MBE Torts - Strict Liability and Products Liability

Abnormally Dangerous activities;

Wild Animals; and

Defective products

Remember “DAD”

To make activities absolutely safe. D will be liable for P’s injuries even if D was not negligent.

D’s activities impose an absolute duty to make safe;

Breach of duty;

Actual cause;

Proximate cause; and

Damages

When P’s injuries are:

Unprovoked; and

Caused by the animal’s foreseeable dangerous propensities or characteristics

⚠️ Note: D is only liable for injuries caused by the animal’s dangerous propensity. For example, if D owns a lion, and P is injured because she is allergic to the lion’s hair, D will not be strictly liable.

Animals that, as a matter of common knowledge, are naturally:

Ferocious;

Unpredictable;

Dangerous;

Mischievous; or

Not by custom devoted to the service of mankind where they are kept

No, D’s do not owe a duty to undiscovered trespassers for injuries from a wild animal, but may be liable for injuries from a vicious watchdog.

D is only liable for negligence unless:

D knows or should know of the animal’s dangerous propensity; and

Harm is caused by dangerous propensity

Yes, for reasonably foreseeable harm

⚠️ Exception: D is not strictly liable for damage caused by household pets

Not of common usage; and

Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors (i.e. cannot be performed safely no matter how much care is exercised)

Blasting

Mining

Transporting toxic waste

Fumigating

Using explosives

⚠️ Not an exhaustive list

No, only for harm that made the activity abnormally dangerous

Ex. If Max is hit by shrapnel in an explosives accident, D will be held strictly liable.

However, if Max is injured b/c D dropped the box of explosives onto Max’s foot and broke it, D will not be held strictly liable because that isn’t the sort of harm that makes explosives abnormally dangerous.

Contributory negligence jurisdictions: No

Comparative-fault jurisdictions: Yes, can reduce recovery

Yes, bars recovery

Strict liability;

Negligence, or

Breach of warranty

D is a commercial manufacturer or supplier of the product;

Product was defective;

Defect existed when D sold the item;

P used the product in an intended or foreseeable way; and

Defect was an actual and proximate cause of P’s injuries

One-time or occasional seller

Any foreseeable:

User

Consumer

Bystander

Manufacturing defects;

Design defects; and

Warning defects

Exists when:

The product is not produced in an condition intended by the manufacturer; and

The condition makes it more dangerous than the ordinary consumer would expect

Defect that makes the product inherently dangerous because of its design

Consumer Expectation test; and

Risk-Utility test

Asks: Is the product more dangerous than the ordinary consumer would expect? If yes, a defect likely exists.

P must prove:

Reasonable alternative design was available to D; and

Failure to use that design rendered the product not reasonably safe

When there is an inadequate warning of foreseeable, non-obvious risks of harm

"Learned intermediary" rule: If prescription drug is administered by a medical professional, duty to warn is satisfied if medical professional is informed of the risks b/c there is a presumption the doctor will inform patient.

⚠️ Exception: Company still has duty to warn if company knows medication will be administered w/o physican oversight or if required by federal law

D must provide:

Instructions for usage; and

Sufficient warning of foreseeable dangers

Manufacturer;

Distributor; and

Commercial/retail seller

Yes, if:

Component itself was defective; or

Supplier substantially participated in the manfucturing of the product and participation was integral to the defect

When there is either personal injury or property damage.

⚠️ Note: Recovery for only economic loss is not allowed

Unforeseeable user misuse/alteration/modification

Assumption of risk; or

Product changed significantly after it left D's control

⚠️ Note: whether or not defense is a complete bar will depend whether or not it is a comparative fault or contributory negligence jurisdiction. Make sure to read the question carefully.

P knew of the defect/danger;

P comprehended the consequences of the defect/danger; and

P voluntarily exposed himself to that danger

No, there must be other evidence showing lack of defect to absolve D of liability

Commercial seller owes a duty of care to foreseeable users/P's (bystanders, etc);

Seller breached duty by failing to reasonably inspect product;

Breach was actual and proximate cause of injury; and

P suffered physical damages or property damages (economic losses are insufficient)

D makes a representation as to the nature or quality of the product that becomes the basis of the bargain

Merchantability; and

Fitness for a particular purpose

Warrants that the goods being sold are of acceptable quality and fit for their intended use

Exists when the seller knows the product is being purchased for a specific purpose and the buyer relies on the seller's expertise.

Ex. Max goes to Home Depot and asks the plant specialist to recommend the best food for his indoor orchids. The plant specialist recommends Orchids Alive, and Max buys the product in reliance on the plant specialist's recommendation.

Yes, but cannot limit consequential damages for personal injury

Assumption of risk;

Comparative fault;

Contributory negligence; and

Misuse (breach of implied warranty of merchantability only)