Common Law Strict Liability Introduction: Strict liability, or liability without fault, is a category of unintentional torts in which the wrongdoer may be held liable for harm to others even when exercising utmost care and being as careful as possible. Strict liability applies to (1) abnormally dangerous activities. Abnormally dangerous activities are those that involve a high risk of serious harm to persons or property that cannot be completely eliminated even with reasonable care, such as using and storing explosives, stunt flying, keeping wild animals, and trespassing livestock. Product Liability** Introduction: Product liability, sometimes called strict product liability refers to cases in which a person is injured by a product, or use of a product because the product is defective in some way. When a product is defective it may become abnormally dangerous although the product, when not defective, may be safe. Please also see Instructor Notes link in week 2 for further details and explanation of product liability. **Strict product liability is often confused with the separate common law tort of strict liability, sometimes referred to as “liability without fault”. Strict liability applies only to a small category of abnormally dangerous activities, such as use of explosives, fireworks, and stunt flying. Please see section above. Warranties and Product Liability Introduction: A warranty is a promise, or guarantee, by a seller or lessor that certain facts are true of the goods being sold or leased. Types of warranties include (1) warranties of title guaranteeing that the goods have clear and valid title, (2) express warranties promising specific facts about the goods, and (3) implied warranties of merchantability, or fitness for a particular purpose. A warranty creates a legal duty for the seller or lessor; a non-breaching party can recover damages for breach of warranty(ies). Because warranties are associated with the sale or lease of products, breach of warranty claims are a part of product liability claims and manufacturers and sellers of goods can be held liable for breach of warranty for defective products. Warranties are subject to regulation under the UCC, product liability tort law, contract law, and the Magnuson-Moss Warranty Act. Product Liability** Product liability, sometimes called strict product liability refers to cases in which a person is injured by a product, or use of a product because the product is defective in some way. When a product is defective it may become abnormally dangerous although the product, when not defective, may be safe. Definitions of a Defective Product in Product Liability Products may become defective because of: 1) defective manufacture (so the product is "broken", not perfectly made, i.e., a product is manufactured so that the electric wiring is improperly made/attached, etc. and may cause a fire or cause elect.

1. Common Law Strict Liability
Introduction: Strict liability, or liability without fault, is a
category of unintentional torts
in which the wrongdoer may be held liable for harm to others
even when exercising
utmost care and being as careful as possible. Strict liability
applies to (1) abnormally
dangerous activities. Abnormally dangerous activities are
those that involve a high risk
of serious harm to persons or property that cannot be
completely eliminated even with
reasonable care, such as using and storing explosives, stunt
flying, keeping wild
animals, and trespassing livestock.
Product Liability**
Introduction: Product liability, sometimes called strict product
liability refers to cases in
which a person is injured by a product, or use of a product
because the product is
defective in some way. When a product is defective it may
become abnormally
dangerous although the product, when not defective, may be
safe.
Please also see Instructor Notes link in week 2 for further
details and explanation of
product liability.
**Strict product liability is often confused with the separate

2. common law tort of strict
liability, sometimes referred to as “liability without fault”.
Strict liability applies only to a
small category of abnormally dangerous activities, such as use
of explosives, fireworks,
and stunt flying. Please see section above.
Warranties and Product Liability
Introduction: A warranty is a promise, or guarantee, by a seller
or lessor that certain
facts are true of the goods being sold or leased. Types of
warranties include (1)
warranties of title guaranteeing that the goods have clear and
valid title, (2) express
warranties promising specific facts about the goods, and (3)
implied warranties of
merchantability, or fitness for a particular purpose. A warranty
creates a legal duty for
the seller or lessor; a non-breaching party can recover damages
for breach of
warranty(ies). Because warranties are associated with the sale
or lease of products,
breach of warranty claims are a part of product liability claims
and manufacturers and
sellers of goods can be held liable for breach of warranty for
defective products.
Warranties are subject to regulation under the UCC, product
liability tort law, contract
law, and the Magnuson-Moss Warranty Act.

