Strict Liability

     I.  Historical developments

a.    The rejection of strict liability and adoption of the fault/intent/unlawfulness requirement

b.    Writ of Trespass

                                          i.    Applicable where P could show D directly applied physical force to person/property

                                         ii.   P need only prove force and direct application to person/property

                                        iii.    Strict liability – No requirement to show fault

c.    Trespass on the (similar) Case

                                          i.    Applicable where D caused harm to P BUT harm not direct or not caused by physical force

                                         ii.    P must show “fault” (negligence or intent/unlawfulness)

d.    Historical evolution of Writs

   II.  Circumstances where strict liability still imposed

a.    Nuisance

                                          i.    Private nuisance - Substantial and unreasonable interference with (invasion of) P’s use/enjoyment of property (but would have to be by a normal person’s standard, no recovery for an especially sensitive P). P’s use of property is custom, D’s use is not.

1.    Bamford v. Turnley – D made bricks on his property, creating smoke, odors, which entered P’s home (substantial interference). D not unreasonable, but still liable b/c he’s getting a benefit, while P is taking the loss, so P has to be compensated.

                                         ii.    Public nuisance - Substantial and unreasonable interference with a right common to the general public in use of public facilities, in health, safety, and convenience.

                                        iii.    P comes to nuisance – factor in determining is nuisance exists; P made choice to come there. Also, prob already compensated b/c of lower price of property paid due to nuisance.

b.    Strict Liability for entities that escape from your property

                                          i.    Rylands v. Fletcher- D builds pond over old mine shaft, which breaks and overflows into P’s mine shaft. No negligence or intent. D liable based on strict liability for entities that escape from your own property.

c.  Abnormally Dangerous Activities

                                          i.    R3T § 20: D strictly liable for abnormally dangerous activities

1.    An activity is abnormally dangerous if:

a.    the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and

b.     the activity is not one of common usage.

                                         ii.    R3T § 22. Wild Animals: An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal (not commonly domesticated).

                                        iii.    R3T § 23. Abnormally Dangerous Animals – if the owner knows or has reason to know that animal has dangerous tendencies abnormal for the animal's category is subject to SL for physical harm if caused by the animal’s dangerous tendency

  III.    Rules on Strict Liability

a.    If an activity is normal - "a matter of common usage" - in the community, the strict liability rule does not apply and liability is limited to negligence and intent. 

                                          i.    B/c it’s acceptable. Also, if activity is common, more likely to benefit community

b.    Imposed for abnormally dangerous activities: Hazardous Wastes/Blasting & Explosives/Poisons (like crop-dusting)

c.    Environmental statutes

d.    § 349 Limitations on Strict Liability - When it comes to the intervening acts of third persons, innocent, negligent, and even reckless acts of third persons present no barrier to strict liability – nor do forces of nature (but some courts cut off liability if intervening act of god)

  IV.    Products Liability:  Design and Manufacturing Defects

a.    Rationale for Strict Products Liability

                                          i.    Nonreciprocal risks – If D imposes risk on P, but not vice versa, there should be CL based on fairness.

                                         ii.    Deterrence – If there is SL, mfr’s will make products safer to avoid liability costs

                                        iii.    Moral basis - When D engages in a dangerous activity for his benefit, but at the risk of harm/loss to the P. D would still proceed, knowing of danger.

                                       iv.    Consumer expectations – mfr’s represent their products as safe & healthy

                                        v.    Loss Spreading:  mfr’s can more easily spread the costs that result from injuries caused by defective products by raising prices and/or purchasing insurance.

                                       vi.    Sometimes there are harms a negligence inference won’t reach (hard to detect negligence (like driving), so must use SL).

b.    R3T § 1. One engaged in the business of selling or otherwise distributing products and sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

c.    R3T § 2. A product is defective when, at the time of sale or distribution, it:

                                          i.    contains a manufacturing defect (departs from intended design, although no negligence)

                                         ii.    is defective in design (when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, and the omission of the alternative design renders the product not reasonably safe)

                                        iii.    is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided

d.    Manufacturing Defects

                                          i.    Establishing the prima facie case

1.    Commercial Seller/Sale

2.    Defect (at time left D’s control)

a.    consumer expectation test

b.    product departs from its intended design

3.    Causation - Defect was actual and proximate cause of P’s harm

                                         ii.    P may rely on circumstantial evidence to satisfy prima facie case; does not need to identify specific defect (it can be inferred).

1.    Lee v. Crookston Coca-Cola Bottling Co.- waitress injured when coca-cola bottle exploded in her hand. P can’t prove specific defect (doesn’t know). In SL, plaintiff needs to prove:

a.    Product defective at time mfr relinquished control. How to prove:

                                                                                          i.    Eliminate all other possibilities

                                                                                         ii.    Then ask for res ipsa

b.    For SL, P doesn’t need to show D was negligent, only that product was defective.

2.    R3T § 3. It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

a.    was of a kind that ordinarily occurs as a result of product defect; and

b.    was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

                                         ii.    Where alleged defect = dangerous but arguably natural component of food:

1.    Consumer Expectation test (R3T §7) v. Foreign-Natural Doctrine

a.    Foreign-Natural Doctrine: if product is natural to food, its ok. Only if it’s something foreign in the food, then liability.

                                                                                          i.    Mexicali Rose v. Superior Court - Chicken bone in the enchilada. Says the injury-producing substance is natural to the product, so court says it should be reasonably expected. 

