Strict Liability for “Abnormally Dangerous” Activities
‘True’ strict liability in tort
- the intentional aspect of property torts is absent
- common law doctrine not part of a tort replacement scheme (such as workers compensation)
Very limited in application
1. Keeping of wild animals
2. use of explosives, radioactive materials
3. Keeping of artificial reservoirs
4. Plutonium production and production/transport of other highly hazardous chemicals (but not transport of acrylonitrile - Posner)
5. Damage on ground from airline crashes/debris and forced landings
But courts have resisted extending this form of strict liability to other kinds of conduct (ex: oil drilling/fracking, parachuting
Rest 2d 519: a party carrying on an “abnormally dangerous activity” is strictly liable for the ensuing damages
Even if P has proven that D’s conduct constitutes an abnormally dangerous activity, she must still demonstrate that the activity was an actual and proximate cause of her injuries
Rest 2d 520: factors used in determining whether an activity is “abnormally dangerous”
- Existence of a high degree of risk of some harm to the person or land of others;
- Likelihood that the harm that results from it will be great;
- Inability to eliminate the risk by exercise of reasonable care
- Extent to which activity is not a matter of common usage.
- an activity is a matter of common usage if it is carried on by the great mass of mankind or by many people in the community (Ex: driving a tank blasting, explosives, and drilling oil) - Inappropriateness of the activity to the place where it is carried on
- Extent to which its value to the community is outweigh by its dangerous attributes.
Any one of these factors is not dispositive, and it is not necessary that each factor be present. It is not possible to reduce “abnormally dangerous activities” to any definition. However, all factors must be considered an inquiry.
Whether an activity is “abnormally dangerous” as a question of law for the judge
Rest 3d formulation: Abnormally Dangerous Activities
Liability for Physical and Emotional Harm 20(b) (2010)
An activity is “abnormally dangerous” if it:
- Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
- [is] not one of common usage
- 1st torts Rest. Used “non-natural activities” dubbed ultrahazardous, then 2d used “abnormally dangerous” activities, which is what 3d uses
- courts are weary to extend strict liability
Conditional Fault
Judge Robert Keeon wrote Conditional Fault in the Law of Torts and argued that the distinction between negligence liability and liability without fault can be understood by distinguishing two types of fault:
- negligent conduct = activity that violates norms of behavior, even if actor has made provision for payment for damages his behavior causes
(Ex: careless driving is condemned to injuries even if he has insurance - Liability fault or conditional fault = conduct we treat as permissible if the actor who undertakes it stands ready to provide reasonable compensation to those injured by such conduct
(Ex: blasting is permissible only on the condition that those who engage in it are prepared to compensate those are injured by it)
Limits on Strict Liability for Abnormally Dangerous Activities
- p must be the right kind of victim (a bystander, not a participant
- Right kind of injury—no recovery for emotional distress, at least absent physical injury
- injury must come in the right manner
- intervening act of a third-party do not relieve D’s from strict liability if those acts were reasonably foreseeable (ex: Klein v. Pyrodyne) —> encourages participants in abnormally dangerous activities to take precautions
Defenses such as comparative fault and assumption of risk will typically today apply on the same terms as they do for negligence claims
Products Liability’s Contract Heritage: Warranty
Warranty = an assurance or promise of quality (express or implied)
Pro consumer Aspect
- warranty liability strict, not fault-based
- seller warrants quality, not reasonable care as quality
Pro-Seller Aspects
- source of duty is contract —> privity often retains a limit
- Seller can try to disclaim all warranties “as is”
- Prior to consumer may be required to give timely notice of breach and opportunity to cure
Henningsen (NJ 1960): the Macpherson of warranty law:
- Warranty of fitness is implied with any sale of car
- Warranty disclaimers limits held void against public policy
- warranty extends the product users not in privity
Unlike Henningsen, warranty is more tort-like and liability for breach is strict
Spectrum of strictness for PL:
Fault-Based, Absolute & Defect-Based Liability
Fault-Based = D’s carelessnessly made product caused harm
Defect-Based = D’s defective product caused harm
Absolute = Requires P to prove that she was actually injured by product, regardless if it had a defect
Why a special rule for injuries caused by products?
Traynor’s Escola concurrence created a tort (special products liability)
Precedent - criminal liability for tainted food sales; warranty
Procedural Fairness - for many product-injuries, fault is too difficult to prove
Judicial candor - “Fault” liability is often strict in practice (juries)
Consumer Protection - Strict liability vindicates the consumer’s right to safety
Deterrence - Strict liability will better promote safe products
Compensation - Strict liability achieved better loss-spreading
Special Liability of Seller of Product for Physical Harm to User or Consumer (R2402A)
(1) one who sells any product in a defective condition and reasonably dangerous to the user of consumer or to his property is subject to liability for physical harm, thereby caused to the ultimate user or consumer or to his property if..
a) the seller is engaged in the business of selling such a product, and
b) it is expected to reach the user or consumer without substantial change in the condition in which it sold
(2) the real subsection 1 applies although
a) the seller has exercised all possible care in the preparation and sale of his product; and (—> no fault)
b) the user or consumer has not bought the product from or entered into any contractual relation with the seller (—> no privity; old breach of warranty claims required privity)
Liability of commercial seller or distributor for harm caused by defective products (rest 3d, 1)
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect
- Reaffirms the idea that a commercial seller is subject to liability for causing injury through the sale of a defective product
Who is a potential strict products liability D?