3. Product Liability**
Product liability, sometimes called strict product liability refers
to cases in which a
person is injured by a product, or use of a product because the
product is
defective in some way. When a product is defective it may
become abnormally
dangerous although the product, when not defective, may be
safe.
Definitions of a Defective Product in Product Liability
Products may become defective because of:
1) defective manufacture (so the product is "broken", not
perfectly made, i.e., a product
is manufactured so that the electric wiring is improperly
made/attached, etc. and may
cause a fire or cause electric shock, or burn the user, etc.
2) failure to adequately warn of how to properly use a product,
or potential dangers from
misuse, i.e., a warning to not use an electric hair dryer in the
shower,
3) defective design, i.e., an electric lawn mower on which the
blade is not covered so
that it can easily cut a foot when in use,
4) defective packaging, i.e., packaging for food that can be
easily tampered with, and
5) breach of warranty of merchantability so that a product does

4. not function for the
purpose for which it was intended, i.e., a car that does not
operate/drive (breach of
warranty of merchantability does not always cause harm, except
perhaps economic
harm because a user paid for a product that does not work as
intended).
A product can be simultaneously defective in several ways. For
example, a car that does
not operate/drive is not merchantable for its intended purpose
but is also defectively
manufactured in some way so that it does not operate.
Everyone in the chain of distribution (from manufacturer to
consumer) may be
liable for harm caused by a defective product. The chain of
distribution
includes manufacturers, suppliers to manufacturers, lessors of a
product, distributors of
products from manufacturers to wholesalers, distributors to
other middle-persons (such
as vending machine product distributors, shippers, distribution
to retailers and other
sellers, consumers, and innocent bystanders who may be injured
by another's use of a
defective product.
All parties in the chain of distribution may be sued for the
injuries caused by a
product, but not all these parties will necessarily be found
liable. For example, assume
a toaster catches fire and burns a consumer who attempts to
make toast. Clearly, the
toaster is defective because toasters should not catch fire. An
injured consumer could

5. sue all in the chain of distribution, but probably only the
manufacturer will be held liable.
The defect is likely due to faulty wiring inside the toaster, and
this defect is not
reasonably discoverable by others in the chain of distribution.
Parties Who Can Recover for Product Liability – Anyone
injured by a product,
including a product user, and usually an innocent third party
bystander, can sue
under product liability. An injured party does not have to have
a contractual
relationship with anyone in the chain of distribution to sue for
injuries. For
example, assume a consumer is properly using his new gas grill
at a tailgate party when
the grill spontaneously explodes. The consumer and two friends
standing nearby are
injured. Only the consumer has a contractual relationship (a
sales contract created to
purchase the grill from a retailer) with either the manufacturer
or retailer, but all three
injured parties may sue. All will likely recover damages for
injuries received from the
defective grill.
Damages Recoverable for Product Liability – Typically, injured
parties may collect
damages to compensate for their personal injuries, such as
medical costs.
Property owners may also collect damages to compensate for
harm to their property,
such as costs to repair a garage door damaged in a fire caused
by a defective lawn

6. mower. So-called punitive damages, over and above actual
compensation damages,
may be awarded in some very serious cases to “punish” the
manufacturer or others in
the chain of distribution. Punitive damages tend to be arbitrary
and the trend in the
courts is to limit punitive damages to only the most extreme
cases.
Typically, consumers return defective products to the seller and
a monetary refund for
the product, rather than collecting the cost of the product in
court.
Types of Product Defects:
1. Defect in Manufacture
When the manufacturer fails to properly assemble, test, or check
quality of a product,
there may be a defect in manufacture.
For example, a cup of coffee containing a piece of metal is
defective and abnormally
dangerous as the metal could injure an unsuspected consumer
drinking the coffee. Or,
an electric food processor is defective and abnormally
dangerous if the top and blade fly
off when the mixer is turned on.
2. Defect in Design
When a product is designed so that faulty design causes the
product to become
dangerous, the product is defective.

