Chapter Seven: Strict Liability A. Doctrinal Development

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Chapter Seven Strict Liability A. Doctrinal
Development
The questions 1) What does it mean to say
someone is strictly liable? How does it differ
from fault based liability? 2) How do you
decide, doctrinally, that strict liability will
be imposed? When is a manufacturer / retailer
subject to strict liability? 3) Why, as a matter
of policy, are we imposing strict liability on
manufacturers whose products are defective?
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Ch. 8 Liability for Defective Products The
Barker v. Lull test
A product may be found defective in design a) if
the plaintiff demonstrates that the product
failed to perform as safely as an ordinary
consumer would expect when used in an intended or
reasonably foreseeable manner OR b) if through
hindsight, the jury determines that the products
design embodies excessive preventable danger,
or in other words, if the jury finds that the
risk of danger inherent in the challenged design
outweighs the benefits of such design.
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Ch. 8 Liability for Defective Products The
Barker Test
Consumer expectations A two step approach 1)
Under Soule, the product must be one as to which
ordinary consumers have an expectation of
safety 2) If it is such a product, then the
question is whether the article is dangerous to
an extent beyond which would be contemplated by
the ordinary consumer who purchases it with the
ordinary knowledge common to the community as to
its characteristics (574, Restatement 402A
comment i)
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Ch. 8 Liability for Defective Products
Under the Barker test, the risk utility test in
strict liability differs from the negligence
test because 1) consumer expectation is a
floor 2) the risk - utility calculus is applied
in hindsight. 3) the burden of showing that the
benefits of the design used outweigh its dangers
is on the defendant. 4) the focus is on the
product, not on the manufacturers conduct
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Ch. 8 Liability for Defective Products The
Camacho test
In determining whether the design is defective,
look to 1) usefulness of product 2) safety
aspects of the product 3) availability of a
substitute product 4) ability to eliminate the
unsafe character without harming its utility 5)
users ability to avoid danger by exercise of due
care 6) users anticipated awareness of the
dangers inherent in the product 7) feasibility of
spreading the loss by setting the price or
carrying insurance
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Ch. 8 Liability for Defective Products
Restatement of Product Liability, 2 A
product b) 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 by
the seller or other distributor, or a predecessor
in the commercial chain of distribution, and the
omission of the alternative design renders the
product not reasonably safe
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Ch. 8 Liability for Defective Products
Restatement of Product Liability, 2 comment f
(p. 567-568, note 8) Factors to be considered in
evaluating a RAD 1) magnitude and probability of
risk 2) instructions and warnings accompanying
the product 3) nature and strength of consumer
expectations, including expectations based on
marketing 4) relative advantages and
disadvantages of the product and its
alternatives, including product longevity,
repair, range or consumer choice among products,
etc.
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Ch. 8 Liability for Defective
Products Failure to Warn
Restatement of Product Liability, 2 A
product c) 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 warning renders
the product not reasonably safe.
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Assignments
Tuesday, Nov. 26 597-605, 605-614 Weds.,
Nov. 27 865-876, 888-899