The development of common-law strict liability Ultrahazardous or abnormally dangerous activities

The evolution of strict liability Trespass writ: No fault required for liability for “direct” harms Trespass on the case writ: Fault required for “indirect” harms Change in mid-19 th century: Some courts began to say fault required for ALL torts But pockets of strict liability still remain

Strict liability: Rylands Blackburn: “The person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, is prima facie answerable for all the damage which is the natural consequence of its escape.” Cairns (H.L.): Liability without fault if the defendant made a “non-natural use” of his land

“Abnormally dangerous activities” Compare Sullivan and Exner: when will liability without fault be imposed? Restatement now says two factors are key in determining “abnormal danger”: –1. Activity involves risk of serious harm that cannot be eliminated by use of reasonable care –2. Activity is “not a matter of common usage”

Products Liability

Why strict products liability? Greenman: “[T]o insure that the costs of injuries resulting from... defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”

Restatement (2d) sec. 402A Imposes strict liability for physical harms caused by a defective product, on anyone who sells a product in a defective condition. “Defective” means unreasonably dangerous when put to foreseeable uses. Liability is imposed even if the seller is not negligent, and even if he has no contractual relationship with the injured person.

Three categories of defect Manufacturing defect Design defect Warning or information defect

Manufacturing defect (or “production flaw”) Product has a manufacturing defect “when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.” Restatement (3d) of Torts, Products Liability. Consumer expectations test: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge as to its characteristics.” Restatement (2d) of Torts, 402A, comment i.

Design defect Product may be manufactured perfectly; the defect is in the entire product line’s design TWO TESTS HAVE BEEN USED: (1) Consumer expectation (Leichtamer) (2) Risk-utility balancing (Knitz): does the risk of the design at issue outweigh the benefits of that design?

Design defects: some distinct approaches Consumer expectation test used exclusively Risk-utility balancing test used exclusively P can use either test, with P given BOP P can use either test, with D given BOP on the risk-utility balancing test (Barker) –But Soule (Cal. 1994) limits use of consumer expectations test to “non-complex” designs

Risk-utility balancing and “Reasonable Alternative Design” Wilson (p. 639): For a plaintiff to prevail in a design defect case based on risk-utility balancing, P must prove that an alternative design is “practicable.” Products Restatement requires plaintiffs to prove RAD to prevail in design defect cases.

Warning or information defects Product may be defective if its foreseeable risks of harm could have been reduced by the provision of a “reasonable” warning, and the lack of such a warning renders the product “not reasonably safe.” Q = is there a duty to warn of an “obvious” hazard? See Liriano.

Cause-in-fact in warning defect cases To succeed on a claim, the failure to provide an adequate warning must be an actual cause (“but for”) of the Plaintiff’s harm Courts assist Plaintiffs by using the “heeding presumption” Liriano’s “burden shifting” on cause-in- fact is quite similar (if not identical)

Adequacy of warnings FORM : –must catch the attention of a reasonable person CONTENT: –must be comprehensible to the average user –must convey to a reasonable person a fair indication of the nature and extent of the danger