STRICT LIABILITY
Section D.
Strict Liability and Negligence in the last half of the 19th Century
Jan 12: 629, 111-123, 125-127
Fletcher v Rylands (1865)
p.111 P was damaged when water flooded his property. The water broke out of Ds
reservoir, due to a latent defect in Ds subsoil from prior coal mining, about which D nor
his engineers and contractors had knowledge.
Bramwell:
Ds innocence is immaterial, his act was a trespass.
Martin:
No trespass: for Trespass, the damage must be immediate.
No nuisance: something hurtful or injurious to the senses.
For Personal property there must be negligence to create a liability.
Fletcher v Rylands
(1866)
True Rule of SL:
If you bring, keep, or collect a mischievous thing and its causes damage  SL
Blackburn:
“True rule” of strict liability: if a person brings, keeps, or collects
anything likely to do mischief, he is strictly liable if the thing gets out. He is responsible
for all damages caused by the natural consequences of the escape.
Fletcher v Rylands (1868)
Cairns:
Natural uses don’t cause liability.
If a Non-Natural Use, introducing something not a natural condition on
the land, if that causes damage then D should be liable.
2 Meanings of Non-natural:
1) Artificial/man-made
2) UnRA or inappropriate to the location (Richards v. Lothian)
Exceptions to Rylands: no liability when
 Acts of God:
ex: extraordinary rainfall causing ornamental pools to flood
 Purpose benefited more than D alone
ex: rain gutters mutually benefited P
and D, rats ate through, causing water damage, D not liable b/c the gutters
were not for him alone.
Jan 14: 652-669
CHAPTER 8:
TRADITIONAL STRICT LIABILITY
Section D.
Ultra-hazardous or Abnormally Dangerous Activities
R2d § 519 General Principle
1) One who carries on an abnormally dangerous activity is subject to liability for
harm to the person, land or chattels of another resulting from the activity,
although he has exercised the utmost care to prevent the harm
2) This strict liability is limited to the kind of harm, the possibility of which makes
the activity abnormally dangerous
§520 Abnormally Dangerous Activities
To determine whether an activity is abnormally dangerous, consider these 6 factors:
1) Existence of a high degree of risk of some harm to the person, land, or chattels of
others (probability)
2) Likelihood that the harm that results from it will be great (loss)
3) Inability to eliminate the risk by the exercise of RA care
4) Extent to which the activity is not a matter of common usage
5) Inappropriateness of the activity to the place where it is carried on and
6) Extent to which its value to the community is outweighed by its dangerous
attributes.
 Ps assumption of risk of harm from an abnormally dangerous activity bars his
recovery for harm
 Contributory neg is generally not a defense to the SL of the person involved in the
abnormally dangerous activity.
 Contributory neg is a defense when P acted “knowingly and unRA” subjecting
himself to the harm.
Indiana Harbour Belt RR v. American Cyanamid
p. 660 Cyanamid, D, manufacturer loaded 20,000 gallons of chemical into a leased RR
car. At a switching station employees noticed fluid gushing from the bottom of the car,
through a broken lid. Dept of Environmental Protection ordered the switching line to
decontaminate, costing $900k. (This suit is to recover the $)
2-Count Complaint:
1) Cyanamid maintained the leased car negligently
2) Transporting that much chemical through Chicago is an “abnormally dangerous
activity”, so D should be strictly liable (P won on SJ)
The relevant activity in the case is Transportation, but P is suing the manufacturer. Case
for SL has not been made, if it was no haz mats could be shipped.
Judgment REVERSED.
Jan 21: 322-325, 669-679
Ps Conduct: Contributory Negligence
LeRoy Fibre v. Chicago, Milwaukee & St. Paul Ry.
Contributory Negligence
p. 322 P, flax maker, stored 700 tons of straw in 230 stacks, in 2 rows, on its land. Ds
right of way ran 70 and 80 ft from the rows. A spark from a train caught the flax on fire,
burning it all.
Jury found: 1) Ds servants negligently operated the train by letting sparks fly, this
negligence caused Ps harm.
