1
00:00:00,040 --> 00:00:05,640
So imagine you run a company. 
You buy the absolute best 

2
00:00:05,640 --> 00:00:08,119
equipment on the market, you 
hire the brightest safety 

3
00:00:08,119 --> 00:00:11,560
engineers, and you train your 
staff relentlessly. 

4
00:00:11,800 --> 00:00:13,320
Right, you're doing everything 
by the book. 

5
00:00:13,360 --> 00:00:16,920
Exactly, You follow every single
federal and state regulation to 

6
00:00:16,920 --> 00:00:18,720
the letter. 
You are basically the gold 

7
00:00:18,720 --> 00:00:21,200
standard of caution. 
OK, I see where this is going. 

8
00:00:21,200 --> 00:00:23,560
Yeah. 
So then a freak accident 

9
00:00:23,560 --> 00:00:27,360
happens, someone gets hurt, you 
end up in court and the judge 

10
00:00:27,360 --> 00:00:30,200
looks at you and says, well, we 
agree, you did absolutely 

11
00:00:30,200 --> 00:00:32,400
nothing wrong. 
Your behavior was flawless. 

12
00:00:32,400 --> 00:00:34,640
Right. 
But then the judge says now 

13
00:00:34,800 --> 00:00:38,120
write a check for $10 million. 
Welcome to the mind bending 

14
00:00:38,120 --> 00:00:40,080
legal universe of strict 
liability. 

15
00:00:40,440 --> 00:00:43,600
I mean, that scenario completely
shatters the foundational 

16
00:00:43,600 --> 00:00:45,440
assumption most of you bring 
into law school. 

17
00:00:45,440 --> 00:00:46,480
It really does. 
Yeah. 

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00:00:46,480 --> 00:00:49,320
Up until this point in your 
torts journey, you know you've 

19
00:00:49,320 --> 00:00:51,560
been meticulously trained to 
look for blame. 

20
00:00:51,640 --> 00:00:54,080
Exactly. 
You evaluate the intentional 

21
00:00:54,080 --> 00:01:00,080
purposeful strike in battery, or
you search for the unreasonable 

22
00:01:00,080 --> 00:01:03,000
oversight and negligence. 
Yeah, our entire sense of 

23
00:01:03,000 --> 00:01:07,520
justice feels anchored to fault.
But for this deep dive, we are 

24
00:01:07,520 --> 00:01:09,720
pivoting to a radically 
different framework. 

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00:01:09,920 --> 00:01:12,880
Liability without fault. 
We are exploring a legal 

26
00:01:12,880 --> 00:01:17,240
mechanism where the actors care.
Prudence and, you know, good 

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00:01:17,240 --> 00:01:20,800
intentions are just completely 
legally irrelevant. 

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00:01:21,080 --> 00:01:23,440
It feels like a glitch in the 
matrix. 

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00:01:23,440 --> 00:01:25,400
If we spend all this time 
learning how to measure 

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00:01:25,400 --> 00:01:28,480
reasonable care, how to 
establish breach and duty, 

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00:01:28,680 --> 00:01:31,600
suddenly throwing all of that 
out the window feels deeply 

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00:01:31,600 --> 00:01:34,080
unfair. 
Unfair from a moral standpoint? 

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00:01:34,080 --> 00:01:35,880
Definitely. 
Yeah, if I'm looking at this 

34
00:01:35,880 --> 00:01:38,800
through the lens of individual 
morality, punishing someone who 

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00:01:38,800 --> 00:01:41,760
did everything right seems to 
violate the basic social 

36
00:01:41,760 --> 00:01:44,360
contract. 
How do courts justify this? 

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00:01:44,360 --> 00:01:46,760
Well, there has to be a 
mechanism that explains why the 

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00:01:46,760 --> 00:01:49,400
law suddenly abandons the search
for the bad actor. 

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00:01:49,520 --> 00:01:51,960
Right, So what is it? 
The mechanism is economic, not 

40
00:01:51,960 --> 00:01:53,240
moral. 
Economic. 

41
00:01:53,240 --> 00:01:57,560
Yeah, strict liability abandons 
the lens of individual morality 

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00:01:57,560 --> 00:02:00,600
because it's driven by broad 
societal policy. 

43
00:02:00,680 --> 00:02:03,400
So we are shifting from a 
jurisprudence of who did 

44
00:02:03,400 --> 00:02:06,560
something wrong. 
To a jurisprudence of who is in 

45
00:02:06,560 --> 00:02:09,960
the best position to absorb the 
financial shock of an inevitable

46
00:02:09,960 --> 00:02:11,680
tragedy. 
Ah, OK. 

47
00:02:12,000 --> 00:02:14,400
This brings us to the 
foundational concepts of risk 

48
00:02:14,400 --> 00:02:16,920
shifting and the cost of doing 
business. 

49
00:02:17,040 --> 00:02:19,680
Precisely. 
Society has determined that 

50
00:02:19,680 --> 00:02:24,600
certain activities are just so 
inherently dangerous, or certain

51
00:02:24,600 --> 00:02:27,920
commercial relationships are so 
heavily asymmetrical that the 

52
00:02:28,000 --> 00:02:32,240
actor choosing to engage in them
must internalize the cost of the

53
00:02:32,240 --> 00:02:35,520
inevitable accidents. 
Internalizing externalities. 

54
00:02:36,520 --> 00:02:38,680
Let me try to break down how 
that actually functions the real

55
00:02:38,680 --> 00:02:41,000
world, because this is where the
theory turns into math for you. 

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00:02:41,000 --> 00:02:43,440
Go for it. 
When a company mass produces 

57
00:02:43,440 --> 00:02:47,320
1,000,000 toasters, they know 
with statistical certainty that 

58
00:02:47,320 --> 00:02:50,720
despite their best engineering, 
maybe one of those toasters is 

59
00:02:50,720 --> 00:02:52,760
going to have a catastrophic 
wiring failure. 

60
00:02:52,760 --> 00:02:54,160
Right, and burn down someone's 
kitchen. 

61
00:02:54,160 --> 00:02:56,240
Exactly. 
It's an inevitable externality 

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00:02:56,240 --> 00:02:58,440
of mass production. 
So the question the law faces 

63
00:02:58,440 --> 00:03:01,000
Well, who pays for that burned 
down kitchen, right? 

64
00:03:01,160 --> 00:03:03,880
If we require the homeowner to 
prove the massive appliance 

65
00:03:03,880 --> 00:03:08,080
corporation was negligent, the 
homeowner almost always loses. 

66
00:03:08,320 --> 00:03:11,040
Because they don't have access 
to the factory floor or the 

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00:03:11,040 --> 00:03:13,400
internal emails or the 
engineering schematics. 

68
00:03:13,400 --> 00:03:15,640
Exactly. 
They are at a profound 

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00:03:15,640 --> 00:03:19,200
disadvantage. 
So the law shifts the risk, it 

70
00:03:19,200 --> 00:03:23,000
says, to the corporation, if you
want the privilege of profiting 

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00:03:23,000 --> 00:03:26,640
from the mass market, you will 
act as an insurer for the 

72
00:03:26,640 --> 00:03:29,360
injuries your products cause. 
Regardless of your fault. 

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00:03:29,400 --> 00:03:31,720
Regardless of your fault. 
And the brilliant part of that 

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00:03:31,760 --> 00:03:34,480
economic policy is of the 
corporation funds that 

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00:03:34,480 --> 00:03:37,000
insurance, right? 
They don't just eat the loss out

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00:03:37,000 --> 00:03:38,640
of the goodness of their hearts.
Of course not. 

77
00:03:38,760 --> 00:03:42,000
They calculate the statistical 
cost of those burned down 

78
00:03:42,000 --> 00:03:46,320
kitchens, say $1,000,000 a year 
in payouts, and they divide that

79
00:03:46,320 --> 00:03:48,120
cost by the million toasters 
they sell. 

80
00:03:48,160 --> 00:03:51,200
So they raise the retail price 
of every single toaster by 

81
00:03:51,200 --> 00:03:54,200
$1.00. 
Yeah, the burden of the tragedy 

82
00:03:54,200 --> 00:03:56,320
doesn't fall solely on the 
unlucky victim. 

83
00:03:56,640 --> 00:03:58,320
And it doesn't bankrupt the 
company either. 

84
00:03:58,720 --> 00:04:01,600
It is distributed across the 
entire consumer base. 

85
00:04:01,600 --> 00:04:06,840
The people who bought the 
999,999 safe toasters are 

86
00:04:06,840 --> 00:04:10,160
effectively subsidizing the one 
person whose life was ruined by 

87
00:04:10,160 --> 00:04:13,040
the defective 1. 
That is the exact mathematical 

88
00:04:13,040 --> 00:04:16,600
reality of strict liability. 
It forces dangerous activities 

89
00:04:16,600 --> 00:04:20,160
and mass commerce to pay their 
own way in society. 

90
00:04:20,399 --> 00:04:23,280
The price of the product 
reflects its true cost in blood 

91
00:04:23,280 --> 00:04:24,240
and property. 
Damage. 

92
00:04:24,240 --> 00:04:26,920
Wow. 
And if a product or activity is 

93
00:04:26,920 --> 00:04:30,760
so dangerous that internalizing 
those costs makes it too 

94
00:04:30,760 --> 00:04:34,160
expensive to sell, then market 
forces will naturally eliminate 

95
00:04:34,160 --> 00:04:35,920
it. 
Which is the ultimate goal of 

96
00:04:35,920 --> 00:04:38,320
the law anyway. 
So we are going to see this 

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00:04:38,320 --> 00:04:41,600
economic philosophy play out 
across what your episode guide 

98
00:04:41,600 --> 00:04:43,920
calls the three pillars of 
strict liability. 

99
00:04:44,000 --> 00:04:46,720
Animals abnormal, normally 
dangerous activities and 

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00:04:46,720 --> 00:04:47,800
products. 
Liability. 

101
00:04:47,840 --> 00:04:50,200
Plus, we'll finish with the 
distinct property tort of 

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00:04:50,200 --> 00:04:52,120
nuisance. 
Let's begin with the first 

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00:04:52,120 --> 00:04:54,120
pillar. 
This takes us away from modern 

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00:04:54,120 --> 00:04:57,440
corporate boardrooms and back to
the most primal, ancient roots 

105
00:04:57,440 --> 00:04:59,640
of the doctrine. 
Strict liability for animals. 

106
00:04:59,720 --> 00:05:01,880
Right. 
This area of law was developing 

107
00:05:01,880 --> 00:05:04,440
long before the Industrial 
Revolution, dealing with the 

108
00:05:04,440 --> 00:05:06,400
basic realities of agrarian 
life. 

109
00:05:06,400 --> 00:05:08,480
And the rule here is not a 
monolith, is it? 

110
00:05:08,960 --> 00:05:12,240
The law strictly divides animals
into 3 distinct categories. 

111
00:05:12,240 --> 00:05:15,640
Yes, domesticated animals, wild 
animals, and livestock. 

112
00:05:15,920 --> 00:05:19,680
For anyone preparing for a final
exam or the bar, keeping these 

113
00:05:19,680 --> 00:05:22,800
three buckets completely 
separate is absolutely 

114
00:05:22,800 --> 00:05:25,480
mandatory. 
Oh, blurring the lines between 

115
00:05:25,480 --> 00:05:28,600
those categories is the most 
common way students lose points.

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00:05:29,320 --> 00:05:32,400
Let us establish the boundaries,
starting with domesticated 

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00:05:32,400 --> 00:05:34,480
animals. 
We are talking about the pets 

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00:05:34,720 --> 00:05:39,200
that share our homes, cats, 
perhaps a pot bellied pig or a 

119
00:05:39,200 --> 00:05:42,320
riding horse. 
The baseline common law rule for

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00:05:42,320 --> 00:05:45,840
this category is that there is 
no automatic strict liability. 

121
00:05:45,840 --> 00:05:48,160
None at all, right? 
Because these animals are 

122
00:05:48,160 --> 00:05:51,000
generally A pustom to living 
alongside humans without causing

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00:05:51,000 --> 00:05:54,280
severe harm, the law affords 
them a presumption of safety. 

124
00:05:54,560 --> 00:05:57,240
But that presumption vanishes 
the moment the owner receives 

125
00:05:57,240 --> 00:06:00,400
notice that their specific pet 
is an exception to the rule. 

126
00:06:00,720 --> 00:06:02,800
Which triggers the famous one 
bite rule. 

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00:06:02,800 --> 00:06:06,920
The phrasing one bite is 
incredibly catchy, but it also 

128
00:06:06,920 --> 00:06:09,720
feels like a trap. 
It suggests that every dog is 

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00:06:09,720 --> 00:06:12,480
legally entitled to a free 
mauling before the owner faces 

130
00:06:12,480 --> 00:06:15,000
any consequences. 
The phrase is misleading for a 

131
00:06:15,000 --> 00:06:17,680
few reasons. 
First, a bite is not strictly 

132
00:06:17,680 --> 00:06:20,520
required. 
The legal threshold is scienter.

133
00:06:20,680 --> 00:06:23,560
Scienter meaning prior knowledge
of a dangerous propensity. 

134
00:06:23,800 --> 00:06:26,880
Exactly. 
If your dog aggressively lunges,

135
00:06:26,880 --> 00:06:31,200
snaps and tries to attack a mail
carrier, but the carrier manages

136
00:06:31,200 --> 00:06:34,400
to jump behind a gate before 
teeth make contact with skin, 

137
00:06:35,000 --> 00:06:38,120
you still have sienter. 
Because you are now on notice 

138
00:06:38,320 --> 00:06:40,680
that the animal has a vicious 
tendency, right? 

139
00:06:41,040 --> 00:06:45,320
2nd, the idea that the first 
incident is free ignores the 

140
00:06:45,320 --> 00:06:47,880
rest of tort law. 
The victim of that first bite 

141
00:06:47,880 --> 00:06:51,200
cannot sue under strict 
liability, but they can 

142
00:06:51,200 --> 00:06:55,000
absolutely sue you for ordinary 
negligence if you fail to act 

143
00:06:55,000 --> 00:06:56,640
reasonably in controlling the 
dog. 

144
00:06:56,960 --> 00:06:59,440
That distinction between the 
negligence pathway and the 

145
00:06:59,440 --> 00:07:01,920
strict liability pathway is 
crucial. 

146
00:07:02,000 --> 00:07:04,920
We came across a Texas case in 
our research, Dunnings V Castro,

147
00:07:05,560 --> 00:07:08,280
that illustrates this perfectly.
Oh, that's a great example. 

148
00:07:08,280 --> 00:07:11,360
Yeah, so in that case, a mail 
carrier was approaching a house 

149
00:07:11,360 --> 00:07:14,520
when a large dog suddenly lunged
at the window, barking 

150
00:07:14,520 --> 00:07:17,040
furiously. 
The carrier was so startled he 

151
00:07:17,040 --> 00:07:20,000
stepped backward, fell down the 
porch steps and suffered a 

152
00:07:20,000 --> 00:07:22,120
severe injury. 
The dog never touched him, and 

153
00:07:22,120 --> 00:07:24,200
the dog had absolutely no 
history of viciousness. 

154
00:07:24,200 --> 00:07:27,240
So when the carrier sued under 
strict liability, the court 

155
00:07:27,240 --> 00:07:31,000
threw that specific claim out. 
They threw it out because 

156
00:07:31,080 --> 00:07:34,400
without prior notice of a 
dangerous propensity, the 

157
00:07:34,400 --> 00:07:37,520
stripped liability switch 
remains in the off position. 

158
00:07:37,800 --> 00:07:41,240
The dog was presumed safe, and 
it had never given the owner a 

159
00:07:41,240 --> 00:07:44,920
reason to believe otherwise. 
But, and this is key, the court 

160
00:07:44,920 --> 00:07:47,720
allowed the lawsuit to move 
forward under a negligence 

161
00:07:47,720 --> 00:07:49,840
theory. 
Yes, the court said. 

162
00:07:49,840 --> 00:07:53,880
Essentially, look, you have a 
massive loud dog and you let it 

163
00:07:53,880 --> 00:07:57,480
roam freely in the front room, 
right next to the walkway where 

164
00:07:57,480 --> 00:08:00,160
you know the mail carrier 
arrives every day at noon. 

