Chapter 7 STRICT LIABILITY Definition Strict Liability Liability without fault or more precisely without irrespective fault Defendant is liable even though he did not INTEND to cause harm and didn t bring the harm about through negligence or recklessness Two Activities Subject to Judicially Imposed Strict Liability Abnormally Dangerous Activities reasonable care o Activities considers Abnormally Dangerous Blasting Crop Dusting Stunt Flying o Activities involving a risk of harm that cannot be eliminated by the exercise of o Factors used to determine what constitutes as an Abnormally Dangerous Activity Found in Restatement second of Torts Weather the activity involves a high degree of some harm to the person or land or property of another Weather the gravity of the harm which may result from it is likely to be great Weather the risk can be eliminated by exercising reasonable care Weather the activity is not a matter of common usage Weather the activity is inappropriate to the place where it is done The value of the activity to the community o Defense Assumption of Risk The Manufacture or Sale of Reasonably Dangerous Products o Chapter 20 Statutory Strict Liability Strict Liability Principles imposed by legislation Vary from state to state Section 402A of the Restatement Second of Torts enhanced the movements towards imposing Strict liability more often Most states have adopted strict liability either by statue or Common Law Chapter 20 PRODUCT LIABILITY Evolution of product Liability Shirt from CAVEAT EMPTOR Let the buyer beware in the 19th century to CAVEAT VENDITOR Let the seller beware in the 20th century o Log chains of distribution means that consumers do not deal directly with the parties responsible for the defects in the products they buy o Corporations dominate the market so consumers are less able to bargain freely with these types of sellers you get what they make end of story o Industrial economy is becoming more viable so there is less need to protect producers from liability for defective goods o Growing complexity of goods makes it harder for the buyer to be able to inspect the goods THEORIES OF PRODUCTLIABILITY RECOVERY Warranty Theories Warranty an express or implied promise about the nature of a product sold In warranty cases plaintiffs claim that the product failed to live up to the sellers promise Express Warranty o 3 ways to create an Express Warranty 1 If an affirmation of fact or promise regarding the good becomes part of the basis of the bargain there IS an Express Warranty that the goods will conform to the affirmation or promise EX if a computer manufacturer makes a statement about how much memory a computer has this may create express warranty 2 Any Description of the goods that become part of the basis for the bargain creates an express warranty that the goods will live up to the description Descriptions include o Statement that goods are of a certain Brand Type or Model ex Hewlett Packard laser printer o Adjectives that characterize the product ex Shatter proof glass o Drawings blueprints and technical specifications 3 Assuming is becomes part of the basis of the bargain a sample or model of goods to be sold creates an express warranty that the good will conform tho the sample of the model o Value Opinion and Sales Talk Statements of value opinion or sales talk puffery do NOT create an expressed warranty No clear difference between these statements and Express Warranty When it is a close decision it is more likely to be Express Warranty if it is specific rather than indefinite Decision may also be decided on how much knowledge the buyer and o Basis of the Bargain Requirement seller both possess of the product Previously it stood that there was NO RECOVERY for breach of an express warranty unless the buyer significantly relies on that warranty Now ambiguously decided that the affirmation promise description or sample MUST be part of the Basis of the Bargain in order for Express Warranty to be created 1st Interpretation Significant Reliance on the affirmation promise description or sample is still necessary 2nd Interpretation the sellers affirmation promise description or sample need only be a Contributing Factor in the buyer decision to purchase 3rd Interpretation Some do not require any specific reliance on the buyers part o Advertisements Statements made in advertisements catalogs ets MAY BE Express Warranties but advertisements normally have a lot of Sales Talk B of the B problems arise when it is unclear how much an advertised statement induced the buyer to purchase Ex time between seeing the advertisement and making the purchase o Multiple Express Warranties Seller may give 2 or more Express Warranties that arguably conflict In this case warranties should be read as consistent with one another and as cumulative if this is reasonable If not the parties intention controls o When determining Intention 1 Exact or technical specifications defeat a sample a model or general descriptive language 2 A sample defeats general descriptive language o ANY Seller Professional or NOT may make and Expresses Warranty When such warranty id breached because goods were not as warranted plaintiff who demonstrates resulting losses is entitles to compensatory damages Implied Warranty of Merchantability o Implied Warranty is Created by operation of law rather than the sellers express statements o Plaintiff argues that the seller breached the warranty by selling merchantable goods and the plaintiff should therefore recover damages Seller MUST BE A Merchant with respect to goods of the kind sold Ex Accounting Professors sale of homemade cookies DOES NOT trigger the Implied Warranty of Merchantability To be Merchantable goods must at least Pass without objection in the trade Be fit for the ordinary purposes for which such goods are used Be of even kind quality and quantity within each unit Be adequately contained packaged and labeled Conform to any promises or statements of fact made on the container or label in the case of any equivalent goods be of fair average quality o Goods that fail to function properly or that have harmful side effects normally are NOT merchantable o Defendant may be liable only if it was reasonable foreseeable that an appreciable number of consumers would suffer Implied Warranty of Fitness for a Particular Purpose o Implied warranty that the goods will be fit for the buyers PARTICULAR purpose Not just the ordinary purpose o Requirements for it The
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