Manufacturer, distributor, commercial retailer
NOT: casual sellers (don’t carry inventory, don’t have an open market), sellers of services (generally), sellers of used goods
Strict Products Liability - Prima Facie Case (and how it’s different than negligence)
- Injury
- Product sold by D
- Product was defective at time of sale
- Causation
-actual
-proximate
strict products liability eliminates the need to ID unreasonable conduct on the part of D (similar to breach); cannot argue that you acted reasonably
Types of Product Defects
Manufacturing Defect = Diverges from the manufacturer’s own specifications for the product, isolated “lemon” (ex: Escola’s Coca Cola bottle)
- easiest to prove
- Doesn’t need to be mass produced to have a manufacturing defect
- Defect will be charged to the manufacturer as long as it emerges while product is in its control or possession
Design Defect = a flaw in the planner specifications for the product, may be small or technical or may go to the essence.
- flawed Product line; usually a class action
- have to claim as a reasonable alternative design (safer way to design it)
- controversial what criteria should be used to determine if design is defection. Some considered:
- Significance of the risks of physical injury posed by design
- How ordinary consumers would expect the product to function
- whether there is a feasible safer affordable alternative design
Circumstantial Evidence Supporting Inference of Product Defect (Rest. 3d, 3)
May be inferred that harm caused by product defect existing at the time of sale without proof of a specific defect when the incident that harmed P:
a) was of a kind that ordinarily occurs as a result of a product defect and
b) was not in the particular case solely the result of causes other than product defect existing at the time of sale or redistribution
res ipsa (on steroids) WITHOUT exclusive control
‘Strictness’ of Manufacturing Defect Liability
e.g., D fills millions of glass bottles with soda; a few explode during ordinary use (Escola)
- Exploding bottles are defective because they do not perform as intended by D
- Proof of defect is in the accident (res ipsa-like): defective bottles don’t explode in ordinary use
- No inquiry into whether or how D was careless.
- Manufacturing defect liability is ‘super strict’ as retailers
a) e.g., grocery or convenience, store south and exploding bottle
b) but retailers often get indemnification (compensation) from manufacturers and sometimes benefit from statutory limits on strict liability - P suing for a manufacturing defect still must prove
- Injury occurred in the course of intended/ expected use
- the defect actually and proximately caused injury
Consumer Expectations as the first test (Rest 2d)
- was the product safe as an ordinary consumer would expect?
- design defect was anything that departed from consumer expectations
- pro-p and has fallen into disfavor
Design Defects
- early years no test formally specified; “defect” was undefined
- Today dominant test is risk utility test
- to design risks, outweigh its benefits
- D-Friendly (jury deference to design experts, more room for D summary judgment motions)
- sometimes p-friendly (if cheaply avoidable, even obvious risks can be basis for finding defect)
NY Risk-Utility Factors (Wade Factors)
1. Utility of design to public
2. Utility of design to p
3. Likelihood of harm associated with design
4. Availability of safer design
5. Feasibility, functionality of safer design
6. Consumers’ awareness of the designs risks
7. manufacture’s ability to spread cost of safer design (only applied by judges)
Application of Risk-Utility Test
- jurors often interrupted on a summary version of risk utility test, “ given the designs risk and utilities relative to feasible alternatives. What a reasonable person have marketed the product as designed?”
- Warnings and Consumers’ Responsibilities— warnings do not absolve seller of design defect liability (Chow) but consumers’ awareness of design risks is a risk utility factor and comparative fault is generally recognized as a defense
Is the utility test foresight-based or hindsight-based?
- NY:“ Hindsight. would a reasonable person who, in fact knew of the products potential of causing injury, have concluded it should not have been marketed?”
- Retroactive imputation of knowledge is possible = D can still be liable even if they didn’t know at the time—this CANNOT happen in negligence. R3d disfavors this and just talks about foreseeability (below)
- Combining this and Wade Factors is scary for D’s because combines procedure & substance
- R3: Foresight when foreseeable risks of harm could’ve been reduced by the adoption of a reasonable alternative design…”
- direction of negligence
-proof of reasonable alternative design:
- NY: relevant but not required (factors 4&5)
-R3: required to establish design defect
Failure to Warn
Categories of Product Defect (R3d 2)
Duties owed
learned Intermediary Doctrine
A product is defective in designed when the foreseeable risks of harm posed by the product could’ve been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor or predecessor in the commercial chain of distribution, and the omission of the alternative design render the product not reasonably safe
Who has duty to warn: commercial sellers
to whom is the duty owed: purchaser/user *but see learned intermediary doctrine
when is warning needed: for non-obvious risks
what should warning do? Adequately identify type & severity of risk
Learned Intermediary Doctrine = if a product that is aledged to be defective for lack of adequate warning is a prescription drug tort law, generally oblige sellers to provide warnings and instructions only to the prescribing physician not to consumer
Design Defect: Prescription Drugs
R2d 402a, comment k: if properly manufactured and accompanied by adequate warnings, a drug cannot be deemed deffectively designed
- treat drugs as unavoidably unsafe having harmful side effects that can’t be prevented
R3d, Products Liability 6(c): a regulated prescription drug or medical device is defectively designed only if a reasonable MD would not prescribe it to any class of patients
- Note both R2D and R3D allow for negligent design claims
Note on Strict Products Liability & D’s Affirmative Defenses
P can contribute to P’s own injuries
- Comparative fault, implied assumption of risk
- “Product misuse” defense
- p’s conduct can bear on the defect (ex: product not defective for posing risks associated with unforeseeable uses)
