Strict liability

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Section D. Strict Liability and Negligence in the last half of the 19th Century

Jan 12: 629, 111-123, 125-127

Fletcher v Rylands (1865)

p.111 P was damaged when water flooded his property. The water broke out of Ds reservoir, due to a latent defect in Ds subsoil from prior coal mining, about which D nor his engineers and contractors had knowledge.

Bramwell: Ds innocence is immaterial, his act was a trespass.

Martin: No trespass: for Trespass, the damage must be immediate.

No nuisance: something hurtful or injurious to the senses.

For Personal property there must be negligence to create a liability.
Fletcher v Rylands (1866)

True Rule of SL:

If you bring, keep, or collect a mischievous thing and its causes damage  SL

Blackburn: “True rule” of strict liability: if a person brings, keeps, or collects anything likely to do mischief, he is strictly liable if the thing gets out. He is responsible for all damages caused by the natural consequences of the escape.
Fletcher v Rylands (1868)

Cairns: Natural uses don’t cause liability.

If a Non-Natural Use, introducing something not a natural condition on the land, if that causes damage then D should be liable.

2 Meanings of Non-natural:

  1. Artificial/man-made

  2. UnRA or inappropriate to the location (Richards v. Lothian)

Exceptions to Rylands: no liability when

  • Acts of God: ex: extraordinary rainfall causing ornamental pools to flood

  • Purpose benefited more than D alone ex: rain gutters mutually benefited P and D, rats ate through, causing water damage, D not liable b/c the gutters were not for him alone.

Jan 14: 652-669



Section D. Ultra-hazardous or Abnormally Dangerous Activities
R2d § 519 General Principle

  1. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm

  2. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous

§520 Abnormally Dangerous Activities

To determine whether an activity is abnormally dangerous, consider these 6 factors:

  1. Existence of a high degree of risk of some harm to the person, land, or chattels of others (probability)

  2. Likelihood that the harm that results from it will be great (loss)

  3. Inability to eliminate the risk by the exercise of RA care

  4. Extent to which the activity is not a matter of common usage

  5. Inappropriateness of the activity to the place where it is carried on and

  6. Extent to which its value to the community is outweighed by its dangerous attributes.

  • Ps assumption of risk of harm from an abnormally dangerous activity bars his recovery for harm

  • Contributory neg is generally not a defense to the SL of the person involved in the abnormally dangerous activity.

  • Contributory neg is a defense when P acted “knowingly and unRA” subjecting himself to the harm.

Indiana Harbour Belt RR v. American Cyanamid

p. 660 Cyanamid, D, manufacturer loaded 20,000 gallons of chemical into a leased RR car. At a switching station employees noticed fluid gushing from the bottom of the car, through a broken lid. Dept of Environmental Protection ordered the switching line to decontaminate, costing $900k. (This suit is to recover the $)

2-Count Complaint:

  1. Cyanamid maintained the leased car negligently

  2. Transporting that much chemical through Chicago is an “abnormally dangerous activity”, so D should be strictly liable (P won on SJ)

The relevant activity in the case is Transportation, but P is suing the manufacturer. Case for SL has not been made, if it was no haz mats could be shipped.

Judgment REVERSED.

Jan 21: 322-325, 669-679

Ps Conduct: Contributory Negligence

LeRoy Fibre v. Chicago, Milwaukee & St. Paul Ry. Contributory Negligence

p. 322 P, flax maker, stored 700 tons of straw in 230 stacks, in 2 rows, on its land. Ds right of way ran 70 and 80 ft from the rows. A spark from a train caught the flax on fire, burning it all.

Jury found: 1) Ds servants negligently operated the train by letting sparks fly, this negligence caused Ps harm.

2) P was contrib neg by placing the stacks w/in 100 ft of the tracks.

Supreme: The rights of one man in the use of his property cannot be limited by the wrongs of another.

Holmes: If the stacks were so near that even a well managed train would catch it on fire, P is contributorily neg.


Section E: Nuisance

  1. Private Nuisance: a “non-trespassory invasion of another’s interest in the private use and enjoyment of land”

Protects your rights to enjoy and use your property. Ex: noise, light, smelly

Vogel v. Grant-Lafayette Electric

p. 669 P, dairy farmers, cows effected by voltage- produce less milk. Because stray voltage was an unintentional invasion (and was otherwise actionable under negligence) the court properly considered Ps contributory neg (in design, maintenance, and operation of their electrical equipments) in reducing the damage award.

There would be liability if unRA and intentional. Not intentional; P would have to show that D knew that their activity would result in the harm that occurred.