7. For example, a power table saw is designed so a safety guard
surrounding the
blade can be removed and the saw will still operate. This
becomes abnormally
dangerous and likely to injure users. The safer design would
have been for the
saw to lock and not operate with the safety guard removed.
3. Failure to adequately Warn
Most products carry warnings, so the key word is "adequately".
A warning can be
included but may not adequately warn of risks for various
reasons:
1) a warning may not be reasonably accessible or easily visible
to consumers;
2) a warning may not clearly or adequately describe the risks;
3) a warning may not include all possible dangers.
Manufacturers and sellers of products are, by law, required to
provide certain warnings
on most products. Products that are inherently dangerous, such
as knives, power tools,
etc., must warn of these dangerous propensities. If an electric
knife does not carry a
warning, it becomes abnormally dangerous with potential to
serious injure a user.
4. Defect in Packaging

8. Manufacturers owe a duty to design and provide safe
tamperproof packaging. Failure to
meet this duty may make a product abnormally dangerous and
defective. For example,
an over-the-counter medication for which the packaging can be
opened and re-closed
without notice by consumers, is potentially abnormally
dangerous. The packaging could
be opened, the medication poisoned or contaminated, without
being visible to a
consumer.
Possible Defenses to Product Liability
Defenses to claims of strict product liability may minimize
damages or result in a
favorable ruling for a defendant, but this is not a given.
Defenses often fail in product
liability cases as the liability is so broad.
Defenses are raised only by defendants.
Possible Defenses:
Generally Known Dangers –If the product is known to the
general population to be
inherently dangerous, such as guns, sellers typically may not be
held strictly liable for
failure to adequately warn.
Assumption of Risk – A defendant who claims this defense must
show that the plaintiff
knew and understood the risk, and then voluntarily assumed it
anyway, and carelessly.

9. Misuse of Product – Defendants using this defense will not be
held liable if the
plaintiff ’s misuse was unforeseeable and gross misuse. For
example, if a consumer puts
wet in a microwave to dry them, and the microwave explodes,
this is unforeseeable,
gross misuse and any injuries are the fault of the consumer.
Correction of a Product Defect – Manufacturers that become
aware of a product’s
defect must make reasonable efforts to notify purchasers and
users and correct the
defect. Failure on the part of a user to have the defect
corrected, after notice, may be
raised as a defense in an action brought against the
manufacturer. This will not always
absolve the manufacturer of liability, but may mitigate damages
or result in a ruling for
the defendant, depending on circumstances and type of defect.
Supervening Event – If a product has been materially modified
or altered by a
consumer, and the modification alteration is the direct cause of
the injuries, the
defendant(s) may not be held liable. The modification or
alteration is considered an
event that occurred after manufacturing and before injury.
**Strict product liability is often confused with the separate
common law tort
of strict liability, sometimes referred to as “liability without
fault”. Strict liability

10. applies only to a small category of abnormally dangerous
activities, such as use of
explosives, fireworks, and stunt flying. Regardless of how
careful these activities are
handled, there is a high risk of accident and injury. If there is
injury to a third party
resulting from one of these activities, the "actor" responsible
for these activities will be
liable for any injuries. The injured party only must show the
injury occurred from the
dangerous activity and does not have to prove that the defendant
was at fault by acting
carelessly.
Case Examples
Warranties and Products Liability
Liriano v. Hobart Corp. 92 N.Y.2d 232 (1998) Court of
Appeals of the State of
New York (failure to adequately warn, defective and negligent
design)
Facts:
In 1961, Liriano, a 17 year-old employee in the meat department
at Super Associated
grocery store (Super), was injured on the job while feeding meat
into a commercial
meat grinder whose safety guard had been removed. His right
hand and lower forearm
were amputated.

