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Slide 2 Development of Strict Liability. Defendants liability for strict liability is without regard to: Fault, Foreseeability, Standard of Care or Causation. Strict liability based on abnormally dangerous activities is one application. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2 Slide 3 Ultraharzardous or abnormally dangerous activities: Involve serious potential harm; Involve high degree of risk that cannot be made safe; and Are not commonly performed in the community or area. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3 Slide 4 Wild Animals: Persons who keep wild animals are strictly liable for injuries caused by the beast. Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4 Slide 5 Product Liability: manufacturers can be found liable without regard to fault. Bailments: when goods temporarily transferred to another. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5 Slide 6 Product Liability is not a new tort. Liability can be based on: Negligence; Misrepresentation; Strict Liability; Warranty Theory. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6 Slide 7 Based on a manufacturers breach of the reasonable standard of care and failing to make a product safe. Due Care Must Be Exercised in: design, selection of materials, using appropriate production process, assembling and testing, adequate warnings, inspection, and testing. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7 Slide 8 Privity of Contract Not Required. No privity of contract required between Plaintiff and Manufacturer. Liability extends to any persons injuries caused by a negligently made (defective) product. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8 Slide 9 Occurs when fraud committed against consumer or user of product. Fraud must have been made knowingly or with reckless disregard for safety. Plaintiff does not have to show product was defective. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9 Slide 10 Strict Liability holds people liable for results of their acts, regardless of their intentions or exercise of reasonable care. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10 Slide 11 Strict Liability and Public Policy. Consumers should be protected from unsafe products; Manufacturers and distributors should be liable to any user of the product; Manufacturers, sellers and distributors can bear the costs of injuries. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11 Slide 12 Requirements for Strict Liability: 1. Product must be in defective condition when sold. 2. Defendant is in the business of selling the product. 3. Product must be unreasonably dangerous. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12 Slide 13 Requirements for Strict Liability: 4.Plaintiff must be physically harmed 5.Defective condition must be proximate cause of injury. 6.Goods are in substantially same condition. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13 Slide 14 Proving a Defective Condition. Plaintiff does not need to show product or in what manner the product become defective. But plaintiff must show product was defective and unreasonably dangerous to the user. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14 Slide 15 Identifying Unreasonably Dangerous Products. The product was dangerous beyond the expectation of the ordinary consumer. A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15 Slide 16 Three types of product defects: Manufacturing Defects. Design Defects. Warning Defects. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16 Slide 17 Occurs when a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17 Slide 18 Product is manufactured correctly, but defect is based on design. Test for Design Defects: plaintiff must show defendants failure to use a reasonable alternative design rendered the product not reasonably safe. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18 Slide 19 Factors to be Considered: Magnitude and probability of foreseeable risks. Relative advantages and disadvantages of product. Most courts use risk-utility analysis. CASE 13.1 Bullock v. Philip Morris USA, Inc. (2008). 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19 Slide 20 A product may be defective because of inadequate warnings or instructions. Liability based on foreseeability that proper instructions/labels would have made the product safe to use. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 Slide 21 CASE 13.2 Wyeth v. Levin (2009). Federal law did not preempt state claim for inadequate warning. Obvious Risks. No duty to warn. Foreseeable Misuses. Seller must warn about foreseeable misuse. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21 Slide 22 Theory of liability when multiple Defendants contributed to manufacture of defective product. Liability of each Defendant is proportionate to the share of the market held by each respective Defendant. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22 Slide 23 Assumption of Risk. CASE 13.3 Boles v. Sun Ergoline, Inc. (2010). Why did court find the exculpatory clause unenforceable? Product Misuse. Plaintiff does not know the product is dangerous for a particular use. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23 Slide 24 Comparative Negligence. Defendants may be able to limit damages by apportioning fault. Commonly Known Dangers. Knowledgeable User. Statutes of Limitation and Repose. 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24