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? What activities are subject to
strict liability? 3) Why, as a matter of policy,
are we imposing strict liability on some
activities and not others?
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Chapter Seven Strict Liability A. Doctrinal
Development
Restatement Second of Torts, 520 a) existence
of a high degree of risk b) likelihood of great
harm c) inability to eliminate the risk by the
exercise of reasonable care d) extent to which
the activity is not a matter of common usage e)
inappropriateness of the activity to the place
where it is carried on, and f) extent to which
its value to the community is outweighed by its
dangerous attributes.
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3) Why, as a matter of principle or policy, are
we imposing strict liability on some activities
and not others? the right to use property is
absolute, and therefore compensation must be paid
whenever you interfere with it? when you
introduce an abnormal risk into the community,
you are responsible for the results when you
engage in profit-making activity, you should bear
the costs of that activity because it is
good policy to encourage some types of activity
and discourage others because it will provide
incentives to safety that are missing in a
negligence regime
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Chapter Seven Strict Liability A. Doctrinal
Development
The problem Plaintiff farms organically.
Defendant, who owns the neighboring farm, does
not. When Defendants crops become infested by a
beetle, he hires Crop Duster to spray a
pesticide. Residue of the pesticide turns up on
Plaintiffs vegetables, which he then cannot sell
as organic. Because produce contracts are
entered before the crops are grown, Plaintiff
cannot find a market for his vegetables and is
forced to sell them at a loss.
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Chapter Seven Strict Liability A. Doctrinal
Development
Rest. 3d 20. Abnormally Dangerous
ActivitiesProposed Final Draft No. 1 (a) An
actor who carries on an abnormally dangerous
activity is subject to strict liability for
physical harm resulting from the activity.(b) An
activity is abnormally dangerous if(1) the
activity creates a foreseeable and highly
significant risk of physical harm even when
reasonable care is exercised by all actors and
(2) the activity is not one of common usage.
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Chapter Seven Strict Liability A. Doctrinal
Development
The prima facie case Defendants activity is
one that is subject to strict liability. Defendan
ts activity was the but-for cause of the
harm. The harm resulted from the activitys
abnormally dangerous character. The plaintiffs
recovery will be reduced if the plaintiffs
unreasonable conduct contributed to the
harm. (Some forms of plaintiff conduct may
negate the finding that the activity was
abnormally dangerous hypersensitive uses, for
example)
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Ch. 8 Liability for Defective Products A.
Introduction
A person is injured by a product and sues the
manufacturer, or the retailer who sold the
product. What legal theories are available to
support recovery?
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Ch. 8 Liability for Defective Products A.
Introduction

• A person is injured by a product and sues the
  manufacturer, or the person who sold the product.
• What legal theories are available to support
  recover?
• negligence theories
• contract theories breach of warranty
• other tort theories fraud, or misrepresentation
• strict product liability

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Negligence based theories
MacPherson v. Buick Motor Company If to the
element of danger there is added knowledge that
the thing will be used by persons other than the
purchaser and used without new tests, then
irrespective of contract, the manufacturer of
this thing of danger is under a duty to make it
carefully.
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Contract theories breach of warranty
Note 9, p. 555. Note 4. P. 560 2-314.
Implied Warranty Merchantability Usage of
Trade.   (1) Unless excluded or modified . . .
a warranty that the goods shall be merchantable
is implied in a contract for their sale if the
seller is a merchant . . . (2) Goods to be
merchantable must be at least such as. . .(c)
are fit for the ordinary purposes for which such
goods are used
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Ch. 8 Liability for Defective Products
Escola v. Coca Cola Bottling Co., Traynor, J.
concurring It should now be recognized that a
manufacturer incurs an absolute liability when an
article that he has placed on the market, knowing
that it is to be used without inspection, proves
to have a defect that causes injury to a human
being.
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Chapter VIII Liability for Defective
ProductsA. Introduction
The questions 1) What does it mean to say a
manufacturer 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 product defective? 3)
Why, as a matter of policy, are we imposing
strict liability on manufacturers?
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What are the arguments for strict liability in
such a case? Traynor, in Escola, p. 547 1)
placing liability where it will most effectively
reduce the hazards inherent in defective
products that reach the market. 2) shifting the
loss to the party who can best insure and spread
the loss among users of the product 3) providing
general and constant protection against a
general and constant risk 4) liability is in
effect strict anyway res ipsa gets the
plaintiff to the jury, and the jury will almost
always find for the plaintiff 5) under modern
marketing methods, the consumer no longer has the
means to investigate a products soundness, and
has been led to be confident in manufacturers
ability to produce a safe product.
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Ch. 8 Liability for Defective Products A.
Introduction
Greenman v. Yuba Power Products (note 5,
p.551) a manufacturer is strictly liable in tort
when an article he places on the market, knowing
that it is to be used without inspection for
defects, proves to have a defect that causes
injury to a human being. liability of course
should be defined in terms of the safety of the
product in normal and proper use (Escola, p.
550) and should not extend to injuries that
cannot be traced to the product (ditto)
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Ch. 8 Liability for Defective Products Manufact
uring defects
To establish strict liability, the plaintiff must
show 1) that the product was defective 2) and
that as a result of the defect, the product was
Restatement 402a was in a defective
condition unreasonably dangerous to the user or
consumer or to his property. California
failed to perform as safely as an ordinary
consumer would expect when used in an intended or
reasonably foreseeable manner.
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Ch. 8 Liability for Defective Products The
Third Restatement Products Liability
Section 1 One engaged in the business of selling
. . . products who sells . . . a defective
product is subject to liability for harm to
persons or property caused by the defect.
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Ch. 8 Liability for Defective Products The
Third Restatement
Section 2 there are three types of
defects Manufacturing defect A product
contains a manufacturing defect when the product
departs from its intended design even though all
possible care was exercised in the preparation
and marketing of the product. Design defect the
foreseeable risk of harm could have been reduced
by adopting a reasonable alternative
design. Warning defect the foreseeable risk of
harm posed by the product could have been reduced
or avoided by reasonable instructions or warnings.
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Assignments

Tuesday, first hour second
hour Wednesday