11. The meat grinder was manufactured and sold by Hobart
Corporation (Hobart) with an
affixed safety guard that prevented the user's hands from
coming into contact with the
grinder. No warnings were on the machine or otherwise
provided to state it was
dangerous to operate the machine without the safety guard in
place. Subsequently,
Hobart became aware that a significant number of purchasers of
its meat grinders had
removed the safety guards; in 1962, Hobart began issuing
warnings on its meat
grinders concerning removal of the safety guard.
At trial, Super conceded the safety guard was intact at the time
it acquired the grinder
and that the guard was removed while in its possession. It is
further conceded that
Hobart actually knew, before the accident, that removals of this
sort were occurring
and that use of the machine without the safety guard was highly
dangerous.
Liriano sued Hobart for negligence and strict product liability

12. for defective product
design and failure to warn. The case was removed to the United
States District Court
for the Southern District of New York, and Super was
impleaded as a third-party
defendant, seeking indemnification and/or contribution.
The District Court dismissed all of Liriano's claims except those
based on failure to
warn. The trial court ruled failure to warn was the proximate
cause of Liriano's
injuries and apportioned liability 5% to Hobart and 95% to
Super. On partial retrial,
Liriano was assigned 33 1/3% of the responsibility.
Hobart and Super appealed, arguing that they had no duty to
warn, as a matter of law,
and that the case should have been decided in their favor.
Opinion:
The appellate court agreed, essentially, with the rationale of the
lower courts on the
issues of Hobart’s and Super’s liability.
The Court discussed the responsibility to warn of inherent
dangers. The Court

13. declared, “A manufacturer who places a defective product on
the market that causes
injury may be liable for the ensuing injuries.***A product may
be defective when it
contains a manufacturing flaw, is defectively designed or is not
accompanied by
adequate warnings for the use of the product.***A manufacturer
has a duty to warn
against latent dangers resulting from foreseeable uses of its
product of which it knew
or should have known.***A manufacturer also has a duty to
warn of the danger of
unintended uses of a product provided these uses are reasonably
foreseeable.”
The Court further reasoned, “A manufacturer is not liable for
injuries caused by
substantial alterations to the product by a third party that render
the product defective
or unsafe.***Where, however, a product is purposefully
manufactured to permit its
use without a safety feature, a plaintiff may recover for injuries
suffered as a result of
removing the safety feature.”
Furthermore, the Court stated, “…Unlike design decisions that

14. involve the
consideration of many interdependent factors, the inquiry in a
duty to warn case is
much more limited, focusing principally on the foreseeability of
the risk and the
adequacy and effectiveness of any warning. The burden of
placing a warning on a
product is less costly than designing a perfectly safe, tamper-
resistant product. Thus,
although it is virtually impossible to design a product to
forestall all future risk-
enhancing modifications that could occur after the sale, it is
neither infeasible nor
onerous, in some cases, to warn of the dangers of foreseeable
modifications that pose
the risk of injury.”
Manufacturer liability may exist under a failure-to-warn theory
in cases in which the
substantial modification defense would preclude liability under
a design defect theory.
Daniell v. Ford Motor Company 581 F.Supp. 728 (1984) United
States District

15. Court, D. New Mexico (gross consumer misuse, unforeseeable
misuse)
Facts:
Plaintiff Daniell locked herself inside the trunk of a 1973 Ford
automobile in an
attempt to commit suicide; she remained in the trunk for 9 days
being unable to open
the trunk lid until she was rescued.
Daniell sued Ford to recover damages for psychological and
physical injuries arising
from the incident. She contends that the automobile had a
design defect in that the
trunk lock or latch did not have an internal release or opening
mechanism. She also
maintains that the manufacturer is liable based on a failure to
warn of this condition.
Plaintiff argued several theories for recovery: (1) strict products
liability under § 402A
of the Restatement 2d of Torts (1965), (2) negligence, and (3)
breach of express
warranty and implied warranties of merchantability and fitness
for a particular
purpose.

