So imagine you run a company. You buy the absolute best
equipment on the market, you hire the brightest safety
engineers, and you train your staff relentlessly.
Right, you're doing everything by the book.
Exactly, You follow every single federal and state regulation to
the letter. You are basically the gold
standard of caution. OK, I see where this is going.
Yeah. So then a freak accident
happens, someone gets hurt, you end up in court and the judge
looks at you and says, well, we agree, you did absolutely
nothing wrong. Your behavior was flawless.
Right. But then the judge says now
write a check for $10 million. Welcome to the mind bending
legal universe of strict liability.
I mean, that scenario completely shatters the foundational
assumption most of you bring into law school.
It really does. Yeah.
Up until this point in your torts journey, you know you've
been meticulously trained to look for blame.
Exactly. You evaluate the intentional
purposeful strike in battery, or you search for the unreasonable
oversight and negligence. Yeah, our entire sense of
justice feels anchored to fault. But for this deep dive, we are
pivoting to a radically different framework.
Liability without fault. We are exploring a legal
mechanism where the actors care. Prudence and, you know, good
intentions are just completely legally irrelevant.
It feels like a glitch in the matrix.
If we spend all this time learning how to measure
reasonable care, how to establish breach and duty,
suddenly throwing all of that out the window feels deeply
unfair. Unfair from a moral standpoint?
Definitely. Yeah, if I'm looking at this
through the lens of individual morality, punishing someone who
did everything right seems to violate the basic social
contract. How do courts justify this?
Well, there has to be a mechanism that explains why the
law suddenly abandons the search for the bad actor.
Right, So what is it? The mechanism is economic, not
moral. Economic.
Yeah, strict liability abandons the lens of individual morality
because it's driven by broad societal policy.
So we are shifting from a jurisprudence of who did
something wrong. To a jurisprudence of who is in
the best position to absorb the financial shock of an inevitable
tragedy. Ah, OK.
This brings us to the foundational concepts of risk
shifting and the cost of doing business.
Precisely. Society has determined that
certain activities are just so inherently dangerous, or certain
commercial relationships are so heavily asymmetrical that the
actor choosing to engage in them must internalize the cost of the
inevitable accidents. Internalizing externalities.
Let me try to break down how that actually functions the real
world, because this is where the theory turns into math for you.
Go for it. When a company mass produces
1,000,000 toasters, they know with statistical certainty that
despite their best engineering, maybe one of those toasters is
going to have a catastrophic wiring failure.
Right, and burn down someone's kitchen.
Exactly. It's an inevitable externality
of mass production. So the question the law faces
Well, who pays for that burned down kitchen, right?
If we require the homeowner to prove the massive appliance
corporation was negligent, the homeowner almost always loses.
Because they don't have access to the factory floor or the
internal emails or the engineering schematics.
Exactly. They are at a profound
disadvantage. So the law shifts the risk, it
says, to the corporation, if you want the privilege of profiting
from the mass market, you will act as an insurer for the
injuries your products cause. Regardless of your fault.
And the brilliant part of that
economic policy is of the corporation funds that
insurance, right? They don't just eat the loss out
of the goodness of their hearts. Of course not.
They calculate the statistical cost of those burned down
kitchens, say $1,000,000 a year in payouts, and they divide that
cost by the million toasters they sell.
So they raise the retail price of every single toaster by
$1.00. Yeah, the burden of the tragedy
doesn't fall solely on the unlucky victim.
And it doesn't bankrupt the company either.
It is distributed across the entire consumer base.
The people who bought the 999,999 safe toasters are
effectively subsidizing the one person whose life was ruined by
the defective 1. That is the exact mathematical
reality of strict liability. It forces dangerous activities
and mass commerce to pay their own way in society.
The price of the product reflects its true cost in blood
and property. Damage.
Wow. And if a product or activity is
so dangerous that internalizing those costs makes it too
expensive to sell, then market forces will naturally eliminate
it. Which is the ultimate goal of
the law anyway. So we are going to see this
economic philosophy play out across what your episode guide
calls the three pillars of strict liability.
Animals abnormal, normally dangerous activities and
products. Liability.
Plus, we'll finish with the distinct property tort of
nuisance. Let's begin with the first
pillar. This takes us away from modern
corporate boardrooms and back to the most primal, ancient roots
of the doctrine. Strict liability for animals.
Right. This area of law was developing
long before the Industrial Revolution, dealing with the
basic realities of agrarian life.
And the rule here is not a monolith, is it?
The law strictly divides animals into 3 distinct categories.
Yes, domesticated animals, wild animals, and livestock.
For anyone preparing for a final exam or the bar, keeping these
three buckets completely separate is absolutely
mandatory. Oh, blurring the lines between
those categories is the most common way students lose points.
Let us establish the boundaries, starting with domesticated
animals. We are talking about the pets
that share our homes, cats, perhaps a pot bellied pig or a
riding horse. The baseline common law rule for
this category is that there is no automatic strict liability.
None at all, right? Because these animals are
generally A pustom to living alongside humans without causing
severe harm, the law affords them a presumption of safety.
But that presumption vanishes the moment the owner receives
notice that their specific pet is an exception to the rule.
Which triggers the famous one bite rule.
The phrasing one bite is incredibly catchy, but it also
feels like a trap. It suggests that every dog is
legally entitled to a free mauling before the owner faces
any consequences. The phrase is misleading for a
few reasons. First, a bite is not strictly
required. The legal threshold is scienter.
Scienter meaning prior knowledge of a dangerous propensity.
Exactly. If your dog aggressively lunges,
snaps and tries to attack a mail carrier, but the carrier manages
to jump behind a gate before teeth make contact with skin,
you still have sienter. Because you are now on notice
that the animal has a vicious tendency, right?