Def UnRA §826 UnRA of Intentional Invasion p. 676

“An intentional invasion of another’s interest in the use and enjoyment of land is UnRA if the gravity of the harm outweighs the utility of the actor’s conduct”

1) Is it intentional? If Y2

2) Is it unRA? (Gravity of harm outweighs utility of the conduct)

What is RA conduct to D is not the same as RA conduct in terms of an Intentional Nuisance.

Judging RA:

Negligence point of view of D at the time he is acting

Nuisance point of view of society after the fact

D isn’t doing anything wrong (careless), but is it worth it to society to allow this activity to continue without a remedy to P? “Judicial Zoning”

3 Approaches to demonstrate liability in a Private Nuisance case. p. 676

P can prevail in nuisance if they can prove the invasion is either:

  1. Intentional and unRA

  2. Negligent

  3. Abnormally dangerous activity (strict liability)

“Live and Let Live” for Minimal harms: all interferences are “reciprocal” in character. No party may easily claim he has been made worse off or his neighbor alone profited, virtually all parties are better off.

Jan 28: 691-713

Ensign v. Walls

p. 688 Neighbor complaining about dog breeding business creating odors, barking, etc. Majority View: No defense to show P came to the nuisance. Accepting the coming to the nuisance defense allows the ‘theft’ of an incorporeal interest in real property.
Coming to the Nuisance

No longer a complete defense, now a factor, it would condemn land to the lowest level of pre-existing uses if it was a defense- would harm L-T economic development in the community.

Boomer v Atlantic Cement

p. 694 D operates a cement plant; causing dirt, smoke, & vibrations the neighbors dislike. A Nuisance has been found, now examining damages: Dust emissions resulting from the manufacture of cement, is a world-wide problem. Use of a court’s equitable powers: could issue an injunction to shut down the plant.

Majority: Will issue an Injunction unless D pays P the amount of Permanent Damages $185,000. Not going to shut down the plant, if they pay. Does this do justice? What really matters is the economic significance of the defendant. The big company employs many people and supports the tax base of the town. Majority doesn’t think 1 company will be able to solve the problem in 18mnths, as suggested by the dissent.

Dissent: Injunction should shut down the factory entirely, with 18 months to fix it. Make R & D, to fix the harms, or go out of business. Examining the broader public impact of what the company is doing. Where is the evidence of the broader impact? May be premised on evidence that may not be in the case, and giving it a lot of weight.

  1. Public Nuisance

Generally brought by Public Officials, assumingly brings a better view point. Interference with the activities of many community members. A private individual can’t bring a public nuisance case unless they can show “special injury” (different in kind/quality than the harm the rest of the community suffers) P can plead both a Private & Public Nuisance.

Ex: property owners, when the value of their property is decreased

Union Oil v Oppen Exception to General Rule!

p. 708 Allows fisherman to sue for their economic losses after damage to marine life from an oil spill.



Feb 2: 715-729

  1. Intro

1st: Winterbottom v Wright Injured consumer/user can only bring action against immediate vendor.
2nd: MacPherson v Buick Liability is imposed in negligence on a remote seller
3rd: Escola v Coke Bottling Strict liability and not negligence should govern manufacturer’s liability
4th: (Present)Defective design and duty to warn cases- expanded liability within the traditional framework of negligence.
1998 3rd Restatement- exclusively deals with Products Liability Law
Types of Products Liability:

1) “Manufacturing defect”/”flaw”

  • Mistake in the plan/formula Ex: cough syrup mixed wrong

  • Manufacturing process led to a flaw in an item, and that injured P.

2) “Design defect”

  • Product came out as it was suppose to, but it was a bad idea/plan

3) “Warnings” / “informational defects”

Info with the product isn’t adequate:

    1. Faulty Instructions:

      • Product can be used safely, but you were misled by the instructions

    2. Lack of warning of the impossibility of using it safely:

  • Product can not be used with complete safety, it has inherent risks.

  • If you are not aware of the risks, the warnings were inadequate. Informed choice

What theories of Liability are Available?

Intent Not Applicable, generally

  1. Negligence

  2. Strict Liability

  3. Warranty

  1. Exposition

Winterbottom v Wright Who can sue Whom?

p.719 see binder notes. Privity limitation. Coach used to carry the mail. P is driver of mail coach. D bought coach from manufacturer and then entered a K with Postmaster General to supply and maintain the coach.

  1. Negligence: Driver (P) was a foreseeable victim, D had a duty to safely maintain the coach

P loses, due to Privity- no K relationship between the driver and supplier
Old Rule, Privity Limitation: Negligence related to a product sold from supplier(manufacturer) to buyer can only relate between the buyer and seller. Only person who can sue for negligence of a product is a person who is in a K relationship with the D. Here, postmaster but not the driver, could sue the supplier.
Justifying the Privity Limitation: p.720 Very strong limitation for a long time

  1. Limits to who can sue. To whom do legal rights extend? Limited by K terms.

  2. As national markets develop, the user of a product can be far from the manufacturer who will not know the person or the use they made of the product.

