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Flashcards in Strict Liability Deck (16):


  1. Trespassing domestic livestock: Depends on fencing in/out statutes, except for straying on drives.
  2. Domestic non barnyard: If known or has reason to know animal has dangerous propensity abnormal to breed or class.
  3. Wild Animals:  Only if reduce to possession or control or when introduce a nonindigenous species. 


Abnormally Dangerous Activity

Definition: One who maintains an abnormally dangerous condition or activity on his or her premises, or engages in an activity that involves a high risk of harm to the persons or property of others may be liable for the harm it causes even though reasonable care to prevent such harm have been exercised.

  1. High risk of harm (R)
  2. Likelihood of harm (L)
  3. Inability to eliminate the risk by exercise of RC (E)
  4. Inappropiateness of activity location
  5. extend to which activity is matter of common usage (L)
  6. Extend to which value to society outweighs the activity. (V)


Strict Product Liability "Battery"

A volitional act with the intent to cause harmful or offensive contact with a person and does cause harmful or offensive contact with a person or 3rd party resulting to harm.

  • In order to recover the plaintiff will have to establish that the manufacturer/distributor/supplier knew the product would cause harm.


Strict Product Liabilty Definition

Any commercial seller (or distributor) that places a product in the stream of commerce in a defective condition that is unreasonably dangerous, and unaltered by the consumer/user causes injury to the person or property (no pure economic damage) is liable.


Strict Product Liability Manufacturer Defect

a. Aberration or deviation from the seller’s design or from the seller’s other products of the seller’s same design that makes the product more dangerous than intended (and causes harm).

b. Consumer Expectation test:

Whether the product is unreasonably dangerous beyond what an ordinary consumer with typical knowledge of the product.


Design Defect Consumer Expectation Test

Whether the product is unreasonably dangerous beyond what an ordinary consumer with typical knowledge of the product.


Design Defect Risk/Benefit Test

Weigh the known risks and benefits of the product, which includes whether there is a feasible alternative at the time of sale or manufacture.  Regarding a feasible alternative, the plaintiff bears the burden of proving that given the state of technology at the time the product was manufactured or sold, a technological feasible alternative existed design existed, that was also economically feasible, eliminated the risks, retained the benefits and did not create intolerable new risks.
1. Known risks and benefits
    a. Risk
    b. Benefit

2. Feasible alternative
     a. Economic feasible?
     b. Eliminate the risk?
     c. Retains the benefit?
     d. Creates no new intolerable risks?


Design Defect Definition

Determined by:

  1. Consumer Expectation Test
  2. Risk/Benefit Test


Warning Defect Definition

Manufacturer fails to adequaletly warn or instruct about a risk known or knowable (reasonable foreseeable) at the time of sale distribution.


Warning Defect Test

  1. Foreseeable risk because it is known or knowable.
  2. Adequate warning? 

                  Gets users attention, explains the risk and how  to avoid the risk.


Negligence Duty of Care for Retailer

Defendant owes a duty to use reasonable care to protect a foreseeable plaintiff. 

However, has a duty to inspect only when they have been put on notice.


Warning Defect

Learned Intermediary

The doctor is standing in between the manufacturer and consumer and should bear some of the responsibly for failing warn.


SPL Actual Cause

But for the Warning Defect:

  •  Plaintiff must prove the warning inadequate and Plaintiff is entitled to the presumption that they would have heeded and read an adequate warning.
  • Defendant must prove the plaintiff would not have  heeded and read an adequate warning.



Defenses to SPL

  1. Alteration ( Plaintiff altered the product. “After Market products added)
  2. Unforeseeable Misuse
  3. Knowing misuse (assumption of the risk) (  (EAOR/IAOR)       



SPL (N)  PG v. BU

a. Probability consumer would injure themselves
b. Gravity of the injury that the product caused
c. Burden to fix or provide the necessary precautions for the product.
d. Utility of the product to the defendant or society.


SPL (N) Defense

i. Contributory Negligence
ii. Comparative Fault
iii. Assumption of the risk