Torts#3, Strict Liability, Products Liability

Front 1

3 situations in which strict liability will be imposed

Back 1

1. wild animals
2. abnormally dangerous activities
3. defective unreasonably dangerous products

Front 2

Elements of abnormally dangerous activity

Back 2

1. high risk of serious harm
2. no way to perform activity with complete safety
3. not commonly engaged in in the particular community
4. danger of activity outweighs its utility to the community.

Front 3

To recover in strict liability from harm resulting from abnormally dangerous activity, P must prove

Back 3

1. D's abnormally dangerous activity was an actual & proximate cause of harm.
2. Harm which resulted was type of harm which makes activity abnormally dangerous
3. Harm did not occur only becuase of abnormal sensitivities of P's activities

Front 4

Owners of wild animal are strictly liable for harm resulting from

Back 4

the animal's normally dangerous propernsities--has to be the kind of harm rhe risk of which makes animal dangerous.

Front 5

Can owners be strictly liable for damage caused by domestic animals?

Back 5

Yes, if the owner knows or has reason to know of the animal's vicious propernsities

Front 6

Are zoos or others keeping animals as part of a public duty strictly liable?

Back 6

No--for them neg. must be proven

Front 7

Defenses to strict liability claim

Back 7

Assumption of risk--when P knowingly, voluntarily & unreasonably subjects himself to a risk of harm from an abnormally dangerous activity or wild animal, Ordinary contributory neg. is not a defense. If contributory neg constitutes assumption of the risk, it is.

Front 8

What do workers' compensation acts do?

Back 8

impose strict liability on the employer for injuries to employees if the injury is caused int he course of employment.--neither contributory neg nor assumption of the risk are defenses--however, workers comp usually represents the sole remedy

Front 9

Wild animals + landowner's liabiity to trespassers

Back 9

No strict liability to unanticipated trespassers. For known trespassers, landowner must warn them of the danger or take reasonable precautions to make prop safe.

Front 10

4 general theories of liability available under "products liabiilty"?

Back 10

1. Negligence
2. strict liabiilty
3, implied warranties
4. representation (misrepresentation (tort) & express warranty (in K)

Front 11

4 elements of prima facie case of product liabiity based on neg

Back 11

1. Duty
2. Breach
3. Causation
4. Damages

Front 12

5 principal way in which a manufacturer or supplier can be neg.

Back 12

1. Manufacturing flaw
2. Failure to reasonably inspect
3. Neg desing
4. Failure to warn
5, Failure to take care to obtain quality compeonents.

Front 13

Defenses in product liability suit based on neg?

Back 13

1. contributory neg. (or comparative in most states)
2. assumption of the risk

Front 14

Requirements of a prima facie case of product liability claim based on strict liability

Back 14

1. Proper P (any user or consumer--no privity required
2. Proper D anyone who is in the business of dealing w/ these products--part of MARKETING CHAIN
3. Proper context--product--not services
4. Defect--product must have been in defective condition unreasonably dangerous to the user/consumer or hsi prop
5. Control--when it left D's control
6. Changes--product must not undergo sig changes before it gets to consumer
7. Causation--Damages must result from the defect (Cause in fact + proximate)
8. Damages

Front 15

2 tests courts use to determine product defective

Back 15

1. consumer contemplation test
2. danger utility test

Front 16

How cases involving foreign objects in food are judged

Back 16

Mod MAJ--consumer expectations test. Old courts drew distinction b/n natural & foreign objects. If natural (i.e. bone or piece of shell) no liability. If foreign, yes.

Front 17

consumer expectation test in strict products liability

Back 17

dangerousness of product is beyond the expectation of the reasonable consumer who is family with the product

Front 18

danger utlity test in strict products liability

Back 18

product is defectively designed if its danger outweighs its utility, considering the feasibility of a less dangerous, alternative design.

Front 19

3 basic types of defects covered by a strict product liability claim

Back 19

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

Front 20

Defenses in strict product liability cases

Back 20

1. assumption of the risk
2. abnormal misuse (i.e. not easonably foreseeable)
3. failure to follow instructions

Front 21

What is implied warranty of merchantability?

