CLARKSON MILLER CROSS 

 


CHAPTER 7: STRICT LIABILITY

AND PRODUCT LIABILITY
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 §1: STRICT LIABILITY
 Development of Strict Liability.
Theory of strict liability started with
Rylands v. Fletcher (1868 England).
Defendant’s liability for strict liability
is without regard to: Fault,
Foreseeability, Standard of Care or
Causation. 
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 STRICT LIABILITY
 Development of Strict Liability.
Strict liability based on abnormally
dangerous activities is one
application.

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 STRICT LIABILITY
 Abnormally Dangerous Activities.
Ultrahazardous or abnormally
dangerous activities:
• Involve serious potential harm;
• Involve high degree of risk that cannot
be made safe; and
• Are not commonly performed in the
community or area.
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 STRICT LIABILITY
 Other Applications.
Wild Animals:
• Owners keeping wild animals are
strictly liable for injuries.
• Persons who keep domestic animals
are liable if the owner knew or should
have known that animal was
dangerous.
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 STRICT LIABILITY
 Other Applications.
Product Liability.
• Manufacturers and sellers can be
strictly liable because they can bear the
cost by spreading throughout the
manufacturing and distribution chain.
Certain Types of Bailments.
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 §2: PRODUCT LIABILITY
 Product Liability can be based
on:
Negligence; 
Misrepresentation; 
Strict Liability; 
Warranty Theory. 

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 PRODUCT LIABILITY
 Negligence.
Claim based on a manufacturer’s
breach of the reasonable standard of
care.
Due Care Must Be Exercised in:
• Design, materials, production process,
assembling and testing, adequate warnings,
inspection, and testing. 
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 PRODUCT LIABILITY
 Negligence.
Privity of Contract Not Required.
• No privity of contract required
between plaintiff and manufacturer.
• Liability extends to any person’s injuries
caused by a negligently made
(defective) product.
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 PRODUCT LIABILITY
 Misrepresentation.
Occurs when fraud committed against
consumer or user of product.
Fraud must have been made
knowingly or with reckless disregard
for safety.
Plaintiff does not have to show
product was defective.
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 §3: STRICT PRODUCT LIABILITY
 Strict Liability holds people liable
for results of their acts,
regardless of their intentions or
exercise of reasonable care. 

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 STRICT PRODUCT LIABILITY
 Strict Liability and Public Policy.
Consumers should be protected
from unsafe products;
Manufacturers and distributors
should be liable to any user of the
product; 

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 STRICT PRODUCT LIABILITY
 Strict Liability and Public Policy.
Manufacturers, sellers and
distributors can bear the costs of
injuries.
CASE 7.1 BRUESEWITZ V. WYETH,
LLC (2011).

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 STRICT PRODUCT LIABILITY
 Requirements for Strict Liability:
1. Product must be in defective
condition when sold.
2. Defendant is in the business of
selling the product.
3. Product must be unreasonably
dangerous. 
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 STRICT PRODUCT LIABILITY
 Requirements for Strict Liability:
4.Plaintiff must be physically harmed
5.Defective condition must be
proximate cause of injury.
6. Goods are in substantially same
condition.
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 STRICT PRODUCT LIABILITY
 Requirements for Strict Liability.
Proving a Defective Condition.
• Plaintiff does not need to show what
manner the product become
defective.
• But plaintiff must show, at purchase,
product was defective and
“unreasonably dangerous”. 
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 STRICT PRODUCT LIABILITY
 Requirements for Strict Liability.
“Unreasonably Dangerous”
Products:
• The product was dangerous beyond
the expectation of the ordinary
consumer. OR 

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 STRICT PRODUCT LIABILITY
 Requirements for Strict Liability.
“Unreasonably Dangerous”
Products:
• A less dangerous alternative was
economically feasible for the
manufacturer, but the manufacturer
failed to produce it.
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 STRICT PRODUCT LIABILITY
 Product Defects (Restatement 3 rd

of Torts):
• Manufacturing Defects. 
• Design Defects. 
• Warning Defects. 

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 STRICT PRODUCT LIABILITY
 Product Defects:
Manufacturing Defects.
• Occurs when a product “departs
from its intended design even
though all possible care was
exercised in the preparation and
marketing of the product.”
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 STRICT PRODUCT LIABILITY
 Product Defects:
Design Defects.
• Product is manufactured correctly.
• Test: plaintiff must show defendant’s
failure to use a reasonable alternative
design rendered the product not
reasonably safe. 
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 STRICT PRODUCT LIABILITY
 Product Defects:
Design Defects.
• Risk-Utility Analysis.
• Consumer Expectation Test.
• CASE 7.2 WILSON SPORTING GOODS CO.
V. HICKOX (2013).

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 STRICT PRODUCT LIABILITY
 Product Defects:
Inadequate Warnings.
• Content of Warnings: product is
defective based on inadequate
warnings or instructions. 
• CASE 7.3 JOHNSON V. MEDTRONIC,
INC. (2012).
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 STRICT PRODUCT LIABILITY
 Product Defects:
Inadequate Warnings.
• Liability based on foreseeability that
proper instructions/labels would have
made the product safe to use.
• Obvious Risks.
• Foreseeable Misuses.
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 STRICT PRODUCT LIABILITY
 Market-Share Liability.
Liability when multiple defendants
contributed to manufacture of
same defective product.
Each defendant is proportionately
liable based on its market share.

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 STRICT PRODUCT LIABILITY
 Other Applications of Strict
Liability.
Virtually all courts extend strict
liability to injured bystanders.
Strict liability also applies to
suppliers of component parts.
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 §4: DEFENSES TO PRODUCT
LIABILITY
 Preemption.
Government regulations preempt
claims for product liability.
 Assumption of Risk.
Some courts do not allow AR to be
used in strict product liability
claims. 
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 DEFENSES TO PRODUCT
LIABILITY
 Product Misuse.
Plaintiff does not know the
product is dangerous for a
particular use.
 Comparative Negligence (Fault).
Defendants may be able to limit
damages by apportioning fault. 
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 DEFENSES TO PRODUCT
LIABILITY
 Commonly Known Dangers (e.g.,
matches, sharp knives).
 Knowledgeable User (e.g.,

electricians).
 Statutes of Limitation and

Repose.
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