Strict Liability and Products Liability

Question 1

What are three defenses to strict liability?

Answer 1

1. assumption of risk;
2. comparative negligence; AND
3. contributory negligence

*contributory negligence is only a defense IF the π was AWARE of the risk and their contributory negligence ACTUALLY caused the accident to happen

Question 2

What are the 5 theories of products liability?

Answer 2

5 theories are:

1. liability based on intentional torts (ie, battery)
2. liability based on negligence
3. liability based on strict liability
4. liability based on implied warranties; AND/OR
5. liability based on representation (express warranty or misrepresentation)

*when analyzing a products liability question, be sure to consider all the bases of products liability claims

Question 3

What factors are considered when evaluating whether an activity is abnormally dangerous?

Answer 3

Court will consider:

1. if the activity is not a matter of common usage in the community; AND
2. if it creates a foreseeable and risk of serious injury that cannot be eliminated by the exercise of due care

Question 4

Who may bring a strict liability claim for personal injury caused by animals?

Answer 4

Licensees and invitees may bring strict liability claims for damages caused by wild animals BUT TRESPASSERS are generally NOT entitled to damages under struct liability

*distinguish strict liability for property damage caused by trespassing animals
–> owners are strictly liable for any reasonably foreseeable damage on another person’s land

Question 5

When strict liability applies, what is the scope of π’s?

Answer 5

in most states - a struct liability duty is owed to ALL FORESEEABLE π’s

Question 6

Must harm from an ultra-hazardous activity or animal be foreseeable for strict liability to apply?

Answer 6

YES

The harm must be a result of the type of danger anticipated from the ultra-hazardous activity or animal

Question 7

What is a “defective product”?

Answer 7

a product w/ a design, manufacturing, or warning defect that when used foreseeably, caused a π damages

*restatement states a product is defective ONLY if it is “unreasonably dangerous”

Question 8

What are the 4 elements of a products liability claim based on negligence?

Answer 8

1. ∆ owes the π a duty of care (ie, the π was a foreseeable user of the product)
2. the ∆ breaches that duty of care
3. actual and proximate cause
4. damages

Question 9

What is an “implied warranty” under products liability?

Answer 9

An assurance implied in the law from the seller to the buyer that the product purchased will not harm the buyer in the course of normal use

*typically this means the UCC warranties of fitness for a particular purpose and merchantability

Question 10

What is the “implied warranty of merchantability”?

Answer 10

An implied assurance that the goods will be at least “fair average” quality i.e., that the goods are fit for the ordinary purposes for which such goods are used

*if a product fails to live up to the standards imposed by an implied warranty of merchantability at the time it was sold, the ∆ may be liable

Question 11

What is the effect of a breach of an express warranty?

Answer 11

When the seller has breached an express warranty, the buyer may have a direct action against the seller if the breach caused damage or injury

Question 12

What are the three elements for a misrepresentation of fact in product liability cases?

Answer 12

1. the seller makes a misrepresentation to the buyer about a material fact concerning the product
2. with the intent to induce reliance in the buyer AND
3. the buyer justifiably relies on that representation

*these claims are usually based on strict liability but may also stem from intentional and negligent misrepresentations

Question 13

Is contributory negligence available as a defense for misrepresentation of fact in a products liability claim?

Answer 13

YES

Contributory negligence is a defense to negligent misrepresentation

*HOWEVER –> contributory negligence is NOT a defense to INTENTIONAL misrepresentation

Question 14

What are the categories of strict liability cases?

Answer 14

Strict liability cases are limited to:

1. wild animals
2. ultra hazardous/abnormally dangerous conditions; AND
3. products liability

Question 15

What are the 3 types of product defects?

Answer 15

1. Manufacturing Defect: Product differs from the intended design and is more dangerous than if made properly
2. Design Defect: product creates an unreasonable risk of danger due to its faulty design; AND
3. Inadequate Warnings: manufacturer fails to adequately warn of the non-obvious risks associated w/ the product’s use

Question 16

What is required to prove strict products liability based on a manufacturing defect?

Answer 16

π must establish that:

1. the ∆ is a COMMERCIAL SUPPLIER
2. the product is not in the condition that the manufacturer intended at the time it left manufacturer’s control
3. the defective product was the actual and proximate cause of the π’s injury; AND
4. the π suffered damages

*if the product is not in the condition that the manufacturer intended, it does not conform to the manufacturer’s own production standards

Question 17

What is a design defect?

Answer 17

A product designed in such a way that it presents undue risk of harm in normal use

*design defect cases will usually be brought under a NEGLIGENCE claim

Question 18

What are the 3 tests for determining a design defect?

Answer 18

1. Risk/utility test
2. consumer expectation test
3. reasonable alternative design test

*in a jurisdiction with a combined approach, either the RISK/UTILITY or CONSUMER EXPECTATION test may be used

Question 19

What effect does non-compliance w/ government safety standards have on whether a product was defective?

Answer 19

the failure to comply w/ a government safety standard may render a product defective

*failure to comply w/ gov safety standard ALONE will USUALLY NOT render a product defective

Question 20

What is the effect of a manufacturer or supplier selling products it knows are defective or dangerous?

Answer 20

(without issuing a proper warning of the danger) may be liable for battery to any person injured through the use or consumption of the product

*this is the tort of battery as applied to a products liability action

Question 21

When may a π bring a products liability claim based upon an express warranty?

Answer 21

if the product is not as represented, causing damage or injury to the purchaser relying on the representation, that purchaser has a direct action against the seller on the K

Question 22

Which mental state is required for a products liability action based on misrepresentation?

