Strict liability

I. Animals
A. Trespassing animals: owner of livestock or other animals is liable for property damage
caused by them if they trespass upon another’s land, even though the owner exercised
utmost care to prevent the animals from escaping. This rule applies only to animals of a
sort likely to roam and do substantial damage. Household animals like dogs and cats are
not.
1. American rule: in most juris, this rule applies. Particularly likely to be the rule in
the populous eastern states
2. A number of wester states have never adopted a broad rule of sl. Fencing in
statutes in some states provide that n animal owner is not strictly liable if he
attempts to fence in his animals, but he’s strictly liable if he does not
3. use of highway: if the d is using a public road to transport his animals to market,
he will not be strictly liable if they wander onto the land immediately adjoining
the road.

B. Non-trespass liability: there is sl for harm done by “dangerous animals” kept by the d.
dangerous depends on whether the animal is a species that is regarded as wild or
domesticated.
1. Wild animals: a person who keeps a wild animal is strictly liable for all damage
done by it, provided that the damage results from a dangerous propensity that is
typical of the species in question or stem from a dangerous tendency of the
particular animal in question of which the owner is or should be aware.
2. Domestic animals: injuries caused y a domestic animal such as a cat, dog, cow,
pig, do not give rise to sl, except where the owner knows or has reason to know of
the animal’s dangerous characteristics.
3. Distinguishing wild from domesticated: domesticated species is one which is by
custom devoted to the service of mankind in the community in question. The basis
for this classification is obviously that ownership of these animals serves a social
use, and should not be discouraged by excessive liability.
a. Fear of humans is factor: in deciding whether a wild animal’s dangerous
propensity caused the damage in question, the fact that the average person fears
animals of that species would be part of what makes the animal dangerous. If the
damage stems from the p’s panic over the animal’s presence, the animal has
caused the damage, and d’s SL for it.
b. Injury from factor that is not part of species’ dangerousness: if the accident or
injury occurs on account of a factor that is unrelated to the dangerous propensities
that are typical of the species in question, then there will not be SL.

C. Defense (see limitation on sl)

II. Abnormally dangerous activities

A. The doctrine of Rylands v. Fletcher:
1. Lower holding: intermediate appeals ct held that there was liability because the
person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril, and if he
 does not do so, is prima facie answerable for all the damage which is the natural
consequences of its escape.
2. House of lords: final appellate tribunal affirmed, but cut back the lower decision.
Liability existed because the ds put their land to a “non-natural use for the
purpose of introducing onto it that which in its natural condition was not in or
upon it, like a large quantity of water. Of the water had entered during a natural
use of the land, and had then flowed off onto the p’s land, there would have been
no liability.

B. Adoption in America: accepted at least the practical result of this case. The rule has
been extended to include those activities that are extremely dangerous.

C. 2nd Rst: codified Rylands to impose sl in cases of “abnormally dangerous” activities.

1. Various factors: to be considered in determining whether an activity is
abnormally dangerous:
a. High degree of risk: existence of high degree of risk of some harm to the
person, land or chattels of others.
b. Risk of serious harm: likelihood that the harm will be great
c. Cannot be eliminated by due care: inability to eliminate the risk by the
exercise of reasonable care.
d. Not a matter of common usage: extent to which the activity is not a
matter of common usage.
e. Appropriateness: how appropriate is the activity to the place where it is
carried on
f. Value: extent to which its value to the community is outweighed by its
dangerous attributes

D. 3rd Rst rule: reduces the number of factors for determining whether an activity is
abnormally dangerous: 1) the activity creates a foreseeable and highly significant risk of
physical harm even when reasonable care is exercised by all actors, and 2) the activity is
not one of common usage.

III. Limitations on strict liability

A. Generally: p does not win her case merely by showing that injury resulted from an
abnormally dangerous activity or dangerous animal. One set of limitations on SL
corresponds to the proximate cause limitation on negligence action. another set relates to
the p’s activities.
B. Scope of risk: there will be SL only for damage which results from the kind of risk that
made the activity abnormally dangerous.
1. Abnormally sensitive activity by p: the d will not be liable for his abnormally
dangerous activities if the harm would not have occurred except for the fact that
the p conducts an “abnormally sensitive” activity.
2. Manner in which harm occurs: the d will usually be relieved of liability if an
unforeseeable cause intervenes, even though the damage is of the same nature as
that which made the activity extraordinarily dangerous.
 C. P’s contributory negligence no defense: ordinary contributory negligence by the p will
usually not bar her from SL recovery. Especially true in those situations where the p’s
contributory negligence consists of being inattentive, and not discovering a risk which
she should have discovered. The cts simply make a policy decision to place “the full
responsibility for preventing the harm resulting from abnormally dangerous activities
upon the person who has subjected others to the abnormal risk.
1. Unreasonable assumption of risk: but if the p knowingly, voluntarily and unreasonably
subjects herself to the danger, this will be a defense even to SL.
2. Assumption of risk: this brand of contributory neg which is also assumption of risk bars
the p from recovery. Beyond this, assumption of risk which is reasonable will nonetheless
also bar the p.
3. P’s comparative negligence will reduce recovery: in a comparative negligence juris, the
ct will probably reduce p’s recovery even in a SL action by p’s degree of negligence or
other fault.