  3. It may be very difficult to get the facts of what really happened, time may pass between the incident and a lawsuit filed.

3 Exceptions to Privity Limitation: p.721

  1. Negligence of Manufacturer/vendor which is imminently dangerous to life/health of people, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life is actionable by 3rd parties.

  2. One who sells/delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury there from which might have been RA anticipated, whether there were any contractual relations between the parties or not.

  3. Owner’s negligence causes injury to one invited by him to use his defective appliance on O’s property.

MacPherson v Buick Establishes the availability of Negligence in Products Liability

p.722 (Best example of an expansion of an exception to a rule for the purpose of destroying a rule.)

P bought a buick from a retail dealer, the car later suddenly collapsed injuring P. A wheel was made of defective wood. P had no privity of K with Buick. Other potential Ds: Wheel manufacturer.

  1. Is there a duty of care owed by Buick to MacP? If privity limitation – NO.

  2. Cardozo: Privity limitation doesn’t apply if the product is of an imminently/inherently dangerous character. If beyond Privity limitation, get to forseeability analysis. A foreseeable person who is hurt, could sue. “if the nature of a thing is such that it is RA certain to place life and limb in peril when negligently made, it is then a thing of danger”

An automobile fits within the expanded view of privity.

The court doesn’t have to decide if the manufacturers of component parts should be held liable.

Escola v Coca Cola Bottling

McCabe v LK Ligget Drug Co.

p. 735

Breaches of implied warranty of fitness and merchantability. “Merchantable Quality” means that goods are Ra suitable for the ordinary uses for which goods of that description are sold.

  1. The Restatement

    1. A tale of two texts

R2d §402A Special Liability of Seller of Product for Physical harm to user or Consumer

1) One who sells any product in a defective condition unRably 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

  1. the seller is engaged in the business of selling such a product and

  2. 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 sub (1) applies although

  1. the seller has exercised all possible care in the preparation and sale of his product and

  2. the user or consumer has not bought the product from or entered into any contractual relation with the seller


F. Business of Selling. The rule applies to any manufacturer of such a product, to any wholesaler or retail dealer or distributor, and to the operator of a restaurant.

G. Defective Condition. This section only applies wehre the product is, at the time it leaves the seller’s hands, in a condition not eontemplated by the ultimate user, which will be unRA dangerous to him. BOP is on P.
H. If the injury results from abnormal handling, abnormal preparation for use, or from abnormal consumption the seller is not liable.
I. UnRA dangerous. “Consumer Expectation Test” unRa dangerous means the article sold must be dangerous to an extent beyone which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its charachteristics.
J. Directions or Warnings. Where a warning is given, the seller may RA assume it will be read and heeded, and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition nor is it unRA dangerous.
K. Unavoiedably Unsafe Products. If a product is incapable of being made safe for their intended or ordinary use, if the product’s benefit can be justified by its high risk, if it is properly prepared, and is accompanied by proper directions and warnings, it is not defective nor unRA dangerous.
M. Warranty. Seller is strictly liable although the consumer may not even know who he is at the time of consumption.
N. Contributory Negligence. If contributory negligence consists of voluntary and unRA proceedings to encounter a known danger, it can be considered assumption of risk and is a defense.

R3d § 1 Liability of Commercial Seller or Distributor for harm caused by defective products. 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 person or property caused by the defect.

R3d § 2 Categories of Product Defects

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective b/c of inadequate instructions or warnings. A product:

  1. Contains a MANUFACTUING DEFECT when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

  2. 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 RA 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 RA safe.

  3. Is defective b/c of INADEQUATE INSTRUCTIONS OR WARNINGS when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of RA instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not RA safe.

    1. The Theory of Products Liability: Tort or K?

Casa Clara v Charley Toppino

p. 750

“Economic losses” are ‘disappointed economic expectations’ which are protected by K law. For recovery in tort there must be ‘a showing of harm above and beyond disappointed expectations. A buyer’s desire to enjoy the benefit of his bargain is not an interest that the tort law traditionally protects’.

Rule: The Economic Loss rule applies to the purchase of houses.