1.    ****Most courts reject this.

b.    R3T §7. Liability Of Commercial Seller Or Distributor For Harm Caused By Defective Food Products. Under § 2(a), a harm-causing ingredient of the food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient.

                                                                                          i.    Jackson v. Nestle –Beich, Inc. - Nut Shell in candy.  Pecan shell is natural to pecans, but court rejects the foreign-natural doctrine.  Court says a consumer does not reasonably expect to encounter a shell when eating candy.

b.    Design Defects

                                          i.    Establishing the prima facie case

1.    Commercial seller/sale

2.    Defect (at time left D’s control)

a.    Rest 2d:  Consumer Expectations Test

b.    Rest 3d:  Risk-Utility Balancing Test

3.    Causation

                                         ii.    Consumer expectation test v. risk-utility balancing test

1.    Leichtamer v. American motors Co.- P injured when jeep overturned. There was a rollback that implied it would be safe during a rollover. But not made clear to public that is was for side-side, not front-back. D created an expectation of safety, but failed to warn of hazards.

2.    Knitz v. Minster Machine Co.- no safety features to keep user’s hand out of area when in use (P loses fingers). Court uses risk-utility test.

a.    Risk-utility test -product design is in defective condition to the user or consumer, if

                                                                                          i.    It is more dangerous that an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or

                                                                                         ii.    If the benefits of the challenged design do not outweigh the risk inherent in such design.

3.    Barker v. Lull Engineering- loader did not have safety net, which would have prevented accident.

a.    Consumer Expectation – can only be used for a simple product, where a normal consumer could understand, and know what to expect

b.    Risk-Utility – P needs to show defective design & proximate cause. Then, D’s burden to show benefits of design outweighs any risk of danger inherent.

                                        iii.    Some factors to be considered in applying the risk-utility test

1.    Usefulness and desirability of the product

2.    Availability of substitutes

3.    Mfr’s ability to eliminate unsafe character

4.    User’s ability to avoid danger

5.    User’s probable awareness of the danger

                                       iv.    Factors relevant to whether an alternative design is reasonable and whether its omission renders a product not reasonably safe include:

1.    magnitude and probability of the foreseeable risks of harm

2.    instructions and warnings accompanying the product

3.    nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing

4.    relative advantages and disadvantages of the product as designed and as it alternatively could have been designed

a.    likely effects of the alternative design on production costs

b.    the effects of the alternative design on product longevity, maintenance, repair, and esthetics

c.    the range of consumer choice among products

                                        v.    Manifestly Unreasonable Designs  - No Reasonable Alternative Design

1.    Example: exploding cigar causes injury – no reasonable alternative available, but the utility is so low, and risk of injury so high that it can be concluded that the design is defective and shouldn’t have been marketed at all.

                                       vi.    § 402A. - [This section has been superseded by the Restatement of the Law Third, Torts: Products Liability.]

1.    Comment i: Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption

a.    Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous.

b.    Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.

c.    Good butter is not unreasonably dangerous merely, because it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

   II.        Warning or Information Defects - Focusing on Point-of-Sale Warnings 

a.    Establishing the prima facie case

                                          i.    Commercial Seller

                                         ii.    Warning/Info Defect

                                        iii.    Causation (but-for may be implied)

b.    R3T § 2 - A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

                                          i.    Liriano v. Hobart Corp.- P injured hand by machine mfr by D. Machine sold with safety device, but later taken off (unknown who). It is obvious meat grinder is dangerous, but a reasonable person may not know of the use of safety guards, and that they are available, so the manufacturer had a duty to inform of this alternative, and at a relatively low cost. 

1.    Duty to provide information

a.    A mfr’s failure to provide info about the dangers and risks associated, may make an otherwise safe product dangerous and defective.

b.    Warnings alert users to risks that are not obvious, or to inform users of safer alternatives.

c.    Cost of warning low, so risk-utility balance: always place a warning?

                                                                                          i.    Warnings pollution - the necessary warnings can get lost within the unnecessary, trivial warnings. This is case-specific.

                                                                                         ii.    Reasonability of warning

1.    Characteristics of user group

2.    The understandability and clearness of the warnings

d.    Most courts reject SL for unknowable dangers (warning not possible)

2.    Obvious Danger

a.    If danger is obvious, product not defective for lack of warning (D can use contributory negligence defense – open & obvious danger)

                                                                                          i.    However, if the mfr foresees that harm will occur in spite of obvious danger, mfr may be liable for design defect if it could easily warn and failed to do so.

b.    Open and obvious danger may prevent liability for failure to warn under consumer expectations test, but not necessarily under a risk-utility test.

c.    For allergies - must place warning if the allergy is one that a lot of people have. Also, it must be an allergy to an ingredient that may not be obviously is in it. Also considered, is the extent of harm caused by the allergy.

3.    Causation

a.    If a warning is needed, the plaintiff would have to have read, understood and heeded the warning. Otherwise, the failure to warn cannot be the cause of the harm (causation test).  But courts usually presume that the plaintiff would have done this, and leave the burden on the defendant to prove otherwise. 

b.    Shifting of the burden on defendant once plaintiff proved that the failure to warn "greatly increased the likelihood of the harm that occurred."

                                         ii.    Carruth v. Pitway­- smoke detector insufficient warnings. Warnings must be reasonably clear, of sufficient intensity, and in such form to convey the types of risk and their extent to a reasonable person.