Setting up strict & product liability on an exam Forum

[Charles Barkley]

Quick question and I'm not sure if I'll be able to explain this right. If on my torts exam I'm asked about strict liability for dangerous activities, how do I go about laying out my answer? I've struggled with laying out my answer for product/strict liability on the practice exams I've done so far.

For instance, on a negligence question, I separate the elements of negligence into separate paragraphs as I discuss each element. How do I do this for strict liability? Should I just assess the requirements for strict liability to apply in separate paragraphs like I do for negligence?(great magnitude of harm, even if reasonable care is exercised, and uncommon usage)?

For marketing and design defects, I know I would just do a negligence approach, and for manufacturing defects I would do strict liability approach. So I guess I have the same question for manufacturing defects as well.

Sorry if I was unclear and thanks for any help.

[seespotrun]

Quick question and I'm not sure if I'll be able to explain this right. If on my torts exam I'm asked about strict liability for dangerous activities, how do I go about laying out my answer? I've struggled with laying out my answer for product/strict liability on the practice exams I've done so far.

For instance, on a negligence question, I separate the elements of negligence into separate paragraphs as I discuss each element. How do I do this for strict liability? Should I just assess the requirements for strict liability to apply in separate paragraphs like I do for negligence?(great magnitude of harm, even if reasonable care is exercised, and uncommon usage)?

For marketing and design defects, I know I would just do a negligence approach, and for manufacturing defects I would do strict liability approach. So I guess I have the same question for manufacturing defects as well.

Sorry if I was unclear and thanks for any help.

Disclaimer: It's been a while since I've learned or even thought about strict liability for abnormally dangerous activities. (I think this is what you're asking about, right?)

I want to say that there are something like 6 factors listed in the 2nd Restatement that constitute abnormally dangerous activity, which resulted in pretty inconsistent application of the doctrine. The 3rd Restatement, however, focuses predominantly on the irreducible danger that's inherent in the activity - that is, the activity is still substantially dangerous even when reasonable care is exercised.

So on the exam you should probably contemplate a negligence claim first. Maybe give a short quip about duty, and move onto your breach analysis, concluding with something like: "...and even though D exercised reasonable care (this will probably be implicated in the fact pattern, unless your prof. is in the business of writing dumbass exams), the nature of D's conduct can probably be considered abnormally dangerous because it creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors." Here, you'd just discuss how it meets the definition by using the facts. Then, of course, you'd need discuss causation and damages.

Summary: You go about your analysis in the same way you would a negligence claim, but the "breach" analysis is whether D's conduct meets the definition of abnormally dangerous, not whether D exercised reasonable care or not.

[Charles Barkley]

Yeah you answered exactly what I was asking about. So is the causation element the same as negligence and strict liability? I would assume so, since the injuries suffered under strict liability have to be the type that makes the activity dangerous in the first place, right?

Thanks for your help.

[onthemoney]

Usually the elements of negligence are duty, breach, causation, injury (damages). Over here just cross out and breach and replace it with strictly liability (you obviously have to determine that it applies) and then deal with the other factors (causation, injury).

[Charles Barkley]

Usually the elements of negligence are duty, breach, causation, injury (damages). Over here just cross out and breach and replace it with strictly liability (you obviously have to determine that it applies) and then deal with the other factors (causation, injury).

Got it. Big help, thanks.

[los blancos]

Keep in mind that even in the context of the 2nd restatement, Posner set a bit of a precedent in relying on the irreducible danger in the activity and so out of those factors in the 2nd restatement, a lot of courts weighed that one the most.