2.  Development of Strict Liability.  Defendant’s liability for strict liability is without regard to: Fault, Foreseeability, Standard of Care or Causation.  Strict liability based on abnormally dangerous activities is one application.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

3.  Ultraharzardous or abnormally dangerous activities:  Involve serious potential harm;  Involve high degree of risk that cannot be made safe; and  Are not commonly performed in the community or area. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

4.  Wild Animals:  Persons who keep wild animals are strictly liable for injuries caused by the beast.  Persons who keep domestic animals are liable if the owner knew or should have known that animal was dangerous. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

5.  Product Liability: manufacturers can be found liable without regard to fault.  Bailments: when goods temporarily transferred to another. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

6.  Product Liability is not a new tort.  Liability can be based on:  Negligence;   Misrepresentation;   Strict Liability;   Warranty Theory.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

7.  Based on a manufacturer’s breach of the reasonable standard of care and failing to make a product safe.  Due Care Must Be Exercised in: design, selection of materials, using appropriate production process, assembling and testing, adequate warnings, inspection, and testing. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

8.  Privity of Contract Not Required. No privity of contract required between Plaintiff and Manufacturer. Liability extends to any person’s injuries caused by a negligently made (defective) product. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

9.  Occurs when fraud committed against consumer or user of product. Fraud must have been made knowingly or with reckless disregard for safety.  Plaintiff does not have to show product was defective. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

10.  Strict Liability holds people liable for results of their acts, regardless of their intentions or exercise of reasonable care.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

11.  Strict Liability and Public Policy.  Consumers should be protected from unsafe products;  Manufacturers and distributors should be liable to any user of the product;  Manufacturers, sellers and distributors can bear the costs of injuries. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

12.  Requirements for Strict Liability: 1. Product must be in defective condition when sold. 2. Defendant is in the business of selling the product. 3. Product must be unreasonably dangerous.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

13.  Requirements for Strict Liability: 4.Plaintiff must be physically harmed 5.Defective condition must be proximate cause of injury. 6.Goods are in substantially same condition. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

14.  Proving a Defective Condition.  Plaintiff does not need to show product or in what manner the product become defective.  But plaintiff must show product was defective and “unreasonably dangerous” to the user.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

15.  Identifying Unreasonably Dangerous Products.  The product was dangerous beyond the expectation of the ordinary consumer.  A less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

16.  Three types of product defects:  Manufacturing Defects.   Design Defects.   Warning Defects.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

17.  Occurs when a product “departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.” © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

18.  Product is manufactured correctly, but defect is based on design.  Test for Design Defects: plaintiff must show defendant’s failure to use a reasonable alternative design rendered the product not reasonably safe. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

19.  Factors to be Considered:  Magnitude and probability of foreseeable risks.  Relative advantages and disadvantages of product.  Most courts use “risk-utility” analysis.  CASE 13.1 Bullock v. Philip Morris USA, Inc. (2008). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

20.  A product may be defective because of inadequate warnings or instructions.  Liability based on foreseeability that proper instructions/labels would have made the product safe to use.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

21.  CASE 13.2 Wyeth v. Levin (2009). Federal law did not preempt state claim for inadequate warning.  Obvious Risks. No duty to warn.  Foreseeable Misuses. Seller must warn about foreseeable misuse. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

22.  Theory of liability when multiple Defendants contributed to manufacture of defective product.  Liability of each Defendant is proportionate to the share of the market held by each respective Defendant. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

23.  Assumption of Risk.  CASE 13.3 Boles v. Sun Ergoline, Inc. (2010). Why did court find the exculpatory clause unenforceable?  Product Misuse. Plaintiff does not know the product is dangerous for a particular use.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

24.  Comparative Negligence.  Defendants may be able to limit damages by apportioning fault.  Commonly Known Dangers.  Knowledgeable User.  Statutes of Limitation and Repose. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24