2) P was contrib neg by placing the stacks w/in 100 ft of the tracks.
Supreme:
The rights of one man in the use of his property cannot be limited by the
wrongs of another.
Holmes:
If the stacks were so near that even a well managed train would catch it on
fire, P is contributorily neg.
NUISANCE
Section E:
Nuisance
1.
Private Nuisance:
a “non-trespassory invasion of another’s interest in the
private use and enjoyment of land”
Protects your rights to enjoy and use your property.
Ex: noise, light, smelly
Vogel v. Grant-Lafayette Electric
p. 669 P, dairy farmers, cows effected by voltage- produce less milk. Because stray
voltage was an unintentional invasion (and was otherwise actionable under negligence)
the court properly considered Ps contributory neg (in design, maintenance, and operation
of their electrical equipments) in reducing the damage award.
There would be liability if unRA and intentional. Not intentional; P would have to show that D
knew that their activity would result in the harm that occurred.
Def UnRA
§826 UnRA of Intentional Invasion
p. 676
“An intentional invasion of another’s interest in the use and enjoyment of land is UnRA if the gravity of
the harm outweighs the utility of the actor’s conduct”
1) Is it intentional?
If Y2
2) Is it unRA? (Gravity of harm outweighs utility of the conduct)
What is RA conduct to D is not the same as RA conduct in terms of an Intentional Nuisance.
Judging RA:
Negligence
point of view of D
at the time he is acting
Nuisance
point of view of society
after the fact
D isn’t doing anything wrong (careless), but is it worth it to society to allow this activity to
continue without a remedy to P? “Judicial Zoning”
3 Approaches to demonstrate liability in a Private Nuisance case. p. 676
P can prevail in nuisance if they can prove the invasion is either:
1. Intentional and unRA
2. Negligent
3. Abnormally dangerous activity (strict liability)
“Live and Let Live” for Minimal harms: all interferences are “reciprocal” in character.
No party may easily claim he has been made worse off or his neighbor alone profited,
virtually all parties are better off.
Jan 28: 691-713
Ensign v. Walls
p. 688 Neighbor complaining about dog breeding business creating odors, barking, etc.
Majority View: No defense to show P came to the nuisance. Accepting the coming to the
nuisance defense allows the ‘theft’ of an incorporeal interest in real property.
Coming to the Nuisance
No longer a complete defense, now a factor, it would condemn land to the lowest level of pre-existing
uses if it was a defense- would harm L-T economic development in the community.
Boomer v Atlantic Cement
p. 694 D operates a cement plant; causing dirt, smoke, & vibrations the neighbors dislike. A Nuisance
has been found, now examining damages: Dust emissions resulting from the manufacture of cement, is a
world-wide problem. Use of a court’s equitable powers: could issue an injunction to shut down the plant.
Majority: Will issue an Injunction unless D pays P the amount of Permanent Damages
$185,000. Not going to shut down the plant, if they pay. Does this do justice? What really
matters is the economic significance of the defendant. The big company employs many people
and supports the tax base of the town. Majority doesn’t think 1 company will be able to solve the
problem in 18mnths, as suggested by the dissent.
Dissent: Injunction should shut down the factory entirely, with 18 months to fix it. Make R & D,
to fix the harms, or go out of business. Examining the broader public impact of what the company is
doing. Where is the evidence of the broader impact? May be premised on evidence that may not be in
the case, and giving it a lot of weight.
2.
Public Nuisance
Generally brought by Public Officials, assumingly brings a better view point. Interference with the
activities of many community members. A private individual can’t bring a public nuisance case unless
they can show “special injury” (different in kind/quality than the harm the rest of the community suffers)
P can plead both a Private & Public Nuisance.
Ex: property owners, when the value of their property is decreased
Union Oil v Oppen
Exception to General Rule!
p. 708 Allows fisherman to sue for their economic losses after damage to marine life
from an oil spill.
PRODUCTS LIABILITY
CHAPTER 9: PRODUCTS LIABILITY
Feb 2: 715-729
A.
st
Intro
1 :
Winterbottom v Wright
Injured consumer/user can only bring action against immediate vendor.