Answer 22

Strict Liability: no mental state requirement, π need only show that the representation was false

Intentional misrepresentation: π must show that the misrepresentation was made knowingly or w/ reckless disregard for the truth

Negligent misrepresentation: π must show that a reasonable person in the ∆’s place should have known the misrepresentation was false

Question 23

Which 2 theories of products liability require an affirmative representation by the ∆?

Answer 23

1. breach of an express warranty; AND
2. misrepresentation of fact

Question 24

What is the “implied warranty of fitness for a particular purpose”?

Answer 24

Is when:

1. a seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND
2. the buyer relies on the seller’s skill or judgment to select suitable goods

Question 25

What are the three defenses to a product liability action based on negligence?

Answer 25

1. contributory negligence 2. assumption of risk 3. comparative negligence

Question 26

In strict liability actions, what is the difference between contributory and comparative negligence defenses?

Answer 26

CONTRIBUTORY negligence states: if the π voluntarily or unreasonably assumed a known risk, the ∆ is NOT liable COMPARATIVE negligence states: the state applies its own comparative negligence rules

Question 27

What are the 4 defenses to a products liability action based on implied warranties?

Answer 27

1. assumption of the risk 2. contributory negligence 3. failure to give notice of the breach AND 4. statute of limitations

Question 28

What are the three defenses to a products liability action based on representations?

Answer 28

1. assumption of the risk 2. contributory negligence 3. failure to give notice of the breach

Question 29

What is products liability in tort law?

Answer 29

an area of tort law that focuses on the liability of a supplier of a product for physical harm to person or property caused by defects in the product *∆'s in a product liability suit may be from any point in the supply chain (eg, manufacturer, distributor, and/or retailer)

Question 30

Who may be sued for products liability on a negligence theory?

Answer 30

ANY commercial seller, including manufacturers, wholesalers, and retailers, may be held liable under a products liability claim brought with a negligence theory

Question 31

May a landlord be sued for products liability?

Answer 31

NO Landlords are not treated as bailors or lessors of the furnishings or fixtures in rental unit, so they may not be sued for defects in their units

Question 32

When may a casual bystander (ie, someone who didn't purchase the product) recover in negligence in a products liability action?

Answer 32

A casual bystander may recover when they can prove they were a FORESEEABLE plaintiff *for example - a pedestrian struck by a car driven by another person may recover in negligence if they can show the car manufacturer's negligence

Question 33

When is an express warranty created?

Answer 33

Created when: 1. a seller makes an affirmation of fact, promise, or description, or provides a sample; 2. which relates to the goods; AND 3. it becomes part of the basis of the bargain

Question 34

When is a ∆ liable for products liability based on misrepresentation?

Answer 34

If a product falls short of a representation made to a buyer and the misrepresentation about a material fact was a substantial factor in inducing the purchase

Question 35

Define struct products liability

Answer 35

A π MUST show that the ∆ is a commercial supplier, engaged in the production or sale of a defective product that was NOT ALTERED and is unreasonably dangerous to users, and its use was the ACTUAL AND PROXIMATE cause of the damages *strict products liability extends to ALL foreseeable π's

Question 36

Who is concerned a commercial supplier?

Answer 36

Any person or entity who is engaged in routinely selling goods of the type *a causal seller is NOT considered a commercial supplier

Question 37

What other tort has the same elements as a products liability claim based in negligence?

Answer 37

A negligence COA in general

Question 38

What are the 3 prima facie elements of strict liability in tort?

Answer 38

1. an act by the ∆ that imposes an absolute duty to make safe 2. the dangerous aspect of the ∆'s act is the actual and proximate cause of the π's injury AND 3. damages

Question 39

What is a landowner's liability for damages caused by wild animals possessed on their property?

Answer 39

The possessor of wild animals (eg, tigers) is strictly liable for any harm resulting from the animals' normally dangerous propensities *landowners will NOT be strictly liable for domestic animals w/out known dangerous propensities

Question 40

What is an abnormally dangerous activity?

Answer 40

When the activity creates a foreseeable and highly significant risk even when reasonable care is exercised

Question 41

What is a manufacturing defect?

Answer 41

the product is not in the condition that the manufacturer intended at the time it left their control, i.e., the product did not conform to the manufacturer's own production standards *this includes "assembly line" errors in production

Question 42

Who may be strictly liable in a products liability suit?

Answer 42

Any party that causes the product to enter the "stream of commerce" or market it into the stream of commerce may be held strictly liable *thus, retailers and distributors are liable as well as manufacturers for defective products

Question 43

What are the 4 elements of a struct products liability claim?

Answer 43

1. the ∆ is a commercial supplier 2. the product is defective 3. the defective product was the actual and proximate cause of the π's injury 4. the π used the product in a foreseeable manner *foreseeable users or bystanders may sue for a defective product

Question 44

Who may bring a claim for products liability based upon the implied warranty of merchantability?

Answer 44

A purchaser or member of the same household may bring a claim against a merchant who deals in goods of a particular kind for the sale of goods that are not fit for their ordinary purpose *the π may recover for personal injury property damage, and economic loss

Question 45

Define strict liability

Answer 45

In a strict liability action, the ∆'s activity imposes an absolute duty to make safe, and the ∆ is strictly liable for nay harm caused by ∆'s activity to the π *even if the ∆ exercised reasonable care, the ∆ will NOT be absolved from liability

Question 46

How does the application of strict liability differ between domestic pets and wild animals?

Answer 46

-If a ∆ keeps a wild animal, and the π's injury is the result of the wild animal's natural dangerous propensities, then the ∆ is strictly liable even for unforeseeable harms -if the ∆ has a domestic pet, the ∆ is NOT liable unless they know or should have known of the domestic animal's dangerous propensity