16. Defendant filed a motion for summary judgment.
Opinion:
The Court addressed the plaintiff’s claims and reasoned, “The
overriding factor
barring plaintiff's recovery is that she intentionally sought to
end her life by crawling
into an automobile trunk from which she could not escape. This
is not a case where a
person inadvertently became trapped inside an automobile
trunk. The plaintiff was
aware of the natural and probable consequences of her perilous
conduct…Plaintiff,
not the manufacturer of the vehicle, is responsible for this
unfortunate occurrence.”
Further, the Court declared, “A manufacturer will be liable for a
design defect only
where the condition of the product is unreasonably dangerous to
the user or consumer.
Under strict products liability or negligence, a manufacturer has
a duty to consider
only those risks of injury which are foreseeable. A risk is not
foreseeable by a

17. manufacturer where a product is used in a manner which could
not reasonably be
anticipated by the manufacturer and that use is the cause of the
plaintiff's injury. The
plaintiff's use of the automobile and injury are not foreseeable
by the manufacturer.”
Therefore, the manufacturer had no duty to design an internal
release or opening
mechanism that might have prevented this occurrence. Nor did
the manufacturer have
a duty to warn the plaintiff of the danger of her conduct, given
the plaintiff's
unforeseeable use of the product.
“Any implied warranty of merchantability requires that the
product must be fit for the
ordinary purposes for which it was intended…the usual and
ordinary purpose of an
automobile trunk is to transport and store goods, including the
automobile's spare tire.
Plaintiff's use of the trunk was highly extraordinary, and there
is no evidence that that
trunk was not fit for the ordinary purpose for which it was
intended.”

18. The Court concluded, “Lastly, plaintiff's claim for a breach of
implied warranty of
fitness for a particular purpose, cannot withstand summary
judgment because the
plaintiff has admitted that, at the time she purchased the
automobile neither she nor
her husband gave any particular thought to the trunk
mechanism…that she did not
even think about getting out from inside of the trunk.”
Judgment for defendant.
Strict Liability
Klein v. Pyrodyne Corporation 817 P.2d 1359 (strict
liability)
Supreme Court of Washington
Facts:
The plaintiffs in this case are persons injured when an aerial
shell at a public
fireworks exhibition went astray and exploded near them. The
defendant is the
pyrotechnic company, Pyrodyne Corp., hired to set up and
discharge the fireworks.
All operators of the fireworks display were Pyrodyne
employees acting within the

19. scope of their employment duties at the time of the accident.
During the fireworks display, a 5-inch mortar was knocked into
a horizontal position
so that an aerial shell inside was ignited and discharged. The
shell flew 500 feet and
exploded near the crowd of onlookers. Plaintiffs Danny and
Marion Klein were
injured by the explosion.
The issue before this court is whether Pyrodyne is strictly liable
for damages caused
by fireworks displays.
Kleins contend that strict liability is the appropriate standard to
determine the
culpability of Pyrodyne because Pyrodyne was participating in
an abnormally
dangerous activity.
Pyrodene moved for summary judgment which the court denied.
Opinion:
The Court reasoned, “Section 520 of the Restatement lists six
factors that are to be

20. considered in determining whether an activity is "abnormally
dangerous". The factors
are as follows: (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.”
The Court also considered who should bear the loss when an
innocent person is
injured through the nonculpable but abnormally dangerous
activities of another. The
Court concluded that in the case of fireworks displays, it is
most fair for the
pyrotechnicians who present the displays to bear the loss rather
than the injured
parties.
Pyrodyne argued that even if there is strict liability for
fireworks, it is not liable under

21. the facts of this case because of the manufacturer's negligence
in producing the
fireworks. According to Pyrodyne, a shell detonated without
leaving the mortar box
because it was negligently manufactured.
The Court argued, “…intervening acts of third persons serve to
relieve the defendant
from strict liability for abnormally dangerous activities only if
those acts were
unforeseeable in relation to the extraordinary risk created by the
activity.” Given the
nature of fireworks, it is foreseeable an accident could occur.
Pyrodyne Corporation is strictly liable for all damages suffered
by plaintiff as a result
of the fireworks display. Detonating fireworks displays
constitutes an abnormally
dangerous activity warranting strict liability. Public policy also
supports this
conclusion.
Affirmed.