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Torts II
University of Dayton School of Law
Gerla, Harry S.

There is strict liability for activities that involve an inherent and substantial risk of harm. Generally, if a defendant engages in such an activity, the defendant is strictly liable for any harm caused.

A. Limitations
1. Strict liability extends only to foreseeable plaintiffs who are injured by a kind of risk that made the activity ultra-hazardous. For example, radiation is the foreseeable risk of a nuclear reactor. However, if a wall of the reactor collapses because of an earthquake strict liability would not be applied because that is not the risk that makes a reactor dangerous.
2. The defendant is not liable if the plaintiff is hurt because of the plaintiff’s abnormal sensitivity.

B. Determination
Some factors to consider when determining whether an activity is ultrahazardous are:
1. the degree of risk of harm to persons or property.
2. the seriousness of the harm that could result.
3. whether the activity cannot be performed with complete safety.
4. whether the activity is commonly engaged in.
5. the location at which the activity is performed.
6. the value to the community v. the activity’s dangerous attributes.

C. Examples
Some examples of ultrahazardous activities include the operation of nuclear reactors, the use and storage of explosives and the spraying of crops.
Note: The operation of an airplane is not considered to be an ultrahazardous activity, but some courts will rule that strict liability for ground damage from aviation accidents is applicable.

D. Defenses
1. Contributory Negligence
Contributory negligence is not a defense unless the party knew of the abnormally dangerous activity.
2. Assumption of Risk
If the party unreasonably exposed itself to the risk, fully aware of its existence, the defendant will not be liable.
3. Comparative Negligence
Comparative negligence will be used to reduce damages.

Indiana Harbor Belt R.R. Co. v. American Cyanimid Co. (1990)
Facts: A train car carrying chemicals arrived at plaintiff’s yard where some of the chemicals leaked.

Issue: Should the shipper of a hazardous chemical be strictly liable for the consequences of a spill or other accident, while the chemicals are being transported?

Rule: Strict liability creates an incentive to be a more careful party. The greater the risk and the cost, were an accident to occur, the stronger the case for strict liability. To be strictly liable one must prove that the transportation of a chemical through populated areas is so hazardous, that even with due care an accident would occur.

Products liability refers to the liability of a seller/manufacturer whose product causes damage to a buyer, user, or even a bystander because it was defectively made.

A plaintiff can use ordinary negligence principles to hold a manufacturer liable for a defective product. At one time there was a requirement that a plaintiff be in privity with the seller, but that was abolished in MacPherson v. Buick Motor Co. A plaintiff may recover for personal injury and property damages.

A. Manufacturer’s Duty of Care
Plaintiffs may bring negligence actions against manufacturers if the manufacturers fail to properly ensure that:
1. the products are designed in a reasonably safe way;
2. the manufacturing system is reasonably error-free;
3. the prod

eller misrepresents to a buyer, even unintentionally, that a product is suitable for a specific use for which it is not suitable, and the buyer, relying on the misrepresentation, is injured.
3. Privity
There is no requirement of privity between a buyer and a seller. An implied warranty runs with a product to any buyer. The courts allow other parties to sue by one of two legal fictions that create privity:
a. Horizontal Privity
Most states allow a warranty to extend to a buyer’s family and guests. For example, Rob buys a car from Buick and lets Susan, his sister, drive the car. Susan crashes because the brakes are defective. Susan can sue Buick for breach of the implied warranty of merchantability.
b. Vertical Privity
Vertical privity extends to any foreseeable people using the product.

C. Defenses
Mnemonic: Defensive Types Consciously Avoid Liability
1. Disclaimers
a. Express
If a manufacturer uses a disclaimer of merchantability, it must be both apparent and specific in order to defeat the warranties.
b. Implied
If a good is sold “as is,” this is viewed as an implied disclaimer of warranties.

2. Timeliness
A buyer who fails to give timely notification of a defect is barred from recovery.

3. Comparative Negligence
Some jurisdictions allow comparative negligence.

4. Assumption of Risk