) Notice requirements, 3) Statute of limitations.

Hint 34

Assumption of risk same as for strict products liability and negligence.

Front 35

Disclaimers

Back 35

By appropriate language a seller may limit or exclude warranties that would otherwise arise from the sale of goods.

For example "sold as is"

Front 36

Notice Requirements

Back 36

In some cases the buyer must give the seller timely notice of breach of the warranty.

Front 37

Statute of Limitations

Back 37

The usual warranty limitations is 4 years running from the delivery of the goods. Since tort statute is generally shorter, but runs from the time of injury, a plaintiff may find that only part of the warranty is available in a specific case.

Front 38

Products Liability - Negligence

Back 38

Defendant has a duty not to place a unreasonably dangerous goods into the stream of commerce.

Product liability under a negligence cause of action (COA) requires duty, breach, actual cause, proximate cause and damages the same as with any other negligence COA.

Refer to negligence flash cards