Strict and Product Liability

Question 1

What is strict liability?

Answer 1

When a defendant must pay damages although the defendant neither acted intentionally, nor failed to live up to the objective standard of reasonable care

Question 2

What are the factors of strict liability? (6) (not products)

Answer 2

(1) High likelihood of harm
(2) High severity of harm (if happens)
(3) the risk is unavoidable even with due care,
(4) the activity is not common and thus not presumed to be highly valuable,
(5) the activity is inappropriate for the area, and
(6) the activity is not sufficiently valuable to the public to offset the risk

Question 3

What are the common strict liability areas?

Answer 3

Animals and abnormally dangerous activities,

Question 4

What are the limitations on strict liability?

Answer 4

Foreseeability, acts of God, and time and place

Question 5

What is products liability?

Answer 5

Umbrella term for the liability of a manufacturer, seller, or other supplier of chattels to one who suffers physical harm caused by the chattel

Question 6

What are the 3 theories of recovery for products liability?

Answer 6

Negligence, Express/Implied Warranty, Strict Product Liability

Question 7

A product seller is strictly liable for defective conditions that cause harm when:

Answer 7

(1) The seller is engaged in the “business” of selling such a product,
(2) it is expected to and does reach the user without substantial change in the condition in which it is sold

Question 8

What are the 3 types of defects in products liability?

Answer 8

Manufacturing defect, design defect, warning/instruction defect

Question 9

Who is liable in a chain of distribution in products liability?

Answer 9

Anyone can be, above the consumer

Question 10

What is a manufacturing defect?

Answer 10

When the product departs from its intended design even though all possible care was exercised

Question 11

What is the risk utility test?

Answer 11

(1) Usefulness and desirability
(2) Likelihood that it will cause injury and seriousness of that injury (P and L)
(3) Reasonable alternative design
(4) Manufacturer’s ability to eliminate unsafe character without degrading utility
(5) User ability to avoid danger using due care
(6) User’s anticipated awareness of inherent dangers and avoidability of those dangers
(7) Feasibility of manufacturer having liability insurance

Question 12

Is comparative negligence a defense to products liability?

Answer 12

Yes

Question 13

What is the structure of a strict products liability exam answer?

Answer 13

(1) What is the product, (2) is there a defect (and what kind), (3) use the applicable test, (4) Does strict liability apply? (if not, use negligence), (5) Defenses

Question 14

What is abnormal handling?

Answer 14

Misuse of a product that is not foreseeable by the manufacturer. (Defense to product liability)

Question 15

Are online retailers liable for products liability?

Answer 15

It depends. Amazon as a storefront is probably not, but the manufacturer’s website would be.

Question 16

What is the consumer expectations test? (Other way to look at design defects)

Answer 16

This test applies strict liability by measuring what an “ordinary consumer” would believe about the product. A product is defective when it “is in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”