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Strict liability

Where the plaintiff cannot show fault on the part of the P he typically cannot
recover. P has to show there was intentional wrongdoing, recklessness or
negligence to claim damages.
Situations where P can recover absent proof of fault: without proving fault.
1. Animals,
Keeper of a wild animal is strictly liable for any harm related to the
animals propensity.
Simply show that injured by wild animal is enough.
Strictly liable for stuff the cattle trample
You can be directly or indirectly injured by the animal as long as it is
the fear.
Domestic animals: is only liable once he knows or should know of the
animals dangerous propensity, one-free bite rule is not true, one free
attempt at the bite. Once a dog attempts to bite someone if that
happens again then person liable.
2. Abnormally dangerous activity,
Where the D is engaged in an abnormally dangerous activity the P can
recover for harm without proving any fault.
What is an abnormally dangerous activity?
It is a narrow category. General proposition in tort the P cannot recover
absent proof of fault. An abnormally dangerous activity is an activity
which involves an unavoidable high risk of serious harm, which is not a
common activity.
No matter how careful the D is there is high risk of injury example,
explosives or blasting, Dynamites, Transporting large quantity of toxic
Judges decide whether an activity is abnormally dangerous and in most
jurisdictions they do that through a balancing of factors from the 2nd
restatement 520. The bottom line is high risk of serious harm, which is
not a common activity.
If the D engages in such an activity the P does not have to prove fault.
But the P still has to prove cause-in-fact, and but for.
Must show proximate cause.
One twist, the activity must lead to an injury related to the abnormally
dangerous activity. Look at the Ps harm and if the P does not suffer
from the type of harm that one expects from what makes this activity
abnormally dangerous in the first place the courts will not apply strict

(mink V dunko) blasting, the mama mink ate the kittens. This was not
Traditional rule is only assumption of risk is a defense to strict liability.
Not the P in reasonable conduct. General reasonable conduct depends
on the jurisdiction. E.g dunko is blasting; P is driving, warning to turn
off the radio because frequencies can designate the dynamites,
explosives. Danger, turn off radio. P doesnt see signs. Theres an
explosion, P sues Dunko, traditional rule would be no defense because
that was simple unreasonable conduct and did not assume the risk.
But if he sees the sign but the radio has his fav song playing and he
decides to keep listingnow he assumed the risk and now his recovery
will be barred or limited depending on the jurisdiction.
Many jurisdictions have adopted comparative fault in the context of
strict liability for abnormally dangerous activity
3. Strict product liability
Falls under product liability, product related injury. There can be breach
of warranty, misrepresentation or negligence. Variety of tort claims.
Carefully look at what u r being asked to discussed, whether its
negligence or strict product liability. Look at the call of the question. It
seems like negligence but the focus here is the product not the
conduct of the D
Tort strict liability,
8 elements you should keep in mind:
1. Is there a proper P
Any foreseeable user or consumer of a product. A bystander who
suffers physical harm. You dont have to be a purchaser under the
contract. It doesnt matter who purchased it. Even if you lend the
product to someone they can bring a claim.
2. Proper D
Anyone who is in the marketing chain and in the business is a
proper D. Manufacturer, and or the person selling. It doesnt matter
if the D do anything wrong. People who make money selling the
Occasional sellers are not part of the marketing chain.
The idea is by holding the manufacturer, retailer or the seller liable
we will wind up a safer product and they can spread the loss. There
is fairness rational, safety rational and loss distribution.
3. Proper context