2nd:
MacPherson v Buick
Liability is imposed in negligence on a remote seller
3rd:
Escola v Coke Bottling
Strict liability and not negligence should govern manufacturer’s liability
4th:
(Present)Defective design and duty to warn cases- expanded liability within the traditional
framework of negligence.
1998
3rd Restatement- exclusively deals with Products Liability Law
Types of Products Liability:
1) “Manufacturing defect”/”flaw”
 Mistake in the plan/formula Ex: cough syrup mixed wrong
 Manufacturing process led to a flaw in an item, and that injured P.
2) “Design defect”
 Product came out as it was suppose to, but it was a bad idea/plan
3) “Warnings” / “informational defects”
Info with the product isn’t adequate:
1. Faulty Instructions:
 Product can be used safely, but you were misled by the instructions
2. Lack of warning of the impossibility of using it safely:
 Product can not be used with complete safety, it has inherent risks.
 If you are not aware of the risks, the warnings were inadequate. Informed choice
Intent
1) Negligence
2) Strict Liability
3) Warranty
What theories of Liability are Available?
Not Applicable, generally
B.
Exposition
Winterbottom v Wright
Who can sue Whom?
p.719 see binder notes. Privity limitation. Coach used to carry the mail. P is driver of mail coach. D
bought coach from manufacturer and then entered a K with Postmaster General to supply and
maintain the coach.
1) Negligence: Driver (P) was a foreseeable victim, D had a duty to safely maintain the
coach
P loses, due to Privity- no K relationship between the driver and supplier
Old Rule, Privity Limitation:
Negligence related to a product sold from supplier(manufacturer)
to buyer can only relate between the buyer and seller. Only person who can sue for negligence of
a product is a person who is in a K relationship with the D. Here, postmaster but not the driver,
could sue the supplier.
Justifying the Privity Limitation:
p.720 Very strong limitation for a long time
1) Limits to who can sue. To whom do legal rights extend? Limited by K terms.
2) As national markets develop, the user of a product can be far from the
manufacturer who will not know the person or the use they made of the product.
3) It may be very difficult to get the facts of what really happened, time may pass
between the incident and a lawsuit filed.
3 Exceptions to Privity Limitation: p.721
1) Negligence of Manufacturer/vendor which is imminently dangerous to life/health
of people, and which is committed in the preparation or sale of an article intended
to preserve, destroy, or affect human life is actionable by 3rd parties.
2) One who sells/delivers an article which he knows to be imminently dangerous to
life or limb to another without notice of its qualities is liable to any person who
suffers an injury there from which might have been RA anticipated, whether there
were any contractual relations between the parties or not.
3) Owner’s negligence causes injury to one invited by him to use his defective
appliance on O’s property.
MacPherson v Buick
Establishes the availability of Negligence in Products Liability
p.722 (Best example of an expansion of an exception to a rule for the purpose of destroying a rule.)
P bought a buick from a retail dealer, the car later suddenly collapsed injuring P. A wheel was made of
defective wood. P had no privity of K with Buick. Other potential Ds: Wheel manufacturer.
1) Is there a duty of care owed by Buick to MacP? If privity limitation – NO.
2) Cardozo:
Privity limitation doesn’t apply if the product is of an imminently/inherently
dangerous character. If beyond Privity limitation, get to forseeability analysis. A foreseeable
person who is hurt, could sue. “if the nature of a thing is such that it is RA certain to place life
and limb in peril when negligently made, it is then a thing of danger”
An automobile fits within the expanded view of privity.
The court doesn’t have to decide if the manufacturers of component parts should be held liable.
Escola v Coca Cola Bottling
p.729
McCabe v LK Ligget Drug Co.
p. 735
Breaches of implied warranty of fitness and merchantability. “Merchantable Quality” means that goods
are Ra suitable for the ordinary uses for which goods of that description are sold.
C.
The Restatement
1.
