#11256 - Strict Liability - Torts

1. STRICT LIABILITY

Strict liability is imposed on Δ’s for engaging in certain types of behavior which the law does not see as susceptible to the exercise of “reasonable care.” If someone is injured by such an activity, the actor is automatically liable.

1. Generally

The prima facie case of strict liability is as follows:

• (1) The nature of Δ’s activity imposes an absolute duty to make it safe.

• (2) The dangerous aspect of the activity is the actual and proximate cause of Π’s injury.

• (3) Π suffered an injury as a result of the dangerous aspect.

  1. Abnormally Dangerous Activities

A Δ will be held strictly liable for injuries to others caused by an abnormally dangerous activity. The test is as follows:

• (1) The activity creates a foreseeable risk of serious harm, even when all parties exercise reasonable care; and

• (2) The activity is not a matter of common usage in the community.

POLICY: Common activities are those which we can assume are valuable to the community at large, otherwise they wouldn’t be common. Many such activities (e.g., driving) create foreseeable risks of serious harm, but the benefits of allowing them to proceed clearly outweigh the costs to society. With abnormal activities, however, it is more likely the activity is of little value to the community, only to the actor. Thus the actor imposes a risk on society disproportionate to the benefit created.

1. Extent of Liability

• In strict liability, liability falls upon the head of the party engaging in the activity.

• Scope of Duty:

  • To Whom? In strict liability, the duty extends only to foreseeable plaintiffs (most jurisdictions).

  • Which Injuries? To be held strictly liable, the injury must be of a type naturally associated with the dangerous activity.

• Proximate Cause: The majority view is that the same rules of causation govern strict liability as negligence. Δ’s liability may be cut off by intervening or superseding causes.

  1. Defenses to Strict Liability

• Contributory Negligence: Generally speaking, Δ cannot defend by arguing that Π failed his duty to guard against the danger created by Δ’s hazardous activity.

• Assumption of Risk: AOR is permitted as a defense to strict liability. If Π knew of the danger and he unreasonably chose to expose himself to it, Δ may have a defense.

• Comparative Negligence: MOST jurisdictions allow assigning comparative fault in strict liability.

  1. Economic Considerations in SL

Economically, imposing SL functions to:

• Deter conduct the dangers of which outweigh the benefits;

• Force actors to internalize the external costs of their activities; and

• Channel those costs to injured parties as compensation, instead of allowing Δs to deflect liability by making reasonable investments in precautions.

  1. Products Liability

     1. Generally

Products liability is the liability of a supplier to a person injured by its product.

1. Why we Need Product Liability

Products liability doctrine allows us to circumvent the following problems with traditional sources of consumer recovery:

• Ordinary negligence would be hard to apply to products cases.

  • Δs are in possession of greater information than Πs and Πs will have a hard time disproving that Δ exercised due care.

  • PL also provides a reliable mechanism for suing a manufacturer where there are one or more intermediaries between Π and the maker of the product.

• Breach of Express Warranty is probably not satisfactory either.

  • Express warranties only apply to specific representations made by the seller.

  • The claim only arises if the feature or aspect of the product which caused the injury was also the subject of the seller’s representations.

• Breach of Implied Warranty of Merchantability

  • Contract law allows a seller to escape all liability for merchantability with an explicit notice.

• Misrepresentation

  • To win on a misrepresentation theory, Π must show Δ made affirmative representations about the injurious characteristic of the product.

  • Misrepresentation usually requires privity between Π and Δ; an injured bystander or secondhand buyer may not be able to sue in misrepresentation.

Policy reasons also support having a PL scheme.

• Consumers lack information necessary to know about the risks associated with both simple and complex products.

• Consumers often lack privity with the manufacturer.

• Widespread advertising interferes with the market’s ability to make manufacturers of dangerous products answer for the injuries they cause.

• PL forces manufacturers to internalize the added cost of precautions and pass the cost of risk mitigation onto consumers, who might not otherwise know about them.

  1. Defects

It is a requirement of PL that Π show Δ’s product was somehow defective when it left Δ’s control. A defect is a condition of the product which creates unreasonable danger to its users and bystanders.

There are three species of defects:

• Manufacturing Defect: The product was dangerous because it did not meet the manufactuer’s own specifications even though all reasonable due care was taken in manufacturing it. (Food is treated under this category, under the consumer expectations test).

• Design Defect: The product’s very design produces unreasonable danger. Injury must have occurred while the product was being used in its intended or a reasonably foreseeable manner. There are two competing tests for determining whether a design is defective:

  • Consumer Expectations Test (Minority): A design is unreasonable if it poses dangers beyond what an ordinary consumer would contemplate when reasonably using the product, based on a reasonable person standard.

    • Π need only prove that an ordinary consumer would have an expectation as to the product’s safety, in light of factors including knowledge and familiarity with its performance and the effects of prolonged use. It is sufficient to focus on the market at which the party is targeted. (If the product was too complicated or otherwise foreign to Π for him to have an expectation, we shift to risk-utility).

    • Π does not need to say anything about what Δ could have done differently, only that it was unreasonable for the manufacturer to market the product as it was, knowing what they should about its consumer’s expectations.

  • Risk-Utility Test (Majority): A design is unreasonable if there were a less dangerous modification available and it could have been implemented without substantially affecting the product’s price or function.

    • Some courts require Π to show the safer alternative design. Π must show that the alternative is economically feasible, still serves its purpose, and would actually have been safer.

    • Hindsight analysis: (Not all courts like this). Sometimes, Δ may be held liable even though Δ had no reason to know the product was dangerous at the time of manufacturing it.

    • In considering the design alternative, the court will consider:

      • The usefulness and desirability of the product;

      • The availability of safer alternative products;

      • The dangers that have been identified;

      • The likelihood and seriousness of the injury;

      • The obviousness of the danger to a user;

      • The public’s normal expectation of danger;

      • Whether the danger is avoidable by due care;

      • The feasibility of eliminating the danger in light of the added expense or decreased utility.

    • The court may decide that even though a cost-effective alternative design is not available, the product is still too dangerous to be sold.

  • Note that compliance with government safety standards will be probative as to whether a design is defective, but not dispositive.

• Failure to Warn: The product was...