STRICT LIABILITY (you don’t have to show intent or negligence. It’s liability without fault. It applies for 1)
Wild Animals, 2) Certain Ultra Hazardous Conditions and Activities (Blasting), 3) Product Liability, and 4)
Vicarious Liability.
ULTRA HAZARDOUS CONDITIONS/ACTIVITIES: Certain activities are so dangerous that they involve a
serious risk of harm to others despite the use of utmost care to prevent any harm. Strict liability is imposed upon
those who engage in such activities. Ultrahazardous activities are those activities abnormal to the area, which
necessary involve a risk to persons, land, or chattels, that cannot be eliminated by the use of utmost care (R1d
519, 520). R2d lists 6 factors that should be balanced in finding strict liability for abnormally dangerous
activities: 1) whether the activity involves a high degree of risk, 2) whether the gravity of that risk is high, 3)
whether the risk can be eliminated with reasonable care, 4) whether the activity is not a matter of common
usage, 5) whether the activity is approprate to the place where it is being carried out, and 6) whether the value to
the community is outweighed by the danger (R2d 519, 520). COA for elements for strict liability for abnormally
dangerous activity (referencing Restatement): D is an actor, who carries on an abnormally dangerous activity
(defined as an activity that creates a foreseeable and highly significant risk of physical harm even when
reasonable care is taken), causes, physical harm to P.
–Restatement 1st 519/520, ultrahazardous activities
–Restatement 2nd 519/520, abnormally dangerous activities
WILD ANIMALS: The general rule is that the owner of animals that are likely to stray and that do stray on to
the land of another is strictly liable for any damage caused by such animals. The possessor of wild animals is
strictly liable for any harms done by the animal if such harm results from its normally dangerous propensities.
Even if it’s a domestic animal, if the D is aware of his animal’s dangerous propensities, he is strictly liable for
all injuries resulting therefrom. When the animals are kept under a public duty however, strict liability doesn’t
apply; negligence must be shown, although a high degree of care is required. There are 3 diff categories of
animals: intrusion by livestock, wild animals, and abnormally dangerous animals (big dogs, horses, farm
animals, etc). COA for Wild Animal Liability: D is owner or possessor of a wild animal, wild animal is the
cause of the injury, there IS an injury, and the injury is to P.
PRODUCTS LIABILITY: Elements of a Product Liability COA under R2d 402A—1) D was a SELLER,
engaged in the business of selling, 2) and sold a PRODUCT, 3) sold it in DEFECTIVE CONDITION
[unreasonably dangerous] (R3d 1) Manufacturing, 2) Design, 3) Warning), 4) P was the USER/CONSUMER,
5) ACTUALLY AND PROXIMATELY caused harm by the product, 5) to THEM, or their PROPERTY, 6)
resulting in INJURY.
To gauge whether a product is in defective condition, courts may apply 1) the consumer expectation test, or 2)
the risk/utility test. Under the consumer expectations test, the product is defective if it failed to perform as
safely as an ordinary consumer would expect when using it in an intended or reasonably foreseeable manner.
Generally, this test is appropriate when a reasonable juror can determine how a product should work without the
aid of expert testimony. Under the risk/utility test, a product is defective if the risk of the danger inherent in the
product outweighs the benefits. Courts often utilize a risk/utility analysis when a product is sufficiently complex
that it’s not immediately apparent to the ordinary consumer how a product should work or when a reasonable
juror would require expert information to determine how a product works.
1) Manufacturing Defects: Only one under strict liability. These are unit defects that says not EVERY single of
your product is defective, but THIS PARTICULAR one has a design that led the product to cause an injury.
2) Design Defects: These say each and every unit of this product has a problem, and that problem caused injury.
3) Warning Defects: These say the unit is not flawed inherently, and the design is not flawed, but failure to put a
proper package/label is defective.
The R3d includes manufacturing, design, and warning defects as 3 separate categories because the case law
emerging from R2d came to make those distinctions. R2d 402A doesn’t recognize those separate categories, but
in interpreting it, courts do recognize it for each separately. So, under R2d 402A:
1) Manufacturing Defect – Consumer Expectation test
2) Design Defect – Risk/Utility or Consumer Expectation test
3) Warning Defect – Risk Utility Test
Under R3d: Same, but for Design Defect, Risk/Utility test ONLY. Consumer Expectation test only goes to
Manufacturing Defects. For R3d, consumer expectations are factors to be considered in making the risk utility
balance. Design Defect: A product is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by a reasonable alternative design ... and the omission of the
alternative design renders the product not reasonably safe (RAD). The plaintiff must show that the proposed
alternative design exists and is superior to the product in question. P has burden of showing there was a
reasonable alternative design that the manufacturer could’ve employed to make this product safer. P must prove
that the utility of the product does not outweigh its risk, and there was an RAD for the manufacturer. Under 2nd
Restatement, some courts might apply the RAD and all that, but it’s not built into 402A to do that.