2nd, the idea that the first incident is free ignores the
rest of tort law. The victim of that first bite
cannot sue under strict liability, but they can
absolutely sue you for ordinary negligence if you fail to act
reasonably in controlling the dog.
That distinction between the negligence pathway and the
strict liability pathway is crucial.
We came across a Texas case in our research, Dunnings V Castro,
that illustrates this perfectly. Oh, that's a great example.
Yeah, so in that case, a mail carrier was approaching a house
when a large dog suddenly lunged at the window, barking
furiously. The carrier was so startled he
stepped backward, fell down the porch steps and suffered a
severe injury. The dog never touched him, and
the dog had absolutely no history of viciousness.
So when the carrier sued under strict liability, the court
threw that specific claim out. They threw it out because
without prior notice of a dangerous propensity, the
stripped liability switch remains in the off position.
The dog was presumed safe, and it had never given the owner a
reason to believe otherwise. But, and this is key, the court
allowed the lawsuit to move forward under a negligence
theory. Yes, the court said.
Essentially, look, you have a massive loud dog and you let it
roam freely in the front room, right next to the walkway where
you know the mail carrier arrives every day at noon.
A jury might find that was a careless, unreasonable way to
manage your property. It proves that the One Bite rule
only acts as a gatekeeper for the superpower of strict
liability. That sequence on an exam should
always be first look for scienter.
Yes, if the owner knew the dog was dangerous, strict liability
applies and the plaintiff wins automatically.
If the owner did not know, strict liability failed, but you
must immediately pivot to analyze whether the owner was
negligent. Exactly.
Now assume the owner does have scienter.
The dog has a history of biting. The strict liability switch has
been flipped. How does that change the owner's
legal position? It changes their position from a
standard citizen into a guarantor of public safety.
Wow, so once I know my dog is vicious, my level of care
becomes legally irrelevant? Completely irrelevant.
You could buy a reinforced steel cage.
You could hire a professional dog handler.
I could use a titanium leash and an escape proof harness.
And if by some absolute freak occurrence, a meteor strikes the
cage, breaking the lock, and the dog escapes and bites someone,
you are writing a check. The extreme precautions I took
cannot be entered into evidence to save me.
Not at all. You kept the dangerous animal at
your own absolute peril. Which serves as the perfect
transition into the second category, wild animals.
Tigers, bears, venomous snakes, pet chimpanzees.
Yeah, the law takes a strict liability switch that we just
discussed and permanently solders it into the on position
from the moment of birth. There is no grace period.
There is no requirement for prior notice or scienter.
The rationale being that you cannot domesticate a species in
a single lifetime or even a few generations.
The danger is biologically baked in.
But let me throw a hypothetical at you, because this is where
exams love to prey on human empathy.
I know exactly the what kind you mean.
What if I acquire A Bengal tiger as a blind, helpless infant cub?
I bottle feed it. It sleeps at the foot of my bed.
It plays with your golden retriever.
Exactly over five years, it is never so much as hissed at a
human being. It thinks it was a house cat.
OK, if it accidentally scratches a guess during playtime, surely
the court looks at the individual animals.
Immaculate biography and adjust the standard the.
Court will ignore the biography entirely.
Really. Yes, subjective tameness is an
illusion the law refuses to entertain.
This is perhaps the most heavily tested distractor in this
subtopic. So the legal standard is
dictated exclusively by the biological taxonomy of the
species. Exactly.
A Bengal tiger is classified as a wild animal.
Therefore, the owner is strictly liable for any harm
characteristic of that wild animal.
Regardless of how gentle this specific tiger appeared to be.
If you see a paragraph on an exam detailing how sweet, well
trained and docile a bear or a lion was, you should mentally
redact it. It is placed there solely to
tempt you into applying A negligent standard.
Biology overrides biography. That is a clean rule.
Now, what about the final animal category?
Livestock. We were talking about cattle,
sheep, horses, pigs. This feels distinct because we
aren't usually dealing with maulings or physical attacks.
Right, we're dealing with wandering herds and property
destruction. The harm is primarily economic
and agricultural. So the baseline common law rule
is straightforward. An owner of livestock is
strictly liable for the foreseeable property damage
caused by their animals if they trespass onto another person's
land. If you're herd of cattle breaks
through a barrier, ronders onto your neighbor's farm and
tramples their season's corn crop, you are paying for the
corn. It does not matter if you built
a sturdy fence or if a random trespasser left the gate open.
But exploring the historical geography of this rule reveals
how tort law adapts to local economies.
Oh, definitely. The strict liability baseline
time we just discussed is the English common law approach,
right? Yes, heavily adopted in the
densely populated, heavily farmed areas of the eastern
United States. It is a fence in jurisdiction.
The burden is entirely on the livestock owner to keep their
animals contained. Because the landscape dictated
the law in dense agricultural areas, a single wandering cow
could devastate a family's livelihood in an hour.
But as the United States expanded westward into the vast
arid plains, that English common law rule made no economic sense.
You had massive cattle operations grazing on millions
of acres of open range. Asking ranchers to build
thousands of miles of fencing to contain their herds was
economically impossible. So the Western states flipped
the doctrine on its head. They created fence out
jurisdictions. In these areas, the burden
shifted to the farmer growing the crops.
The law essentially said if you want to grow delicate corn in
the middle of open cattle country, you have the duty to
build a sturdy legal fence to keep the wandering herds out.
If the farmer feels to build a proper fence and the cows eat
the crops, the cattle rancher is not liable at all.
The burden of protection shifted, but we must be precise
here. Right, because even in a fence
out jurisdiction, strict liability still exists, it just
has a prerequisite. Yes.
