January 11, 1999

Strict Liability

An employer is vicarious liable for acts committed by employees in the scope of their employment.

If incident is foreseeable the employer is vicariously liable

• also must act with reasonable care when hiring people
• employers have a responsibility to hire good, decent, employers

Scope of employment

Employers right to control

Employee or independent contractor? In most cases employer not liable for acts of independent contractor.

RATIONAL: whether the employer has a limited right or complete right to control activities of employee or independent contractor. The more the employer can control activities of employee, more likely that person will be found to be an employee. The less the employer can control the activities of the third person, the more likely the person will be found to be an independent contractor.

Some factor to consider when determining independent contractor status:

• control over schedule
• instruct person how to do job
• whether person has own tools or not
• how paid (hourly or by job) (by job – if one job only more likely to be an independent contractor; need to look at facts because people can be both employee and independent contractor depending on job, etc.)
• length of employment
• intent of parties

employers can do everything right but still be vicariously liable

constructing building – still liable even if building not constructed safely

landowner – non-delegable duty to keep land safe; give lateral support to adjacent land – to keep the land from toppling over

landlord – non-delegable duty to keep public areas open

SAFETY is the big consideration

If independent contractor engaged in an abnormally (inherently) dangerous activities – then employer still vicariously liable (even though it is an independent contractor).

• fire to clear land
• maintain a structure (leaning tower of Pisa)
• using dynamite

detour or frolic in scope of employment – if only a mere detour then the employer is liable

vicarious liability in parent child cases

• parents liable for children if negligent entrustment, under common law NO vicarious liability for negligent acts of kids; lots of states have statutes (including CA) that impose liability on parents – often very limited (such as monetary amounts)
• if child engaged in adult activity parents have no liability as long as child qualified to do activity (driving at age 16)
• Permissive use statute – in CA – says that the owner of the car is liable for damages caused by ANYONE who negligently causes damages while using that car
• Family purpose doctrine – if a person is driving to extend a family purpose, then the family is liable

January 13, 1999

Strict Liability

Animal Trespassers

Livestock

GR = strict liability

Exc. = some states – fencing out statutes (people must keep their property fenced in to keep other animals out

Cats and dogs –

General rule = no strict liability

Exc. = some states – strict liability for dogs

Wild animals – strict liability generally

Wild animals

GR: strict liability

Exc. = provocation by P

Exc. = public zoo – (private = split)

Domestic Animals

GR = no SL unless known danger propensities

Exc. = some states California – statute SL for dogs; other states say that "every do deserves one bite" unless owner has reason to know the dog is dangerous or has a propensity to bite

Rylands v. Fletcher – Eng p 431 Strict liability for non mutual use of land; also look at community to determine if something is a natural or not natural use of the land

• initially American courts rejected this case; thought this decision would throw a serious object to improvement and letting business develop
• now American courts began to create a series of specific exceptions that you had to be negligent to be liable. First of these involved the use of explosives – because explosives are such a highly dangerous and abnormally dangerous activity there is going to be strict liability

How graded: line by line critique; common error is being too concise; comments on things that are wrong, not fully explained, etc.

• timing was fine on most exams
• many people put in sections you did not know (most often in act or omission to act)
• don’t change the facts – work with what you have
• another way people lost time was when they asked a question and then answered it. Just jump right into the answer

usual problems:

• timing
• leaving things out – be more organized
• knowledge of the law
• applications of facts to the law
• not giving full explanations to answers (being conclusionary)

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January 25, 1999

Abnormally dangerous activities (ADA)

EVOLUTION:

Rylands – 1868 – p.431 – non natural use

Sullivan – 1900 – p.439 – dynamiting

Rest. 1^st – 1934 – p.443 – ultra dangerous activities

Rest. 2^nd – 1977 – p. 443 – ultra dangerous activities

Indiana Harbor Belt RR – 1990 – p.444 – toxic chemicals

Application

Explosives – may – strict liability

Airflights causing ground damage (SL)

Some and rest – SL

Some – negligence

EXC: non-conventional – SL

Dangerous cargo – "public duty exception"

Handguns – may not be strict liability

Distinction between concussion and direct injury has virtually disappeared.

Duty – standard of care: absolute duty to avoid harm from dangerous animal or ADA if

Covered: dangerous animal or Rest 2d re ADA (Restatement 2d § 560)

1. high risk of some harm to person, land or chattels
2. liability resulting harm will be great
3. can’t eliminate by reasonable care (say whether strict liability applies or not)
4. activity not common usage (if the majority of people do activity)
5. activity not appropriate location
6. value to community of that activity

Foreseeable P

Foreseeable hazard – normal dangerous propensity

Actual cause

Proximate cause

Damages

Defenses

CN – not defenses unless knows danger

AR – defense

Comp. Negligence – modern trend – like negligence

Review of Indiana Harbor Belt RR case (go through above checklist):

A railroad car in the heart of Chicago leaked leaked a flammable and toxic chemical

1. very hazardous to people
2. very likely that resulting harm would be great because in middle of big city, chemical is very flammable and toxic
3. the risk could be eliminated by reasonable care –
4. common usage to route the train through the city, but most people do not transport toxic chemicals so this is an uncommon usage
5. problem is that the houses are in the wrong location, not the train (says the court)

Flying – how much responsibility should airplanes take for causing damage to things on the ground?