165
00:08:00,440 --> 00:08:03,200
A jury might find that was a 
careless, unreasonable way to 

166
00:08:03,200 --> 00:08:05,880
manage your property. 
It proves that the One Bite rule

167
00:08:05,880 --> 00:08:09,080
only acts as a gatekeeper for 
the superpower of strict 

168
00:08:09,080 --> 00:08:11,560
liability. 
That sequence on an exam should 

169
00:08:11,560 --> 00:08:13,920
always be first look for 
scienter. 

170
00:08:13,960 --> 00:08:17,720
Yes, if the owner knew the dog 
was dangerous, strict liability 

171
00:08:17,720 --> 00:08:20,440
applies and the plaintiff wins 
automatically. 

172
00:08:20,680 --> 00:08:24,000
If the owner did not know, 
strict liability failed, but you

173
00:08:24,000 --> 00:08:26,600
must immediately pivot to 
analyze whether the owner was 

174
00:08:26,600 --> 00:08:27,840
negligent. 
Exactly. 

175
00:08:28,040 --> 00:08:29,480
Now assume the owner does have 
scienter. 

176
00:08:29,880 --> 00:08:33,440
The dog has a history of biting.
The strict liability switch has 

177
00:08:33,440 --> 00:08:35,520
been flipped. 
How does that change the owner's

178
00:08:35,520 --> 00:08:38,080
legal position? 
It changes their position from a

179
00:08:38,080 --> 00:08:41,240
standard citizen into a 
guarantor of public safety. 

180
00:08:41,440 --> 00:08:45,120
Wow, so once I know my dog is 
vicious, my level of care 

181
00:08:45,120 --> 00:08:48,080
becomes legally irrelevant? 
Completely irrelevant. 

182
00:08:48,080 --> 00:08:50,160
You could buy a reinforced steel
cage. 

183
00:08:50,360 --> 00:08:53,080
You could hire a professional 
dog handler. 

184
00:08:53,320 --> 00:08:56,560
I could use a titanium leash and
an escape proof harness. 

185
00:08:56,640 --> 00:09:00,560
And if by some absolute freak 
occurrence, a meteor strikes the

186
00:09:00,560 --> 00:09:04,000
cage, breaking the lock, and the
dog escapes and bites someone, 

187
00:09:04,280 --> 00:09:07,280
you are writing a check. 
The extreme precautions I took 

188
00:09:07,280 --> 00:09:09,680
cannot be entered into evidence 
to save me. 

189
00:09:09,680 --> 00:09:11,720
Not at all. 
You kept the dangerous animal at

190
00:09:11,720 --> 00:09:14,680
your own absolute peril. 
Which serves as the perfect 

191
00:09:14,680 --> 00:09:17,400
transition into the second 
category, wild animals. 

192
00:09:17,760 --> 00:09:21,520
Tigers, bears, venomous snakes, 
pet chimpanzees. 

193
00:09:21,520 --> 00:09:24,320
Yeah, the law takes a strict 
liability switch that we just 

194
00:09:24,320 --> 00:09:27,840
discussed and permanently 
solders it into the on position 

195
00:09:28,000 --> 00:09:30,440
from the moment of birth. 
There is no grace period. 

196
00:09:30,480 --> 00:09:32,960
There is no requirement for 
prior notice or scienter. 

197
00:09:33,040 --> 00:09:36,080
The rationale being that you 
cannot domesticate a species in 

198
00:09:36,080 --> 00:09:39,280
a single lifetime or even a few 
generations. 

199
00:09:39,280 --> 00:09:41,560
The danger is biologically baked
in. 

200
00:09:41,800 --> 00:09:44,760
But let me throw a hypothetical 
at you, because this is where 

201
00:09:44,760 --> 00:09:46,840
exams love to prey on human 
empathy. 

202
00:09:46,840 --> 00:09:48,320
I know exactly the what kind you
mean. 

203
00:09:48,400 --> 00:09:53,920
What if I acquire A Bengal tiger
as a blind, helpless infant cub?

204
00:09:54,520 --> 00:09:57,480
I bottle feed it. 
It sleeps at the foot of my bed.

205
00:09:57,800 --> 00:09:59,440
It plays with your golden 
retriever. 

206
00:09:59,440 --> 00:10:03,640
Exactly over five years, it is 
never so much as hissed at a 

207
00:10:03,640 --> 00:10:06,080
human being. 
It thinks it was a house cat. 

208
00:10:06,360 --> 00:10:10,400
OK, if it accidentally scratches
a guess during playtime, surely 

209
00:10:10,400 --> 00:10:12,440
the court looks at the 
individual animals. 

210
00:10:12,440 --> 00:10:15,560
Immaculate biography and adjust 
the standard the. 

211
00:10:15,560 --> 00:10:17,640
Court will ignore the biography 
entirely. 

212
00:10:17,880 --> 00:10:20,720
Really. 
Yes, subjective tameness is an 

213
00:10:20,720 --> 00:10:23,160
illusion the law refuses to 
entertain. 

214
00:10:23,680 --> 00:10:26,360
This is perhaps the most heavily
tested distractor in this 

215
00:10:26,360 --> 00:10:28,200
subtopic. 
So the legal standard is 

216
00:10:28,200 --> 00:10:31,000
dictated exclusively by the 
biological taxonomy of the 

217
00:10:31,000 --> 00:10:32,280
species. 
Exactly. 

218
00:10:32,440 --> 00:10:34,880
A Bengal tiger is classified as 
a wild animal. 

219
00:10:34,880 --> 00:10:37,360
Therefore, the owner is strictly
liable for any harm 

220
00:10:37,360 --> 00:10:38,920
characteristic of that wild 
animal. 

221
00:10:39,080 --> 00:10:41,880
Regardless of how gentle this 
specific tiger appeared to be. 

222
00:10:42,000 --> 00:10:45,080
If you see a paragraph on an 
exam detailing how sweet, well 

223
00:10:45,080 --> 00:10:48,560
trained and docile a bear or a 
lion was, you should mentally 

224
00:10:48,560 --> 00:10:51,200
redact it. 
It is placed there solely to 

225
00:10:51,200 --> 00:10:53,560
tempt you into applying A 
negligent standard. 

226
00:10:53,760 --> 00:10:56,960
Biology overrides biography. 
That is a clean rule. 

227
00:10:57,120 --> 00:10:59,640
Now, what about the final animal
category? 

228
00:11:00,160 --> 00:11:02,760
Livestock. 
We were talking about cattle, 

229
00:11:02,800 --> 00:11:06,200
sheep, horses, pigs. 
This feels distinct because we 

230
00:11:06,200 --> 00:11:09,320
aren't usually dealing with 
maulings or physical attacks. 

231
00:11:09,320 --> 00:11:12,120
Right, we're dealing with 
wandering herds and property 

232
00:11:12,120 --> 00:11:14,640
destruction. 
The harm is primarily economic 

233
00:11:14,640 --> 00:11:17,320
and agricultural. 
So the baseline common law rule 

234
00:11:17,520 --> 00:11:20,640
is straightforward. 
An owner of livestock is 

235
00:11:20,640 --> 00:11:23,560
strictly liable for the 
foreseeable property damage 

236
00:11:23,560 --> 00:11:26,840
caused by their animals if they 
trespass onto another person's 

237
00:11:26,840 --> 00:11:29,360
land. 
If you're herd of cattle breaks 

238
00:11:29,360 --> 00:11:32,120
through a barrier, ronders onto 
your neighbor's farm and 

239
00:11:32,120 --> 00:11:35,640
tramples their season's corn 
crop, you are paying for the 

240
00:11:35,640 --> 00:11:37,360
corn. 
It does not matter if you built 

241
00:11:37,360 --> 00:11:40,760
a sturdy fence or if a random 
trespasser left the gate open. 

242
00:11:40,880 --> 00:11:44,080
But exploring the historical 
geography of this rule reveals 

243
00:11:44,080 --> 00:11:46,880
how tort law adapts to local 
economies. 

244
00:11:46,880 --> 00:11:49,120
Oh, definitely. 
The strict liability baseline 

245
00:11:49,200 --> 00:11:51,640
time we just discussed is the 
English common law approach, 

246
00:11:51,640 --> 00:11:53,880
right? 
Yes, heavily adopted in the 

247
00:11:53,880 --> 00:11:57,280
densely populated, heavily 
farmed areas of the eastern 

248
00:11:57,280 --> 00:12:00,680
United States. 
It is a fence in jurisdiction. 

249
00:12:00,800 --> 00:12:03,760
The burden is entirely on the 
livestock owner to keep their 

250
00:12:03,760 --> 00:12:06,560
animals contained. 
Because the landscape dictated 

251
00:12:06,560 --> 00:12:11,080
the law in dense agricultural 
areas, a single wandering cow 

252
00:12:11,080 --> 00:12:14,520
could devastate a family's 
livelihood in an hour. 

253
00:12:14,520 --> 00:12:17,520
But as the United States 
expanded westward into the vast 

254
00:12:17,520 --> 00:12:22,480
arid plains, that English common
law rule made no economic sense.

255
00:12:22,480 --> 00:12:25,760
You had massive cattle 
operations grazing on millions 

256
00:12:25,760 --> 00:12:28,560
of acres of open range. 
Asking ranchers to build 

257
00:12:28,560 --> 00:12:31,640
thousands of miles of fencing to
contain their herds was 

258
00:12:31,680 --> 00:12:34,560
economically impossible. 
So the Western states flipped 

259
00:12:34,560 --> 00:12:36,840
the doctrine on its head. 
They created fence out 

260
00:12:36,840 --> 00:12:39,400
jurisdictions. 
In these areas, the burden 

261
00:12:39,400 --> 00:12:41,480
shifted to the farmer growing 
the crops. 

262
00:12:41,480 --> 00:12:44,400
The law essentially said if you 
want to grow delicate corn in 

263
00:12:44,400 --> 00:12:47,040
the middle of open cattle 
country, you have the duty to 

264
00:12:47,040 --> 00:12:50,200
build a sturdy legal fence to 
keep the wandering herds out. 

265
00:12:50,360 --> 00:12:53,080
If the farmer feels to build a 
proper fence and the cows eat 

266
00:12:53,080 --> 00:12:56,200
the crops, the cattle rancher is
not liable at all. 

267
00:12:56,280 --> 00:12:59,200
The burden of protection 
shifted, but we must be precise 

268
00:12:59,200 --> 00:13:00,920
here. 
Right, because even in a fence 

269
00:13:00,920 --> 00:13:05,200
out jurisdiction, strict 
liability still exists, it just 

270
00:13:05,200 --> 00:13:06,760
has a prerequisite. 
Yes. 

271
00:13:07,360 --> 00:13:11,240
If the crop farmer does build a 
legally adequate fence and a 

272
00:13:11,240 --> 00:13:14,520
particularly aggressive herd of 
cattle smashes through it and 

273
00:13:14,520 --> 00:13:18,040
destroys the harvest, the cattle
owner is strictly liable. 

274
00:13:18,200 --> 00:13:21,880
The Western statutes essentially
created a condition precedent. 

275
00:13:22,280 --> 00:13:25,600
Build a wall, and if the wall 
fails through no fault of yours,

276
00:13:25,760 --> 00:13:27,760
the strict liability rule 
activates. 

277
00:13:27,920 --> 00:13:31,640
It is a fascinating study in how
the concept of reasonable burden

278
00:13:31,640 --> 00:13:34,920
shifts depending on whether you 
are in a farming economy or 

279
00:13:34,920 --> 00:13:37,160
ranching economy. 
Which brings us to our second 

280
00:13:37,160 --> 00:13:38,680
pillar. 
We are moving from the 

281
00:13:38,680 --> 00:13:43,000
biological uncontrollable danger
of wild animals to human driven 

282
00:13:43,000 --> 00:13:46,360
activities that share that exact
same uncontrollable nature. 

283
00:13:46,400 --> 00:13:49,840
If a wild tiger represents A 
biological hazard that cannot be

284
00:13:49,840 --> 00:13:52,720
tamed, we are now looking for 
the industrial equivalent. 

285
00:13:52,880 --> 00:13:55,960
This is the doctrine of 
abnormally dangerous or ultra 

286
00:13:55,960 --> 00:13:58,440
hazardous activities. 
To understand the modern 

287
00:13:58,440 --> 00:14:01,480
application of this doctrine, we
really have to anchor ourselves 

288
00:14:01,480 --> 00:14:04,720
in the Industrial Revolution. 
The foundational tact here is 

289
00:14:04,720 --> 00:14:07,760
the 1868 English case of Rylands
V Fletcher. 

290
00:14:07,920 --> 00:14:11,760
It is arguably the moment modern
strict liability for land use 

291
00:14:11,760 --> 00:14:13,720
was born. 
The facts are deceptively 

292
00:14:13,720 --> 00:14:16,360
simple, but the implications 
were revolutionary. 

293
00:14:16,680 --> 00:14:21,040
The defendant Rylands was a mill
owner who needed a reservoir to 

294
00:14:21,040 --> 00:14:23,160
supply water to his textile 
mill. 

295
00:14:23,280 --> 00:14:26,800
He hired independent, competent 
engineers and contractors to 

296
00:14:26,800 --> 00:14:29,760
build it on his land. 
And while excavating, the 

297
00:14:29,760 --> 00:14:34,080
contractors discover a series of
old abandoned vertical coal mine

298
00:14:34,080 --> 00:14:36,560
shafts. 
Instead of properly sealing them

299
00:14:36,560 --> 00:14:39,200
with concrete, they just fill 
them with soil and build the 

300
00:14:39,200 --> 00:14:41,560
reservoir over them. 
When they fill the massive 

301
00:14:41,560 --> 00:14:45,600
baking with water, the immense 
downward pressure blows out the 

302
00:14:45,600 --> 00:14:48,440
poorly sealed shafts. 
The water rushes through the 

303
00:14:48,440 --> 00:14:51,400
underground network and 
completely floods the active 

304
00:14:51,400 --> 00:14:53,960
working coal mine next door, 
which happens to be owned by the

305
00:14:53,960 --> 00:14:56,640
plaintiff Fletcher. 
Fletcher's business is ruined 

306
00:14:56,920 --> 00:14:59,440
and he sues. 
The complication that paralyzed 

307
00:14:59,440 --> 00:15:02,440
the lower courts was that 
Rylands, the landowner, was not 

308
00:15:02,440 --> 00:15:05,240
personally negligent. 
He didn't know about the shafts.

309
00:15:05,480 --> 00:15:08,600
He hired experts to do the job. 
Under the rigid rules of 

310
00:15:08,600 --> 00:15:11,840
negligence at the time, Rylands 
seemed insulated from liability.

311
00:15:12,120 --> 00:15:15,120
But when the case reached the 
House of Lords, Lord Cairns 

312
00:15:15,120 --> 00:15:18,040
articulated a new standard. 
He distinguished between the 

313
00:15:18,040 --> 00:15:21,000
natural use of land and a non 
natural use. 

314
00:15:21,400 --> 00:15:24,280
Gathering millions of gallons of
water on top of a porous 

315
00:15:24,280 --> 00:15:27,360
abandoned mine system is a non 
natural use. 

316
00:15:27,520 --> 00:15:30,800
The House of Lords held that if 
a person brings something onto 

317
00:15:30,800 --> 00:15:34,520
their land that is likely to do 
mischief, if it escapes, they 

318
00:15:34,520 --> 00:15:37,480
must keep it in at their peril. 
If it escapes, they are 

319
00:15:37,480 --> 00:15:40,480
permissive case answerable for 
all the natural consequences. 

320
00:15:40,520 --> 00:15:43,560
That holding birth, The idea 
that certain activities are so 

321
00:15:43,560 --> 00:15:47,320
inherently fraught with massive 
peril that engaging in them 

322
00:15:47,320 --> 00:15:49,480
operates as a strict liability 
trigger. 

