Torts

Strict Liability

Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent.

PRODUCTS LIABILITY--STRICT LIABILITY IN TORT

In Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [13 A.L.R.3d 1049], confronted with injury to an ultimate consumer caused by a defective power tool, the California Supreme Court assigned strict liability to a manufacturer who placed on the market a defective product even though both privity of contract and notice of breach of warranty were lacking. The court rejected both contract and warranty theories, express or implied, as the basis for liability. Strict liability does not rest on a consensual foundation but, rather, on one created by law. The liability was created judicially because of the economic and social need for the protection of consumers in an increasingly complex and mechanized society, and because of the limitations in the negligence and warranty remedies. The court's avowed purpose was "to insure that the costs of injuries resulting from defective products are borne by the manufacturer that put such products on the market rather than by the injured persons who are powerless to protect themselves." (Id., at p. 63.) Subsequently, the Greenman principle was incorporated in section 402A of the Restatement Second of Torts, and adopted by a majority of American jurisdictions.

Strict liability is imposed against the manufacturer and in favor of the user or consumer in order to relieve injured consumers "from problems of proof inherent in pursuing negligence ... and warranty ... remedies, ..." (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63.) Strict liability seeks to place the burden of loss on manufacturers rather than "... injured persons who are powerless to protect themselves ...." (Greenman, supra, at p. 63.)

DISTINGUISHED FROM NEGLIGENCE

The distinction between products liability and negligence was explained in Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 383 [52 A.L.R.3d 92]: "It is pointed out that in a products liability case the plaintiff in order to recover in strict liability in tort must prove that he was injured by a defect in the product and that the product was defective when it left the hands of the retailer or manufacturer; whereas to recover in negligence the plaintiff must prove the same two elements plus an additional element, namely, that the defect in the product was due to negligence of the defendant."

PRODUCTS LIABILITY DEFECTIVE PRODUCT - INTRODUCTION

A product may be defective because of a defect in manufacture or design or a failure to adequately warn the consumer of a hazard involved in the foreseeable use of the product.

PRODUCTS LIABILITY--STRICT LIABILITY IN TORT-- DEFECT IN MANUFACTURE

The plaintiff's injury must have been caused by a "defect" in the product. Thus the manufacturer is not deemed responsible when injury results from an unforeseeable use of its product. The essential elements of a claim based upon an alleged manufacturing defect are:

1. The defendant was the manufacturer or supplier of a product;

2. The product possessed a defect in its manufacture;

3. The defect in manufacture existed when the product left the defendant's possession;

4. The defect in manufacture was a cause of injury to the plaintiff; and

5. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable to the defendant.

A defect in the manufacture of a product exists if the product differs from the manufacturer's intended result or if the product differs from apparently identical products from the same manufacturer.

DESIGN DEFECT - ESSENTIAL ELEMENTS

The essential elements of a claim based upon an alleged design defect are:

1. The defendant was the manufacturer or supplier of a product;

2. The product possessed a defect in its design;

3. The defect in design existed at the time it left the defendant's possession;

4. The defect in design was a cause of injury to the plaintiff; and

5. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable by the defendant.

A product is defective in design if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if there is a risk of danger inherent in the design which outweighs the benefits of that design.

In determining whether the benefits of the design outweigh such risks the trier of fact may consider, among other things, the gravity of the danger posed by the design, the likelihood that such danger would cause damage, the mechanical feasibility of a safer alternate design at the time of manufacture, the financial cost of an improved design, and the adverse consequences to the product and the consumer that would result from an alternate design.

PRODUCTS LIABILITY--STRICT LIABILITY AND TORTS--DESIGN DEFECT--WHEN MANUFACTURER OR SELLER IS EXEMPT FROM LIABILITY

The manufacturer or seller of a product is not liable for injuries death caused by a defect in its design, which existed when the product left the possession of the manufacturer or seller, if:

1. The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer, who has the ordinary knowledge common to the community, and who consumes the product; and

2. The product is a common consumer product intended for personal consumption.

FAILURE TO WARN - ESSENTIAL ELEMENTS

The essential elements of a claim based upon an alleged defect from failure to warn are:

1. The defendant was the manufacturer of a product;

2. The product was defective;

3. The product defect was a cause of injury to the plaintiffs;

4. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable to the defendant.

A product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer knows or should have known of the danger, but fails to give adequate warning of such danger.

A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer either is aware or should be aware, and that would not be readily recognized by the ordinary user.

A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution.

In the case of prescription drugs, such warning must be given to the physician.