• less liability because aviation is serving more of an essential purpose in our lives

Drilling an oil well:

• most courts say oil well drilling meets the first three criteria

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January 27, 1999

Strict liability P.F. Case

Duty/breach of duty

Standard of care – absolute duty if covered – dangerous animal or abnormal activity

Foreseeable Plaintiff

Foreseeable hazard – whether the activity caused the injury based on the dangerous propensity of whatever the activity was

Actual cause

Proximate cause

Damages

Defense – knowing continued negligence and assumption of risk

- knowing contributory negligence – can count as to comparative negligence

Growing trend in all jurisdictions is to treat this as adopting comparative negligence principles to strict liability – if there is comparative negligence then strict liability claims will be barred. Other courts say it does not bar it but will look at percentage of fault and then will balance it accordingly.

• originally arose in law of contracts – old rule there was no liability at all under absence of privity
• problem this raised is that a manufacturer could not be held directly liable to the end user (manufacturer à retailer à consumer)
• even if there was privity it could be negotiated away be having disclaimers
• doctrine of caveat emptor was invoked – buyer bought product at own risk (buyer beware)
• category of imminently dangerous has been expanded to any product that might be dangerous in themselves
• p473 – inherently or imminently dangerous was abolished
• MacPherson v. Buick Motor Co. – landmark case – manufacturers are now liable for defects that could be reasonable discoverable upon inspection; also there must be a knowledge of the danger

WILL NOT BE TESTED ON WARRANTIES IN THIS CLASS

Can have cause of action in

• negligence
• strict liability
• WARRANTY

Warrantee – a promise of guarantee regarding composition, durability, performance, or safety; when a warrantee is breached it may give rise to a cause of action

• Express – factual promise or guarantee the seller has made as part of the sales transaction
• implied warrantee of merchantability – created and imposed by law instead of express contractual provision; run with the product; can be limited by contract; UCC implies this is implied in every sale of goods – product had to be of certain standard of quality
• implied warrantee of fitness for a particular purpose – when a seller helps buyer pick out the right product for a particular purpose; can get recovery if the goods are not fit for that particular purpose; mainly is just bad advice

general verdict – don’t really know why jury decided how they did.

Special verdict – jury has to say how they decided

Justifications for product liability:

1. deterence of accidents
2. spread costs among everyone
3. want to discourage marketing products that have defects – in public interest to have products that are safe
4. plaintiff (buyer) is not in position to detect defects
5. consumers were relying on manufacturers that produce safe products

Scope of products liability was subsequently broadened by a number of cases

Strict Product’s liability – beginning primia facie case

Duty

Standard of care

No negligence needed

Does D owe a duty?

D a commercial supplier?

• yes – SL

manufacturer and assembler

retailers, distributors, wholesalers, lessors

sellers or used product – split

• no = NOT SL

majority: landlord, endorsement, advertiser, incidental seller

GR: successor corp

Breach of duty

• did D supply a product with a munfactured defect (know both of these):
• two views:

1. majority: Restatement 2d § 402 A – defective product – unreasonable dangerous
2. minority: (California) – defective product if causes injury (Cronin case)

Distinction between negligence (conduct of people who put product in stream of commerce) and strict liability (look at product irrespective of the conduct of people)

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February 1, 1999

Strict liability for products PF case

Duty and Breach

Does D owe duty to this P?

Was P injured by product? If yes = duty owed

Does this D owe duty?

Is a commercial supplier? If yes = duty

Did D supply a product with a manual defect?

Majority Rest. 2d 402a – defective product "unreasonable danger"

Min (California Cronin) – defective product

Did D supply a product with a design defect?

Maj – Rest. 2d 402A

Min – (Calif)

• consumer expectation test:

excessive preventable danger / risk – utility / feasible alternative test

factors from Barker =

1. gravity of danger
2. likelihood of danger
3. feasibility of safer alternative
4. cost of improved design
5. adverse consequences to product and consumer

manufacturing defect – defect exists when the product comes off the assembly line different than the manufacturer intended

• can have res ipsa loquitur – does not happen without someone’s negligence
• or strict liability – something that happened in manufacturing (a fluke)
• under Rest. 2d 402A the defect had to be "unreasonably dangerous" – CA has rejected this and instead uses Cronin which just requires a defective product AND injury

Design defects are more common as tort cases:

Definition: everything in manufacturing process is as intended, but the design was defective. EX: a pinto car with engine in the rear that causes fire when rear-ended

• often accompanied by negligence – a manufacturer should have been able to see with reasonable care that the design was defective
• Majority court use test by 402a – defective products must be unreasonably dangerous

Consumer expectation test

• if not as safe as consumers expect it to be then it is defective
• excessive preventable danger test, risk utility test, feasible alternative test: asks whether the D could have removed the danger without serious impact on the product’s utility and price