If the crop farmer does build a legally adequate fence and a
particularly aggressive herd of cattle smashes through it and
destroys the harvest, the cattle owner is strictly liable.
The Western statutes essentially created a condition precedent.
Build a wall, and if the wall fails through no fault of yours,
the strict liability rule activates.
It is a fascinating study in how the concept of reasonable burden
shifts depending on whether you are in a farming economy or
ranching economy. Which brings us to our second
pillar. We are moving from the
biological uncontrollable danger of wild animals to human driven
activities that share that exact same uncontrollable nature.
If a wild tiger represents A biological hazard that cannot be
tamed, we are now looking for the industrial equivalent.
This is the doctrine of abnormally dangerous or ultra
hazardous activities. To understand the modern
application of this doctrine, we really have to anchor ourselves
in the Industrial Revolution. The foundational tact here is
the 1868 English case of Rylands V Fletcher.
It is arguably the moment modern strict liability for land use
was born. The facts are deceptively
simple, but the implications were revolutionary.
The defendant Rylands was a mill owner who needed a reservoir to
supply water to his textile mill.
He hired independent, competent engineers and contractors to
build it on his land. And while excavating, the
contractors discover a series of old abandoned vertical coal mine
shafts. Instead of properly sealing them
with concrete, they just fill them with soil and build the
reservoir over them. When they fill the massive
baking with water, the immense downward pressure blows out the
poorly sealed shafts. The water rushes through the
underground network and completely floods the active
working coal mine next door, which happens to be owned by the
plaintiff Fletcher. Fletcher's business is ruined
and he sues. The complication that paralyzed
the lower courts was that Rylands, the landowner, was not
personally negligent. He didn't know about the shafts.
He hired experts to do the job. Under the rigid rules of
negligence at the time, Rylands seemed insulated from liability.
But when the case reached the House of Lords, Lord Cairns
articulated a new standard. He distinguished between the
natural use of land and a non natural use.
Gathering millions of gallons of water on top of a porous
abandoned mine system is a non natural use.
The House of Lords held that if a person brings something onto
their land that is likely to do mischief, if it escapes, they
must keep it in at their peril. If it escapes, they are
permissive case answerable for all the natural consequences.
That holding birth, The idea that certain activities are so
inherently fraught with massive peril that engaging in them
operates as a strict liability trigger.
Over the decades, American courts refined that 1868 logic
into the modern 2 pronged analytical framework found in
the Restatement of Torts. For an activity to be classified
as abnormally dangerous today, it must meet 2 rigorous
criteria. 1st the activity must create a foreseeable risk of
serious harm, even when reasonable care is exercised.
2nd, the activity must not be a matter of common usage in the
Community. Let's dissect the first prong,
the inability to eliminate the risk through reasonable care.
This means the danger isn't a byproduct of human sloppiness,
it is baked into the physics or chemistry of the ACT itself.
The authoritative examples from the episode guide are blasting
with dynamite, crop dusting with toxic chemicals and the storage
of massive quantities of hazardous waste.
Consider the dynamite example. You can hire the world's leading
seismologists. You can use state-of-the-art
laser guided detonation systems. You can calculate the structural
integrity of the surrounding bedrock down to the millimeter.
But the moment you detonate, the shock waves travel through the
Earth in fundamentally unpredictable ways.
You simply cannot guarantee that the vibrations will not crack
the foundation of a house half a mile away.
Because the risk of serious harm remains present regardless of
the money and expertise thrown at safety, the law imposes
strict liability. So similar to the Tame Tiger
distractor if an exam fact pattern spends a whole paragraph
describing a construction company's flawless,
state-of-the-art blasting procedures.
You need to recognize that is a trap.
The extreme care is legally irrelevant if the activity
itself is classified as ultra hazardous.
It is irrelevant to liability. It might be relevant to
preventing punitive damages, but for the underlying strict
liability tort, the fact that they blasted and caused damage
is the beginning and the end of the inquiry.
Now let's look at the second prong, which often confuses
people. The activity must not be a
matter of common usage. This is an important boundary.
I want to test this logic with an analogy.
If I get behind the wheel of a heavy SUV, ignore the speed
limit and drive 90 miles an hour through a narrow residential St.
next to an elementary school. That is a terrifyingly dangerous
activity. It creates a massive foreseeable
risk of serious fatal harm based purely on the danger level.
Does that make driving a car an abnormally dangerous activity
subject to strict liability? It does not, and examining why
it fails the test is highly illuminating.
OK, lay it out. Driving a car, even driving a
car recklessly fails both prongs of the ultra hazardous test.
Let us address the second prong first.
Common usage. Almost every adult in the
community drives. Exactly.
The risks associated with automobiles are mutually created
and mutually absorbed by the public at large.
It is not an unusual localized industrial hazard introduced by
a single actor. It is the lifeblood of modern
transportation. And it fails the first prong as
well, right? Because, unlike dynamite, the
danger of driving can be effectively eliminated by the
exercise of reasonable care. If you obey the speed limit,
maintain your brakes, and keep your eyes on the road, the
activity is generally safe. The danger in my hypothetical
wasn't baked into the car. The danger was caused by my
reckless execution of the driving.
That is the defining line. Because driving can be made safe
with reasonable care, we use the negligent framework to police
it. When you drive 90 in a school
zone, you have violently breached your duty of care and
you will be sued for negligence. Strict liability is held in
reserve for the true anomalies. It targets activities that
cannot be made safe and are not commonly performed by the
average citizen. That contains the doctrine
beautifully. It keeps strict liability from
swallowing the entire tort system.
We reserve it for the industrial tigers.
Which brings us to the third pillar.
Your episode guide refers to this as the big one.
