Strict Liability

Question 1

What are the categories of tort strict liability?

Answer 1

1. Abnormally dangerous activities
2. Animals
3. Defective products

Question 2

In strict liability, when is the defendant liable?

Answer 2

Defendant is liable for injuring plaintiff whether or not defendant exercised due care. The policy of the law is to impose liability regardless of a defendant’s fault.

Question 3

What is the wild animal rule?

Answer 3

If the defendant keeps a wild animal and the plaintiff is injured because:

1. The animal does something characteristic of that animal

And

2. The animal action results in an Injury. Then, the keeper of the animal is strictly liable for that harm no matter how unforeseeable the result if it comes out of that characteristic animal act.
   * More Info:* Wild Animal Rule

Question 4

What is the domestic pet rule?

Answer 4

The keeper of a domestic animal is not strictly liable for the animal’s actions until the keeper knows or should know of the animal’s dangerous propensity. Once dangerous propensity is known, the owner is strictly liable for all further actions.

Question 5

When is an activity abnormally dangerous?

Answer 5

1. The is an unavoidable, high risk of serious harm

And

2. Activity is not a common activity in the area
   * More Info:* Abnormally Dangerous Activities

Question 6

What are the common abnormally dangerous activities?

Answer 6

1. Blasting with dynamite
2. Crop dusting
3. Transporting toxic waste

or

4. Fumigating

Question 7

When can a plaintiff recover from defendant’s abnormally dangerous activity?

Answer 7

If defendant’s activity was the cause in fact of plaintiff’s injury:

1. But for defendant engaging in the abnormally dangerous activity
2. The plaintiff would not have been injured or the activity was a substantial factor contributing to the injury.

Question 8

If an activity is abnormally dangerous, when will the defendant be held in strictly liable?

Answer 8

Plaintiff has to be injured by a risk that makes the activity abnormally dangerous. If they are injured by a part of the activity that does not make it abnormally dangerous, then there is no strict liability.

Question 9

In strict liability, can contribution or comparative negligence be used as a defense?

Answer 9

Can only raise plaintiff’s fault if the plaintiff assumed the risk

Question 10

What are the 8 elements of strict products liability?

Answer 10

1. Proper Plaintiff
2. Proper defendant
3. Proper context
4. Defect
5. Cause-in fact
6. Proximate cause
7. Damages
8. Defenses

Question 11

What is the focus of strict products liability (SPL)?

Answer 11

The condition of the product. Not on the defendant’s conduct.

Question 12

Who is a proper plaintiff in SPL?

Answer 12

Any plaintiff who is a

1. User
2. Consumer

or

3. Bystander injured while using a defective product may recover damages from an appropriate defendant. Does not have to be the purchaser.
   * More Info:* SPL - Plaintiff

Question 13

Who is a proper defendant in SPL?

Answer 13

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product are potential defendant’s, including:

1. Manufacturer
2. Wholesaler

And

3. Retailer
   * More Info:* SPL - Defendant

Question 14

What type of seller is not a proper defendant in SPL?

Answer 14

A one-time or occasional seller.

Question 15

What is the proper context in SPL?

Answer 15

The case must involve a product ≠ service

Question 16

How is SPL applied when a product and service are given together?

Answer 16

If the products dominate the transaction, their weight is greater than the service offer, then strict liability attaches.

If the services predominate the transaction, then strict liability does not attach.

Question 17

What are the types of SPL defects?

Answer 17

1. Manufacturing defects
2. Design defects
3. Warning defects
   * More Info:* SPL - Defects

Question 18

What is a SPL manufacturing defect?

Answer 18

1. When a product is produced in a condition not intended by the manufacturer

And

2. The condition makes it more dangerous than the ordinary consumer would expect.

Question 19

What is a plaintiff’s burden of proof for a manufacturing defect?

Answer 19

1. The product was out in a condition not intended by manufacturer

And

2. Condition makes it more dangerous than the ordinary consumer would expect (≠ proving fault).

Question 20

What is a SPL design defect?

Answer 20

1. A product manufactured as the manufacturer intended

And

2. Product is dangerous because of the product’s design

Question 21

What are the tests for defects?

Answer 21

1. Ordinary Consumer Expectation Test

And

2. Risk-Utility Balancing Test
   * More Info:* Defect Tests

Question 22

What is the Ordinary Consumer Expectation test?

Answer 22

Is the product more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics?

Question 23

What are the consequences of design defects that are obvious to consumers?

Answer 23

No design defect SPL will attach for obvious defects

Question 24

What is the Risk-Utility Balancing Test for design defects?

Answer 24

If the risk of the product as designed outweighs the utility of the product as designed, then the product is defective in design.

Question 25

What should be **weighed** in the **Risk-Utility** Balancing Test?

Answer 25

**Risk**: 1. Likelihood of injury 2. Gravity of injury **Utility**: 1. Availability of a safe alternative design 2. Impact of a safe alternative design 3. Cost of a safe alternative design

Question 26

When are **products exempt** from **SPL**?

Answer 26

Unavoidably unsafe products. Some products have extraordinary social utility and no alternatives. Examples: Vaccines, prescription drugs, and medical devices.