Back 21

Applicable to MERCHANTS with respect to the kind of goods involved in the transaction which holds the goods must be a fair average quality and fit for the ordinary purpose for which they are used.

Front 22

What is the implied warranty of fitness for a particular purpose?

Back 22

Imposed when seller (who does not have to be a merchant) has reason to know:
1. the particular purpose for which the buyer requires the goods
2. & that the buyer is relying on the skill or judgment of the seller to furnish such suitable goods.

Front 23

Defenses available in a suit for breach of an implied warranty?

Back 23

1. assumption of the risk
2. abnormal misused
3. failure to follow instruction
4. the kind of contributory neg. that is also asuumption of the risk
5. failure to give seller notice of breach w/in a reasonable time after its discovery
2. disclaimers

Front 24

2 sources of liability for porduct liability based onexpress representations

Back 24

1. misrepresentation of a material fact (tort theory)
2. express warranty (a K theory)

Front 25

Types of misrepresentation

Back 25

Fraudulent
non-fraudulent
fraudulent nondisclosure

Front 26

Misrepresentation

Back 26

Act of making a false or misleading stmt--intentional tort

Front 27

Fraudulent mispresentation

Back 27

1. untrue stmt or thru conduct
2. scienter--knew false or had no basis to know it was true
3. intent to mislead
4. material to K
5. reasonable reliance on representation

Front 28

Nonfraudulent misrepresentation

Back 28

1. neg or innocent false stmt
2. material to K
3. reasonable reliance on misrepresentaion
4. no scienter but for neg. perpetrator woul dhave known false if he had exercised reasonable case

Front 29

Do breach of warranty suits require proof of fault?

Back 29

No once warranty is proven + representation in the warranty is proven false, D will be strictly liable for P's damages even if D had a reasonable basis for believing the representation's truth or did not know it was false.

Front 30

Do wholesalers or retailers have a duty to inspect--re: products liability

Back 30

No unless there is a clear indication that a reasonable inspection would reveal a danger--duty is only to warn of known dangers. Where neg. claim based on manufacturing flaws, mosts court hold wholesalers + retailers not neg.

Front 31

Scope of Ps in products liability suit based on neg

Back 31

any foreseeable Ps

Front 32

Scope of Ps in products liability suit based on strict liability

Back 32

anyone who uses or consumes the product. also nearly all courts allow a bystander to sue

Front 33

Scope of Ps in products liability suit based on warranty (K)

Back 33

P need only be a member of the general class that the manaufacturer should expect to be reached by the warranty. Courts are split as to whether non-purchase users or bystanders can sue.

Front 34

Scope of Ps in products liability suit based on misrepresentation (tort)

Back 34

anyone relying on misrepresentation in using product

Front 35

Neg failure to warn

Back 35

requires proof of an inherent danger in the product's design or intended use of which the consumer is likely to be unaware. No duty to ward about unforeseeable misuse.

Front 36

If patient gets defective blood during transfusion, can pt sue hospital in strict liability?

Back 36

No strict liability can only be imposed for sale of defective products, not services

Front 37

If food in restuarant is defective, can operators of restaurants be sued in strict liability?

Back 37

Yes restaurants are considered suppliers of products

Front 38

Can a component manufacturer be strictly liable if their defective component results in product failure?

Back 38

Yes but not when the part is put to an ususual, unforeseeable unintended use

Front 39

Can building contractors be held strictly liable for defects?

Back 39

Yes if there is a defective condition unreasonably dangerous

Front 40

Disclaimers + product liabiity suits

Back 40

not effective for strict liability or neg. can defeat a claim based on breach of implied warranty -- as long as not unconscionable, inconspicuous or in derogation of a statutory duty.

Front 41

Differences between tort theory (misrepresentation of material fact) + K theory (express warranty)

Back 41

Misrepresenation requires a commerical supplier--express warranty does not

Front 42

Defenses to strict liability tort action for harm from ultra hazardous activities

Back 42

1. ultra hazardous activity was not actual & proximate cause of P's harm
2. harm was not result of the risk which made D's activity ultra hazardous
3. Harm occurred only because of P's abnormal sensitivity to D's activities.