For Warning Defects: a warning defect exists when the foreseeable risk of harm could’ve been reduced by
provision of reasonable instructions or warnings by seller to the user.
Policy: From a policy POV.. we might be thinking boy, too bad the court’s moved so quickly away from the
strict liability notion—looks like back in the day Escola v. Pepsi, true strict liability is there, were gonna go
there. Well, the residue is that, for now, we do have strict liability in manufacturing defects (sort of) in the sense
where proving it is kinda based on the fact that something happened at all. Policy: we DO want to give
consumers the chance to effectively cover from their losses… but it would be too much burden on the market of
providers to have them liable for every single thing that goes wrong.
VICARIOUS LIABILITY: D is an employer, of an employee, who in the scope of employment, breaches a
duty of care causing injury to P (i.e. was negligent). Employer is strictly liable for employee. Under Respondeat
Superior, an employer is liable for an employee’s torts committed when the employee is acting within the scope
of her employment. Acts falling within the scope of employment are “those acts which are so closely connected
with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded
as methods, even though quite improper ones, of carrying out the objectives of employment.” 3 factors in
determining scope of employment: 1) The employee’s conduct must be the general kind the employee was hired
to do, not personal endeavors, 2) the conduct must occur substantially within the hours and ordinary spatial
boundaries of the employment, 3) the conduct must be at least partially motivated by the purpose of serving the
employer’s interest.
DEFENSES: Defenses:
•Assumption of Risk
•Learned Intermediary
–Manufacturers may not be liable to consumers under warning defect prong of strict liability if adequate
warnings have been provided to physician
•Preemption
–Courts have sometimes found that federal law precludes tort liability for dangerous products
•Equitable apportionment/Comparative fault
–Applies to product liability
•General Motors v. Sanchez (TX 1999)consumer has no duty to guard against or discover a product defect and
is not comparatively at fault when injured if not otherwise negligent(rancher pinned to gate when car he thought
was in “park” rolled back)
NUISANCE (LOOK AT BLL FOR NEGLIGENCE)
Facts: P suffered damages from Ds large cement plan (dirt smoke, noise).
Rule: Permanent damages may be awarded in lieu of an injunction where the value of the activities sought to be
enjoined is disproportionate to the relatively small damaged caused thereby. They’re fair because they fully
recompense the damaged property owner while also providing incentive to businesses to abate the nuisance.
DAMAGES:
on exam: Statement in fact pattern that P suffered 20K in damages, what do we do w/ that fact? If the
entitlement to that money is at issue because of the comparative fault Q, you might note that.
•Moral Theory: Damages are fair restitution, correction
•Economic Theory: Damages deter, promote efficient safety
TYPES OF DAMAGES:
•Punitive
•Pain and Suffering
•Lost Wages
–Past
–Future
•Medical Expenses
–Past
–Future
Note: some states cap damages. Some cap punitive damages or require that they be proportionate; some cap
pain and suffering damages or require that they be proportionate and some cap medical malpractice damages.
See, e.g., : http://www.medical-malpractice-directory.com/info/damage-awards.htm
1. Purpose: Damages are the sum of money that may be recovered in the courts by a plaintiff who has
suffered damage, whether to person, property, or rights, through the Ds conduct.
2. Nominal Damages: Nominal damages equal a small sum of money awarded to a P for a technical
invasion of her rights (i.e. no substantial loss or injury) in order to make the judgment a matter of record,
so that prescriptive rights can be avoided and to cover at least part of the costs of bringing the action.
3. Compensatory Damages: Equal the sum of money deemed the equivalent of the full loss or harm
suffered by the P (i.e. compensate the P for the wrong suffered)
4. Punitive (Exemplary) Damages: Punitive Damages equal the sum of money over and above what will
compensate the plaintiff fully for the loss suffered. The purpose of punitive damages is to punish the D
and to make an example to others in instances where the Ds conduct is of an aggravated nature (e.g.
intent to injure, willful and wanton misconduct, gross disregard of consequences)
5. Personal Injuries: If P suffers personal injuries, she’s entitled to recover a sum that will fairly and
adequately compensate her for all injuries that are the direct and proximate result of the Ds conduct.
This can include, among other things, physical and mental pain, future loss of earnings, reasonable
expesnes incurred in treatment of the injury, including doc, hospital, and nursing care expenses. OPf
course, the damages that P expected to suffer in future must be proven with reasonable certainty.
Concepts to Keep in Mind:
6. •Additur and remittitur
7. •Hedonic adaptation
8. •Overcompensation due to time value of money “per diem” (Seffert v. LA Transit)
9. •Assumption of thrift
10. •Collateral source rule
MONEY HAS TIME VALUE: –P injured due to D’s negligence
–As a result, P will lose 30K yr income for 10 yrs--$300K
–If D pays P $300K today, P is overcompensated
–P will invest award
–D should be able to discount P’s award to present value
–Assume a healthy economy CD or T-bill rate of 5.14 rate of return, an award of $251.9 K would fairly
compensate P
–D, D’s insurance Co. saves $48K