A tale of two texts
R2d §402A Special Liability of Seller of Product for Physical harm to user or Consumer
1) One who sells any product in a defective condition unRably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the
ultimate user or consumer , or to his property, if
a. the seller is engaged in the business of selling such a product and
b. it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold
2) The rule stated in sub (1) applies although
a. the seller has exercised all possible care in the preparation and sale of his
product and
b. the user or consumer has not bought the product from or entered into any
contractual relation with the seller
Comments:
F.
Business of Selling. The rule applies to any manufacturer of such a product, to
any wholesaler or retail dealer or distributor, and to the operator of a restaurant.
G.
Defective Condition. This section only applies wehre the product is, at the time it
leaves the seller’s hands, in a condition not eontemplated by the ultimate user, which will
be unRA dangerous to him. BOP is on P.
H.
If the injury results from abnormal handling, abnormal preparation for use, or
from abnormal consumption the seller is not liable.
I.
UnRA dangerous. “Consumer Expectation Test” unRa dangerous means the
article sold must be dangerous to an extent beyone which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its charachteristics.
J.
Directions or Warnings. Where a warning is given, the seller may RA assume it
will be read and heeded, and a product bearing such a warning, which is safe for use if it
is followed, is not in defective condition nor is it unRA dangerous.
K.
Unavoiedably Unsafe Products. If a product is incapable of being made safe for
their intended or ordinary use, if the product’s benefit can be justified by its high risk, if it
is properly prepared, and is accompanied by proper directions and warnings, it is not
defective nor unRA dangerous.
M.
Warranty. Seller is strictly liable although the consumer may not even know who
he is at the time of consumption.
N.
Contributory Negligence. If contributory negligence consists of voluntary and
unRA proceedings to encounter a known danger, it can be considered assumption of risk
and is a defense.
R3d § 1
Liability of Commercial Seller or Distributor for harm caused by defective
products. One engaged in the business of selling or otherwise distributing products who sells or
distributes a defective product is subject to liability for harm to person or property caused by the
defect.
R3d § 2
Categories of Product Defects
A product is defective when, at the time of sale or distribution, it contains a manufacturing
defect, is defective in design, or is defective b/c of inadequate instructions or warnings. A
product:
a. Contains a MANUFACTUING DEFECT when the product departs from its intended design
even though all possible care was exercised in the preparation and marketing of the 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 RA 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 RA safe.
c. Is defective b/c 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
RA 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 warnings renders the
product not RA safe.
2.
The Theory of Products Liability:
Tort or K?
Casa Clara v Charley Toppino
p. 750
“Economic losses” are ‘disappointed economic expectations’ which are protected by K
law. For recovery in tort there must be ‘a showing of harm above and beyond
disappointed expectations. A buyer’s desire to enjoy the benefit of his bargain is not an
interest that the tort law traditionally protects’.
Rule: The Economic Loss rule applies to the purchase of houses.
Majority View(R3d): Economic loss rule, K law, whereby disappointed economic
expectations are enough to override warranty disclaimers (protected by K law- applies to
the purchase of houses).
Minority View:
Tort liability, a showing of harm above and beyond disappointed
expectations, is needed to override warranty disclaimers for pure economic loss. The
mere risk of future harm is not sufficient grounds for a tort claim.
UCC 2-313 Express Warranty in physical injury cases
1) Express warranties by the seller are created as follows:
a. Any affirmation of fact or promise made by the seller to the buyer which relates
to the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise.
b. Any description of the goods which is made part of the basis of the bargaining
creates an express warranty that the goods shall conform to the description.
3.
Proper Ds under Section 402A
Cafazzo v Central Medical Health Services.
p. 760
D.
Product Defects
1.
Manufacturing Defects
Pouncey v Ford
Negligence
p. 769
This fan blade was a departure from the intended design. Trial jury inferred
negligence on the part of Ford. Affirmed.
2.
Design Defects
VW v. Young
Negligence
p. 774
‘Traditional rules of negligence’ lead to the conclusion that an auto manufacturer is liable
for a defect in design which the manufacturer could have RA foreseen would cause or
enhance injuries or impact, which is not patent or obvious to the user, and which in fact
leads to or enhances the injuries in an auto collision.
Maryland won’t apply strict liability to design defect cases.
