Torts Strict Liability

Front 1

what sets strict liability apart from negligence?

Back 1

- strict liability is different because defendant is without fault and if abnormally dangerous activity, defendant used reasonable care but still responsible.

Front 2

6 considerations for strict liability (abnormally dangerous activity)

Back 2

1. degree of risk of harm
2. likelihood that harm will be great
3. inability to negate risk by reasonable care
4. activity is not matter of common usage
5. inappropriateness of location where activity took place
6. value of activity to community outweighs danger

Front 3

negligence tort incentives v. strict liability tort incentives

Back 3

negligence incentives:
- deterrence - incentive for actor to behave more reasonably in future

strict liability:
compensation - local loser will be compensated
deterrence - actor will have more incentive to avoid harm by finding alternative ways to engage in activity (not always, e.g. transporting dangerous chemicals through city v. rerouting entire railroad)

Front 4

products liability: 3 categories

Back 4

1. negligence
2. breach of warranty
3. strict tort liability

Front 5

breach of warranty: 2 types

Back 5

1. express warranty
2. implied warranty

Front 6

Strict Tort Liability (3 types)

Back 6

1. design
2. manufacturing
3. warning

Front 7

Buyer v. Consumer - duty of care?

Back 7

duty of care to foreseeable user when it is probable that product will cause harm when it is negligently made

Front 8

How does privity of contract effect products liability?

Back 8

if there is privity of contract, there is bargaining power in regards to assignment of liability

Front 9

What constitutes an express warranty?

Back 9

Just about anything, does not have to be actual warranty. e.g. brochure guaranteeing that windshield is shatterproof (Baxter v. Ford Motor Co.)

Front 10

What are the 2 categories of implied warranties?

Back 10

1. Merchantability - reasonably fit for general purpose that it is made for and sold at minimum standards of quality implied by merchants of that type of good
2. Fitness for a Particular Purpose - buyer makes known to seller the purpose of article required and relies on seller's skill/judgment in deciding to purchase article.

Front 11

Who does an implied warranty of fitness apply to?

Back 11

All sellers, not just merchants.

Front 12

What is strict liability for a manufacturer?

Back 12

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

Front 13

If there is an express warranty, does statue of limitations bar recovery?

Back 13

Not always. If there is no direct contract between manufacturer and user, then user is not required to know SOL since they have never dealt with manufacturer before. (Greenman v. Yuba Power Products, defective tool after adding component after a few years, company liable)

Front 14

What are some public policy reasons for holding manufacturer strictly liable even though they exercised reasonable care?

Back 14

- manufacturer is cheapest cost avoider (cheaper for manufacturer to inspect materials then for consumer to hire expert for inspection)
- manufacturer gains profit off of product, should have to bear burden of any injury
- efficiency in admin. of tort law
- avoids proof problems for consumer

Front 15

Product Defects - Manufacturing

Back 15

- departs from intended design despite exercise of care

Front 16

Product Defects - Design

Back 16

foreseeable risks of harm could have been reduced or avoided through reasonable alternative design

Front 17

Product Defects - Warning

Back 17

foreseeable risks of harm could have been reduced or avoided by warnings

Front 18

What are the two product defect tests?

Back 18

1. Consumer Expectation
2. Risk Utility

Front 19

Consumer expectation test

Back 19

- product failed to perform in accordance with consumer's reasonable expectations

Front 20

Risk Utility Test (design defect) (7)

Back 20

- utility to user and entire public
- likelihood and severity of injury
- availability of safer, feasible alternative (state of the art)
- ability to eliminate unsafe nature of product w/o impairing usefulness or becoming too expensive
- user's ability to avoid danger by reasonable care
- general public knowledge of product's obvious unsafe condition
- manufacturer's ability to spread cost

Front 21

Can you recover from a manufacturer for failure to warn for a risk that was unforseeable?

Back 21

No. If risk is unknowable to manufacturer, not a lot of deterrence or ability to build cost into product. (perhaps more incentive to do exhaustive testing to determine all risks)

Front 22

What are the components for a duty to warn?

Back 22

1. danger must be knowable
2. obvious/generally known risks aren't included
3. dangerous to whom? (e.g. warning on pill bottle addressing allergic reactions; while not common, still substantial enough to warn)

Front 23

How does the learned intermediary rule affect a duty to warn?

Back 23

sufficient to provide warning to a 'learned intermediary' to pass on warning to user. (e.g. drug company tells pharmacist of all risks)

Front 24

How does a sophisticated user affect a duty to warn?

Back 24

There is no duty to warn an individual that knows of risk because of expertise. (e.g. expert trampoliner falls on head, no duty to warn because he knew of risk)