1 TRADITIONAL STRICT LIABILITY Act -Act that involves risk of serious harm and can’t be eliminated by exercise of utmost care. Abnormally Dangerous Animal -Domestic animal rules: o Only strict liability if owner knows or has reason to know of the animal’s dangerous propensity. o Negligence Standard applies (reasonable pet owner) for dogs and cats, UNLESS there was notice that the dog was a danger. If there is notice, then use Strict Liability (the ‘one bite’ rule). Minority exception: there are statutes saying owners are strictly liable even without notice -Farm Animals (Animals that have a propensity to roam) o The owner of animals of a kind likely to roam and do damages is strictly liable (traditional law) for their trespasses. o Not liable for trespass unless plaintiff has fenced off the area. Fencing Off Statutes: If the π fenced his land properly there is strict liability if the animals broke through the fence. Fencing In Statutes: Requires the owner of the animals to fence animals in. Owner is strictly liable if he did not do so. Otherwise, if they get out, no liability if you acted reasonably. -Wild animals (animals that have an innate vicious propensity): o Owner is strictly liable for all damage done by wild animal. Damage must result from “dangerous propensity” that is typical of that species. -Zoos – No strict liability (standard reduced to negligence) because of benefit to society. Abnormally Dangerous Activities MAJ: If you engage in an abnormally dangerous activity, you are liable for harm to the person, land or chattels of another resulting from the activity, even though you exercised the utmost care (Rest. 2nd 519). -6 Factors that must be weighed in their totality by the judge (Rest. 2nd 520): o Existence of high degree of risk of some harm to the person, land, or chattel of others. The higher the risk, the more likely SL will be used. o Likelihood that resulting harm will be great. The higher the gravity of harm, the more likely SL will be used. o Inability to eliminate the risk by the exercise of reasonable care. Most important factor /If unable to eliminate risk, SL will apply. o Extent to which the activity is not a matter of common usage. o Inappropriateness of the activity to the place where it was carried on. o Extent to which value of activity to the community is outweighed by its dangerous attributes. MIN: An activity is abnormally dangerous when it creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and the activity is not one of common usage. -4 Elements (ALL of which must be satisfied) (Rest 3rd 20) o High degree of risk of harm, (incorporates appropriateness of location) o The likelihood the harm will be great, o Inability to eliminate risk, AND o The activity is not a matter of common usage. Notes on Strict Liability: -Proximate Cause – The damage must be the type of damage that results from the kind of risk that made the activity abnormally dangerous (Rest. 2nd 519(e)). -∆ is not strictly liable for his abnormally dangerous activity if the harm would not have occurred except for the π’s hypersensitivity. 2 -Aviation is not an abnormally dangerous activity. -Some activities usually fall under strict liability: Nuclear Reactors, Use & Storage of Explosives and toxic/flammable chemicals, and Crop Dusting. -Foreseeability -o MAJ: Harm must be foreseeable to impose strict liability. A 3rd party can intervene as a superseding cause. Acts of God can relieve the ∆ of strict liability. o MIN: Strict liability applies regardless of foreseeability. Defenses to Strict Liability: -Comparative Fault: o MAJ: Comparative Negligence ALSO applies to Strict Liability. Assumption of Risk applies but NOT complete bar to recovery. o MIN: Comparative Negligence NOT a defense. Assumption of Risk COMPLETE BAR to recovery. PRODUCTS LIABILITY I. Negligence (Not on Final) II. Warranty a. Express b. Implied i. Implied Warranty of Merchantability (IWM) ii. Implied Warranty For Particular Purpose (IWFPP) III. Strict Products Liability (SPL) a. Manufacturing Defect b. Design Defect c. Warning Defect WARRANTY Express Warranty (UCC 2-213) -Express Warranty o An Affirmation of Fact or Promise made by the seller to the buyer relating to the goods. Can be made intentionally, negligently, or innocently. • Not knowing that the representation was false is NOT a defense. Distinguish from mere puffery. -Basis of Bargain o MAJ: You must have made your decision to buy based on warranty. You can’t recover for an affirmation made after you buy the product, b/c it didn’t induce you to buy. o MIN: As long as the express warranty was made prior to the sale, you’re entitled to it. -Breach o Statement turned out to be false (product must fail). -CZN -Damages -Notice o UCC 2-607 requires that a buyer must, within a reasonable time after he discovers or should have discovered the breach (of warranty), notify the seller or be barred from any remedy. 