We are leaving the realm of rare, massive industrial
blasting and entering the everyday world of mass market
commerce. We are talking about strict
products liability. This is unequivocally the most
frequently tested area in this domain, and it is the area that
will intersect with your daily life most often.
We are shifting from localized dangers on a specific piece of
land. To the mass distribution of
vehicles, pharmaceuticals, power tools and household appliances.
To understand why this doctrine is so powerful, we need to look
at the legal landscape before it existed.
Historically, if you bought a toaster and it exploded in your
face, the law treated it primarily as a broken promise.
You had to sue under contract law for a breach of warranty.
But contract law came with a massive barrier called privity
of contract. Right, you could only sue the
exact entity that handed you the product in exchange for your
money. The privity requirement was
disastrous for consumer safety during the rise of mass
production. Think about it, if you bought a
defective car from a local independent corner dealership,
privity meant you could only sue that small dealership.
You had no contractual relationship with the the
massive multinational corporation that actually
designed and built the defective brakes.
The local dealer would simply declare bankruptcy.
The massive manufacturer was shielded by a lack of privity
and the maimed consumer was left with nothing.
The course realized that a contract theory formulated for
blacksmiths selling horseshoes face to face was entirely
unequipped to handle a globalized, mechanized economy.
So, largely driven by the monumental shifts captured in
the Restatement Second of Torts Section 4 O 2A, the courts
bypassed contract law entirely. They created strict products
liability as an independent tort.
It completely obliterated the privity requirement.
It gave the injured consumer a legal hook to sue anyone in the
commercial chain of distribution, the factory, the
wholesaler, the retailer, without having to prove that any
of them were specifically negligent.
It is a profound weapon for plaintiffs, but the courts did
not make it a free for all. Right.
Strict products liability has rigid foundational elements that
a plaintiff must establish before they even get to discuss
the defect itself. Let us map out these gateway
requirements, beginning with the absolute threshold.
The defendant must be a merchant.
The merchant requirement The law is explicitly targeting
commercial enterprises that routinely deal in goods of that
kind. We are looking for entities that
place products into the stream of commerce for profit.
They're the ones with the leverage to demand safer designs
from factories. They have the volume to purchase
insurance. And they have the pricing power
to spread the cost of accidents across millions of consumers,
like we discussed with the Toaster Economics.
Detailing that commercial chain is critical for an exam.
Let us trace a single product. OK, let's say a manufacturing
plant in South Korea builds A lithium ion battery for an
electric bicycle. They sell bulk shipments to a
massive distribution conglomerate in California.
That distributor sells pallets to a regional sporting goods
chain. Who puts the bicycle on a shelf
in your local town? The consumer buys it, the
battery explodes, and the consumer's house burns down.
Who's a merchant in that scenario?
Every single one of them. The South Korean manufacturer,
the California distributor and the local sporting goods store.
They all routinely deal in bicycles and bicycle components.
They are all firmly within the commercial stream of commerce.
So the consumer can sue the local retail store directly,
even though the retail store just kept the bike in a sealed
cardboard box and had absolutely zero knowledge of the battery
defect? Yes.
The store is strictly liable. The local store will undoubtedly
file an indemnification claim back up the chain to force the
manufacturer to cover the damages, right?
Absolutely, but as far as the injured consumer is concerned,
the local store is fully on the hook.
However, there is a boundary line to this rule that serves as
a classic exam trap. Assume the consumer buys the
bike, rides it for three months, decides they hate cycling, and
sells the bike to their neighbor at a Saturday morning garage
sale. The next week, the battery
explodes. Can the neighbors sue the person
running the garage sale under strict products liability?
The Craigslist neighbor trap. The answer is an emphatic no.
Because the neighbor who sold the bike is a casual seller, not
a merchant. They do not routinely deal in
the sale of electric bicycles. They're just trying to clean out
their garage. The economic rationale we
discussed earlier explains why the law exempts them.
A casual seller selling 1 used bike does not have the volume to
self insure. They do not have the leverage to
force the South Korean factory to change its quality control.
And they cannot spread the cost of an accident across a broad
consumer base. If we applied strict liability
to garage sales, the entire secondary market for used goods
would instantly collapse under the weight of legal risk.
Now, if the neighbor knew the battery was smoking and failed
to warn the buyer, they could be sued for ordinary negligence.
But they are immune from the superpower of strict liability.
Correct. Now the second foundational
element requires that the product was not substantially
altered. It must reach the consumer in
essentially the same condition that left the manufacturer's
control. This element protects
manufacturers from unforeseeable tampering that changes the
nature of the risk. If a consumer buys a standard
table saw, intentionally removes the factory installed blade
guard because it slows down their work.
Hence subsequently severs a finger, The manufacturer's
strict liability is extinguished.
By removing the safety equipment, the consumer
substantially altered the danger profile of the product.
The chain of liability is broken.
You broke it. You bought the liability.
Nice. Now the third threshold element
is foreseeable. Use.
The product must be used in a way the manufacturer could
reasonably anticipate. And the critical nuance here,
the one that trips up students, is that foreseeable use
explicitly includes foreseeable misuse.
A manufacturer does not escape liability just because the
consumer was using the product incorrectly, as long as that
incorrect use was highly predictable.
To illustrate this, let us explore 2 distinct
hypotheticals. I want you to evaluate them
based on whether the misuse is foreseeable to a commercial
manufacturer. All right.
Hit me. Let's start with an extreme 1 to
find the boundary. Let's say I own a heavy Flathead
screwdriver. I decide I need to chip away
some concrete on my patio. Not what that's for.
I don't have a chisel so I took the screwdriver.
Place the Flathead against the concrete and start smashing the
plastic handle with a 3 LB steel hammer.