Linegar v. Armour of America
p.782 Trooper was killed when shot while wearing a bullet proof vest. The vest stopped all
bullets in areas where it covered. Trooper died from shots to areas the vest did not cover.
Issue: Was the vest defectively designed and unRa dangerous?
Rule: The vest was designed to prevent the penetration of bullets where there was
coverage, and it did so; the amount of coverage was the buyer’s choice.
Barker v Lull Engineering How SL can be used for Design defect cases
p.788 P, a substitute driver, was injured while operating a high-lift loader.
Trial court: for D. P appeals the jury instruction “that strict liab for a defect in design of a
product is based on a finding that the product was unRA dangerous for its intended use”.
Rule: Reversed. Jury instructions had errors:
1. required P to prove the loader was ultrahazardous or more dangerous than the average
consumer contemplated
2. the instruction misinformed the jury that the defectiveness of the product must b e
evaluated in light of the products ‘intended use’ rather than its ‘RA foreseeable’ use
Wade, on the Nature of SL for Products
RISK-UTILITY TEST
Factors to Consider:
1. usefulness and desireability of the product- its utility to the user and to the public
2. safety aspects of the product- likelihood that it will cause injury, and the probable
seriousness of the injury
3. availability of a substitute product which would meet the same need and not be as
unsafe
4. manufacturer’s ability to eliminate the unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility.
5. the user’s ability to avoid danger by the exercise of care in the use of the product.
6. The user’s anticipated awareness of the dangers inherent in the product and their
availability, because of general public knowledge of the obvious condition of the product,
or the existence of suitable warnings or instructions
7. the feasibility, on the part of the manufacturer, of spreading the loss by setting the
price of the product or carrying liability insurance.
Potter v Chicago Pneumatic
p. 797 P claims defective design b/c they exposed P to excessive vibrations, and D failed to
provide adequate warnings regarding the potential danger presented by excessive
vibrations.
Majority of JX:
do not require Ps to prove a feasible alternative design.
A jury may consider these factors:
1. usefulness of the product
2. feasibility of an alternative design
3. likelihood and severity of the danger posed by the design
4. financial cost of an improved design
5. ability to reduce danger w/out impairing its usefulness or making too
expensive
6. feasibility of spreading the loss by increasing the product’s price
Rule: In weighing a product’s risks against its utility the jury should focus on the
product itself and not on the conduct of the manufacturer. Here, D’s tool was defectively
designed.
3.
The Duty to Warn
MacDonald v Ortho
p. 805 P suffered a stroke after taking Ortho-novum. P claims D was negligent in failing to warn
adequately of the dangers associated with the pills and that D breached its warranty of
merchantability.
Issue: What is the extent of a drug manufacturer’s duty to warn consumers of dangers
inherent in the use of oral contraceptives.
CL duty to warn:
requires a warning “comprehensible to the average
user…conveying a fair indication of the nature and extent of the danger to the mind of a
RA prudent person”. A decision for the jury.
Rule: A drug manufacturer owes a direct duty to the consumer to warn her of the
inherent dangers of taking their pills.
Vassallo v Baxter Healthcare
p. 822 P claims D were liable for silicone breast implants manufactured by a predecessor
company. She claims they were negligently designed, had negligent product warnings,
and breached the implied warranty of merchantability. The warnings did not address gel
bleed, the possibility of chronic inflammation, or the consequences of gel migration in
the body.
Majority View:
R2 402A comment j “the seller is required to give warning against a
danger if he has knowledge, or by the application of RA, developed human skill and
foresight should have knowledge of the danger”
A seller is charged with knowledge of what RA testing would reveal.
Rule: D will not be held liable under an implied warranty of merchantability for failure to warn
or provide instructions about risks that were not RA foreseeable at the time of sale or
could not have been discovered by way of RA testing prior to marketing the product.
E.
Plaintiff’s Conduct
Daly v General Motors
p. 831 Ps car struck a metal divider, the car spun and decedent was thrown from the door. P
claims the door locks were defectively designed b/c a push button might have been forced
open during the initial crash.
Trial: found for Ds