Strict Liability Flashcards
(27 cards)
Products Liability: SL theory
What does the PL strict liability theory NOT focus on?
Does not focus on D’s conduct
Products Liability: SL theory
Strict liability test
An “unreasonably dangerous condition.”
Products Liability: SL theory
Who can be a P?
Anyone who is within the “foreseeable zone of risk” including bystanders
Products Liability: SL Theory
Who can be a D?
Everyone –> note: indemnification up the chain applies.
Products Liability: SL theory
Warnings
Adequate warnings will generally insulate from liability– but not always.
Products Liability: SL theory
The Feasible Alternatives Approach
If one could have cured a defect for a minor amount of money relative to the risk involved he/she should have done it AND a warning will not insulate.
Products Liability: SL Theory
Product Use Incidental to Performance of Services
Strict Liability is Unavailable.
Eg. During course of medical operation, defective blood is administered
NOTE: can always try to recover under a diff tort e.g. negligence.
Strict Liability: PFC
Same as for negligence with one exception: The negligence standard of care is replaced by an ABSOLUTE DUTY TO MAKE SAFE.
Strict Liability: Defenses
Contributory Negligence State:
1. Knowing Contrib. Negl. = Complete defense
2. Unknowing Contrib. Negl. = No Defense
Comparative Negl. State
1. Knowing and Unknowing Contrib Negl. = P recovers what they would recover under that state’s comp negl. rules.
Strict Liability: Specific Situations
Animals:
1. Liability for domestic pets only at second instance; SL for those with INHERENT DANGEROUS PROPENSITIES from the outset (result not changed if tamed).
Abnormally Dangerous Activities
**note super careful D– irrelevant
** Negligent conduct– any alternative that refers to conduct in SL qs–WRONG.
Products Liability: Threshold Inquiry - Who can you hold liable?
Any COMMERCIAL SUPPLIER as long as you can establish:
- The defect causing the injury must have existed at the time the product left that d’s control.
- P needs a workable theory: Negligence, SL– to determine which one–look to call of qs
Products Liability: First Requirement
Rule: Inference the defect existed when it left any given D’s control if since that time the product has moved through normal channels of distribution
Products Liability: Negligence
What does PL Negl. focus on?
Focuses on D’s conduct
Products Liability: Negligence
Conduct Possibilities
(i) Negligent Design
(ii) Negligent Manufacture
(iii) Negligent Warnings
(iv) Negligent Inspections
Note: Res Ipsa is available.
Products Liability: Negligence
Who can be P?
Anyone who is within the “foreseeable zone of risk” including bystanders.
Products Liability: Negligence
Who can be D?
Manufacturers? Almost always
Retailers/wholesalers ? Almost never
** But watch out for the obviously negligent retailers fact pattern–they are liable.
Side Note Products Liability: Negligence
*Rem JC Penny and Bike Assemblers.
One who labels product as his own or who assembles product from component parts made by others can be liable for negligence even though they were not personally negligent.
KANSAS: Liability for Animals
*Trespassing Animals
KS has declared a policy that domestic animal trespass liability be governed by negligence principles and not SL.
By statute, KS requires fencing of domestic animals, excepts dogs and cats.
KANSAS: Products Liability
Theories*
Provisions of KS Product Liability Act apply to actions based on SL in tort as well as negligence, breach of express or implied warranty, and breach of a duty to warn or to instruct. [Kan. Stat. Ann. Sec. 60-3302]
KS: PL
*Types of Defects– Inadequate warnings
In KS, a manufacturer has a post-sale duty to warn those ultimate consumers who can be readily identified when a defect, which originated at the time of manufacture and was unforeseeable at the time of sale, is discovered to present a life-threatening hazard.
KS:PL
*Types of Defects - Design Defects
KS adheres to the consumer expectations test for DD.
Evidence of a reasonable alternative design may be presented but is not required.
KS: PL
*Types of Defects - Effect of Govt Safety Standards
PLA creates a rebuttable presumption of non defectiveness when a product complies with legislative or administrative safety standards.
If a medical device complies with applicable federal standards for premarket approval of that device, an action under the PLSA is constitutionally preempted.
KS: PL
* Liability based on negligence– Commercial suppliers
KS PLA provides that a seller is NOT liable in a PL action if:
(i) he is not the manufacturer; (ii) he had no knowledge of the defect and could not have discovered the defect through the exercise of reasonable care; (iii)the manufacturer is subject to service of process in KS or in the P’s state of domicile; and (iv) satisfaction of any judgment for the P against the manufacturer is reasonably certain.
KS: PL
* Liability based on negligence– nature of damages recoverable
Damage to the product itself is a form of economic loss and NOT recoverable in either SL or negligence.