Oh boy, the plastic handle shatters and a Shard of hard
plastic blinds me in one eye. Am I using the screwdriver for
its intended purpose? Absolutely not.
It is designed to turn screws, not to act as a masonry chisel.
Does the manufacturer have to pay?
The manufacturer will likely be held strictly liable.
Really. Even though I was hammering.
It yes, while you are undeniably misusing the tool, it is an
overwhelmingly foreseeable misuse.
Any company that manufacturers hand tools knows with absolute
certainty that consumers frequently use heavy
screwdrivers as makeshift chisels or pry bars.
Because that misuse is a known reality of the market, the
manufacturer has a legal duty to anticipate it.
They must either design the handle with materials strong
enough to withstand hammer strikes, or they must place a
prominent, unmistakable warning on the packaging explicitly
prohibiting that specific use. That makes perfect sense.
They know human nature. They have to design for it.
Now let's look at a different type of misuse.
I buy a brand new high end blender.
I decided to use it in my garage to mix highly volatile flammable
paint thinners for a custom car project.
The motorsparks ignites the fumes and the blender explodes.
Blenders are for margaritas and smoothies, not industrial
chemicals. Is that foreseeable?
That crosses the line into unforeseeable misuse.
A company designing a kitchen appliance for food preparation
cannot reasonably be expected to anticipate that a consumer will
use it as an industrial chemical mixer in a garage filled with
combustible fumes. To require a manufacturer to
design a standard kitchen blender with heavy duty spark
proof explosion resistant commercial motors would make the
blender cost $500. On destroying its utility for
the average consumer. The law does not require
manufacturers to guard against bizarre, highly idiosyncratic
misuses. The distinction between the
screwdriver and the blender perfectly illuminates where the
law draws the line. So we have established the
gateway elements. The defendant is a merchant.
The product wasn't substantially altered and consumer was
engaging in foreseeable use or foreseeable misuse.
Having cleared those hurdles, the analysis naturally zooms in
on the product itself. We arrive at the hole in the
case. What actually makes a product
legally defective? This is the core of the
litigation. The law recognizes 3 distinct
categories of defect. Manufacturing defects, design
defects, and information defects, which we commonly call
failure to warn. To prevail, a plaintiff must
prove the product was unreasonably dangerous due to
one of these three specific failures.
Let us analyze them sequentially, beginning with the
manufacturing defect. I conceptualize the
manufacturing defect as the assembly line glitch.
That's a good way to put it. The blueprints drawn up by the
engineers were flawless. The factory machinery is humming
along perfectly for months, but on a random Tuesday afternoon, a
calibration sensor fails for 10 seconds.
In a manufacturing defect case, the specific unit the plaintiff
purchased departs dangerously from its intended design.
It differs from its millions of identical, perfectly safe
siblings. That is the defining
characteristic. The flaw is unique to a specific
batch or even a single unit. The classic textbook example is
the pristine glass bottle of soda moving down a conveyor
belt. The design of the bottle is
perfectly safe, but somehow a microscopic Shard of glass from
a broken machine falls into one specific bottle before the cap
is sealed. Out of 1,000,000 bottles
produced that week, 1 is a lethal weapon.
And to tie this back to our overarching theme of strict
liability, if that one glass filled bottle gets through, the
manufacturer is liable regardless of their quality
control. The factory could have a billion
dollar state-of-the-art laser inspection system that is
99.999% effective. They could have triple redundant
safety checks. If that one bottle makes it to a
consumer's lips and lacerates their throat, all of that
extreme care is legally irrelevant.
The defect existed when the product left their control.
Liability is automatic. Precisely building on that, the
simplicity of the manufacturing defect is why it is relatively
straightforward to litigate. You compare the broken unit to
the blueprint and the flaw is obvious.
But the second category, the design defect, is vastly more
complex and heavily litigated because the stakes are
exponentially higher. Right, in a design defect case,
there was no glitch on the assembly line.
The factory operated exactly as intended.
Every single unit was built perfectly to specification.
The tragedy is that the blueprints themselves are
deadly. The implication of a court
finding a design defect is massive.
It does not just mean one plaintiff gets a check, It
essentially outlaws an entire product line.
Forcing mass recalls and redesigns.
Because the economic consequences are so severe,
courts do not just assume a design is defective because an
injury occurred. They employ A rigorous
analytical framework called the Risk Utility Test.
The fact Finder must weigh the inherent statistical risks of
the design against the utility and affordability it provides to
the public. To understand the gravity of the
risk utility test, we have to look at the dark history of how
corporations sometimes approach it.
The most infamous example is the Ford Pinto case from the 1970s.
Ford designed a compact car where the gas tank was
positioned behind the rear axle, making it highly susceptible to
catastrophic explosions in low speed rear end collisions.
The chilling aspect of the Pinto litigation was the discovery of
Ford's internal cost benefit memos.
Ford's engineers knew about the explosive risk.
They calculated that installing an $11.00 plastic baffle over
the gas tank would prevent the fires.
But their executives ran a strict mathematical formula.
They're calculated the cost of installing the $11.00 part on
millions of cars, and they waited against the projected
cost of paying out settlements for the estimated hundreds of
people who would burn to death. The math told them it was
cheaper to let people die and pay the lawsuits than to fix the
design. When jury saw cold corporate
calculus assigning a dollar value to a human life to save
$11.00 a car, the backlash was seismic.
It highlighted A fatal flaw in relying solely on raw corporate
cost benefit analysis. The legal system needed a more
robust standard to protect human life while still allowing
affordable products. This led to the absolute vital
concept within modern design defect litigation, the
plaintiff's burden to prove a reasonable alternative design or
RAD. The RAD is the linchpin of a
design defect claim. A plaintiff cannot walk into a
courtroom, point to a complex piece of machinery that injured
them, and simply say this is dangerous, make them pay.