Majority View(R3d): Economic loss rule, K law, whereby disappointed economic expectations are enough to override warranty disclaimers (protected by K law- applies to the purchase of houses).
Minority View: Tort liability, a showing of harm above and beyond disappointed expectations, is needed to override warranty disclaimers for pure economic loss. The mere risk of future harm is not sufficient grounds for a tort claim.
UCC 2-313 Express Warranty in physical injury cases

    1. Express warranties by the seller are created as follows:

  1. Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

  2. Any description of the goods which is made part of the basis of the bargaining creates an express warranty that the goods shall conform to the description.

    1. Proper Ds under Section 402A

Cafazzo v Central Medical Health Services.

p. 760

  1. Product Defects

    1. Manufacturing Defects

Pouncey v Ford Negligence

p. 769

This fan blade was a departure from the intended design. Trial jury inferred negligence on the part of Ford. Affirmed.

    1. Design Defects

VW v. Young Negligence

p. 774

‘Traditional rules of negligence’ lead to the conclusion that an auto manufacturer is liable for a defect in design which the manufacturer could have RA foreseen would cause or enhance injuries or impact, which is not patent or obvious to the user, and which in fact leads to or enhances the injuries in an auto collision.

Maryland won’t apply strict liability to design defect cases.

Linegar v. Armour of America

p.782 Trooper was killed when shot while wearing a bullet proof vest. The vest stopped all bullets in areas where it covered. Trooper died from shots to areas the vest did not cover.

Issue: Was the vest defectively designed and unRa dangerous?

Rule: The vest was designed to prevent the penetration of bullets where there was coverage, and it did so; the amount of coverage was the buyer’s choice.

Barker v Lull Engineering How SL can be used for Design defect cases

p.788 P, a substitute driver, was injured while operating a high-lift loader.

Trial court: for D. P appeals the jury instruction “that strict liab for a defect in design of a product is based on a finding that the product was unRA dangerous for its intended use”.

Rule: Reversed. Jury instructions had errors:

1. required P to prove the loader was ultrahazardous or more dangerous than the average consumer contemplated

2. the instruction misinformed the jury that the defectiveness of the product must b e evaluated in light of the products ‘intended use’ rather than its ‘RA foreseeable’ use

Wade, on the Nature of SL for Products RISK-UTILITY TEST

Factors to Consider:

1. usefulness and desireability of the product- its utility to the user and to the public

2. safety aspects of the product- likelihood that it will cause injury, and the probable

seriousness of the injury

3. availability of a substitute product which would meet the same need and not be as unsafe

4. manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

5. the user’s ability to avoid danger by the exercise of care in the use of the product.

6. The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions

7. the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

Potter v Chicago Pneumatic

p. 797 P claims defective design b/c they exposed P to excessive vibrations, and D failed to provide adequate warnings regarding the potential danger presented by excessive vibrations.

Majority of JX: do not require Ps to prove a feasible alternative design.

A jury may consider these factors:

    1. usefulness of the product

    2. feasibility of an alternative design

    3. likelihood and severity of the danger posed by the design

    4. financial cost of an improved design

    5. ability to reduce danger w/out impairing its usefulness or making too expensive

    6. feasibility of spreading the loss by increasing the product’s price

Rule: In weighing a product’s risks against its utility the jury should focus on the product itself and not on the conduct of the manufacturer. Here, D’s tool was defectively designed.

    1. The Duty to Warn

MacDonald v Ortho

p. 805 P suffered a stroke after taking Ortho-novum. P claims D was negligent in failing to warn adequately of the dangers associated with the pills and that D breached its warranty of merchantability.

Issue: What is the extent of a drug manufacturer’s duty to warn consumers of dangers inherent in the use of oral contraceptives.

CL duty to warn: requires a warning “comprehensible to the average user…conveying a fair indication of the nature and extent of the danger to the mind of a RA prudent person”. A decision for the jury.

Rule: A drug manufacturer owes a direct duty to the consumer to warn her of the inherent dangers of taking their pills.
Vassallo v Baxter Healthcare

p. 822 P claims D were liable for silicone breast implants manufactured by a predecessor company. She claims they were negligently designed, had negligent product warnings, and breached the implied warranty of merchantability. The warnings did not address gel bleed, the possibility of chronic inflammation, or the consequences of gel migration in the body.

Majority View: R2 402A comment j “the seller is required to give warning against a danger if he has knowledge, or by the application of RA, developed human skill and foresight should have knowledge of the danger”

A seller is charged with knowledge of what RA testing would reveal.

Rule: D will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not RA foreseeable at the time of sale or could not have been discovered by way of RA testing prior to marketing the product.

  1. Plaintiff’s Conduct

Daly v General Motors

p. 831 Ps car struck a metal divider, the car spun and decedent was thrown from the door. P claims the door locks were defectively designed b/c a push button might have been forced open during the initial crash.

Trial: found for Ds

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