323
00:15:49,640 --> 00:15:53,240
Over the decades, American 
courts refined that 1868 logic 

324
00:15:53,240 --> 00:15:56,680
into the modern 2 pronged 
analytical framework found in 

325
00:15:56,680 --> 00:15:59,640
the Restatement of Torts. 
For an activity to be classified

326
00:15:59,640 --> 00:16:03,440
as abnormally dangerous today, 
it must meet 2 rigorous 

327
00:16:03,440 --> 00:16:06,800
criteria. 1st the activity must 
create a foreseeable risk of 

328
00:16:06,800 --> 00:16:09,920
serious harm, even when 
reasonable care is exercised. 

329
00:16:10,080 --> 00:16:13,080
2nd, the activity must not be a 
matter of common usage in the 

330
00:16:13,080 --> 00:16:15,160
Community. 
Let's dissect the first prong, 

331
00:16:15,320 --> 00:16:18,000
the inability to eliminate the 
risk through reasonable care. 

332
00:16:18,200 --> 00:16:21,600
This means the danger isn't a 
byproduct of human sloppiness, 

333
00:16:21,880 --> 00:16:26,080
it is baked into the physics or 
chemistry of the ACT itself. 

334
00:16:26,440 --> 00:16:29,600
The authoritative examples from 
the episode guide are blasting 

335
00:16:29,600 --> 00:16:33,760
with dynamite, crop dusting with
toxic chemicals and the storage 

336
00:16:33,760 --> 00:16:36,560
of massive quantities of 
hazardous waste. 

337
00:16:36,720 --> 00:16:40,040
Consider the dynamite example. 
You can hire the world's leading

338
00:16:40,040 --> 00:16:42,480
seismologists. 
You can use state-of-the-art 

339
00:16:42,600 --> 00:16:45,960
laser guided detonation systems.
You can calculate the structural

340
00:16:45,960 --> 00:16:48,880
integrity of the surrounding 
bedrock down to the millimeter. 

341
00:16:49,320 --> 00:16:52,280
But the moment you detonate, the
shock waves travel through the 

342
00:16:52,280 --> 00:16:54,840
Earth in fundamentally 
unpredictable ways. 

343
00:16:54,960 --> 00:16:58,400
You simply cannot guarantee that
the vibrations will not crack 

344
00:16:58,400 --> 00:17:00,240
the foundation of a house half a
mile away. 

345
00:17:00,520 --> 00:17:03,840
Because the risk of serious harm
remains present regardless of 

346
00:17:03,840 --> 00:17:07,079
the money and expertise thrown 
at safety, the law imposes 

347
00:17:07,079 --> 00:17:10,480
strict liability. 
So similar to the Tame Tiger 

348
00:17:10,480 --> 00:17:14,000
distractor if an exam fact 
pattern spends a whole paragraph

349
00:17:14,000 --> 00:17:16,560
describing a construction 
company's flawless, 

350
00:17:16,560 --> 00:17:18,359
state-of-the-art blasting 
procedures. 

351
00:17:18,440 --> 00:17:20,000
You need to recognize that is a 
trap. 

352
00:17:20,160 --> 00:17:23,040
The extreme care is legally 
irrelevant if the activity 

353
00:17:23,040 --> 00:17:25,160
itself is classified as ultra 
hazardous. 

354
00:17:25,400 --> 00:17:28,600
It is irrelevant to liability. 
It might be relevant to 

355
00:17:28,600 --> 00:17:32,200
preventing punitive damages, but
for the underlying strict 

356
00:17:32,200 --> 00:17:36,000
liability tort, the fact that 
they blasted and caused damage 

357
00:17:36,000 --> 00:17:38,200
is the beginning and the end of 
the inquiry. 

358
00:17:38,480 --> 00:17:41,040
Now let's look at the second 
prong, which often confuses 

359
00:17:41,040 --> 00:17:43,240
people. 
The activity must not be a 

360
00:17:43,240 --> 00:17:46,560
matter of common usage. 
This is an important boundary. 

361
00:17:46,680 --> 00:17:48,760
I want to test this logic with 
an analogy. 

362
00:17:49,280 --> 00:17:52,600
If I get behind the wheel of a 
heavy SUV, ignore the speed 

363
00:17:52,600 --> 00:17:56,360
limit and drive 90 miles an hour
through a narrow residential St.

364
00:17:56,600 --> 00:18:00,320
next to an elementary school. 
That is a terrifyingly dangerous

365
00:18:00,320 --> 00:18:02,880
activity. 
It creates a massive foreseeable

366
00:18:02,880 --> 00:18:07,480
risk of serious fatal harm based
purely on the danger level. 

367
00:18:07,680 --> 00:18:10,960
Does that make driving a car an 
abnormally dangerous activity 

368
00:18:10,960 --> 00:18:14,520
subject to strict liability? 
It does not, and examining why 

369
00:18:14,520 --> 00:18:16,960
it fails the test is highly 
illuminating. 

370
00:18:16,960 --> 00:18:19,320
OK, lay it out. 
Driving a car, even driving a 

371
00:18:19,320 --> 00:18:22,680
car recklessly fails both prongs
of the ultra hazardous test. 

372
00:18:23,120 --> 00:18:25,000
Let us address the second prong 
first. 

373
00:18:25,240 --> 00:18:27,160
Common usage. 
Almost every adult in the 

374
00:18:27,160 --> 00:18:28,640
community drives. 
Exactly. 

375
00:18:28,800 --> 00:18:31,440
The risks associated with 
automobiles are mutually created

376
00:18:31,440 --> 00:18:33,920
and mutually absorbed by the 
public at large. 

377
00:18:34,160 --> 00:18:38,280
It is not an unusual localized 
industrial hazard introduced by 

378
00:18:38,280 --> 00:18:41,720
a single actor. 
It is the lifeblood of modern 

379
00:18:41,720 --> 00:18:44,240
transportation. 
And it fails the first prong as 

380
00:18:44,240 --> 00:18:46,840
well, right? 
Because, unlike dynamite, the 

381
00:18:46,840 --> 00:18:49,520
danger of driving can be 
effectively eliminated by the 

382
00:18:49,520 --> 00:18:53,040
exercise of reasonable care. 
If you obey the speed limit, 

383
00:18:53,160 --> 00:18:55,960
maintain your brakes, and keep 
your eyes on the road, the 

384
00:18:55,960 --> 00:18:59,440
activity is generally safe. 
The danger in my hypothetical 

385
00:18:59,440 --> 00:19:02,320
wasn't baked into the car. 
The danger was caused by my 

386
00:19:02,320 --> 00:19:04,240
reckless execution of the 
driving. 

387
00:19:04,320 --> 00:19:07,600
That is the defining line. 
Because driving can be made safe

388
00:19:07,600 --> 00:19:11,080
with reasonable care, we use the
negligent framework to police 

389
00:19:11,080 --> 00:19:13,120
it. 
When you drive 90 in a school 

390
00:19:13,120 --> 00:19:16,680
zone, you have violently 
breached your duty of care and 

391
00:19:16,680 --> 00:19:20,280
you will be sued for negligence.
Strict liability is held in 

392
00:19:20,280 --> 00:19:23,320
reserve for the true anomalies. 
It targets activities that 

393
00:19:23,320 --> 00:19:25,920
cannot be made safe and are not 
commonly performed by the 

394
00:19:25,920 --> 00:19:28,080
average citizen. 
That contains the doctrine 

395
00:19:28,080 --> 00:19:30,720
beautifully. 
It keeps strict liability from 

396
00:19:30,720 --> 00:19:32,520
swallowing the entire tort 
system. 

397
00:19:32,960 --> 00:19:34,800
We reserve it for the industrial
tigers. 

398
00:19:34,800 --> 00:19:36,520
Which brings us to the third 
pillar. 

399
00:19:36,600 --> 00:19:39,680
Your episode guide refers to 
this as the big one. 

400
00:19:39,880 --> 00:19:43,640
We are leaving the realm of 
rare, massive industrial 

401
00:19:43,640 --> 00:19:46,920
blasting and entering the 
everyday world of mass market 

402
00:19:46,920 --> 00:19:49,160
commerce. 
We are talking about strict 

403
00:19:49,160 --> 00:19:52,480
products liability. 
This is unequivocally the most 

404
00:19:52,480 --> 00:19:55,760
frequently tested area in this 
domain, and it is the area that 

405
00:19:55,760 --> 00:19:58,360
will intersect with your daily 
life most often. 

406
00:19:58,440 --> 00:20:02,480
We are shifting from localized 
dangers on a specific piece of 

407
00:20:02,480 --> 00:20:04,600
land. 
To the mass distribution of 

408
00:20:04,600 --> 00:20:08,120
vehicles, pharmaceuticals, power
tools and household appliances. 

409
00:20:08,160 --> 00:20:11,280
To understand why this doctrine 
is so powerful, we need to look 

410
00:20:11,280 --> 00:20:13,320
at the legal landscape before it
existed. 

411
00:20:13,400 --> 00:20:16,400
Historically, if you bought a 
toaster and it exploded in your 

412
00:20:16,400 --> 00:20:20,360
face, the law treated it 
primarily as a broken promise. 

413
00:20:20,360 --> 00:20:23,440
You had to sue under contract 
law for a breach of warranty. 

414
00:20:23,560 --> 00:20:26,520
But contract law came with a 
massive barrier called privity 

415
00:20:26,520 --> 00:20:28,760
of contract. 
Right, you could only sue the 

416
00:20:28,760 --> 00:20:31,920
exact entity that handed you the
product in exchange for your 

417
00:20:31,920 --> 00:20:33,680
money. 
The privity requirement was 

418
00:20:33,680 --> 00:20:36,480
disastrous for consumer safety 
during the rise of mass 

419
00:20:36,480 --> 00:20:38,520
production. 
Think about it, if you bought a 

420
00:20:38,520 --> 00:20:41,520
defective car from a local 
independent corner dealership, 

421
00:20:41,640 --> 00:20:44,400
privity meant you could only sue
that small dealership. 

422
00:20:44,960 --> 00:20:47,520
You had no contractual 
relationship with the the 

423
00:20:47,520 --> 00:20:50,720
massive multinational 
corporation that actually 

424
00:20:50,720 --> 00:20:52,880
designed and built the defective
brakes. 

425
00:20:53,080 --> 00:20:55,600
The local dealer would simply 
declare bankruptcy. 

426
00:20:55,880 --> 00:20:59,000
The massive manufacturer was 
shielded by a lack of privity 

427
00:20:59,320 --> 00:21:01,960
and the maimed consumer was left
with nothing. 

428
00:21:02,080 --> 00:21:05,040
The course realized that a 
contract theory formulated for 

429
00:21:05,040 --> 00:21:08,680
blacksmiths selling horseshoes 
face to face was entirely 

430
00:21:08,680 --> 00:21:12,160
unequipped to handle a 
globalized, mechanized economy. 

431
00:21:12,520 --> 00:21:15,840
So, largely driven by the 
monumental shifts captured in 

432
00:21:15,840 --> 00:21:19,600
the Restatement Second of Torts 
Section 4 O 2A, the courts 

433
00:21:19,600 --> 00:21:23,360
bypassed contract law entirely. 
They created strict products 

434
00:21:23,360 --> 00:21:25,440
liability as an independent 
tort. 

435
00:21:25,440 --> 00:21:28,360
It completely obliterated the 
privity requirement. 

436
00:21:28,360 --> 00:21:31,960
It gave the injured consumer a 
legal hook to sue anyone in the 

437
00:21:31,960 --> 00:21:34,480
commercial chain of 
distribution, the factory, the 

438
00:21:34,480 --> 00:21:37,280
wholesaler, the retailer, 
without having to prove that any

439
00:21:37,280 --> 00:21:38,760
of them were specifically 
negligent. 

440
00:21:38,760 --> 00:21:41,600
It is a profound weapon for 
plaintiffs, but the courts did 

441
00:21:41,600 --> 00:21:43,200
not make it a free for all. 
Right. 

442
00:21:43,200 --> 00:21:46,880
Strict products liability has 
rigid foundational elements that

443
00:21:46,880 --> 00:21:49,520
a plaintiff must establish 
before they even get to discuss 

444
00:21:49,520 --> 00:21:52,400
the defect itself. 
Let us map out these gateway 

445
00:21:52,400 --> 00:21:55,520
requirements, beginning with the
absolute threshold. 

446
00:21:55,840 --> 00:21:57,760
The defendant must be a 
merchant. 

447
00:21:57,920 --> 00:22:01,560
The merchant requirement The law
is explicitly targeting 

448
00:22:01,560 --> 00:22:05,320
commercial enterprises that 
routinely deal in goods of that 

449
00:22:05,320 --> 00:22:07,720
kind. 
We are looking for entities that

450
00:22:07,720 --> 00:22:11,000
place products into the stream 
of commerce for profit. 

451
00:22:11,360 --> 00:22:14,680
They're the ones with the 
leverage to demand safer designs

452
00:22:14,680 --> 00:22:17,080
from factories. 
They have the volume to purchase

453
00:22:17,080 --> 00:22:19,240
insurance. 
And they have the pricing power 

454
00:22:19,240 --> 00:22:22,400
to spread the cost of accidents 
across millions of consumers, 

455
00:22:22,400 --> 00:22:24,640
like we discussed with the 
Toaster Economics. 

456
00:22:24,640 --> 00:22:27,960
Detailing that commercial chain 
is critical for an exam. 

457
00:22:28,440 --> 00:22:32,200
Let us trace a single product. 
OK, let's say a manufacturing 

458
00:22:32,200 --> 00:22:35,920
plant in South Korea builds A 
lithium ion battery for an 

459
00:22:35,920 --> 00:22:38,560
electric bicycle. 
They sell bulk shipments to a 

460
00:22:38,560 --> 00:22:41,160
massive distribution 
conglomerate in California. 

461
00:22:41,320 --> 00:22:44,280
That distributor sells pallets 
to a regional sporting goods 

462
00:22:44,280 --> 00:22:46,360
chain. 
Who puts the bicycle on a shelf 

463
00:22:46,360 --> 00:22:48,760
in your local town? 
The consumer buys it, the 

464
00:22:48,760 --> 00:22:51,680
battery explodes, and the 
consumer's house burns down. 

465
00:22:51,720 --> 00:22:53,280
Who's a merchant in that 
scenario? 

466
00:22:53,280 --> 00:22:55,840
Every single one of them. 
The South Korean manufacturer, 

467
00:22:56,040 --> 00:22:58,360
the California distributor and 
the local sporting goods store. 

468
00:22:59,080 --> 00:23:02,840
They all routinely deal in 
bicycles and bicycle components.

469
00:23:02,840 --> 00:23:05,720
They are all firmly within the 
commercial stream of commerce. 

470
00:23:05,720 --> 00:23:09,320
So the consumer can sue the 
local retail store directly, 

471
00:23:09,800 --> 00:23:12,640
even though the retail store 
just kept the bike in a sealed 

472
00:23:12,640 --> 00:23:16,640
cardboard box and had absolutely
zero knowledge of the battery 

473
00:23:16,640 --> 00:23:17,680
defect? 
Yes. 

474
00:23:18,360 --> 00:23:22,800
The store is strictly liable. 
The local store will undoubtedly

475
00:23:23,040 --> 00:23:26,960
file an indemnification claim 
back up the chain to force the 

476
00:23:26,960 --> 00:23:29,040
manufacturer to cover the 
damages, right? 

477
00:23:29,120 --> 00:23:31,760
Absolutely, but as far as the 
injured consumer is concerned, 

478
00:23:31,760 --> 00:23:33,960
the local store is fully on the 
hook. 

479
00:23:34,280 --> 00:23:37,560
However, there is a boundary 
line to this rule that serves as

480
00:23:37,560 --> 00:23:41,280
a classic exam trap. 
Assume the consumer buys the 

481
00:23:41,280 --> 00:23:44,960
bike, rides it for three months,
decides they hate cycling, and 

482
00:23:44,960 --> 00:23:47,440
sells the bike to their neighbor
at a Saturday morning garage 

483
00:23:47,440 --> 00:23:49,160
sale. 
The next week, the battery 

484
00:23:49,160 --> 00:23:51,560
explodes. 
Can the neighbors sue the person

485
00:23:51,560 --> 00:23:54,160
running the garage sale under 
strict products liability? 

486
00:23:54,320 --> 00:23:57,920
The Craigslist neighbor trap. 
The answer is an emphatic no. 

487
00:23:58,160 --> 00:24:01,720
Because the neighbor who sold 
the bike is a casual seller, not

488
00:24:01,720 --> 00:24:04,800
a merchant. 
They do not routinely deal in 

489
00:24:04,800 --> 00:24:08,240
the sale of electric bicycles. 
They're just trying to clean out

490
00:24:08,240 --> 00:24:10,440
their garage. 
The economic rationale we 

491
00:24:10,440 --> 00:24:12,920
discussed earlier explains why 
the law exempts them. 

492
00:24:13,040 --> 00:24:17,800
A casual seller selling 1 used 
bike does not have the volume to

493
00:24:17,880 --> 00:24:20,600
self insure. 
They do not have the leverage to

494
00:24:20,600 --> 00:24:23,720
force the South Korean factory 
to change its quality control. 

495
00:24:23,840 --> 00:24:26,720
And they cannot spread the cost 
of an accident across a broad 

496
00:24:26,720 --> 00:24:29,520
consumer base. 
If we applied strict liability 

497
00:24:29,520 --> 00:24:33,520
to garage sales, the entire 
secondary market for used goods 

498
00:24:33,520 --> 00:24:36,240
would instantly collapse under 
the weight of legal risk. 

499
00:24:36,440 --> 00:24:39,280
Now, if the neighbor knew the 
battery was smoking and failed 

500
00:24:39,280 --> 00:24:42,640
to warn the buyer, they could be
sued for ordinary negligence. 

501
00:24:42,800 --> 00:24:46,120
But they are immune from the 
superpower of strict liability. 

502
00:24:46,160 --> 00:24:48,360
Correct. 
Now the second foundational 

503
00:24:48,360 --> 00:24:51,720
element requires that the 
product was not substantially 

504
00:24:51,720 --> 00:24:53,760
altered. 
It must reach the consumer in 

505
00:24:53,760 --> 00:24:56,280
essentially the same condition 
that left the manufacturer's 

506
00:24:56,280 --> 00:24:57,880
control. 
This element protects 

507
00:24:57,880 --> 00:25:01,320
manufacturers from unforeseeable
tampering that changes the 

508
00:25:01,320 --> 00:25:04,520
nature of the risk. 
If a consumer buys a standard 

509
00:25:04,520 --> 00:25:09,120
table saw, intentionally removes
the factory installed blade 

510
00:25:09,120 --> 00:25:11,080
guard because it slows down 
their work. 

511
00:25:11,200 --> 00:25:14,640
Hence subsequently severs a 
finger, The manufacturer's 

512
00:25:14,640 --> 00:25:17,160
strict liability is 
extinguished. 

513
00:25:17,320 --> 00:25:19,680
By removing the safety 
equipment, the consumer 

514
00:25:19,680 --> 00:25:22,560
substantially altered the danger
profile of the product. 

515
00:25:23,000 --> 00:25:24,800
The chain of liability is 
broken. 

516
00:25:24,920 --> 00:25:26,840
You broke it. 
You bought the liability. 

517
00:25:26,880 --> 00:25:29,720
Nice. 
Now the third threshold element 

518
00:25:29,720 --> 00:25:31,280
is foreseeable. 
Use. 

519
00:25:31,800 --> 00:25:34,480
The product must be used in a 
way the manufacturer could 

520
00:25:34,480 --> 00:25:37,440
reasonably anticipate. 
And the critical nuance here, 

521
00:25:37,440 --> 00:25:40,600
the one that trips up students, 
is that foreseeable use 

522
00:25:40,800 --> 00:25:43,240
explicitly includes foreseeable 
misuse. 

523
00:25:43,400 --> 00:25:46,000
A manufacturer does not escape 
liability just because the 

524
00:25:46,000 --> 00:25:48,720
consumer was using the product 
incorrectly, as long as that 

525
00:25:48,720 --> 00:25:50,640
incorrect use was highly 
predictable. 

526
00:25:50,920 --> 00:25:53,160
To illustrate this, let us 
explore 2 distinct 

527
00:25:53,160 --> 00:25:55,520
hypotheticals. 
I want you to evaluate them 

528
00:25:55,520 --> 00:25:58,520
based on whether the misuse is 
foreseeable to a commercial 

529
00:25:58,520 --> 00:25:59,640
manufacturer. 
All right. 

530
00:25:59,760 --> 00:26:01,520
Hit me. 
Let's start with an extreme 1 to

531
00:26:01,520 --> 00:26:04,400
find the boundary. 
Let's say I own a heavy Flathead

532
00:26:04,400 --> 00:26:06,560
screwdriver. 
I decide I need to chip away 

533
00:26:06,560 --> 00:26:08,920
some concrete on my patio. 
Not what that's for. 

534
00:26:09,120 --> 00:26:11,160
I don't have a chisel so I took 
the screwdriver. 

535
00:26:11,440 --> 00:26:14,560
Place the Flathead against the 
concrete and start smashing the 

536
00:26:14,560 --> 00:26:16,920
plastic handle with a 3 LB steel
hammer. 

537
00:26:16,920 --> 00:26:20,640
Oh boy, the plastic handle 
shatters and a Shard of hard 

538
00:26:20,640 --> 00:26:25,240
plastic blinds me in one eye. 
Am I using the screwdriver for 

539
00:26:25,240 --> 00:26:28,520
its intended purpose? 
Absolutely not. 

540
00:26:29,120 --> 00:26:32,800
It is designed to turn screws, 
not to act as a masonry chisel. 

541
00:26:33,440 --> 00:26:34,880
Does the manufacturer have to 
pay? 

542
00:26:35,000 --> 00:26:38,040
The manufacturer will likely be 
held strictly liable. 

543
00:26:38,200 --> 00:26:39,640
Really. 
Even though I was hammering. 

544
00:26:39,640 --> 00:26:43,720
It yes, while you are undeniably
misusing the tool, it is an 

545
00:26:43,720 --> 00:26:46,000
overwhelmingly foreseeable 
misuse. 

546
00:26:46,120 --> 00:26:49,120
Any company that manufacturers 
hand tools knows with absolute 

547
00:26:49,120 --> 00:26:51,840
certainty that consumers 
frequently use heavy 

548
00:26:51,840 --> 00:26:54,600
screwdrivers as makeshift 
chisels or pry bars. 

549
00:26:54,600 --> 00:26:57,480
Because that misuse is a known 
reality of the market, the 

550
00:26:57,480 --> 00:27:00,000
manufacturer has a legal duty to
anticipate it. 

551
00:27:00,120 --> 00:27:02,240
They must either design the 
handle with materials strong 

552
00:27:02,240 --> 00:27:05,240
enough to withstand hammer 
strikes, or they must place a 

553
00:27:05,240 --> 00:27:08,840
prominent, unmistakable warning 
on the packaging explicitly 

554
00:27:08,840 --> 00:27:11,600
prohibiting that specific use. 
That makes perfect sense. 

555
00:27:11,600 --> 00:27:13,960
They know human nature. 
They have to design for it. 

556
00:27:14,160 --> 00:27:16,320
Now let's look at a different 
type of misuse. 

557
00:27:17,120 --> 00:27:19,680
I buy a brand new high end 
blender. 

558
00:27:20,440 --> 00:27:24,840
I decided to use it in my garage
to mix highly volatile flammable

559
00:27:24,840 --> 00:27:27,440
paint thinners for a custom car 
project. 

560
00:27:28,200 --> 00:27:31,480
The motorsparks ignites the 
fumes and the blender explodes. 

561
00:27:31,840 --> 00:27:35,200
Blenders are for margaritas and 
smoothies, not industrial 

562
00:27:35,200 --> 00:27:36,720
chemicals. 
Is that foreseeable? 

563
00:27:36,840 --> 00:27:39,720
That crosses the line into 
unforeseeable misuse. 

564
00:27:39,720 --> 00:27:42,560
A company designing a kitchen 
appliance for food preparation 

565
00:27:42,720 --> 00:27:46,400
cannot reasonably be expected to
anticipate that a consumer will 

566
00:27:46,400 --> 00:27:49,840
use it as an industrial chemical
mixer in a garage filled with 

567
00:27:49,840 --> 00:27:52,560
combustible fumes. 
To require a manufacturer to 

568
00:27:52,560 --> 00:27:55,800
design a standard kitchen 
blender with heavy duty spark 

569
00:27:55,800 --> 00:27:59,080
proof explosion resistant 
commercial motors would make the

570
00:27:59,080 --> 00:28:02,440
blender cost $500. 
On destroying its utility for 

571
00:28:02,440 --> 00:28:04,720
the average consumer. 
The law does not require 

572
00:28:04,720 --> 00:28:08,320
manufacturers to guard against 
bizarre, highly idiosyncratic 

573
00:28:08,320 --> 00:28:10,240
misuses. 
The distinction between the 

574
00:28:10,240 --> 00:28:13,120
screwdriver and the blender 
perfectly illuminates where the 

575
00:28:13,120 --> 00:28:16,200
law draws the line. 
So we have established the 

576
00:28:16,200 --> 00:28:19,160
gateway elements. 
The defendant is a merchant. 

577
00:28:19,280 --> 00:28:22,920
The product wasn't substantially
altered and consumer was 

578
00:28:22,920 --> 00:28:26,480
engaging in foreseeable use or 
foreseeable misuse. 

579
00:28:26,600 --> 00:28:30,240
Having cleared those hurdles, 
the analysis naturally zooms in 

580
00:28:30,240 --> 00:28:33,080
on the product itself. 
We arrive at the hole in the 

581
00:28:33,080 --> 00:28:35,000
case. 
What actually makes a product 

582
00:28:35,000 --> 00:28:37,440
legally defective? 
This is the core of the 

583
00:28:37,440 --> 00:28:41,040
litigation. 
The law recognizes 3 distinct 

584
00:28:41,040 --> 00:28:44,400
categories of defect. 
Manufacturing defects, design 

585
00:28:44,400 --> 00:28:47,600
defects, and information 
defects, which we commonly call 

586
00:28:47,600 --> 00:28:50,160
failure to warn. 
To prevail, a plaintiff must 

587
00:28:50,160 --> 00:28:53,120
prove the product was 
unreasonably dangerous due to 

588
00:28:53,120 --> 00:28:54,880
one of these three specific 
failures. 

589
00:28:55,320 --> 00:28:57,680
Let us analyze them 
sequentially, beginning with the

590
00:28:57,680 --> 00:29:00,120
manufacturing defect. 
I conceptualize the 

591
00:29:00,120 --> 00:29:02,520
manufacturing defect as the 
assembly line glitch. 

592
00:29:02,600 --> 00:29:04,840
That's a good way to put it. 
The blueprints drawn up by the 

593
00:29:04,840 --> 00:29:08,120
engineers were flawless. 
The factory machinery is humming

594
00:29:08,120 --> 00:29:12,320
along perfectly for months, but 
on a random Tuesday afternoon, a

595
00:29:12,320 --> 00:29:14,880
calibration sensor fails for 10 
seconds. 

596
00:29:15,080 --> 00:29:18,280
In a manufacturing defect case, 
the specific unit the plaintiff 

597
00:29:18,280 --> 00:29:21,160
purchased departs dangerously 
from its intended design. 

598
00:29:21,400 --> 00:29:24,840
It differs from its millions of 
identical, perfectly safe 

599
00:29:24,840 --> 00:29:26,720
siblings. 
That is the defining 

600
00:29:26,720 --> 00:29:30,360
characteristic. 
The flaw is unique to a specific

601
00:29:30,360 --> 00:29:34,400
batch or even a single unit. 
The classic textbook example is 

602
00:29:34,400 --> 00:29:37,960
the pristine glass bottle of 
soda moving down a conveyor 

603
00:29:37,960 --> 00:29:39,640
belt. 
The design of the bottle is 

604
00:29:39,640 --> 00:29:43,960
perfectly safe, but somehow a 
microscopic Shard of glass from 

605
00:29:43,960 --> 00:29:47,560
a broken machine falls into one 
specific bottle before the cap 

606
00:29:47,560 --> 00:29:49,280
is sealed. 
Out of 1,000,000 bottles 

607
00:29:49,280 --> 00:29:51,840
produced that week, 1 is a 
lethal weapon. 

608
00:29:52,200 --> 00:29:54,520
And to tie this back to our 
overarching theme of strict 

609
00:29:54,520 --> 00:29:58,160
liability, if that one glass 
filled bottle gets through, the 

610
00:29:58,160 --> 00:30:00,800
manufacturer is liable 
regardless of their quality 

611
00:30:00,800 --> 00:30:03,000
control. 
The factory could have a billion

612
00:30:03,000 --> 00:30:06,280
dollar state-of-the-art laser 
inspection system that is 

613
00:30:06,280 --> 00:30:10,240
99.999% effective. 
They could have triple redundant

614
00:30:10,240 --> 00:30:12,800
safety checks. 
If that one bottle makes it to a

615
00:30:12,800 --> 00:30:15,680
consumer's lips and lacerates 
their throat, all of that 

616
00:30:15,680 --> 00:30:17,760
extreme care is legally 
irrelevant. 

617
00:30:17,960 --> 00:30:20,520
The defect existed when the 
product left their control. 

618
00:30:20,760 --> 00:30:23,800
Liability is automatic. 
Precisely building on that, the 

619
00:30:23,800 --> 00:30:26,880
simplicity of the manufacturing 
defect is why it is relatively 

620
00:30:26,880 --> 00:30:30,040
straightforward to litigate. 
You compare the broken unit to 

621
00:30:30,040 --> 00:30:32,680
the blueprint and the flaw is 
obvious. 

622
00:30:32,680 --> 00:30:36,240
But the second category, the 
design defect, is vastly more 

623
00:30:36,240 --> 00:30:38,880
complex and heavily litigated 
because the stakes are 

624
00:30:39,160 --> 00:30:42,440
exponentially higher. 
Right, in a design defect case, 

625
00:30:42,440 --> 00:30:44,600
there was no glitch on the 
assembly line. 

626
00:30:44,960 --> 00:30:47,440
The factory operated exactly as 
intended. 

627
00:30:47,600 --> 00:30:51,040
Every single unit was built 
perfectly to specification. 

628
00:30:51,080 --> 00:30:53,600
The tragedy is that the 
blueprints themselves are 

629
00:30:53,600 --> 00:30:55,720
deadly. 
The implication of a court 

630
00:30:55,720 --> 00:30:57,880
finding a design defect is 
massive. 

631
00:30:58,200 --> 00:31:00,920
It does not just mean one 
plaintiff gets a check, It 

632
00:31:00,920 --> 00:31:03,400
essentially outlaws an entire 
product line. 

633
00:31:03,440 --> 00:31:05,600
Forcing mass recalls and 
redesigns. 

634
00:31:05,720 --> 00:31:08,360
Because the economic 
consequences are so severe, 

635
00:31:08,360 --> 00:31:11,280
courts do not just assume a 
design is defective because an 

636
00:31:11,280 --> 00:31:13,720
injury occurred. 
They employ A rigorous 

637
00:31:13,720 --> 00:31:16,480
analytical framework called the 
Risk Utility Test. 

638
00:31:16,520 --> 00:31:19,880
The fact Finder must weigh the 
inherent statistical risks of 

639
00:31:19,880 --> 00:31:23,120
the design against the utility 
and affordability it provides to

640
00:31:23,120 --> 00:31:25,320
the public. 
To understand the gravity of the

641
00:31:25,320 --> 00:31:28,520
risk utility test, we have to 
look at the dark history of how 

642
00:31:28,520 --> 00:31:30,280
corporations sometimes approach 
it. 

643
00:31:30,480 --> 00:31:34,360
The most infamous example is the
Ford Pinto case from the 1970s. 

644
00:31:34,560 --> 00:31:37,560
Ford designed a compact car 
where the gas tank was 

645
00:31:37,560 --> 00:31:40,880
positioned behind the rear axle,
making it highly susceptible to 

646
00:31:40,880 --> 00:31:44,040
catastrophic explosions in low 
speed rear end collisions. 

647
00:31:44,280 --> 00:31:47,600
The chilling aspect of the Pinto
litigation was the discovery of 

648
00:31:47,600 --> 00:31:50,520
Ford's internal cost benefit 
memos. 

649
00:31:50,920 --> 00:31:53,640
Ford's engineers knew about the 
explosive risk. 

650
00:31:53,960 --> 00:31:57,400
They calculated that installing 
an $11.00 plastic baffle over 

651
00:31:57,400 --> 00:31:59,600
the gas tank would prevent the 
fires. 

652
00:32:00,000 --> 00:32:02,840
But their executives ran a 
strict mathematical formula. 

653
00:32:03,000 --> 00:32:06,040
They're calculated the cost of 
installing the $11.00 part on 

654
00:32:06,040 --> 00:32:09,000
millions of cars, and they 
waited against the projected 

655
00:32:09,000 --> 00:32:12,000
cost of paying out settlements 
for the estimated hundreds of 

656
00:32:12,000 --> 00:32:14,400
people who would burn to death. 
The math told them it was 

657
00:32:14,400 --> 00:32:17,240
cheaper to let people die and 
pay the lawsuits than to fix the

658
00:32:17,240 --> 00:32:19,680
design. 
When jury saw cold corporate 

659
00:32:19,680 --> 00:32:22,960
calculus assigning a dollar 
value to a human life to save 

660
00:32:22,960 --> 00:32:26,040
$11.00 a car, the backlash was 
seismic. 

661
00:32:26,600 --> 00:32:30,520
It highlighted A fatal flaw in 
relying solely on raw corporate 

662
00:32:30,520 --> 00:32:33,560
cost benefit analysis. 
The legal system needed a more 

663
00:32:33,560 --> 00:32:36,640
robust standard to protect human
life while still allowing 

664
00:32:36,640 --> 00:32:40,000
affordable products. 
This led to the absolute vital 

665
00:32:40,000 --> 00:32:43,560
concept within modern design 
defect litigation, the 

666
00:32:43,560 --> 00:32:47,720
plaintiff's burden to prove a 
reasonable alternative design or

667
00:32:47,760 --> 00:32:50,680
RAD. 
The RAD is the linchpin of a 

668
00:32:50,680 --> 00:32:53,600
design defect claim. 
A plaintiff cannot walk into a 

669
00:32:53,600 --> 00:32:56,840
courtroom, point to a complex 
piece of machinery that injured 

670
00:32:56,840 --> 00:33:00,440
them, and simply say this is 
dangerous, make them pay. 

671
00:33:00,440 --> 00:33:04,960
They must affirmatively show the
court a better, safer blueprint.

672
00:33:04,960 --> 00:33:07,480
They have the burden to prove 
that there was a physically and 

673
00:33:07,480 --> 00:33:10,920
economically feasible way to 
build the product safer without 

674
00:33:10,920 --> 00:33:13,680
destroying its core utility. 
Let's test the boundaries of the

675
00:33:13,680 --> 00:33:15,680
rad. 
Say a consumer is using a 

676
00:33:15,680 --> 00:33:18,440
standard walk behind motorized 
lawnmower. 

677
00:33:18,560 --> 00:33:21,760
They slip on wet grass, their 
foot slides under the deck, and 

678
00:33:21,760 --> 00:33:23,880
the spinning blade amputates 
their toe. 

679
00:33:24,080 --> 00:33:26,480
They sue the manufacturer for a 
design defect. 

680
00:33:26,760 --> 00:33:30,200
In court, the plaintiff's expert
witness testifies that the lawn 

681
00:33:30,200 --> 00:33:33,000
mower should have been designed 
with a solid titanium shield 

682
00:33:33,080 --> 00:33:35,520
that instantly drops to the 
ground the moment the operator 

683
00:33:35,520 --> 00:33:38,080
let's go of the handle, 
completely enclosing the blade. 

684
00:33:38,240 --> 00:33:41,520
The court must evaluate whether 
that proposed alternative is 

685
00:33:41,520 --> 00:33:44,040
reasonable. 
Does the titanium drop shield 

686
00:33:44,120 --> 00:33:45,840
eliminate the risk of 
amputation? 

687
00:33:46,280 --> 00:33:50,840
Yes, but at what cost if 
implementing that technology 

688
00:33:50,840 --> 00:33:53,720
increases the weight of the 
lawnmower to 400 lbs, making it 

689
00:33:53,720 --> 00:33:56,640
impossible to push? 
And raises the retail price from

690
00:33:56,640 --> 00:34:00,120
300 to $8000. 
It fails the test. 

691
00:34:00,560 --> 00:34:03,520
It is an alternative design, but
it is not a reasonable one 

692
00:34:03,520 --> 00:34:06,440
because it destroys the economic
feasibility and practical 

693
00:34:06,440 --> 00:34:10,080
utility of a consumer lawnmower.
But if the plaintiff's expert 

694
00:34:10,080 --> 00:34:13,880
instead points out that a simple
heavy duty rubber flap trailing 

695
00:34:13,880 --> 00:34:16,239
from the back of the deck would 
have prevented the foot from 

696
00:34:16,239 --> 00:34:18,560
sliding under. 
And that rubber flap cost 

697
00:34:18,560 --> 00:34:21,400
exactly $2.00 to install and 
doesn't hinder the mowing 

698
00:34:21,400 --> 00:34:23,639
process at all. 
That changes the entire 

699
00:34:23,639 --> 00:34:26,320
analysis. 
Dramatically, that $2.00 rubber 

700
00:34:26,320 --> 00:34:29,480
flap represents a clear, 
reasonable alternative design. 

701
00:34:29,719 --> 00:34:33,040
Because they are rad, existed, 
and was economically feasible, 

702
00:34:33,040 --> 00:34:36,120
the manufacturer's failure to 
utilize it renders their 

703
00:34:36,120 --> 00:34:38,880
original, unguarded design 
legally defective. 

704
00:34:38,960 --> 00:34:41,719
They chose a dangerous blueprint
when a safer, viable 1 was 

705
00:34:41,719 --> 00:34:44,040
available. 
Which brings us to the third and

706
00:34:44,040 --> 00:34:47,600
final defect category, which 
acts as a safety valve for 

707
00:34:47,600 --> 00:34:49,719
products that are inherently 
dangerous but socially 

708
00:34:49,719 --> 00:34:52,800
necessary, the information 
defect. 

709
00:34:52,880 --> 00:34:55,040
Universally known as a failure 
to warn. 

710
00:34:55,320 --> 00:34:58,520
This addresses products with 
hidden dangers that simply 

711
00:34:58,520 --> 00:35:01,400
cannot be designed away, no 
matter how brilliant the 

712
00:35:01,400 --> 00:35:03,400
engineers are. 
Consider a chainsaw. 

713
00:35:03,680 --> 00:35:06,800
You cannot design A chainsaw 
with a soft, blunt chain. 

714
00:35:06,880 --> 00:35:09,760
If you did, it would no longer 
possess the utility of a 

715
00:35:09,760 --> 00:35:12,040
chainsaw. 
Or consider pharmaceuticals. 

716
00:35:12,560 --> 00:35:16,120
A drug designed to aggressively 
lower blood pressure might have 

717
00:35:16,120 --> 00:35:19,520
a severe, unavoidable chemical 
interaction with grapefruit 

718
00:35:19,520 --> 00:35:22,360
juice. 
You cannot design the drug to 

719
00:35:22,360 --> 00:35:26,240
ignore grapefruit juice without 
destroying its medical efficacy.

720
00:35:26,480 --> 00:35:29,080
In these scenarios, strict 
liability is triggered not by 

721
00:35:29,080 --> 00:35:32,000
the physical design, but by the 
manufacturer's failure to 

722
00:35:32,000 --> 00:35:35,400
provide an adequate conspicuous 
warning about the hidden risks 

723
00:35:35,480 --> 00:35:38,600
associated with foreseeable use.
I have a philosophical question 

724
00:35:38,600 --> 00:35:40,800
about this because it seems like
a giant loophole. 

725
00:35:40,800 --> 00:35:43,080
OK, let's hear it. 
If a design is inherently 

726
00:35:43,080 --> 00:35:45,880
dangerous, why don't 
corporations just mandate a 

727
00:35:45,880 --> 00:35:48,600
warning label on absolutely 
everything instead of spending 

728
00:35:48,600 --> 00:35:52,000
millions engineering safer 
designs or facing design defect 

729
00:35:52,000 --> 00:35:54,520
lawsuits? 
Let's see, a car company builds 

730
00:35:54,520 --> 00:35:57,920
a top heavy SUV that they know 
will roll over every single time

731
00:35:57,920 --> 00:36:00,400
a driver takes a left turn at 25
miles an hour. 

732
00:36:00,560 --> 00:36:02,240
Instead of widening the 
wheelbase, they just put a 

733
00:36:02,240 --> 00:36:04,840
massive neon yellow sticker 
right in the middle of the 

734
00:36:04,840 --> 00:36:09,880
steering wheel that says warning
vehicle will violently flip over

735
00:36:09,920 --> 00:36:13,040
if you turn left. 
Does that aggressive warning 

736
00:36:13,040 --> 00:36:15,640
shield them from a design defect
claim? 

737
00:36:15,720 --> 00:36:19,120
The courts take that exact logic
and shut it down immediately. 

738
00:36:19,120 --> 00:36:21,160
Oh, good. 
That hypothetical reveals a 

739
00:36:21,160 --> 00:36:24,640
profound insight into the legal 
hierarchy of defects. 

740
00:36:25,160 --> 00:36:28,640
A warning label cannot legally 
cure a fundamentally flawed 

741
00:36:28,640 --> 00:36:31,440
design if a reasonable 
alternative design was 

742
00:36:31,480 --> 00:36:34,200
economically feasible. 
To use the vernacular, you 

743
00:36:34,200 --> 00:36:37,480
cannot simply slap a warning 
sticker on a ticking time bomb 

744
00:36:37,480 --> 00:36:39,400
and consider your legal duty 
fulfilled. 

745
00:36:39,480 --> 00:36:41,400
So the law demands engineering 
over ink. 

746
00:36:41,720 --> 00:36:44,240
Exactly. 
If the car manufacturer could 

747
00:36:44,240 --> 00:36:48,840
have widened the wheelbase for 
$100 per vehicle to stabilize 

748
00:36:48,840 --> 00:36:52,080
the SUV and prevent the 
rollovers, they have an absolute

749
00:36:52,080 --> 00:36:55,080
legal mandate to do so. 
A warning is only an acceptable 

750
00:36:55,200 --> 00:36:58,600
substitute for a safer design 
when a safer design is 

751
00:36:58,600 --> 00:37:00,840
physically or economically 
impossible. 

752
00:37:01,120 --> 00:37:03,480
It is the last resort, not the 
first line of defense. 

753
00:37:03,720 --> 00:37:07,120
There is also a major exam trap 
buried within the failure to 

754
00:37:07,120 --> 00:37:10,520
warn doctrine regarding the type
of danger that requires a 

755
00:37:10,520 --> 00:37:12,440
warning. 
The sources are clear that a 

756
00:37:12,440 --> 00:37:16,000
manufacturer is not required to 
warn consumers about dangers 

757
00:37:16,000 --> 00:37:19,800
that are open and obvious. 
The law assumes A baseline level

758
00:37:19,800 --> 00:37:21,320
of common sense among the 
public. 

759
00:37:21,400 --> 00:37:24,080
You do not need to print a 
warning label on the blade of a 

760
00:37:24,080 --> 00:37:26,800
chef's knife instructing the 
user that the metal is sharp and

761
00:37:26,800 --> 00:37:30,200
will cut human flesh. 
The danger is open, obvious, and

762
00:37:30,200 --> 00:37:32,640
visually inherent to the utility
of the object. 

763
00:37:32,800 --> 00:37:35,840
The duty to warn is strictly 
reserved for hidden or latent 

764
00:37:35,840 --> 00:37:38,520
dangers, like the chemical 
interaction with grapefruit 

765
00:37:38,520 --> 00:37:40,520
juice. 
Or a household cleaning spray 

766
00:37:40,520 --> 00:37:44,160
that invisibly produces toxic 
chloramine gas if a consumer 

767
00:37:44,160 --> 00:37:48,440
mistakenly mixes it with bleach.
That is a dense, intricate web 

768
00:37:48,440 --> 00:37:51,960
of rules for the third pillar. 
We have navigated the biological

769
00:37:51,960 --> 00:37:55,480
hazards of animals, the 
explosive force of abnormally 

770
00:37:55,480 --> 00:37:58,840
dangerous activities and the 
mass market complexities of 

771
00:37:58,840 --> 00:38:01,440
defective products. 
We are now shifting gears for 

772
00:38:01,440 --> 00:38:03,880
the final substantive section of
our analysis. 

773
00:38:04,040 --> 00:38:07,200
We are leaving behind physical 
bodily injury and the 

774
00:38:07,200 --> 00:38:08,960
destruction of tangible 
property. 

775
00:38:09,440 --> 00:38:12,840
We are entering the realm of 
neighborhood disputes, invisible

776
00:38:12,840 --> 00:38:17,160
invasions and property rights. 
We are exploring the law of 

777
00:38:17,160 --> 00:38:19,560
nuisance. 
This transition highlights the 

778
00:38:19,560 --> 00:38:23,440
expansive elegance of tort law. 
It recognizes that human 

779
00:38:23,440 --> 00:38:26,520
well-being involves more than 
just keeping our bones intact 

780
00:38:26,520 --> 00:38:29,240
and our bank accounts full. 
It protects our Peace of Mind 

781
00:38:29,280 --> 00:38:32,120
and our fundamental right to 
enjoy the land we own or rent. 

782
00:38:32,240 --> 00:38:35,480
It is crucial to distinguish 
nuisance from negligence and 

783
00:38:35,480 --> 00:38:37,800
equally vital to distinguish it 
from trespass. 

784
00:38:37,800 --> 00:38:41,320
Trespass is a physical invasion.
If my neighbor physically walks 

785
00:38:41,320 --> 00:38:44,040
across my lawn or intentionally 
throws a baseball through my 

786
00:38:44,040 --> 00:38:47,280
window, that is a trespass. 
Tangible matter crossed the 

787
00:38:47,280 --> 00:38:50,160
property line. 
Nuisance, conversely, governs 

788
00:38:50,160 --> 00:38:53,000
the intangible interferences 
with your use and enjoyment of 

789
00:38:53,000 --> 00:38:55,320
the property. 
We are dealing with invasions of

790
00:38:55,360 --> 00:38:59,280
odor, noise, light pollution and
subterranean vibrations. 

791
00:38:59,480 --> 00:39:02,360
Things you cannot physically 
hold in your hand, but which 

792
00:39:02,360 --> 00:39:04,280
make living on the land 
miserable. 

793
00:39:04,680 --> 00:39:08,240
The doctrine is divided into two
distinct halves, private 

794
00:39:08,240 --> 00:39:11,360
nuisance and public nuisance. 
Let's begin with Private 

795
00:39:11,360 --> 00:39:15,120
Nuisance, which the episode 
guide frames as the classic me 

796
00:39:15,120 --> 00:39:18,320
versus my neighbor dynamic. 
To establish a claim for private

797
00:39:18,320 --> 00:39:21,880
nuisance, the plaintiff must 
prove 2 mandatory elements 

798
00:39:21,880 --> 00:39:25,120
regarding the interference. 
It must be substantial and it 

799
00:39:25,120 --> 00:39:27,960
must be unreasonable. 
The term substantial feels 

800
00:39:27,960 --> 00:39:30,960
subjective, but the law demands 
an objective standard. 

801
00:39:31,080 --> 00:39:33,200
Correct the. 
Standard is ruthlessly 

802
00:39:33,200 --> 00:39:35,760
objective. 
The interference must be severe 

803
00:39:35,760 --> 00:39:38,720
enough to bother a person of 
ordinary sensibilities within 

804
00:39:38,720 --> 00:39:41,360
that specific community. 
It must amount to more than a 

805
00:39:41,360 --> 00:39:44,360
slight inconvenience or a petty 
aesthetic annoyance. 

806
00:39:44,520 --> 00:39:47,800
The historic common law phrasing
echoed in modern jury 

807
00:39:47,800 --> 00:39:50,560
instructions is that the law 
does not concern itself with 

808
00:39:50,560 --> 00:39:52,440
trifles. 
This brings up one of my 

809
00:39:52,440 --> 00:39:56,040
favorite concepts from the 
reading the wind chimes rule. 

810
00:39:57,480 --> 00:40:01,280
Suppose my neighbor hangs a set 
of small, delicate wind chimes 

811
00:40:01,280 --> 00:40:04,080
on their back porch. 
They tinkle lightly in the 

812
00:40:04,080 --> 00:40:06,920
breeze. 
However, I happen to suffer from

813
00:40:06,920 --> 00:40:10,880
a rare severe neurological 
condition where high pitched 

814
00:40:11,080 --> 00:40:14,960
unpredictable chiming triggers 
debilitating day long migraines.

815
00:40:14,960 --> 00:40:18,440
To me, the harm is not a prifle.
The harm is catastrophic. 

816
00:40:18,680 --> 00:40:21,000
It ruins my ability to live in 
my own house. 

817
00:40:21,080 --> 00:40:23,520
Can I win a nuisance claim? 
You cannot. 

818
00:40:23,520 --> 00:40:26,280
Your lawsuit will be dismissed 
because the standard is ordinary

819
00:40:26,280 --> 00:40:29,040
sensibilities, not extraordinary
vulnerabilities. 

820
00:40:29,080 --> 00:40:31,200
An average person in the 
community would not be 

821
00:40:31,200 --> 00:40:33,960
substantially bothered by the 
sound out of small wind chimes. 

822
00:40:34,160 --> 00:40:37,760
The law forces society to live 
by an average tolerance level. 

823
00:40:38,360 --> 00:40:41,040
Otherwise, the most 
hypersensitive person in any 

824
00:40:41,040 --> 00:40:44,240
neighborhood would become a 
tyrant, able to dictate the 

825
00:40:44,240 --> 00:40:46,760
behavior of everyone around them
through the threat of 

826
00:40:46,760 --> 00:40:48,640
litigation. 
Live and let lives. 

827
00:40:48,640 --> 00:40:50,120
Well, let's escalate the 
scenario. 

828
00:40:50,560 --> 00:40:52,640
The neighbor takes down the 
delicate wind chimes. 

829
00:40:52,800 --> 00:40:56,240
And they replace them with a 
concert grade 2000 Watt 

830
00:40:56,240 --> 00:40:59,600
subwoofer system on their patio 
and they start playing 

831
00:40:59,600 --> 00:41:04,280
aggressive bass heavy electronic
music at 3 Laro AM every night. 

832
00:41:04,480 --> 00:41:06,320
Now the walls of my house are 
vibrating. 

833
00:41:06,600 --> 00:41:10,360
That interference is undeniably 
substantial to an ordinary 

834
00:41:10,360 --> 00:41:12,520
person. 
But I haven't won the case yet. 

835
00:41:12,640 --> 00:41:15,120
I still have to prove prove the 
second element that the 

836
00:41:15,120 --> 00:41:18,800
interference is unreasonable. 
Proving unreasonableness 

837
00:41:18,800 --> 00:41:21,880
requires the court to engage in 
a complex balancing test. 

838
00:41:22,000 --> 00:41:25,040
The fact Finder must weigh the 
gravity of the injuries suffered

839
00:41:25,040 --> 00:41:27,600
by the plaintiff against the 
social utility of the 

840
00:41:27,600 --> 00:41:30,400
defendant's conduct. 
What is the value of the 

841
00:41:30,400 --> 00:41:33,840
defendant's activity to society,
and is it appropriate for that 

842
00:41:33,840 --> 00:41:36,760
specific locale? 
To really test this balancing 

843
00:41:36,760 --> 00:41:39,720
act, I am going to present a 
scenario where I am genuinely 

844
00:41:39,720 --> 00:41:42,560
suffering, but the defendant's 
activity is completely normal. 

845
00:41:42,720 --> 00:41:44,560
OK, let's hear it. 
I work the night shift in an 

846
00:41:44,560 --> 00:41:46,600
emergency room. 
I sleep during the day. 

847
00:41:46,880 --> 00:41:48,880
My neighbor, who is retired, 
loves to garden. 

848
00:41:49,040 --> 00:41:52,400
Every afternoon at 2:00 PM, they
go into their backyard, turn on 

849
00:41:52,400 --> 00:41:56,080
a portable radio to a moderate 
volume, and listen to baseball 

850
00:41:56,080 --> 00:41:58,880
games while they weed. 
The sound of the radio bleeds 

851
00:41:58,880 --> 00:42:01,280
through my window. 
It constantly wakes me up. 

852
00:42:01,280 --> 00:42:04,040
I am exhausted. 
My work at the hospital is 

853
00:42:04,040 --> 00:42:06,000
suffering. 
My life is unraveling. 

854
00:42:06,280 --> 00:42:09,720
The harm is massive. 
Do I win the nuisance claim? 

855
00:42:10,240 --> 00:42:13,560
Despite the genuine severity of 
your sleep deprivation, you will

856
00:42:13,560 --> 00:42:16,280
lose the nuisance claim. 
When the court balances the 

857
00:42:16,280 --> 00:42:18,840
equities, they look at the 
utility and context of the 

858
00:42:18,840 --> 00:42:21,200
conduct. 
Listening to a radio at a 

859
00:42:21,200 --> 00:42:23,800
moderate volume during daylight 
hours in a residential 

860
00:42:23,800 --> 00:42:26,320
neighborhood possesses high 
social utility. 

861
00:42:26,600 --> 00:42:30,200
It is a standard, expected and 
appropriate use of residential 

862
00:42:30,200 --> 00:42:33,400
property. 
Court law refuses to bend to 

863
00:42:33,400 --> 00:42:36,920
accommodate the subjective, 
unusual schedules of individual 

864
00:42:36,920 --> 00:42:39,400
plaintiffs. 
What constitutes a nuisance is 

865
00:42:39,400 --> 00:42:43,040
highly dependent on context. 
An industrial smokestack 

866
00:42:43,040 --> 00:42:46,160
belching soot might be a 
nuisance in a quiet residential 

867
00:42:46,160 --> 00:42:48,720
suburb. 
But that exact same smokestack 

868
00:42:48,800 --> 00:42:52,080
might be perfectly legally 
acceptable in a heavily zoned, 

869
00:42:52,080 --> 00:42:54,560
bustling downtown manufacturing 
district. 

870
00:42:54,760 --> 00:42:57,480
Context is everything. 
The episode guide provides clear

871
00:42:57,480 --> 00:43:00,640
examples of what does tip the 
scales into unreasonableness in 

872
00:43:00,640 --> 00:43:04,480
a residential setting. 
The 3.0 AM electronic music we 

873
00:43:04,480 --> 00:43:08,840
mentioned foul, toxic odors 
drifting from a newly 

874
00:43:08,840 --> 00:43:12,240
constructed commercial pig farm 
directly into an established 

875
00:43:12,240 --> 00:43:15,720
suburban subdivision. 
Blinding stadium grade security 

876
00:43:15,720 --> 00:43:18,640
floodlights aimed directly into 
a neighbor's bedroom window. 

877
00:43:18,680 --> 00:43:22,720
In those scenarios, the gravity 
of the HARM completely eclipses 

878
00:43:22,720 --> 00:43:25,880
any arguable utility the 
defendant might claim for 

879
00:43:25,880 --> 00:43:27,560
operating in that specific 
location. 

880
00:43:27,640 --> 00:43:30,800
That perfectly summarizes the 
localized disputes of private 

881
00:43:30,800 --> 00:43:33,400
nuisance. 
We must now pivot to public 

882
00:43:33,400 --> 00:43:35,800
nuisance. 
A public nuisance operates on a 

883
00:43:35,800 --> 00:43:39,160
vastly different scale. 
It is defined as an unreasonable

884
00:43:39,160 --> 00:43:41,720
interference with a right common
to the general public. 

885
00:43:41,800 --> 00:43:45,000
Specifically interfering with 
the health, safety, morals, or 

886
00:43:45,000 --> 00:43:47,200
property rights of the community
at large. 

887
00:43:47,200 --> 00:43:50,320
Instead of two neighbors arguing
over a property line, we are 

888
00:43:50,320 --> 00:43:52,320
dealing with macro level 
disruptions. 

889
00:43:52,360 --> 00:43:55,800
A corporation illegally dumping 
hazardous waste into a town's 

890
00:43:55,800 --> 00:43:59,240
shared drinking water reservoir.
A protest group intentionally 

891
00:43:59,240 --> 00:44:02,240
and illegally barricading a 
major Interstate highway for 

892
00:44:02,240 --> 00:44:06,160
days. 
Someone operating a massive 

893
00:44:06,160 --> 00:44:09,320
illegal gambling and 
prostitution syndicate out of a 

894
00:44:09,320 --> 00:44:12,840
warehouse, which draws a spike 
of violent crime and drug 

895
00:44:12,840 --> 00:44:16,200
trafficking that degrades the 
safety of the entire surrounding

896
00:44:16,200 --> 00:44:17,880
neighborhood. 
Because the harm in those 

897
00:44:17,880 --> 00:44:21,080
scenarios is dispersed across 
the entire public, the legal 

898
00:44:21,080 --> 00:44:24,000
response is generally public. 
It is typically the government, 

899
00:44:24,120 --> 00:44:27,240
a city attorney, a District 
Attorney, or the state attorney 

900
00:44:27,240 --> 00:44:31,120
general that files a lawsuit to 
abate a public nuisance on 

901
00:44:31,120 --> 00:44:34,160
behalf of the citizens. 
However, from an academic and 

902
00:44:34,160 --> 00:44:37,720
exam perspective, the most 
heavily tested, intricate issue 

903
00:44:37,960 --> 00:44:41,160
is the standing requirement for 
a private citizen to bring a 

904
00:44:41,160 --> 00:44:44,400
lawsuit for public nuisance. 
The public nuisance standing 

905
00:44:44,400 --> 00:44:45,960
trap. 
This is crucial. 

906
00:44:46,120 --> 00:44:49,080
If a chemical plant is illegally
polluting the town's air, 

907
00:44:49,240 --> 00:44:52,200
causing a low level smog that 
makes everyone in a five mile 

908
00:44:52,200 --> 00:44:56,520
radius cough and suffer mild eye
irritation, a random citizen 

909
00:44:56,520 --> 00:44:59,560
cannot just file a massive tort 
lawsuit hoping for a multi 

910
00:44:59,560 --> 00:45:01,320
$1,000,000 payday. 
They cannot. 

911
00:45:01,920 --> 00:45:04,480
To possess legal standing as a 
private plaintiff in a public 

912
00:45:04,480 --> 00:45:08,840
nuisance case, you must prove a 
very specific legal threshold. 

913
00:45:08,840 --> 00:45:12,000
You have suffered a unique harm.
This means a harm that is 

914
00:45:12,000 --> 00:45:16,520
distinct in kind, not merely 
distinct in degree from the harm

915
00:45:16,520 --> 00:45:19,760
suffered by the general public. 
This distinction between kind 

916
00:45:19,760 --> 00:45:22,880
and degree is tricky. 
Let's use the barricaded Hwy. 

917
00:45:22,880 --> 00:45:26,240
example to map it out. 
A corporation illegally dumps a 

918
00:45:26,240 --> 00:45:31,000
massive, immovable pile of 
concrete rubble across the only 

919
00:45:31,000 --> 00:45:33,120
major highway leading into a 
town. 

920
00:45:33,400 --> 00:45:35,000
The highway is shut down for a 
week. 

921
00:45:35,240 --> 00:45:38,800
The entire Community is harmed 
because their daily commutes are

922
00:45:38,800 --> 00:45:41,520
severely delayed. 
If I am a citizen who had to 

923
00:45:41,520 --> 00:45:44,720
drive an extra 2 hours every day
on back roads, I have suffered 

924
00:45:44,720 --> 00:45:46,600
harm. 
Can I sue the corporation for 

925
00:45:46,600 --> 00:45:49,400
public nuisance? 
No, your two hour delay is a 

926
00:45:49,400 --> 00:45:51,960
harm of the exact same kind as 
the general public's harm, 

927
00:45:51,960 --> 00:45:54,560
inconvenience and delay. 
Even if your commute was the 

928
00:45:54,560 --> 00:45:57,800
longest in the town, meaning 
your harm was greater in degree,

929
00:45:57,960 --> 00:45:59,920
it is still the same category of
harm. 

930
00:46:00,080 --> 00:46:02,880
The law blocks you from suing 
because if every delayed 

931
00:46:02,880 --> 00:46:05,600
commuter could file an 
individual tort claim, the 

932
00:46:05,600 --> 00:46:08,520
courts would be instantly 
paralyzed by 10s of thousands of

933
00:46:08,520 --> 00:46:10,720
identical lawsuits over a single
incident. 

934
00:46:10,960 --> 00:46:13,600
But let's change my identity in 
the hypothetical. 

935
00:46:13,880 --> 00:46:15,760
What if I am not just a 
commuter? 

936
00:46:16,080 --> 00:46:18,760
What if I own a large 
independent grocery store 

937
00:46:18,960 --> 00:46:21,520
located immediately adjacent to 
the rubble pile? 

938
00:46:21,720 --> 00:46:24,240
Because the highway is 
physically blocked, my 

939
00:46:24,240 --> 00:46:27,160
commercial delivery trucks 
absolutely cannot reach my 

940
00:46:27,160 --> 00:46:29,720
loading docks. 
Over the course of the week, I 

941
00:46:29,720 --> 00:46:35,440
lose $50,000 in perishable 
inventory, produce, dairy, meat 

942
00:46:35,600 --> 00:46:38,800
that rots in the stalled tracks.
That completely alters the 

943
00:46:38,800 --> 00:46:41,640
standing analysis. 
Your financial loss from ruined 

944
00:46:41,640 --> 00:46:45,120
commercial inventory is a harm 
fundamentally distinct in kind 

945
00:46:45,120 --> 00:46:46,920
from the general public's 
commuting delay. 

946
00:46:47,000 --> 00:46:50,520
You have suffered a specific, 
unique economic injury directly 

947
00:46:50,520 --> 00:46:53,440
caused by the public nuisance. 
Therefore, you cross the 

948
00:46:53,440 --> 00:46:55,880
standing threshold. 
You are legally permitted to 

949
00:46:55,880 --> 00:46:59,280
step out of the crowd and sue 
the corporation individually for

950
00:46:59,280 --> 00:47:00,880
the damage caused to your 
business. 

951
00:47:01,160 --> 00:47:03,480
It is a brilliant system of 
filtration. 

952
00:47:03,840 --> 00:47:07,320
The unique harm rule keeps the 
courthouse doors open for 

953
00:47:07,320 --> 00:47:11,000
catastrophic individual losses 
while slamming them shut against

954
00:47:11,000 --> 00:47:12,680
a flood of generalized 
grievances. 

955
00:47:12,720 --> 00:47:14,800
We have now fully traversed the 
landscape. 

956
00:47:14,960 --> 00:47:18,240
We've dissected the biological 
risks of animals, the volatile 

957
00:47:18,240 --> 00:47:21,800
physics of abnormally dangerous 
activities, the mass market 

958
00:47:21,800 --> 00:47:25,360
economics of products liability,
and the invisible boundary lines

959
00:47:25,360 --> 00:47:28,080
of nuisance. 
It is time to synthesize these 

960
00:47:28,080 --> 00:47:31,560
doctrines and test how they 
operate in a synchronized exam 

961
00:47:31,560 --> 00:47:34,560
style environment. 
Let's move into our outro and 

962
00:47:34,560 --> 00:47:36,800
the clinical challenge. 
A vital exercise. 