Question 27

**Unavoidably unsafe** products are **exempt** from what **types** of SPL?

Answer 27

Only design defect SPL. The products are still liable for other types of defects: manufacturing and warning defects.

Question 28

What are the **types** of **warning defects**?

Answer 28

1. Failure to Warn And 2. Inadequate Warning

Question 29

When is a **warning inadequate**?

Answer 29

The warning does not reasonably inform a foreseeable user of significant risk

Question 30

When is there a **failure to warn**?

Answer 30

If the manufacturer does not: 1. Warn about significant risks of which it knows or should know Or 2. Does not warn about the gravity and probability of harm

Question 31

Who may be **sued** for defects stemming from **failure to warn**?

Answer 31

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product can be sued for failure to warn. Includes: 1. Manufacturer 2. Wholesaler 3. Retailer

Question 32

If a defendant down the distribution chain is **sued** in SPL for **failure to warn**, then how can the defendant **recover** any **damages** paid?

Answer 32

Through their right to indemnity of the manufacturer

Question 33

When do you use the Ordinary Expectation Test v. Risk-Utility Balancing Analysis?

Answer 33

Ordinary Expectation Test: manufacturing defects Risk-Utility Balancing Analysis: design defects

Question 34

When is a product the **cause-in-fact** of a plaintiff's **injury**?

Answer 34

Defendat's product is connected to plaintiff's injury by showing that: 1. But for the defect, the plaintiff would not have suffered the injury 2. If multiple causes of injury, then that the product defect was a substantial factor in the plaintiff's injuries.

Question 35

What is the **cause-in-fact**?

Answer 35

The relationship between the product and the injury

Question 36

What should be examined for **proximate cause** in SPL?

Answer 36

An unforeseeable force that is so culpable that it will be seen as superseding and cuts off the defendant's liability. Example: A member of the distribution chain knowing of a defect and still selling the product. *More Info:* [SPL - Proximate Cause](http://www.bermansimmons.com/law-articles/understanding-strict-products-liability-back-future)

Question 37

What is the **learned** **intermediary** doctrine?

Answer 37

A proximate cause doctrine whereby if a manufacturer provides a warning to a reseller, they can expect that the reseller will pass it on to the consumer. If he does not do so, the reseller is a superseding cause.

Question 38

Can a plaintiff bring a SPL claim against a **doctor** for providing a **defective drug**?

Answer 38

No, because the doctor is providing a service

Question 39

When can **damages** be **recovered** in SPL cases?

Answer 39

When a plaintiff suffers personal injury or property damage ( \> than damage to the product itself)

Question 40

When **damage** is **limited** to the **product**, a plaintiff can only bring a claim for what?

Answer 40

Breach of warranty (≠ SPL nor negligence)

Question 41

What are the **defenses** to SPL?

Answer 41

1. Misuse 2. Alteration 3. Assumption of Risk

Question 42

When is the **defense** of **misuse** available to a defendant in SPL?

Answer 42

If the plaintiff uses a product in a way that is not: 1. Intended nor 2. Foreseeable, then the plaintiff has misused the product and cannot recover in strict products liability.

Question 43

When is the **defense** of **alteration** available to a defendant in SPL?

Answer 43

1. 3rd party or plaintiff unforeseeably changes the product And 2. Change makes it dangerous Then plaintiff cannot recover in strict products liability

Question 44

When is the defense of **assumption of risk** available to a defendant in SPL?

Answer 44

Plaintiff's actions must be unreasonable: 1. Plaintiff knows of the defect 2. Plaintiff comprehends the consequences of the defect And 3. Plaintiff voluntarily elects to expose himself to that danger

Question 45

What are the **steps** to analyzing a **products liability claim** on a **negligence theory**?

Answer 45

1. Any foreseeable plaintiff is entitled to bring an action. 2. Analyze the conduct of each defendant and ask whether it was reasonable 3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory 4. Negligence defenses apply.

Question 46

Differentiate the **focus** for claiming products liability in **negligence** v. **SPL**

Answer 46

Negligence: focus on defendant's actions SPL: focuses on product's condition

Question 47

When does an **express warranty** exist?

Answer 47

When any defendant makes 1. A representation as to the nature or quality of the product And 2. Representation becomes the basis of the bargain

Question 48

When can a **warranty theory** be used for **products liability**?

Answer 48

1. Violation of an express warranty Or 2. Violation of an implied warranty

Question 49

What is the **implied warranty** of **merchantability**?

Answer 49

If a merchant deals in goods of a particular kind, then the sale of such goods constitutes an implied warranty that those goods will be merchantable: 1. They are of average quality for goods of that kind And 2. Generally fit for their intended use * More Info:* [Implied Warranty of Merchantability](https://www.law.cornell.edu/ucc/2/2-314)

Question 50

What are the **problems** with advancing an **implied warranty of merchantability** in a products claim?

Answer 50

1. There a privity and notice requirements; thus, only the buyer will have a claim. 2. The warranty can be disclaimed by a merchant

Question 51

When the harm is just to the product itself, what cause of action should a plaintiff take?

Answer 51

Breach of warranty