Strict Liability - Torts

What are the 3 types of defects in strict product liability and what are the different rules for each?

1) Manufacturing Defect - product comes out in condition that was not intended by the manufacturer. product more dangerous than a consumer would rxbly expect and that the defect existed at the time it left defendants hands. 2) Design defects - A product manufactured as the manufacturer intended but that the design is defective. - Ordinary Consumer Expectation Test: A product is in a defective condition unreasonably dangerous when it is more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. -Risk-Utility Balancing Test: A product is defective if a jury determines that the danger it threatens (the cost in human injury and property damage) outweighs its utility to society. The danger-utility test balances the likelihood, nature, and potential severity of injuries caused by a product against: i) A product's design is usually defective under this test if: the risk of the product as designed outweighs the utility of the product as designed. Look at likelihood of harm / gravity of harm and compare that to availability, feasibility, and impact of alternative designs. 3) Absence of Warnings - Does the warning: reasonably inform the reader of significant risks. - Lack of warning: a. Manufacturer has to warn about risks of which it knows or should know

Products Liability on a Warranty Theory what is difference between express and implied warranty and what is important to note regarding collecting damages?

1. An express warranty exists where: defendant makes a specific representation about a product that becomes the basis of the bargain. a. This can occur via advertising, during negotiations for purchase, or as a provision of the contract of sale. EXAMPLE: At a garage sale, Duma tells Xaviera that the knife she is buying is rust-proof. It ends up rusting and her husband is injured. He can sue Duma for breach of express warranty. 2. An implied warranty a. Warranty of Merchantability (1) Where a merchant deals in goods of a particular kind, sale of such goods constitutes an implied warranty that those goods will be merchantable, that is, they are of average quality for goods of that kind and: are fit for their intended use. (2) There are privity and notice requirements. (3) Can be disclaimed. 3. Where the harm is to the product itself, the only claim a plaintiff can pursue is a claim for breach of warranty.

Product Liability on a Negligence Theory what 4 things are important to know?

1. Any foreseeable plaintiff is entitled to bring an action. 2. Analyze the conduct of each defendant and ask whether it was reasonable. a. Differentiate from strict products liability, which considers the product rather than the person. 3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory. 4. Negligence defenses apply.

What are the 3 contexts where Strict Liability Applies?

1. Possession of animals 2. Abnormally dangerous activities 3. Product Liability

What is the Strict Products Liability in Tort and what are the 8 elements?

1. Proper plaintiff - any user, consumer, or bystander injured from the product 2. Proper Defendant - anyone who is in the marketing chain and in the business of dealing this product. An occasional seller cannot be sued. When there is both a service and a product: the rule is which predominates If defective goods are supplied along with services, the product must predominate the service. 3. Proper Context for Strict Products Liability - needs to be a product not a service. 4. Defect (Most important factor) -manufacturing defect -design defect -absence of warning 5. Cause in fact 6. Proximate Cause Learned Intermediary Doctrine: If a manufacturer provides a warning to a doctor, they can expect that the doctor will pass it on to the patient. If he does not do so, the doctor is a superseding cause. 7. Damages May be recovered when: there is personal injury or property damage to property other than to the product itself. 8. Defenses -misuse: plaintiff uses a product in a manner that is neither intended nor foreseeable, she is not entitled to recover damages in strict product liability -alteration: Employers remove safety devices in order to make a machine more efficiently. No liability -assumption of risk; Comparative fault is no defense, only assumption of the risk is a defense

What is the Wild Animal Rule?

If the defendant keeps a wild animal and the plaintiff is injured because the animal does something characteristic of that animal, the keeper is: strictly liable no matter how unforeseeable it is that the harm would occur.

What is the Domestic Pet Rule?

One free bite. Absent a statute for strict liability, the keeper of a domesticated pet is not liable unless the keeper: knows or should know of the animal's dangerous propensity.

What is an Abnormally dangerous activities

a. An activity is abnormally dangerous when: there in an inevitable high risk of serious harm and it is not a common activity. EXAMPLE: Blasting or dynamite, crop dusting, transporting toxic waste, fumigating Plaintiff can recover when absent proof of fault as long as the defendant was involved in an abnormally dangerous activity and that the activity caused the harm. a. MBE Rule: Where strict liability is applicable, defendant generally has a defense when plaintiff assumes the risk. EXCEPTION: Where plaintiff knew of the danger that justified imposition of strict liability, and his con-tributory negligence caused exactly that danger to be manifested, such contributory negligence will bar plaintiff's recovery, assuming the jurisdiction applies the traditional contributory negligence doctrine.

Under comment K what products are exempt from being found defective in design under strict products liability.

vaccines and prescription drugs.