Product liability
• PL refers to the liability of a seller of a chattel which, because of a defect, causes injury to its
purchaser, user, or sometimes, a bystander. This term is used here to include both situations
where p purchased the item directly from d and those where there was no contractual
relationship between p and d.
• Three main theories under which a seller of a chattel can be liable to one who is injured: 1)
negligence, 2) warranty, and 3) strict liability
• Strict liability: a seller of a product is liable without fault for personal injuries caused by the
product if the product is sold 1) in a defective condition that is 2) unreasonably dangerous to
the user or consumer.

I. Strict Liability
A. Rst 2 sec.402A. Special liability of seller of product for physical harm to user or
consumer
(1) One who sells any product in a defective condition unreasonably 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 (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.
Note: this applies not only to the product’s manufacturer, but also to its retailer, and any other
person in the distributive chain (wholesaler) who is in the business of selling such a product.

B. Rst 3 has a different approach.

Section 1: 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 persons or property caused
by the defect.
Section 2: a product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate
instructions or warnings.

C. What products meet the test: under rst 2, the principal issue is whether the product is
“defective” and “unreasonably dangerous”
1. A product is in a defective condition unreasonably dangerous if it is dangerous to
an extent beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the community as to
its characteristics.
a. viewpoint of the consumer test: if a reasonable consumer, knowing the
true characteristics of the product, would nonetheless use it, the product
is not defective unreasonably dangerous.

2. Rst 3 drops unreasonably dangerous requirement: approach the issue from

manufacturing, design and warning defects.
a. manufacturing defect is said to exist when the product departs from its intended
design even though all possible care was exercised in the preparation and
marketing of the product. No need for the p to show that the product was
unreasonably dangerous.
b. Design and warning defects: 3rd rst does not abandon the concept of unreasonable
dangerousness in the case of design defects or warning defects. In these two, the
defect is only deemed to exist if the design or omission of warnings renders the
product not reasonably safe.

D. Unavoidably unsafe products: some products might be thought of as being unavoidably

unsafe. Conform to their design, and essentially do what the consumer expects them to
do, yet are by nature inherently dangerous. Like prescription drugs, cigarettes, handguns.
1. 2nd rst exemption: exempted unavoidably unsafe products from the general rule of
SL. As long as a product could not be made safe without changing its
fundamental characteristics, sale of the product would not lead to product liability
if the seller supplied an adequate warning of the dangers.
2. 3rd rst approach: this is essentially a design problem. 3rd rst does not impose SL at
all for design defects. Imposes a risk-utility approach, under which a product 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 reasonable alternative
design by the seller… and the omission of the alternative design renders the
product not reasonably safe.
a. whether utility outweighs risks: if the utility of products outweighs these
irreducible risks, they are not defective; if dangers outweigh the unavoidable
risks, the logic of the risk-utility is that they are defective.
E. Unknowable dangers: given the state of tech there is simply no way for the
manufacturer to discover a particular danger, when the unforeseen danger finally strikes,
should the manufacturer be held liable for defective design or failure to warn?
1. Most cts answer no: there is no duty to either design around, or warn against a
danger that could not reasonably have been foreseen at the time of design and
manufacture.

F. Food products:
1. Foreign/natural distinction
2. Consumer expectation standard: food product is defective if and only if it contains
an ingredient that a reasonable consumer would not expect it to contain.

G. Warning: a product may be held to be defective and unreasonably dangerous partially

because it does not carry an adequate warning.

II. Design defects

A. Distinguished from manufacturing ones: manufacturing defect—the particular item
that injures the p is different from the other ones manufactured by the d, because sth went
wrong with the manufacturing process.
• Design defect: all of the similar products manufactured by the d are the same, and
they all bear a feature whose design is itself defective, and unreasonably dangerous.
B. 3RD Rstmt approach: adopts a risk-utility test as the sole test for defective design.
1. Definition: defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
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 reasonable safe.
2. A negligence like risk-utility balancing standard: the foreseeable risks of harm
posed by the d’s design are to be measured against a reasonable alternative design
that could have been used.
3. Reasonable alternative design (RAD): p needs to prove that there is indeed an
RAD. This is necessary but not sufficient to p’s recovery.
a. Other products’ safety features: best way for p to show the existence of a
reasonable alternative design is to show that similar products from other
manufacturers already have such an RAD.
b. Cost and utility: cost and utility of the RAD are to be considered. If
using the RAD would result in a doubling of the price of the whole
product, it weighs heavily against it. If the safety feature that the RAD
contains causes the product to be much less useful, also weighs against
it.
c. Consumer choice: some other feature appeal more to some consumers
on a cost utility analysis doesn’t mean the product is defective, cuz some
other consumers might not think so.
4. State of the art defense allowed: if the d can show that at the time the product
was manufactured, the state of the art did not allow for production of a safer
product at an acceptable price, the product will be found to be non defective.
 5. Strict liability for reseller: when the suit is against a distributor or retailer, there
is in a sense SL against them, that is, the reseller’s liability will depend on
whether the manufacturer failed to achieve a good risk utility trade off in
designing the product.