PRODUCTS LIABILITY- NO RECOVERY IN ABSENCE OF PHYSICAL INJURY

It has been said that the doctrine of strict liability in tort does not apply to cases where "no blood has been spilled." In Seely v. White Motor Co. (1965) 63 C2d 9, 18, the California Supreme Court refused to extend the doctrine of strict liability to an ordinary user who suffered only economic loss. Recovery for economic loss is governed by the warranty provisions of the Uniform Commercial Code. "Economic" loss or harm has been defined as "damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profit without any claim of personal injury or damages to other property." (Sacramento Regional Transit Dist. v. Gruman Flxible (1984) 158 CA3d 289, 294.) Strict liability is imposed where there is a defect, and further damage to the plaintiff's property caused by the defect. When the defect and the damage are one and the same, the defect may not be considered to have caused physical injury.

PRODUCTS LIABILITY -- COMPARATIVE FAULT

Comparative negligence is a defense to strict liability. (Daly v. General Motors (1978) 20 Cal.3d 725) Comparative fault is negligence on the part of a plaintiff which combining with the negligence of a defendant or with a defect in a product or with negligent or wrongful conduct of others contributes as a cause in bringing about the injury.

Comparative fault, if any, on the part of plaintiff does not bar recovery by the plaintiff against the defendant but the total amount of damages to which plaintiff would otherwise be entitled shall be reduced by the percentage that plaintiff's comparative fault contributed as a cause to plaintiff's injury.

PRODUCTS LIABILITY - REDUCTION OF DAMAGES BECAUSE OF COMPARATIVE FAULT

If a cause of plaintiff's injury was defendant's negligence or a defect in the product and that the comparative fault of the plaintiff was also a cause of said injury, the amount of damages to be awarded is determined as follows:

First: the total amount of damages to which the plaintiff would be entitled under the court's instructions if plaintiff had not been comparatively at fault must be determined.

Second: What percentage of the combined causes of plaintiff's injury is attributable to plaintiff's comparative fault and what percentage of such combined causes is attributable to the defective product and or a defendant's negligence must be determined.

Third: The total amount of plaintiff's damages must be reduced by the percentage that plaintiff's comparative fault contributed as a cause to plaintiff's injury.

Fourth: The resulting amount, after making such reduction, will be the amount of plaintiff's damages.

Not all jurisdictions adhere to the rule that comparative negligence is a defense. While jurisdictions are divided on whether comparative negligence is a defense all agree that assumption of the risk bars a plaintiff's recovery. However, one court's assumption of the risk may be another's comparative negligence and vice versa. Hence, it is not accurate to say that contributory misconduct of a plaintiff is no defense to a warranty cause of action.

PRODUCTS LIABILITY-NEGLIGENCE LIABILITY

The essential elements of a claim of negligence by the supplier or manufacturer of a product are:

1. The defendant was the manufacturer or supplier of a product;

2. The defendant was negligent; and

3. The negligence of the defendant was a cause of injury and damage to the plaintiff.

PRODUCTS LIABILITY-NEGLIGENCE-SUPPLIER'S DUTY TO WARN

One who supplies a product directly or through a third person, for another to use, which the supplier knows or has reason to know is dangerous or is likely to be dangerous for the use for which it is supplied, has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom the supplier should expect to use the product or be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition. A failure to fulfill that duty is negligence.

PRODUCTS LIABILITY-NEGLIGENCE-DUTY OF MANUFACTURER

One who supplies a product directly or through a third person, for another to use, which the supplier knows or has reason to know is dangerous or is likely to be dangerous for the use for which it is supplied, has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom the supplier should expect to use the product or be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition. A failure to fulfill that duty is negligence.

PRODUCTS LIABILITY-NEGLIGENCE- DUTY OF MAKER OF A COMPONENT PART

The maker of a component part which is incorporated into a product finished or assembled by another has the same duty of care as to such component parts as that of a manufacturer.

PRODUCTS LIABILITY--NEGLIGENCE--SELLER ASSUMING ROLE OF MANUFACTURER

A seller who puts out as its own a product manufactured by another has the same duty of care as that of a manufacturer.

PRODUCTS LIABILITY--NEGLIGENCE-- SELLER'S DUTY TO INSPECT AS TO DEFECTS

Ordinarily, one who sells in the usual course of trade a product which was made by another, does not have a duty to inspect or test the product for possible defects. However, a seller who has reason to know that the product is likely to be dangerously defective, has a duty to exercise reasonable care to inspect and test the product before selling it.

PRODUCTS LIABILITY - NEGLIGENCE - DUTY OF LESSOR FOR HIRE

The lessor of an article has a duty to those whom he or she should expect to use it, or be endangered by its probable use, to use reasonable care to make it safe for use in a manner for which, and by a person for whose use, it is leased, or to disclose its actual condition to those who may be expected to use it.