3 -HP (UCC 2-318) o 3 JXD Approaches: MAJ: Purchaser, Family, Guests in Home who may be reasonably expected to use or be affected by goods and is personally injured. • Must be a natural person, not a corporation. Any natural person who may reasonably be expected to use, consume or be affected by the goods and who is personally injured. CAL RULE – Any person (including a corporation) who may reasonably be expected to use, consume or be affected by the goods and who is injured (person or property) by breach (essentially anybody can sue under this). Notes: -“State of the Art” is NOT a defense to Express Warranty. Implied Warranty of Merchantability (IWM) (UCC § 2-314) -Seller Must Be a Merchant o Someone who is in the business of selling goods of this kind. -Goods -Unmerchantable o Not fit for the ordinary purpose for which such goods are used (same as “defects” in PL). -CZN -Damages -Notice -HP Implied Warranty of Fitness For a Particular Purpose (IWFPP) (UCC 2-315) When the seller at the time of contracting has reason to know the particular purpose for which the goods are to be used, and the buyer is relying on the seller’s skill or judgment to select the goods, there is an implied warranty that the goods are fit for that purpose. o Knowledge of Buyer’s Particular Purpose by Seller o Reliance by Buyer on Seller’s Skill and Judgment o Goods not Fit for Particular Purpose o CZN o Damages o Notice o HP Strict Products Liability (SPL) A manufacturer is strictly liable 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. -Seller o Someone who transfers title; occasional sellers do not qualify. o ∆’s other than the principal manufacturer (Retailers/Wholesalers/and others) liable? MAJ: Anyone who sells a product in the traditional manner will be held SL. MIN: Retailers only SL when manufacturer is incapable of paying (insolvent or no JXD) Retailers/Wholesalers have no duty to inspect or test unless they have notice it may be defective, but may be held SL as sellers. o Courts will not apportion fault within the same chain of distribution in SL. o You can be liable if you participate in the design of your product being integrated into the whole and the whole is defective. -Product 4 o Tangible item sold in commerce. o Normally does not apply to “used” items, unless item is sold “as new” or “remanufactured.” o No SL for services. Use “Predominate Purpose Test” to distinguish between good and service. o Electricity is generally considered a product but human blood and tissue are not. o Most JXD consider animals to be products when diseased (manufacturing defect). o Only NEW houses for SL. Pools? SPLIT: But above-ground pools are products. o Maps are products for SL (pilot hits a mountain) but content of books are not. o Computer software is a product. -Defective o See Discussion Below. -No Substantial Change o Must leave the seller defective. No post-sale modification. -CZN -Damages o MAJ: Recovery only for economic damages are attached to property damage or personal injury. Economic Loss Doctrine – If damages are solely economic (car breaks down causing missed sales commission) in nature, then no claim for strict liability. However, if physical injury or damage to property (car wreck caused by product liability) then claim is OK (parasitic). • You would still have claim under IWM. Defective (unreasonably dangerous /unmerchantable) -Manufacturing Defects – Product does not conform to its intended design. o Consumer Expectation Test Must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics. • Does it conform to original design? • Is it more dangerous than a reasonable consumer would expect? o “State of the Art” is NOT a defense. -Design Defects – Design itself has more risk than utility. Focus on whole line of product, not just one. o 4 TESTS – If the call of the question does not specify, discuss all 4. o MAJ: Risk/Utility Test (Basically B

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