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Strict Liability

In a strict liability claim, fault is not an issue. In these cases, the court does not decide what level of precaution is appropriate. Instead, anyone engaged in the activity is responsible for the full cost of the activity, including any accidents. This gives an incentive for the individual to determine the optimal level of prevention necessary to avoid injury.


Injuries Caused by Animals

Domestic animals: Strict liability does not apply to domestic animals, unless the owner knows in advance that the animal has a dangerous propensity (e.g., training to attack strangers).

Wild animals: Strict liability always applies, even if the owner had no knowledge that the animal was dangerous or if the owner has taken reasonable precautions to prevent the animal from injuring others.


Injuries Caused by Ultra-Hazardous Activities

When engaged in ultra-hazardous activity (e.g., using explosives or working with toxic chemicals), strict liability always applies for any damage caused by that activity. To be considered an ultra-hazardous activity, there must be a risk of serious harm that exists even if reasonable care is used. In some cases, commonality is also a factor in determining whether an activity is ultra-hazardous. Commonality asks whether the activity is uncommon in the area where it is being carried out.


Injuries Caused by Products

Generally, strict products liability only applies to merchants (sellers of goods) and not to providers of services (they would fall under negligence rules). However, commercial lessors (e.g., car rental company) are covered by strict liability. To make a strict products liability claim, there must be a defect in the product that was present when the product left the defendant’s hands, and the plaintiff must be a foreseeable user making a foreseeable use of the product. No requirement for direct dealing between the defendant and plaintiff exists. There are three major types of defects.

Manufacturing defects: An anomaly in a mass-produced product that makes it more dangerous. When the manufacturer sells a normally safe product in defective condition, it is strictly liable for any foreseeable injuries, and it is not a defense that the manufacturer used reasonable care to create the product. As long as the product has traveled in ordinary channels of distribution, the presence of a defect when the product left the manufacturer’s hands is presumed.

Design defects: Occurs when an entire product line has a dangerous defect. The manufacturer is strictly liable for foreseeable injuries from design defects as long as there is another cost-effective way to construct the product that will make it safer without impairing the utility of the product.

Failure to warn: Occurs when there is an inherent, non-obvious danger that exists in the product that the consumer should have been warned about. The manufacturer is strictly liable if it does not warn consumers about this danger.

Other types of products liability claims

There are other types of products liability claims in addition to strict liability. It is possible to have a negligence claim if the conditions of strict liability do not apply. The plaintiff may also recover based on an intentional torts or contracts law theory. In an intentional torts claim, the defendant must know or be substantially certain that the plaintiff would be injured. Punitive damages are available in these claims and the normal defenses to intentional torts apply. A claim can also be based in contracts, most commonly found on express or implied warranty of merchantability and fitness. When an express warranty exists, the plaintiff does not need to prove fault and can collect damages for personal injury, property damage, and economic loss. Defenses include assumption of the risk, comparative negligence, and failure to give notice of a breach of contract. If no express warranty exists, but the plaintiff can prove an implied warranty, the same rules apply.


Defenses to Strict Liability

Contributory negligence: Generally, the plaintiff’s contributory negligence is not a bar to recovery unless the plaintiff knowingly and unreasonably subjects himself or herself to a risk of harm (e.g., a plaintiff cannot recover if he or she knows that an animal is dangerous and then intentionally taunts it by poking it with a stick).

Assumption of risk: In some jurisdictions, there can be a limited voluntary assumption of risk defense based on a consent doctrine. If a plaintiff chooses a dangerous profession, the plaintiff might not be able to recover in strict liability from injuries arising from the expected risks of the profession (e.g., a lion tamer could not recover in strict liability from the circus that owned the lion for injuries caused by the lion’s bite. Similarly a plaintiff who uses services from a defendant that is engaged in an ultra-hazardous activity may not be able to recover for injuries that arise out of the activity’s well-known risks).

Abuse/Misuse: Abuse or misuse of a product is a defense only if the plaintiff gets injured by using the product in a way that is not intended, and this use is not foreseeable to the manufacturer (e.g., the manufacturer would not be strictly liable for injuries arising out of the plaintiff unsuccessfully trying to use his or her lawnmower to get to the hospital. However, a manufacturer would be strictly liable for injuries arising out of a person standing on its chair, a foreseeable misuse). In most jurisdictions, a manufacturer is even strictly liable if the plaintiff removes a safety feature from a product with little effort and then is injured, so long as it was foreseeable that the plaintiff would try to remove the feature and could easily do so.

Comparative fault: Many jurisdictions allow comparative fault as a defense to lessen the recovery of the plaintiff. This is identical to the comparative negligence defense, when the plaintiff’s award is reduced by the percentage he or she is at fault for his or her own injuries.