PRODUCTS LIABILITY - NEGLIGENCE BY LESSOR/BAILOR - INTRODUCTORY

When one gives possession and the right to use personal property to another and the latter agrees to return the same property to him at a future time, the transaction is known in law as a bailment. The person who gives possession is known as a bailor. The person who takes possession is known as a bailee.

The essential elements of a claim of negligence by a lessor of an article of personal property are:

1. The defendant was a lessor or bailor of an article of property;

2. The defendant was negligent;

3. The negligence of the defendant was a cause of injury, damage, loss or harm to the plaintiff.

PRODUCTS LIABILITY-NEGLIGENCE- DUTY OF BAILOR OF ARTICLE OTHER THAN FOR USE

One who delivers possession of an article to another has a duty to warn such other person of any dangerous condition of the article of which the one delivering possession has knowledge and which would constitute a danger to person or property if such other person were not so informed. A failure to fulfill that duty is negligence.

PRODUCTS LIABILITY--NEGLIGENCE-- BAILMENT FOR HIRE OR GRATUITOUS

When the bailment is for the benefit of both parties or for the sole benefit of the bailor, the bailor has a duty to those whom he or she should expect to use the property, or be endangered by its probable use, to use reasonable care to make it safe for use in a manner for which, and by a person for whose use, it is bailed, or to disclose its actual condition to those who may be expected to use it.

However, when the bailment is entirely for the benefit of the bailee, the bailor has a duty to use reasonable care to warn the bailee and those whom heor she should expect to use the property, of any defects actually known to the bailor which make the property dangerous for the purpose for which it is ordinarily used. He or she is not liable for defects of which he or she was not aware.

ULTRA HAZARDOUS ACTIVITY

This doctrine, first enunciated in Rylands v. Fletcher (1868) L.R. 3 H.L. 330, imposes liability for damage proximately caused by one who carries on an "ultrahazardous" activity. The modern theory of liability for ultrahazardous activity is that certain activities create such a serious risk of danger that it is justifiable to place liability for any resultant loss on the person engaging in the activity, regardless of lack of culpability on his part. (Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333) One who engages in ultra hazardous activity may be found liable without a showing of negligence.

The essential elements of a claim of strict liability for ultra hazerdous activity are:

1. The defendant carried on an ultra hazardous activity;

2. Such activity caused plaintiff to suffer injury, damage, loss or harm; and

3. The defendant recognized or should have recognized that plaintiff's person or property was likely to be harmed by the activity or the unpreventable miscarriage of the activity.

"An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage." (Luthringer v. Moore (1948) 31 Cal.2d 489) An activity is a matter of common usage if it "is customarily carried on by the great mass of mankind or by many people in the community." (Luthringer v. Moore, supra, 31 Cal.2d 489)

Using the term "abnormally dangerous" rather than "ultrahazardous," the Restatement sets forth six factors which are to be considered in determining how to classify the activity. They are:

"(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

"(b) likelihood that the harm that results from it will be great;

"(c) inability to eliminate the risk by the exercise of reasonable care;

"(d) extent to which the activity is not a matter of common usage;

"(e) inappropriateness of the activity to the place where it is carried on; and

"(f) extent to which its value to the community is outweighed by its dangerous attributes." (Rest.2d Torts, § 520.)

As explained in comment (f) to section 520, the several factors are to be considered together; establishment of one factor alone is usually not sufficient to categorize an activity; several factors will ordinarily be required.

Whether an activity is an ultrahazardous activity is a question of law for the court to decide. (Edwards v. Post Transportation Co. (1991) 228 Cal.App.3d 980)

In Green v. General Petroleum Corp. (1928) 205 Cal. 328 [60 A.L.R. 475], where an oil well "blew out" through no fault of the defendant and cast debris on plaintiffs' property, the court, relying on section 3514 of the Civil Code, held that the defendant was nevertheless liable. The case has been generally interpreted as one involving strict liability for damages resulting from an ultrahazardous activity. (Luthringer v. Moore, 31 Cal.2d 489, 500. Luthringer v. Moore, supra, held that one using hydro-cyanic gas in fumigating a building was absolutely liable to a person in an adjoining building who was injured by the escaping gas. The court applied the principle of Green v. General Petroleum Corp., supra, stating at page 500: "It is not significant that a property damage, as distinguished from a personal injury, was there involved. The important factor is that certain activities under certain conditions may be so hazardous to the public generally, and of such relative infrequent occurrence, that it may well call for strict liability as the best public policy."

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