They must affirmatively show the court a better, safer blueprint.
They have the burden to prove that there was a physically and
economically feasible way to build the product safer without
destroying its core utility. Let's test the boundaries of the
rad. Say a consumer is using a
standard walk behind motorized lawnmower.
They slip on wet grass, their foot slides under the deck, and
the spinning blade amputates their toe.
They sue the manufacturer for a design defect.
In court, the plaintiff's expert witness testifies that the lawn
mower should have been designed with a solid titanium shield
that instantly drops to the ground the moment the operator
let's go of the handle, completely enclosing the blade.
The court must evaluate whether that proposed alternative is
reasonable. Does the titanium drop shield
eliminate the risk of amputation?
Yes, but at what cost if implementing that technology
increases the weight of the lawnmower to 400 lbs, making it
impossible to push? And raises the retail price from
300 to $8000. It fails the test.
It is an alternative design, but it is not a reasonable one
because it destroys the economic feasibility and practical
utility of a consumer lawnmower. But if the plaintiff's expert
instead points out that a simple heavy duty rubber flap trailing
from the back of the deck would have prevented the foot from
sliding under. And that rubber flap cost
exactly $2.00 to install and doesn't hinder the mowing
process at all. That changes the entire
analysis. Dramatically, that $2.00 rubber
flap represents a clear, reasonable alternative design.
Because they are rad, existed, and was economically feasible,
the manufacturer's failure to utilize it renders their
original, unguarded design legally defective.
They chose a dangerous blueprint when a safer, viable 1 was
available. Which brings us to the third and
final defect category, which acts as a safety valve for
products that are inherently dangerous but socially
necessary, the information defect.
Universally known as a failure to warn.
This addresses products with hidden dangers that simply
cannot be designed away, no matter how brilliant the
engineers are. Consider a chainsaw.
You cannot design A chainsaw with a soft, blunt chain.
If you did, it would no longer possess the utility of a
chainsaw. Or consider pharmaceuticals.
A drug designed to aggressively lower blood pressure might have
a severe, unavoidable chemical interaction with grapefruit
juice. You cannot design the drug to
ignore grapefruit juice without destroying its medical efficacy.
In these scenarios, strict liability is triggered not by
the physical design, but by the manufacturer's failure to
provide an adequate conspicuous warning about the hidden risks
associated with foreseeable use. I have a philosophical question
about this because it seems like a giant loophole.
OK, let's hear it. If a design is inherently
dangerous, why don't corporations just mandate a
warning label on absolutely everything instead of spending
millions engineering safer designs or facing design defect
lawsuits? Let's see, a car company builds
a top heavy SUV that they know will roll over every single time
a driver takes a left turn at 25 miles an hour.
Instead of widening the wheelbase, they just put a
massive neon yellow sticker right in the middle of the
steering wheel that says warning vehicle will violently flip over
if you turn left. Does that aggressive warning
shield them from a design defect claim?
The courts take that exact logic and shut it down immediately.
Oh, good. That hypothetical reveals a
profound insight into the legal hierarchy of defects.
A warning label cannot legally cure a fundamentally flawed
design if a reasonable alternative design was
economically feasible. To use the vernacular, you
cannot simply slap a warning sticker on a ticking time bomb
and consider your legal duty fulfilled.
So the law demands engineering over ink.
Exactly. If the car manufacturer could
have widened the wheelbase for $100 per vehicle to stabilize
the SUV and prevent the rollovers, they have an absolute
legal mandate to do so. A warning is only an acceptable
substitute for a safer design when a safer design is
physically or economically impossible.
It is the last resort, not the first line of defense.
There is also a major exam trap buried within the failure to
warn doctrine regarding the type of danger that requires a
warning. The sources are clear that a
manufacturer is not required to warn consumers about dangers
that are open and obvious. The law assumes A baseline level
of common sense among the public.
You do not need to print a warning label on the blade of a
chef's knife instructing the user that the metal is sharp and
will cut human flesh. The danger is open, obvious, and
visually inherent to the utility of the object.
The duty to warn is strictly reserved for hidden or latent
dangers, like the chemical interaction with grapefruit
juice. Or a household cleaning spray
that invisibly produces toxic chloramine gas if a consumer
mistakenly mixes it with bleach. That is a dense, intricate web
of rules for the third pillar. We have navigated the biological
hazards of animals, the explosive force of abnormally
dangerous activities and the mass market complexities of
defective products. We are now shifting gears for
the final substantive section of our analysis.
We are leaving behind physical bodily injury and the
destruction of tangible property.
We are entering the realm of neighborhood disputes, invisible
invasions and property rights. We are exploring the law of
nuisance. This transition highlights the
expansive elegance of tort law. It recognizes that human
well-being involves more than just keeping our bones intact
and our bank accounts full. It protects our Peace of Mind
and our fundamental right to enjoy the land we own or rent.
It is crucial to distinguish nuisance from negligence and
equally vital to distinguish it from trespass.
Trespass is a physical invasion. If my neighbor physically walks
across my lawn or intentionally throws a baseball through my
window, that is a trespass. Tangible matter crossed the
property line. Nuisance, conversely, governs
the intangible interferences with your use and enjoyment of
the property. We are dealing with invasions of
odor, noise, light pollution and subterranean vibrations.
Things you cannot physically hold in your hand, but which
make living on the land miserable.
The doctrine is divided into two distinct halves, private
nuisance and public nuisance. Let's begin with Private
Nuisance, which the episode guide frames as the classic me
versus my neighbor dynamic. To establish a claim for private
nuisance, the plaintiff must prove 2 mandatory elements
regarding the interference. It must be substantial and it
must be unreasonable. The term substantial feels
subjective, but the law demands an objective standard.
