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42 Cards in this Set

  • Front
  • Back
3 situations in which strict liability will be imposed
1. wild animals
2. abnormally dangerous activities
3. defective unreasonably dangerous products
Elements of abnormally dangerous activity
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.
To recover in strict liability from harm resulting from abnormally dangerous activity, P must prove
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
Owners of wild animal are strictly liable for harm resulting from
the animal's normally dangerous propernsities--has to be the kind of harm rhe risk of which makes animal dangerous.
Can owners be strictly liable for damage caused by domestic animals?
Yes, if the owner knows or has reason to know of the animal's vicious propernsities
Are zoos or others keeping animals as part of a public duty strictly liable?
No--for them neg. must be proven
Defenses to strict liability claim
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.
What do workers' compensation acts do?
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
Wild animals + landowner's liabiity to trespassers
No strict liability to unanticipated trespassers. For known trespassers, landowner must warn them of the danger or take reasonable precautions to make prop safe.
4 general theories of liability available under "products liabiilty"?
1. Negligence
2. strict liabiilty
3, implied warranties
4. representation (misrepresentation (tort) & express warranty (in K)
4 elements of prima facie case of product liabiity based on neg
1. Duty
2. Breach
3. Causation
4. Damages
5 principal way in which a manufacturer or supplier can be neg.
1. Manufacturing flaw
2. Failure to reasonably inspect
3. Neg desing
4. Failure to warn
5, Failure to take care to obtain quality compeonents.
Defenses in product liability suit based on neg?
1. contributory neg. (or comparative in most states)
2. assumption of the risk
Requirements of a prima facie case of product liability claim based on strict liability
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
2 tests courts use to determine product defective
1. consumer contemplation test
2. danger utility test
How cases involving foreign objects in food are judged
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.
consumer expectation test in strict products liability
dangerousness of product is beyond the expectation of the reasonable consumer who is family with the product
danger utlity test in strict products liability
product is defectively designed if its danger outweighs its utility, considering the feasibility of a less dangerous, alternative design.
3 basic types of defects covered by a strict product liability claim
1. manufacturing defect
2. design defect
3. warning defect
Defenses in strict product liability cases
1. assumption of the risk
2. abnormal misuse (i.e. not easonably foreseeable)
3. failure to follow instructions
What is implied warranty of merchantability?
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.
What is the implied warranty of fitness for a particular purpose?
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.
Defenses available in a suit for breach of an implied warranty?
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
2 sources of liability for porduct liability based onexpress representations
1. misrepresentation of a material fact (tort theory)
2. express warranty (a K theory)
Types of misrepresentation
fraudulent nondisclosure
Act of making a false or misleading stmt--intentional tort
Fraudulent mispresentation
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
Nonfraudulent misrepresentation
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
Do breach of warranty suits require proof of fault?
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.
Do wholesalers or retailers have a duty to inspect--re: products liability
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.
Scope of Ps in products liability suit based on neg
any foreseeable Ps
Scope of Ps in products liability suit based on strict liability
anyone who uses or consumes the product. also nearly all courts allow a bystander to sue
Scope of Ps in products liability suit based on warranty (K)
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.
Scope of Ps in products liability suit based on misrepresentation (tort)
anyone relying on misrepresentation in using product
Neg failure to warn
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.
If patient gets defective blood during transfusion, can pt sue hospital in strict liability?
No strict liability can only be imposed for sale of defective products, not services
If food in restuarant is defective, can operators of restaurants be sued in strict liability?
Yes restaurants are considered suppliers of products
Can a component manufacturer be strictly liable if their defective component results in product failure?
Yes but not when the part is put to an ususual, unforeseeable unintended use
Can building contractors be held strictly liable for defects?
Yes if there is a defective condition unreasonably dangerous
Disclaimers + product liabiity suits
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.
Differences between tort theory (misrepresentation of material fact) + K theory (express warranty)
Misrepresenation requires a commerical supplier--express warranty does not
Defenses to strict liability tort action for harm from ultra hazardous activities
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.