You have to have a product. This comes up when there is part

product and part services. Where the product pre-dominates we will
use strict liability and where the service pre-dominates we will not
use strict product liability.
e.g P goes into a beauty salon and V picks a perm to administer, he
picks a product manufactured by G. V administers in and P suffers
burns and decides to sue strict product liability. She sues V, he says
no, Im an artist. Court says u charged extra for the perm, and he
will be liable but this depends case to case. Issue what predominates?
4. Is there a defect
There are three different kinds of defects. Each has its own rules
manufacturing defects
True strict liability, arises where the product comes out in a
manner not intended by the manufacturer. E.g toe in the soda
Or under 402(a) of the second restatement the product is
more dangerous than an ordinary consumer will expect while
using the product in its intended use or foreseeable manner. It
doesnt matter how careful the manufacture was.
design defects
Far more difficult, as the P claims the entire design line is
faulty or defected. Design makes the product fault. (e.g ford
car case)
Two tests used by courts:
a. Ordinary consumer expectation test (restatement 2), which
says that the product is more dangerous than an ordinary
consumer will expect while using in an intended or
foreseeable manner.
Trouble is that for complex product designs the consumer
does not have an expectation about the design. The more
obviously flawed the product is the less likely it is to be
defective under the strict product liability. E.g the welder
buys safety goggles that only cover the eyes from the front
and not the sides, while doing work he is injured and sues
the manufacturer for design defect because the product
should have had side protection. Under the ordinary
consumer protection test he losses because he cannot
prove that the ordinary consumer expectation is that there
will be side protection when there isnt one. Its clear theres


no side protection. The ordinary consumer cannot expect

the side protection because there is protection only in the
front. P losses thus courts have adopted an alternative
b. Risk utility balancing, the P shows that the risk of the
product outweighs the utility of the product. Then the
product is defective thus in the earlier example if the P can
show that the risk of safety goggles without the side
protection outweighs the utility of goggles then product will
be defective.
the jury will look at whats the likelihood of harm, likely
gravity, whats the availability impact and the feasibility of
alternative design.
Sometimes the D make arguments that the product is the
state of art that means it cannot be made any safer.
Social utility and no safer alternative designproduct may
be held defective.
Limit cases where product might not be held defective:
We say to the D, you knew of the defect. We dont care
how many tests u did. Risk outweighs utility. E.g light
weight car manufactured which are fuel efficient, blows up.
Very difficult to prove if the manufacturing of the gas tank
with a different material outweighs the risk.
Some products are so useful they cannot be defective e.g
medical devices, prescription drugs or vaccines. Comment
K: Such great social utility that we will not allow a jury to
find the defect.
warning defects
No warning or inadequate warning. You will be given a
warning in the fact pattern. The warning must reasonably
apprise the reasonable users to foreseeable risk. You can
argue there is a way to make it better, Placement, language,
font and color of the warning.
In cases where no warning is given you can argue that the
product doesnt warn, depends on the jurisdiction.
The D should provide warning about the risks that were known
or should have known and which are significant.
Warning issue there must be a causation issues: that if there
was a warning I would have used it in a better way.
In some jurisdictions courts allow defendants to show that
even if there was a warning the P would not have used it.

5. Cause in fact
6. Proximate cause
7. Damages
P has to proves damages, property damages and personal.
If the harm is only to the product itself and if that leads to economic
loss, as long as the harm is just to the product itself the clear
majority rule is that the P cannot bring a claim under strict product
liability or in negligence. The contract liability of warranty would be
the only claim available. E.g if P buys a truck and one morning the
truck doesnt start as a result he fails to deliver the goods and
suffers 10k in sales as result. He sues the manufacturer under strict
product liability, he losses because he is not allowed to bring a
claim under strict product liability or negligence because the only
harm he suffered was to the product itself and subsequent
economic loss.
If however Ps truck is parked in the garage and there are sparks
from the trucks engine burn down a wall in the garage, now P has
damage to the truck, economic losses from not able to deliver
products and property damage he can bring a claim under strict
liability, negligence or contract.
But if there is separate property damage or any personal injury then
the P can proof all cause of actions.
8. Strict product liability defenses.
a. Misuse
If the product is used in a way that is neither intended nor
foreseeable, then misuse.
b. Alteration
If the P alters the product in an unforeseeable manner, that
product will not be deemed to be defective.
c. Assumption of risk (subjective standard) you can only assume
what you comprehend.
Under 402(a) second restatement and traditionally the Ps
unreasonable conduct was not a defense to strict product
liability. Only assumption of the risk was. So unless the D can
show that the P knew the defect, comprehended the dangers of
the defect and voluntarily elected to be exposed to such risks
there would be no defense. Ps general unreasonable conduct
was not a defense.
Modern approach
Most jurisdictions have now adopted comparative fault. It is
controversial because the Ps unreasonable conduct is being

compared to the Ds defect. We dont care about the Ds conduct

in strict liability.