Correct the. Standard is ruthlessly
objective. The interference must be severe
enough to bother a person of ordinary sensibilities within
that specific community. It must amount to more than a
slight inconvenience or a petty aesthetic annoyance.
The historic common law phrasing echoed in modern jury
instructions is that the law does not concern itself with
trifles. This brings up one of my
favorite concepts from the reading the wind chimes rule.
Suppose my neighbor hangs a set of small, delicate wind chimes
on their back porch. They tinkle lightly in the
breeze. However, I happen to suffer from
a rare severe neurological condition where high pitched
unpredictable chiming triggers debilitating day long migraines.
To me, the harm is not a prifle. The harm is catastrophic.
It ruins my ability to live in my own house.
Can I win a nuisance claim? You cannot.
Your lawsuit will be dismissed because the standard is ordinary
sensibilities, not extraordinary vulnerabilities.
An average person in the community would not be
substantially bothered by the sound out of small wind chimes.
The law forces society to live by an average tolerance level.
Otherwise, the most hypersensitive person in any
neighborhood would become a tyrant, able to dictate the
behavior of everyone around them through the threat of
litigation. Live and let lives.
Well, let's escalate the scenario.
The neighbor takes down the delicate wind chimes.
And they replace them with a concert grade 2000 Watt
subwoofer system on their patio and they start playing
aggressive bass heavy electronic music at 3 Laro AM every night.
Now the walls of my house are vibrating.
That interference is undeniably substantial to an ordinary
person. But I haven't won the case yet.
I still have to prove prove the second element that the
interference is unreasonable. Proving unreasonableness
requires the court to engage in a complex balancing test.
The fact Finder must weigh the gravity of the injuries suffered
by the plaintiff against the social utility of the
defendant's conduct. What is the value of the
defendant's activity to society, and is it appropriate for that
specific locale? To really test this balancing
act, I am going to present a scenario where I am genuinely
suffering, but the defendant's activity is completely normal.
OK, let's hear it. I work the night shift in an
emergency room. I sleep during the day.
My neighbor, who is retired, loves to garden.
Every afternoon at 2:00 PM, they go into their backyard, turn on
a portable radio to a moderate volume, and listen to baseball
games while they weed. The sound of the radio bleeds
through my window. It constantly wakes me up.
I am exhausted. My work at the hospital is
suffering. My life is unraveling.
The harm is massive. Do I win the nuisance claim?
Despite the genuine severity of your sleep deprivation, you will
lose the nuisance claim. When the court balances the
equities, they look at the utility and context of the
conduct. Listening to a radio at a
moderate volume during daylight hours in a residential
neighborhood possesses high social utility.
It is a standard, expected and appropriate use of residential
property. Court law refuses to bend to
accommodate the subjective, unusual schedules of individual
plaintiffs. What constitutes a nuisance is
highly dependent on context. An industrial smokestack
belching soot might be a nuisance in a quiet residential
suburb. But that exact same smokestack
might be perfectly legally acceptable in a heavily zoned,
bustling downtown manufacturing district.
Context is everything. The episode guide provides clear
examples of what does tip the scales into unreasonableness in
a residential setting. The 3.0 AM electronic music we
mentioned foul, toxic odors drifting from a newly
constructed commercial pig farm directly into an established
suburban subdivision. Blinding stadium grade security
floodlights aimed directly into a neighbor's bedroom window.
In those scenarios, the gravity of the HARM completely eclipses
any arguable utility the defendant might claim for
operating in that specific location.
That perfectly summarizes the localized disputes of private
nuisance. We must now pivot to public
nuisance. A public nuisance operates on a
vastly different scale. It is defined as an unreasonable
interference with a right common to the general public.
Specifically interfering with the health, safety, morals, or
property rights of the community at large.
Instead of two neighbors arguing over a property line, we are
dealing with macro level disruptions.
A corporation illegally dumping hazardous waste into a town's
shared drinking water reservoir. A protest group intentionally
and illegally barricading a major Interstate highway for
days. Someone operating a massive
illegal gambling and prostitution syndicate out of a
warehouse, which draws a spike of violent crime and drug
trafficking that degrades the safety of the entire surrounding
neighborhood. Because the harm in those
scenarios is dispersed across the entire public, the legal
response is generally public. It is typically the government,
a city attorney, a District Attorney, or the state attorney
general that files a lawsuit to abate a public nuisance on
behalf of the citizens. However, from an academic and
exam perspective, the most heavily tested, intricate issue
is the standing requirement for a private citizen to bring a
lawsuit for public nuisance. The public nuisance standing
trap. This is crucial.
If a chemical plant is illegally polluting the town's air,
causing a low level smog that makes everyone in a five mile
radius cough and suffer mild eye irritation, a random citizen
cannot just file a massive tort lawsuit hoping for a multi
$1,000,000 payday. They cannot.
To possess legal standing as a private plaintiff in a public
nuisance case, you must prove a very specific legal threshold.
You have suffered a unique harm. This means a harm that is
distinct in kind, not merely distinct in degree from the harm
suffered by the general public. This distinction between kind
and degree is tricky. Let's use the barricaded Hwy.
example to map it out. A corporation illegally dumps a
massive, immovable pile of concrete rubble across the only
major highway leading into a town.
The highway is shut down for a week.
The entire Community is harmed because their daily commutes are
severely delayed. If I am a citizen who had to
drive an extra 2 hours every day on back roads, I have suffered
harm. Can I sue the corporation for
public nuisance? No, your two hour delay is a
harm of the exact same kind as the general public's harm,
inconvenience and delay. Even if your commute was the
longest in the town, meaning your harm was greater in degree,
it is still the same category of harm.