963
00:47:37,880 --> 00:47:41,320
The true test of legal knowledge
is not reciting the rule, but 

964
00:47:41,320 --> 00:47:43,520
applying it. 
Florida State to a messy fact 

965
00:47:43,520 --> 00:47:44,880
pattern. 
Present the facts of the 

966
00:47:44,880 --> 00:47:47,360
challenge. 
Here is the scenario derived 

967
00:47:47,360 --> 00:47:51,160
from our episode guide. 
A consumer walks into a massive 

968
00:47:51,280 --> 00:47:54,360
nationwide big box electronics 
retailer. 

969
00:47:54,360 --> 00:47:57,440
They purchase a brand new high 
end action camera. 

970
00:47:57,560 --> 00:48:01,080
The consumer takes the sealed 
box home, opens it, and uses the

971
00:48:01,080 --> 00:48:04,160
camera exactly as instructed by 
the manual to film themselves 

972
00:48:04,160 --> 00:48:07,480
repairing a car in their garage.
Unbeknownst to the consumer, the

973
00:48:07,480 --> 00:48:10,600
retailer or the distributor, the
camera's internal battery was 

974
00:48:10,600 --> 00:48:13,720
manufactured in an overseas 
factory with a microscopic 

975
00:48:13,720 --> 00:48:15,640
chemical impurity in the lithium
core. 

976
00:48:15,840 --> 00:48:18,640
While the camera is resting on a
workbench during this normal 

977
00:48:18,640 --> 00:48:22,480
use, the defective battery 
overheats violently, catches 

978
00:48:22,480 --> 00:48:26,680
fire and burns the interior of 
the consumer's garage, causing 

979
00:48:26,680 --> 00:48:29,640
$10,000 in structural property 
damage. 

980
00:48:29,800 --> 00:48:33,480
The facts present a classic 
multi layered strict products 

981
00:48:33,480 --> 00:48:36,400
liability scenario. 
Let us breakdown the analysis 

982
00:48:36,400 --> 00:48:38,920
step by step. 
Question one is the threshold 

983
00:48:38,920 --> 00:48:42,200
issue. 
Can the consumer sue the local 

984
00:48:42,200 --> 00:48:44,880
big box retail store? 
The store's lawyers will argue 

985
00:48:44,880 --> 00:48:46,160
they didn't engineer the 
battery. 

986
00:48:46,440 --> 00:48:49,560
They didn't mix the lithium. 
They simply unloaded a pallet of

987
00:48:49,560 --> 00:48:52,880
sealed cardboard boxes from a 
truck and scanned A barcode at 

988
00:48:52,880 --> 00:48:55,560
the cash register. 
They had zero physical 

989
00:48:55,560 --> 00:48:57,160
interaction with a dangerous 
component. 

990
00:48:57,280 --> 00:48:59,520
The retailer's argument is 
highly logical from a 

991
00:48:59,520 --> 00:49:02,640
layperson's perspective and 
entirely worthless in a strict 

992
00:49:02,640 --> 00:49:05,280
liability jurisdiction. 
Yes, the retail store can be 

993
00:49:05,280 --> 00:49:07,400
sued. 
We run the elements. 

994
00:49:07,720 --> 00:49:09,800
Does the store routinely deal in
electronics? 

995
00:49:10,400 --> 00:49:12,920
Yes, making them a merchant. 
Did the product reach the 

996
00:49:12,920 --> 00:49:15,440
consumer unaltered? 
Yes, it was in a sealed box. 

997
00:49:15,520 --> 00:49:19,040
By placing the defective camera 
into the stream of commerce, the

998
00:49:19,040 --> 00:49:21,920
retailer becomes strictly liable
to the end user. 

999
00:49:22,160 --> 00:49:25,400
The consumer is not required to 
navigate international law to 

1000
00:49:25,400 --> 00:49:27,920
sue the overseas battery 
manufacturer. 

1001
00:49:28,200 --> 00:49:31,760
They can serve the massive 
retailer in their own town. 

1002
00:49:32,360 --> 00:49:35,520
Question 2. 
What specific type of defect are

1003
00:49:35,520 --> 00:49:38,280
we looking at here? 
This is a textbook manufacturing

1004
00:49:38,280 --> 00:49:41,000
defect. 
The prompt specifies that the 

1005
00:49:41,000 --> 00:49:44,160
battery contained A microscopic 
chemical impurity in the 

1006
00:49:44,160 --> 00:49:46,480
lithium. 
This language indicates that the

1007
00:49:46,480 --> 00:49:49,680
overall engineering blueprints 
for the battery model were safe,

1008
00:49:50,480 --> 00:49:53,160
but this specific unit 
physically departed from its 

1009
00:49:53,160 --> 00:49:55,760
intended design during the 
assembly process. 

1010
00:49:55,840 --> 00:49:58,800
It is the technological 
equivalent of the glass Shard in

1011
00:49:58,800 --> 00:50:01,720
the soda bottle. 
And finally, Question 3, which 

1012
00:50:01,720 --> 00:50:05,080
drives home the theme of our 
entire session, is proof of the 

1013
00:50:05,080 --> 00:50:08,160
retail stores negligence 
required to win the case. 

1014
00:50:08,360 --> 00:50:11,720
Can the store mount a defense by
proving they exercise 

1015
00:50:11,720 --> 00:50:14,600
extraordinary care and selecting
their suppliers and training 

1016
00:50:14,600 --> 00:50:17,640
their staff? 
No evidence the stores care is 

1017
00:50:17,640 --> 00:50:19,840
inadmissible as a defense to 
liability. 

1018
00:50:20,000 --> 00:50:22,480
We act reasonably and we didn't 
know it was dangerous. 

1019
00:50:22,480 --> 00:50:25,480
As a shield against a negligence
claim, it shatters instantly 

1020
00:50:25,480 --> 00:50:28,520
against strict liability. 
The plaintiff proved the product

1021
00:50:28,520 --> 00:50:31,400
was defective when it left the 
merchants hands and that it was 

1022
00:50:31,400 --> 00:50:35,200
being used foreseeably. 
Those facts alone trigger the 

1023
00:50:35,200 --> 00:50:39,160
$10,000 property damage payout. 
Liability is automatic. 

1024
00:50:39,160 --> 00:50:42,280
That structural walkthrough is 
exactly what is required for 

1025
00:50:42,280 --> 00:50:45,640
exam mastery. 
You isolate the doctrine, run 

1026
00:50:45,640 --> 00:50:48,800
the elements chronologically, 
and aggressively filter out the 

1027
00:50:48,800 --> 00:50:51,440
emotional distractors. 
When you step back and look at 

1028
00:50:51,440 --> 00:50:54,600
the progression we have made in 
this series, it is remarkable. 

1029
00:50:54,600 --> 00:50:58,920
We began our torts journey 
analyzing into evaluating the 

1030
00:50:58,920 --> 00:51:01,200
malice of people throwing 
deliberate punches. 

1031
00:51:01,200 --> 00:51:05,120
Then we evolved to negligence, 
measuring the unreasonableness 

1032
00:51:05,120 --> 00:51:07,520
of people who simply forgot to 
check their blind spots. 

1033
00:51:07,840 --> 00:51:11,400
And today we conquered strict 
liability, where the law strips 

1034
00:51:11,400 --> 00:51:15,000
away intent and carelessness 
entirely, demanding financial 

1035
00:51:15,000 --> 00:51:18,560
restitution simply because a 
highly dangerous, socially 

1036
00:51:18,560 --> 00:51:22,240
tolerated activity resulted in 
inevitable collateral damage. 

1037
00:51:22,280 --> 00:51:25,360
You have constructed a massive, 
sophisticated foundation in 

1038
00:51:25,360 --> 00:51:27,800
physical injury law. 
You have mastered the 

1039
00:51:27,800 --> 00:51:31,400
architecture of physical torts. 
But the legal landscape is not 

1040
00:51:31,400 --> 00:51:34,440
static. 
It is constantly mutating to 

1041
00:51:34,480 --> 00:51:36,800
address the realities of a 
changing society. 

1042
00:51:37,040 --> 00:51:39,920
Throughout our discussions, we 
have focused almost exclusively 

1043
00:51:39,920 --> 00:51:44,400
on physical carnage, a tiger 
bite, a dynamite shockwave and 

1044
00:51:44,400 --> 00:51:48,320
exploding lithium battery or 
toxic fumes wafting over a 

1045
00:51:48,320 --> 00:51:50,960
property line Which? 
Perfectly sets the stage for Day

1046
00:51:50,960 --> 00:51:53,400
6. 
We are preparing to leave the 

1047
00:51:53,400 --> 00:51:56,360
realm of shattered bones and 
burn garages behind. 

1048
00:51:56,440 --> 00:51:59,560
We are moving into the invisible
architecture of society, the 

1049
00:51:59,560 --> 00:52:02,640
mind, the reputation and the 
digital identity. 

1050
00:52:02,800 --> 00:52:05,160
To bridge that gap, I want to 
leave you with the provocative 

1051
00:52:05,160 --> 00:52:07,720
conceptual challenge to analyse 
before our next session. 

1052
00:52:07,760 --> 00:52:10,560
We have spent an hour 
establishing how the Restatement

1053
00:52:10,560 --> 00:52:14,040
402 a strictly regulates 
defective physical products sold

1054
00:52:14,040 --> 00:52:16,760
by merchants. 
But consider the frontier of 

1055
00:52:16,760 --> 00:52:19,120
modern commerce. 
What happens when the product 

1056
00:52:19,120 --> 00:52:22,000
causing the devastation isn't a 
tangible object you can hold in 

1057
00:52:22,000 --> 00:52:23,920
your hand? 
What happens when the product is

1058
00:52:23,920 --> 00:52:27,560
an advanced AI algorithm sold to
a bank that autonomously 

1059
00:52:27,560 --> 00:52:31,480
executes a bias decision causing
catastrophic life altering 

1060
00:52:31,480 --> 00:52:34,440
financial ruin to a consumer? 
The traditional elements we 

1061
00:52:34,440 --> 00:52:37,040
relied on today just seem to 
warp and break under that 

1062
00:52:37,040 --> 00:52:39,520
pressure. 
Who is the merchant in the chain

1063
00:52:39,520 --> 00:52:42,640
of a decentralized open source 
neural network? 

1064
00:52:42,800 --> 00:52:47,000
How on earth does a plaintiff 
prove a design defect or propose

1065
00:52:47,000 --> 00:52:50,640
a reasonable alternative design 
when the machine's code is a 

1066
00:52:50,640 --> 00:52:55,000
black box that is constantly 
learning and rewriting itself 

1067
00:52:55,240 --> 00:52:58,120
without human input? 
Those are the exact questions 

1068
00:52:58,120 --> 00:53:00,000
currently paralyzing the lower 
courts. 

1069
00:53:00,280 --> 00:53:02,840
The historic doctrines of the 
Industrial Revolution are being 

1070
00:53:02,840 --> 00:53:05,480
forced to govern the artificial 
intelligence revolution. 

1071
00:53:05,520 --> 00:53:08,520
It is the cutting edge legal 
frontier you will be tasked with

1072
00:53:08,520 --> 00:53:11,360
navigating in practice. 
Keep questioning the boundaries 

1073
00:53:11,360 --> 00:53:14,120
of these rules, keep analyzing 
the underlying economic 

1074
00:53:14,120 --> 00:53:17,760
policies, and we we will see you
on Day 6 to explore the torts of

1075
00:53:17,760 --> 00:53:20,360
the mind. 
All right, everyone, up to this 

1076
00:53:20,360 --> 00:53:22,680
point in our journey through 
torts, everything is revolved 

1077
00:53:22,680 --> 00:53:26,520
around 1 central idea, fault. 
We've been hunting for blame, 

1078
00:53:26,680 --> 00:53:29,360
whether it's the intentional act
in a battery case or the 

1079
00:53:29,360 --> 00:53:31,120
carelessness in a negligence 
case. 

1080
00:53:31,600 --> 00:53:34,160
Well, today we're stepping 
through the looking glass into a

1081
00:53:34,160 --> 00:53:37,360
totally different world. 
Welcome to strict liability. 

1082
00:53:37,520 --> 00:53:39,640
Where fault? 
Well, it just doesn't matter. 

1083
00:53:40,400 --> 00:53:43,240
Think of it this way. 
On one side of the map you have 

1084
00:53:43,240 --> 00:53:46,360
the world we know where 
liability is tied to a wrongful 

1085
00:53:46,360 --> 00:53:48,160
act. 
You did something bad or you 

1086
00:53:48,160 --> 00:53:50,720
weren't careful enough. 
But on the other side, in the 

1087
00:53:50,720 --> 00:53:53,880
world of strict liability, we 
throw that whole idea out the 

1088
00:53:53,880 --> 00:53:56,080
window. 
Here, a defendant can do 

1089
00:53:56,080 --> 00:53:59,240
everything right, take every 
precaution known to humanity, 

1090
00:53:59,400 --> 00:54:01,760
and still be held liable for the
harm they cause. 

1091
00:54:01,920 --> 00:54:05,960
It's a complete mind shift. 
So you have to be asking why on 

1092
00:54:05,960 --> 00:54:08,720
earth would the law do this? 
It seems unfair, right? 

1093
00:54:08,960 --> 00:54:12,160
Well, it's all about policy. 
The law has made a decision that

1094
00:54:12,160 --> 00:54:15,280
some activities are just 
inherently so dangerous that if 

1095
00:54:15,280 --> 00:54:18,080
you choose to engage in them, 
you have to bear the full cost 

1096
00:54:18,080 --> 00:54:21,120
of any accidents that happen. 
It's basically seen as a cost of

1097
00:54:21,120 --> 00:54:23,480
doing business. 
The risk is factored right into 

1098
00:54:23,480 --> 00:54:26,320
the price of the activity and 
the person profiting from it is 

1099
00:54:26,320 --> 00:54:28,080
the one who has to pay when 
things go wrong. 

1100
00:54:28,960 --> 00:54:32,160
OK so here's our game plan. 
We're going to start with the 

1101
00:54:32,160 --> 00:54:35,840
classic cases, animals and 
abnormally dangerous activities.

1102
00:54:36,200 --> 00:54:39,440
Then we're hitting the big one. 
The topic you are absolutely 

1103
00:54:39,440 --> 00:54:42,240
going to see on your exam? 
Strict roducts liability. 

1104
00:54:42,560 --> 00:54:45,600
We'll finish U with nuisance and
then put it all together with a 

1105
00:54:45,600 --> 00:54:46,520
practice. 
HYO. 

1106
00:54:47,120 --> 00:54:50,080
First up, animals. 
Now, the law isn't subtle here. 

1107
00:54:50,080 --> 00:54:52,360
It draws a massive bright line 
in the sand. 

1108
00:54:52,680 --> 00:54:55,400
On one side you've got your 
golden retriever, on the other 

1109
00:54:55,400 --> 00:54:58,040
you've got a pet cobra. 
And let me tell you, the rules 

1110
00:54:58,040 --> 00:54:59,960
for those two could not be more 
different. 

1111
00:55:00,280 --> 00:55:03,080
Your first job on an exam is to 
figure out which kind of animal 

1112
00:55:03,080 --> 00:55:06,000
you're dealing with. 
So here's the deal for your 

1113
00:55:06,000 --> 00:55:09,920
everyday domesticated animals, 
dogs, cats, cows. 

1114
00:55:10,240 --> 00:55:12,720
The law has what we call the one
bite rule. 

1115
00:55:13,080 --> 00:55:15,840
It's a bit of a saying, but the 
idea is that the owner is 

1116
00:55:15,840 --> 00:55:19,040
generally not strictly liable 
until they know the animal is 

1117
00:55:19,040 --> 00:55:21,880
dangerous. 
That first bite, or the first 

1118
00:55:21,880 --> 00:55:24,800
time it acts viciously, puts the
owner on notice. 

1119
00:55:24,960 --> 00:55:28,000
After that, the switch is 
flipped to strict liability. 

1120
00:55:28,280 --> 00:55:31,920
But for wild animals, Oh no, 
there is no one bite rule. 

1121
00:55:32,240 --> 00:55:35,400
If you keep a tiger, you are 
strictly liable from the very 

1122
00:55:35,400 --> 00:55:37,800
beginning for the harm that 
tiger causes. 