C. Types of design defect claims: structural defects, absence of safety features, and
suitability for unusual purposes.

D. Suitability for unintended uses: if product design poses no unreasonable dangers when
used for the intended use, but does pose such danger when used for some other purposes.
1. Unforeseeable misuse: no duty to design the product so as to protect
against it
2. foreseeable misuse: if misuse is reasonably foreseeable, most cts require
it to take at least reasonable design precautions to guard against danger
from that use.

III. Duty to warn

A. Significance of duty to warn: an extra obligation placed on a manufacturer. A product
that is not defectively designed and not defectively manufactured may nonetheless be
treated as defective if warnings are required for its safe use, and those warnings are
not given.

B. Risk utility basis for warning liability: most cts apply negligence like principle to the
duty, balancing such factors as the foreseeability of the harm, its severity, the cost of
giving a warning, and the likelihood that the warning would be heeded.
1. 3rd Rst agrees: a product will be deemed defective on account of inadequate
instructions or warnings when the foreseeable risks of harm imposed by the
product could have been reduced or avoided by the provision of reasonable
instructions or warnings… and the omission of the instructions or warnings render
the product not reasonably safe.

C. Duty to warn of unknown and unknowable dangers: if the d can show that it neither
knew nor, in the exercise of reasonable care, should have known of a particular danger at
the time of sale, the vast majority of cts hold that there was no duty to warn of the
unknowable danger.
1. Rst agrees: 3rd rst agrees that there is no duty to warn of unknowable risks. P
should bear the burden of establishing that the risk in question was known or
should have been known to the relevant mft community. The harms that result
from unforeseeable risks are not a basis of liability.
2. testing required: it’s not enough for the mft to show that it was not in fact aware
of the defect—it must further be the case that the mft should not have been aware.
A seller is charged with knowledge of what reasonable testing would reveal. If
testing is not undertaken, or is performed in an inadequate manner, and this
failure results in a defect that causes harm, the seller is subject to liability
D. Hidden causation issue: check the requirement of a causal link between the failure to
warn and the resulting injury is satisfied. If the provision of a warning would not have
prevented the accident from occurring, then the d will not be liable for failing to warn.
1. P who does not read warnings or ignores them: evidence that p never read any
warning labels or even if he reads it he would ignore them any way would prevent
failure to warn liability.

IV. Who may be a d

A. Involving chattels: in true product liability case, strict liability will apply to any seller in
the business of selling goods of that kind.
1. Retail dealers: a retailer who sells the good will have SL even though there is
nothing she could have done to discover the defect.
a. Rstmt agrees: one engaged in the business of selling or otherwise
distributing products who sells or distributes a defective product is liable
b. Must be in business of selling goods: not private individual who sells his
car
c. Indemnity: if the retailer is held liable, she will be entitled to indemnity
from the manufacturer or wholesaler, as long as she was not herself
negligent

V. Defenses based on the p’s conduct

A. Early decisions:
1. Contributory negligence no defense: p’s failure to discover a product’s defects
was not a defense to a SL action.
2. Assumption of risk: 2nd rst recognized the defense of assumption of risk even in a
SL action. if p knowingly, voluntarily and unreasonably subjected himself to a
particular product risk, this would be a complete bar to SL recovery
B. 3RD Rst/modern approach recognizes comparative fault: allow the p’s negligence to
be asserted as a defense in product liability actions.
1. Failure to discover the risk: negligently fail to discover that there is a defect at all.
This would not be a defense. In the ordinary case p’s failure to discover the defect
will not cause any reduction in her recovery.
2. Knowing assumption of risk: the modern trend is to treat assumption of risk as a
form of comparative negligence: to the extent that the p’s decision to use the
product in the face of the known risk was unreasonable, it will cause p’s recovery
to be reduced proportionately.
3. Conduct that is high risk apart from defect: p behavior fall in between the first
two, knowingly pursue an activity that would be high risk even in the absence of a
defect, and the activity combines with a defect to create an accident. Treat it as
being one sort of comparative fault
4. ignoring of safety precaution—fault that reduces p’s recovery

C. Misuse of the product: misuse can lead to three different legal consequences:
1. reduction in p’s recovery, under comparative fault principles
2. may indicate that the product was not defective at all
3. may prevent the defect from being deemed to be the proximate cause