The law blocks you from suing because if every delayed
commuter could file an individual tort claim, the
courts would be instantly paralyzed by 10s of thousands of
identical lawsuits over a single incident.
But let's change my identity in the hypothetical.
What if I am not just a commuter?
What if I own a large independent grocery store
located immediately adjacent to the rubble pile?
Because the highway is physically blocked, my
commercial delivery trucks absolutely cannot reach my
loading docks. Over the course of the week, I
lose $50,000 in perishable inventory, produce, dairy, meat
that rots in the stalled tracks. That completely alters the
standing analysis. Your financial loss from ruined
commercial inventory is a harm fundamentally distinct in kind
from the general public's commuting delay.
You have suffered a specific, unique economic injury directly
caused by the public nuisance. Therefore, you cross the
standing threshold. You are legally permitted to
step out of the crowd and sue the corporation individually for
the damage caused to your business.
It is a brilliant system of filtration.
The unique harm rule keeps the courthouse doors open for
catastrophic individual losses while slamming them shut against
a flood of generalized grievances.
We have now fully traversed the landscape.
We've dissected the biological risks of animals, the volatile
physics of abnormally dangerous activities, the mass market
economics of products liability, and the invisible boundary lines
of nuisance. It is time to synthesize these
doctrines and test how they operate in a synchronized exam
style environment. Let's move into our outro and
the clinical challenge. A vital exercise.
The true test of legal knowledge is not reciting the rule, but
applying it. Florida State to a messy fact
pattern. Present the facts of the
challenge. Here is the scenario derived
from our episode guide. A consumer walks into a massive
nationwide big box electronics retailer.
They purchase a brand new high end action camera.
The consumer takes the sealed box home, opens it, and uses the
camera exactly as instructed by the manual to film themselves
repairing a car in their garage. Unbeknownst to the consumer, the
retailer or the distributor, the camera's internal battery was
manufactured in an overseas factory with a microscopic
chemical impurity in the lithium core.
While the camera is resting on a workbench during this normal
use, the defective battery overheats violently, catches
fire and burns the interior of the consumer's garage, causing
$10,000 in structural property damage.
The facts present a classic multi layered strict products
liability scenario. Let us breakdown the analysis
step by step. Question one is the threshold
issue. Can the consumer sue the local
big box retail store? The store's lawyers will argue
they didn't engineer the battery.
They didn't mix the lithium. They simply unloaded a pallet of
sealed cardboard boxes from a truck and scanned A barcode at
the cash register. They had zero physical
interaction with a dangerous component.
The retailer's argument is highly logical from a
layperson's perspective and entirely worthless in a strict
liability jurisdiction. Yes, the retail store can be
sued. We run the elements.
Does the store routinely deal in electronics?
Yes, making them a merchant. Did the product reach the
consumer unaltered? Yes, it was in a sealed box.
By placing the defective camera into the stream of commerce, the
retailer becomes strictly liable to the end user.
The consumer is not required to navigate international law to
sue the overseas battery manufacturer.
They can serve the massive retailer in their own town.
Question 2. What specific type of defect are
we looking at here? This is a textbook manufacturing
defect. The prompt specifies that the
battery contained A microscopic chemical impurity in the
lithium. This language indicates that the
overall engineering blueprints for the battery model were safe,
but this specific unit physically departed from its
intended design during the assembly process.
It is the technological equivalent of the glass Shard in
the soda bottle. And finally, Question 3, which
drives home the theme of our entire session, is proof of the
retail stores negligence required to win the case.
Can the store mount a defense by proving they exercise
extraordinary care and selecting their suppliers and training
their staff? No evidence the stores care is
inadmissible as a defense to liability.
We act reasonably and we didn't know it was dangerous.
As a shield against a negligence claim, it shatters instantly
against strict liability. The plaintiff proved the product
was defective when it left the merchants hands and that it was
being used foreseeably. Those facts alone trigger the
$10,000 property damage payout. Liability is automatic.
That structural walkthrough is exactly what is required for
exam mastery. You isolate the doctrine, run
the elements chronologically, and aggressively filter out the
emotional distractors. When you step back and look at
the progression we have made in this series, it is remarkable.
We began our torts journey analyzing into evaluating the
malice of people throwing deliberate punches.
Then we evolved to negligence, measuring the unreasonableness
of people who simply forgot to check their blind spots.
And today we conquered strict liability, where the law strips
away intent and carelessness entirely, demanding financial
restitution simply because a highly dangerous, socially
tolerated activity resulted in inevitable collateral damage.
You have constructed a massive, sophisticated foundation in
physical injury law. You have mastered the
architecture of physical torts. But the legal landscape is not
static. It is constantly mutating to
address the realities of a changing society.
Throughout our discussions, we have focused almost exclusively
on physical carnage, a tiger bite, a dynamite shockwave and
exploding lithium battery or toxic fumes wafting over a
property line Which? Perfectly sets the stage for Day
6. We are preparing to leave the
realm of shattered bones and burn garages behind.
We are moving into the invisible architecture of society, the
mind, the reputation and the digital identity.
To bridge that gap, I want to leave you with the provocative
conceptual challenge to analyse before our next session.
We have spent an hour establishing how the Restatement
402 a strictly regulates defective physical products sold
by merchants. But consider the frontier of
modern commerce. What happens when the product
causing the devastation isn't a tangible object you can hold in
your hand? What happens when the product is
an advanced AI algorithm sold to a bank that autonomously
executes a bias decision causing catastrophic life altering
financial ruin to a consumer? The traditional elements we
relied on today just seem to warp and break under that
pressure. