Mbe Florida -- Torts - Strict Liability, Product Liability

Front 1

When does strict liability attach for injuries caused by domestic animals

Back 1

-- if DF has knowledge of vicious propensities: strict liability
-- (Florida) for any dog-caused injury: strict liability
-- (MBE) first bite: RPP UTC standard
-- (MBE) second bite et seq.: strict liability

Front 2

In Florida, dog owners have strict liability for their dogs, except where:

Back 2

-- injured person is not lawfully on premises OR
-- DF has a "Bad Dog" sign displayed on premises
-- HOWEVER: neither exception applies where injured person is < 6 yo

Front 3

Besides domestic animals, which other animal categories involve strict liability?

Back 3

-- wild animals
-- (MBE) cattle (in Florida, must show owner negligence)
-- regardless of precautions taken = strict liability

Front 4

Cattle strays onto public road -- what is the owner's liability?

Back 4

-- MBE: strict liability, regardless of precautions taken
-- Florida: PF must show negligence (owner's precautions are relevant)

Front 5

Ultra-hazardous activity is defined by three attributes

Back 5

-- Inherently Unsafe: activity cannot be made reasonably safe under current technology
-- Severe Risk of Harm posed by activity (when something goes wrong, it will be a catastrophe)
-- Not Common: activity is uncommon in the area it is conducted (the activity is out of context)
-- e.g., anything involving: explosives, highly toxic chemicals, nuclear power

Front 6

To prepare site for new hotel on Miami Beach, company Developer explodes old hotel in preparation of site. When X twists ankle in performing pre-explosion checklist, will strict liability apply ?

Back 6

-- activity -- explosives -- is one in which cannot be made reasonably safe under current technology
-- poses a severe risk of harm (when something goes wrong, it will be a catastrophe)
-- uncommon in the area it is conducted (the activity is out of context)
-- HOWEVER, since strict liability is limited to harms that result from the kind of danger anticipated (injury flows from the "normally dangerous propensity"), liability likely decided under ordinary negligence

Front 7

D's toothless pet leopard escapes from triple-padlocked cage (through undetectable fissure in lock) & wanders into adjacent park. While walking through park, PF sees the leopard, and in a panic, turns to run, slips, and breaks arm.

Is the cat owner liable to the PF?

Back 7

-- DF has absolute duty to make safe; any injury results in strict liability
-- harm results from kind of danger anticipated (injury flows from the "normally dangerous propensity")
-- PF did nothing to bring about the injury

Front 8

In storing radioactive waste, company buys the best containers built to the highest standards & sparing no expense.

Will strict liability apply to injuries that results from leeching liquid?

Back 8

-- YES: safety precautions are irrelevant
-- ultra-hazardous activity
-- severe risk of harm
-- not common

Front 9

DF's dynamite truck blows tire without warning.
-- In swerving to a stop, truck hits PF.
-- In swerving to a stop, truck hits PF and explodes.

What is the difference?

Back 9

-- if truck explodes: strict liability because harm results from the kind of danger anticipated (injury flows from the "normally dangerous propensity")
-- if truck just hits PF (does not explode): strict liability does not apply; negligence

Front 10

How does "Nuisance" fit in the tort spectrum?

Back 10

-- not a separate tort, rather a type of harm
-- DF conduct can be intentional, negligent or subject to liability on strict liability basis
-- as a practical matter, nuisances are generally intentional interferences
-- e.g., interference can be deliberate: shining lights onto neighbor's property

Front 11

When can PF recover under "Nuisance"?

Back 11

-- PF can recover -- damages or injunctive relief -- on balancing the interests
-- if DF's activities create "substantial" and "unreasonable" interference
-- with PF's use and enjoyment

Front 12

In a tort claim where the harm is nuisance, what is "substantial interference"?

Back 12

-- offensive, inconvenient, or annoying to an average person in the community
-- NOT offensive because of PF's hypersensitivity
-- NOT offensive because of PF's specialized use

Front 13

University builds law school in residential area, getting permits for every feature, including a huge clock that chimes every hour. The chime is super annoying to one neighborhood resident.

What is the nuisance analysis?

Back 13

-- nuisance recognized as harm only if offensive, inconvenient, or annoying to an average person in the community
-- NOT offensive because of PF's hypersensitivity

Front 14

In a tort claim where the harm is nuisance, what is "unreasonable interference"?

Back 14

-- severity of inflicted injury outweighs the utility of DF's conduct
-- every person is entitled to use own land in reasonably way, considering the neighborhood, land values, and existence of alternative courses of conduct available to the DF

Front 15

When answering cases involving consumer products, read the question closely because...

Back 15

-- injury involving consumer goods can involve tort and contract COAs
-- therefore, READ CAREFULLY because answer will depend on the COA theory
-- if Q says "PF is suing DF for negligence", then can't use the product liability (strict liability) analysis

Front 16

When can a PF sue for Strict Liability for a Product Liability?

Back 16

-- DF is commercial supplier: routinely sells goods of the type that injured PF
-- the product is defective
-- the product was defective when it left the DF's hands
-- PF making a foreseeable (i.e., anticipated) use of the product

Front 17

What is the role of DF conduct in strict liability cases?

Back 17

-- safety precautions are legally irrelevant
-- its not the DF behavior, but the condition of the product

Front 18

Who is a "commercial supplier" (aka merchant)?

Back 18

-- retailer: a person who supplies products
-- assembler
-- wholesaler
-- seller of used / reconditioned products
-- every merchant in the distribution chain !!

Front 19

Who is not a "commercial supplier" ?

Back 19

a service provider (where supply of goods is incidental to the service)

Front 20

For which product defects does strict liability come into play?

Back 20

-- manufacturing defect
-- design defect

Front 21

in strict liability analysis, what is a "manufacturing defect"?

Back 21

-- a production anomaly where the defective product differs from all others produced
-- in a way that makes it more dangerous than consumer would expect
-- i.e., "one-in-a-million": the lawn mower where blade detaches & cuts you; Coke bottle with finger

Front 22

in strict liability analysis, what is a "design defect"?

Back 22

where the product has an alternative design that:
-- is safer than the one marketed
-- is cost-effective (only a few $ more)
-- is practical (does not impair its utility; can still use as intended)

Front 23

Besides the product itself, what else is "design" and can therefore be defective?

Back 23

-- warnings
-- instructions
-- e.g., where product marketed to Hispanics, English-only warning may be a design defect

Front 24

How does PF show that the product was defective when it left the DFs hands?

Back 24

-- for design defect: free pass; the defect exists always
-- for manufacturing defect: presumption that product was defective when it left DF's hands if it traveled to PF through normal channels of distribution

Front 25

PF gets huge electrical shock when using toaster & sues toaster manufacturer.

How does PF show that the product was defective when it left the DFs hands?

Back 25

-- e.g., shipping company could have dropped toaster, retailer could have left item on loading dock where humidity caused short circuit
-- normally, PF would have to prove that product was defective when it left DF's hands
-- however, in manufacturing defect cases, PF invokes presumption (BOP shifts to DF) where the product traveled to PF through normal channels of distribution

Front 26

What is foreseeable use of consumer product?

Back 26

-- standard is ANY use that can be anticipated
-- test is NOT whether use was INTENDED
-- e.g., using chair to reach book on tall shelf

Front 27

X buys hair dryer from me on ebay (or garage sale). Hair dryer catches fire.

Can PF recover using Strict Liability?

Back 27

-- no, I'm a casual seller (don't routinely sell goods of this type)
-- a casual seller is never a merchant, therefore a casual seller can never incur strict liability

Front 28

At restaurant, the hostess takes you to your seat. On sitting down, the chair collapses.

Is the restaurant liable based on strict liability?

Back 28

-- NO, the restaurant provides service; the chairs are incidental to the service being provided
-- the restaurant may be liable for negligence: you are invitee, the chair is a hazardous condition; if the chair was a reasonably discoverable trap, then liable for negligence

Front 29

A theater sells rotten candy. If you chip your tooth, is the theater liable for product liability based on strict liability?

Back 29

-- theater is a commercial seller: even though not in the primary business of selling candy, it is a retail supplier of candy

Front 30

An airplane crashes, injuring PF. Is the airline liable on a strict liability basis?

Back 30

-- NO, airline providing a service; PF can use strict liability only for defective airplane part

Front 31

Lease a car from Hertz. The car has defective brakes.

Is Hertz liable on a strict liability basis?

Back 31

-- YES, commercial lessors are included in the category of "commercial suppliers" to which strict liability attaches for goods they supply

Front 32

Purchase Dell computer from Comp USA. At home, the new computer gives you a terrible electric shock & substantial medical problems.

Who is liable under strict liability theory?

Back 32

-- every merchant in the distribution chain -- CompUsa & Dell -- is strictly liable

Front 33

Cribs made with widely-spaced slats. Baby X catches head between slats & suffocates.

Is the product defective?

Back 33

-- YES, design defect
-- there is an alternative design (narrower slats): safer, cost-effective, practical (does not impair its utility)

Front 34

A shoe manufacturer has a large boiler on its property for heating its manufacturing plant. The boiler explodes & injures the workers in a nearby sock plant.

For the DF shoe manufacturer, what is the product liability analysis?

Back 34

-- merchant of shoes, not boilers
-- therefore first requirement (DF is commercial supplier of product that injured PF) is not met

Front 35

In product liability cases, what type of damages may PF recover?

Back 35

-- same as recoverable in negligence cases: personal injury and property damage
-- most states (e.g., Florida) deny recovery under strict liability when the sole claim is economic
-- i.e., if product only damages itself, then the correct COA is breach of contract

Front 36

For all strict liability cases, name an affirmative defense based on PF behavior?

Back 36

-- DF can use affirmative defense that PF also at fault

Front 37

In strict liability, what happens where PF partly at fault?

Back 37

-- utilize comparative negligence rules
-- e.g., in in product liability case, PF action that contributed to injury will reduce his award

Front 38

PF injures himself using product. PF fails to read the warning on page 30 of 62-page instruction manual.

What is the strict liability analysis?

What is the DFs likely affirmative defense?

Back 38

-- design defect because warning is not sufficiently prominent
-- comparative negligence: small reduction to PF's award equal to the % fault attributable to PF for failing to read the entire instruction manual

Front 39

When will lack of warning make a product "defective"?

Back 39

-- if risk cannot be eliminated in a cost-neutral and practical way
-- and danger not apparent (e.g., knives)
-- then product defective without clear, prominent, understandable warning