1123
00:55:38,080 --> 00:55:41,880
A bear does not get a free bite.
And listen up, because this is a

1124
00:55:41,880 --> 00:55:44,880
classic exam question. 
There's a special little sub 

1125
00:55:44,880 --> 00:55:47,080
rule just for trespassing 
livestock. 

1126
00:55:47,360 --> 00:55:50,040
If your cows or sheep get loose,
wander onto your neighbor's 

1127
00:55:50,040 --> 00:55:54,160
property and say, trample their 
prize winning petunias, you are 

1128
00:55:54,160 --> 00:55:56,400
strictly liable for that 
foreseeable damage. 

1129
00:55:56,560 --> 00:55:59,520
It's a simple, clean rule and 
professors love to test it. 

1130
00:56:00,160 --> 00:56:02,640
OK, let's move on to our second 
big category. 

1131
00:56:02,880 --> 00:56:06,160
This is for activities that are 
so risky we sometimes call them 

1132
00:56:06,160 --> 00:56:09,400
ultra hazardous. 
The key idea here is that these 

1133
00:56:09,400 --> 00:56:12,920
are things that pose a severe 
risk of harm that cannot be 

1134
00:56:12,920 --> 00:56:15,000
eliminated no matter how careful
you are. 

1135
00:56:15,480 --> 00:56:18,440
The danger is baked into the 
very nature of the activity 

1136
00:56:18,440 --> 00:56:20,800
itself. 
The whole idea really comes from

1137
00:56:20,800 --> 00:56:23,720
this foundational English case, 
Rylands V Fletcher. 

1138
00:56:24,320 --> 00:56:26,760
You had a guy who built a giant 
reservoir on his land. 

1139
00:56:27,120 --> 00:56:30,040
Unbeknownst to him, there were 
old abandoned mine shafts 

1140
00:56:30,040 --> 00:56:32,400
underneath. 
The water broke through and 

1141
00:56:32,400 --> 00:56:34,240
flooded his neighbor's working 
coal mine. 

1142
00:56:34,680 --> 00:56:36,560
The court's ruling was simple 
and profound. 

1143
00:56:36,920 --> 00:56:39,800
You brought that unnatural 
amount of water onto your land 

1144
00:56:39,800 --> 00:56:43,000
for your own purposes. 
If it escapes and does damage, 

1145
00:56:43,080 --> 00:56:44,520
you're libel. 
Period. 

1146
00:56:44,800 --> 00:56:47,560
You keep it at your peril now 
for a long time. 

1147
00:56:47,560 --> 00:56:50,760
Courts use this kind of 
cumbersome 6 factor balancing 

1148
00:56:50,760 --> 00:56:53,000
test to figure out what 
qualified is abnormally 

1149
00:56:53,000 --> 00:56:54,840
dangerous. 
They'd weigh all these things, 

1150
00:56:55,000 --> 00:56:57,360
the degree of risk, the 
potential for harm, whether it 

1151
00:56:57,360 --> 00:57:00,040
was common. 
It was a very holistic, squishy 

1152
00:57:00,040 --> 00:57:02,120
analysis. 
As you can imagine, that made it

1153
00:57:02,120 --> 00:57:04,320
really hard to predict the 
outcome, which is why the law 

1154
00:57:04,320 --> 00:57:05,960
started to move in a clearer 
direction. 

1155
00:57:06,680 --> 00:57:08,920
And here it is. 
The modern test, which you'll 

1156
00:57:08,920 --> 00:57:11,680
find in the third restatement, 
is so much cleaner. 

1157
00:57:11,920 --> 00:57:14,680
It boils everything down to two 
simple questions. 

1158
00:57:14,920 --> 00:57:18,880
One, does the activity create a 
foreseeable and major risk of 

1159
00:57:18,880 --> 00:57:21,480
harm even when you're being as 
careful as possible? 

1160
00:57:21,680 --> 00:57:24,560
And two, is this activity 
something the average person 

1161
00:57:24,560 --> 00:57:26,440
does? 
Is it a matter of common usage? 

1162
00:57:26,800 --> 00:57:29,760
If the answer to the first is 
yes and the second is no, you've

1163
00:57:29,760 --> 00:57:32,880
got an abnormally dangerous 
activity for your exam. 

1164
00:57:33,000 --> 00:57:34,680
This is the analysis you want to
use. 

1165
00:57:34,760 --> 00:57:36,800
It's direct and it gets you to 
the right answer. 

1166
00:57:37,160 --> 00:57:39,640
So what kind of stuff are we 
really talking about? 

1167
00:57:40,000 --> 00:57:42,880
Well, the classic examples are 
things like using dynamite for 

1168
00:57:42,880 --> 00:57:44,960
blasting. 
Even if you're an expert, the 

1169
00:57:44,960 --> 00:57:47,240
vibrations can shatter in 
neighbors windows. 

1170
00:57:47,880 --> 00:57:50,240
Or think about crop dusting from
an airplane with toxic 

1171
00:57:50,240 --> 00:57:52,560
pesticides. 
The wind can carry that stuff 

1172
00:57:52,640 --> 00:57:54,680
anywhere. 
Storing huge amounts of 

1173
00:57:54,680 --> 00:57:57,000
gasoline, handling radioactive 
waste. 

1174
00:57:57,280 --> 00:58:01,120
These are the slam dunk cases. 
OK, everybody take a deep breath

1175
00:58:01,120 --> 00:58:03,600
because we are now arriving at 
the main event. 

1176
00:58:03,880 --> 00:58:07,520
This is without a doubt the most
important and most heavily 

1177
00:58:07,520 --> 00:58:11,720
tested area of strict liability.
Defective products that harm 

1178
00:58:11,720 --> 00:58:14,160
consumers. 
This is the law that governs 

1179
00:58:14,200 --> 00:58:17,600
everything from your laptop to 
your car to the food you eat. 

1180
00:58:18,440 --> 00:58:21,080
This slide right here. 
This is your Holy Grail. 

1181
00:58:21,080 --> 00:58:24,000
For products liability. 
You have to have this four part 

1182
00:58:24,000 --> 00:58:27,320
framework called to win. 
A plaintiff has to show 4 

1183
00:58:27,320 --> 00:58:29,520
things. 
One, the defendant is a 

1184
00:58:29,520 --> 00:58:33,920
merchant, 2 the product had a 
defect, 3 the product wasn't 

1185
00:58:33,920 --> 00:58:36,840
substantially changed after it 
left the defendant's hands, and 

1186
00:58:36,840 --> 00:58:39,480
four, the plaintiff was using 
the product in a foreseeable 

1187
00:58:39,480 --> 00:58:41,480
way. 
Let's dig into each of these. 

1188
00:58:41,920 --> 00:58:45,800
First up, the easiest defect to 
spot, the manufacturing defect. 

1189
00:58:46,400 --> 00:58:49,040
This is a one off mistake. 
It's a glitch in the assembly 

1190
00:58:49,040 --> 00:58:51,200
line. 
The designer's blueprint was 

1191
00:58:51,200 --> 00:58:54,080
perfectly safe, but one item 
that came off the line is messed

1192
00:58:54,080 --> 00:58:56,320
up. 
The classic law school example 

1193
00:58:56,320 --> 00:59:01,400
is the soda bottling plant where
999,999 bottles are fine, but 

1194
00:59:01,400 --> 00:59:04,040
one bottle accidentally ends up 
with a Shard of glass in it. 

1195
00:59:04,400 --> 00:59:07,960
That's a manufacturing defect. 
The second type of defect is 

1196
00:59:07,960 --> 00:59:10,880
much bigger. 
In a design defect, the problem 

1197
00:59:10,880 --> 00:59:14,360
isn't a one off glitch. 
The problem is the blueprint 

1198
00:59:14,360 --> 00:59:17,040
itself. 
Every single product coming off 

1199
00:59:17,040 --> 00:59:19,680
the assembly line is dangerous 
because it was designed that way

1200
00:59:20,120 --> 00:59:23,000
and the test scores To use here 
is to ask, was there a 

1201
00:59:23,000 --> 00:59:25,960
reasonable alternative design, 
what we call a rad? 

1202
00:59:26,320 --> 00:59:29,480
Could the manufacturer have made
a safer, economically feasible 

1203
00:59:29,480 --> 00:59:31,560
version that wouldn't destroy 
the product's purpose? 

1204
00:59:32,000 --> 00:59:35,760
And #3 is the information defect
or failure to warn? 

1205
00:59:36,080 --> 00:59:38,840
This is for products that have 
some kind of hidden danger that 

1206
00:59:38,840 --> 00:59:42,080
can't be safely designed away. 
The product itself might be 

1207
00:59:42,080 --> 00:59:44,480
fine, but it's dangerous if you 
don't know how to use it 

1208
00:59:44,480 --> 00:59:47,200
properly or you're not aware of 
a non obvious risk. 

1209
00:59:47,720 --> 00:59:50,760
The defect then isn't in the 
product, it's in the lack of a 

1210
00:59:50,760 --> 00:59:53,640
clear and adequate warning that 
comes with the product. 

1211
00:59:54,160 --> 00:59:55,800
Now, here's a huge point for 
your exam. 

1212
00:59:55,920 --> 00:59:58,480
If you get hurt by a defective 
product you bought at Target, 

1213
00:59:58,480 --> 01:00:00,720
who can you sue? 
Just the company in China that 

1214
01:00:00,720 --> 01:00:03,120
made it? 
No, you can sue anyone and 

1215
01:00:03,120 --> 01:00:05,360
everyone in the commercial chain
of distribution. 

1216
01:00:05,480 --> 01:00:08,720
That means the manufacturer, the
wholesaler, the distributor, and

1217
01:00:08,720 --> 01:00:10,880
yes, even the retail store that 
sold it to you. 

1218
01:00:11,200 --> 01:00:13,160
Target can't just say, hey, we 
didn't make it. 

1219
01:00:13,160 --> 01:00:15,120
If they sold it, they are on the
hook. 

1220
01:00:15,720 --> 01:00:18,520
All right, let's shift gears to 
our last major topic for the 

1221
01:00:18,520 --> 01:00:20,960
day, nuisance. 
Now be careful. 

1222
01:00:21,160 --> 01:00:24,080
Nuisance is a different beast. 
We're no longer talking about 

1223
01:00:24,080 --> 01:00:27,320
physical injuries to a person. 
We are now protecting a person's

1224
01:00:27,320 --> 01:00:30,120
right to the use and quiet 
enjoyment of their land. 

1225
01:00:30,400 --> 01:00:33,520
You could call this the law of 
really, really bad neighbors. 

1226
01:00:34,040 --> 01:00:36,120
The nuisance breaks down into 
two categories. 

1227
01:00:36,160 --> 01:00:38,440
You have private nuisance, which
is a substantial and 

1228
01:00:38,440 --> 01:00:41,720
unreasonable interference with 
one person or a small group of 

1229
01:00:41,720 --> 01:00:44,440
people's use of their land. 
Think your neighbor starting a 

1230
01:00:44,440 --> 01:00:46,600
death metal band that practices 
at 3:00 AM. 

1231
01:00:46,920 --> 01:00:48,840
Then you have public nuisance, 
which affects the health, 

1232
01:00:48,840 --> 01:00:51,360
safety, and welfare of the 
community at large, like a 

1233
01:00:51,360 --> 01:00:53,520
factory spewing toxic smoke over
the whole town. 

1234
01:00:53,840 --> 01:00:55,920
Now, usually only a public 
official like the Attorney 

1235
01:00:55,920 --> 01:00:57,640
General can sue for a public 
nuisance. 

1236
01:00:57,760 --> 01:01:00,120
A private citizen can only bring
a claim if they've suffered some

1237
01:01:00,120 --> 01:01:02,440
kind of unique harm, something 
different in kind from what 

1238
01:01:02,440 --> 01:01:05,480
everyone else is experiencing. 
So what's the magic word in 

1239
01:01:05,480 --> 01:01:07,880
nuisance? 
It's unreasonable, but it 

1240
01:01:07,880 --> 01:01:10,160
doesn't just mean annoying in 
law. 

1241
01:01:10,160 --> 01:01:12,480
Unreasonable means we do a 
balancing test. 

1242
01:01:12,680 --> 01:01:15,120
The court is going to weigh the 
severity of the harm to the 

1243
01:01:15,120 --> 01:01:18,200
plaintiff against the social 
value or utility of what the 

1244
01:01:18,200 --> 01:01:20,760
defendant is doing. 
So the noise from an ambulance 

1245
01:01:20,760 --> 01:01:24,040
siren has huge social utility. 
The noise from your neighbors 

1246
01:01:24,040 --> 01:01:26,360
illegal fireworks display, not 
so much. 

1247
01:01:26,480 --> 01:01:29,680
That's the balance. 
OK, enough with the theory. 

1248
01:01:29,880 --> 01:01:32,800
We've covered a ton of ground. 
Now let's see how these rules 

1249
01:01:32,800 --> 01:01:36,040
actually play out in a classic 
exam style fact pattern. 

1250
01:01:36,600 --> 01:01:40,080
So here's our hypo. 
A person buys a new camera from 

1251
01:01:40,080 --> 01:01:43,120
a big box store. 
The battery inside has a small 

1252
01:01:43,120 --> 01:01:45,080
impurity, a mistake from the 
factory. 

1253
01:01:45,640 --> 01:01:48,880
While using the camera exactly 
as the instructions said, the 

1254
01:01:48,880 --> 01:01:52,560
battery overheats, starts a fire
and damages his car. 

1255
01:01:52,960 --> 01:01:55,480
Simple facts. 
Let's run the analysis. 

1256
01:01:55,640 --> 01:01:57,560
The claim is strict products 
liability. 

1257
01:01:57,760 --> 01:02:01,160
We grab our four part test. 1 Is
the retailer A merchant? 

1258
01:02:01,320 --> 01:02:05,080
Yes, the facts say major 
retailer. 2 Was the product 

1259
01:02:05,080 --> 01:02:06,640
defective? 
Absolutely. 

1260
01:02:06,840 --> 01:02:09,560
That slight impurity from the 
factory is a textbook 

1261
01:02:09,560 --> 01:02:13,160
manufacturing defect. 3 Was it 
substantially altered? 

1262
01:02:13,320 --> 01:02:17,520
No, the facts tell us he was 
using it as instructed. 4 Was 

1263
01:02:17,520 --> 01:02:20,360
the use foreseeable? 
Of course, using a camera to 

1264
01:02:20,360 --> 01:02:22,440
film things is exactly what it's
for. 

1265
01:02:22,880 --> 01:02:25,000
So does the plaintiff win 
against the retailer? 

1266
01:02:25,120 --> 01:02:28,280
Yes, it's a slam dunk. 
And notice what we didn't ask. 

1267
01:02:28,400 --> 01:02:31,040
We never asked if the retailer 
was careless or did anything 

1268
01:02:31,040 --> 01:02:32,360
wrong. 
We didn't have to. 

1269
01:02:32,600 --> 01:02:34,640
That is the essence of strict 
liability. 

1270
01:02:35,320 --> 01:02:38,440
So let's wrap it all up. 
This slide is your mental 

1271
01:02:38,440 --> 01:02:41,480
checklist for any strict 
liability question on an exam. 

1272
01:02:42,080 --> 01:02:44,560
When you're reading a fact 
pattern, you ask yourself, is 

1273
01:02:44,560 --> 01:02:47,200
there an animal? 
If so, is it wild or domestic? 

1274
01:02:47,600 --> 01:02:50,280
Is there an activity? 
If so, could it be abnormally 

1275
01:02:50,280 --> 01:02:52,480
dangerous? 
Is there a product that caused 

1276
01:02:52,480 --> 01:02:54,280
harm? 
Then you run your four part 

1277
01:02:54,280 --> 01:02:56,280
test. 
Or finally, is there an 

1278
01:02:56,280 --> 01:02:57,760
interference with someone's 
land? 

1279
01:02:57,920 --> 01:03:01,040
That's your signal for nuisance.
If you can learn to spot these 

1280
01:03:01,040 --> 01:03:03,720
issues and apply these 
frameworks, you will absolutely 

1281
01:03:03,720 --> 01:03:05,240
crush this part of the exam.