Torts - Strict Liability

What is the rule for product liability regarding blood and human tissue?

Most states have enacted “blood shield” statutes that treat blood and human tissue as services, not products, for liability purposes.

Who is subject to product liability claims?

Only commercial sellers, including manufacturers, wholesalers, and retailers, who place a product into the stream of commerce are subject to product liability.

What is the rule for inferring a product defect using circumstantial evidence?

A defect may be inferred if the incident was of a kind that ordinarily occurs due to a product defect and was not solely the result of other causes.

What is the test for a manufacturing defect?

A manufacturing defect exists when the product departs from its intended design, even if all possible care was exercised in its preparation and marketing.

What is the Consumer Expectation Test for a design defect?

A product has a design defect if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.

What is the Risk-Utility Test for a design defect?

A design defect exists when the risks of harm inherent in the product's design outweigh the benefits of that design.

What are the factors considered in the Risk-Utility Test?

Factors include the product's utility, the likelihood and seriousness of injury, availability of a safer substitute, the manufacturer's ability to eliminate the danger without impairing utility or raising cost, the user's ability to avoid danger, the user's awareness of the danger, and the manufacturer's ability to spread the loss.

What is the Reasonable Alternative Design test for a design defect?

A product is defective in design if the foreseeable risks of harm could have been reduced or avoided by adopting a reasonable alternative design, and the omission of that design renders the product not reasonably safe.

What are the elements of a warning defect claim?

The elements are: 1) Foreseeable risks of harm existed, 2) The risks could have been reduced by reasonable warnings, and 3) The omission of the warnings renders the product not reasonably safe.

What is the manufacturer's duty to warn after a product is sold?

A manufacturer has a continued duty to warn consumers of risks that are discovered following the sale of the product.

What is the Learned Intermediary Doctrine?

For prescription drugs, the manufacturer's duty to warn is discharged by providing adequate warnings to the prescribing doctor, who is a 'learned intermediary,' rather than directly to the patient.

When is the Learned Intermediary defense lost?

The learned intermediary defense is lost if the manufacturer engages in direct-to-consumer advertising for the prescription drug.

What are the elements of the Sealed Container Defense?

A seller must establish: 1) product was sold in a sealed container, 2) seller had no knowledge of defect, 3) seller could not have discovered defect with reasonable care, 4) seller did not design or specify the product, and 5) seller did not alter the product.

What is the modern rule for an 'open and obvious' danger in products liability?

The open and obvious nature of a danger is not a complete bar to recovery but is relevant to the issue of whether the product is defective.

What is the rule for the Substantial Alteration defense?

A manufacturer or seller is not liable if the product was substantially altered after leaving their control in a way that caused the defect and resulting injury.

What is the rule regarding foreseeable misuse of a product?

If a consumer's misuse of a product is foreseeable, it is not a defense, and the manufacturer must design the product to be safe for such misuse.

What is the majority rule for unavoidably unsafe products like pharmaceuticals?

Products that qualify under Comment K are not subject to strict liability for design defects, though liability can still arise from manufacturing or warning defects.

What is the common law rule for straying livestock?

Under common law, owners were strictly liable for damage caused by their straying livestock under a theory of trespass.

What is a 'Fence Out' statute?

A 'Fence Out' statute requires landowners to construct fences to keep livestock out and imposes strict liability on animal owners only if their livestock break through such a fence.

What is a 'Fence In' statute?

A 'Fence In' statute holds an owner of animals strictly liable for damage caused to other landowners if their animal is not properly restrained on their own property.

What is the common law rule for liability for domestic animals?

An owner is strictly liable for harm caused by a domestic animal only if the owner knows or has reason to know of the animal's dangerous propensities that are abnormal for its class.

What is the 'One Free Bite' rule?

The 'One Free Bite' rule states that an owner is not strictly liable for their domestic animal's first attack if they had no prior knowledge of its vicious propensity.

What are the elements for statutory strict liability for domestic animals?

The elements are: 1) injury was caused by an animal owned by the defendant, 2) the plaintiff was in a place they had a legal right to be, and 3) the plaintiff did not provoke the animal.

What is the rule for strict liability for wild animals?

An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal, regardless of the owner's knowledge of its propensities.

When does a possessor of land acquire liability for indigenous wild animals?

A possessor of land only becomes liable for indigenous wild animals when they have brought them under their control, such as by impounding them.

What is the general principle for liability for abnormally dangerous activities?

One who carries on an abnormally dangerous activity is subject to strict liability for harm to persons, land, or chattels of another resulting from the activity, even if they exercised the utmost care.

What is the scope of liability for an abnormally dangerous activity?

Strict liability is limited to the kind of harm, the possibility of which, makes the activity abnormally dangerous in the first place.

What factors determine if an activity is abnormally dangerous?

Factors are: high degree of risk, likelihood of great harm, inability to eliminate risk with care, activity is not common usage, inappropriateness of the activity to the location, and its value to the community is outweighed by its danger.

What is the modern two-part test for an abnormally dangerous activity?

An activity is abnormally dangerous if: 1) it creates a foreseeable and highly significant risk of physical harm even with reasonable care, and 2) the activity is not one of common usage.

What is the rule when a third party's actions contribute to harm from an abnormally dangerous activity?

One carrying on an abnormally dangerous activity is still subject to strict liability for the resulting harm even if it is also caused by the innocent, negligent, or reckless conduct of a third person.

What is the rule for contributory negligence as a defense to strict liability?

Ordinary contributory negligence is not a defense, but a plaintiff's action in knowingly and unreasonably subjecting themselves to the risk of harm is a defense.

What is the rule for assumption of the risk as a defense to strict liability?

A plaintiff's assumption of the risk of harm from a wild animal, abnormally dangerous domestic animal, or ultrahazardous activity is a defense to strict liability.

What are the elements of Respondeat Superior?

The elements are: 1) an employer-employee relationship exists, 2) the employee’s negligence causes the plaintiff’s injury, and 3) the employee was acting within the scope of employment.

What is the test for determining the scope of employment?

Conduct is within the scope of employment if it is the kind the employee is employed to perform, occurs within authorized time and space limits, and is intended, at least in part, to serve the employer.

What is the rule distinguishing a frolic from a detour?

An employer is liable for an employee's negligence during a minor 'detour' from their duties, but not for a 'frolic' where the employee has abandoned the master's business entirely.

What is a non-delegable duty?

A non-delegable duty is a duty that cannot be transferred to another party, meaning the principal remains liable for the negligence of anyone performing that duty, including an independent contractor.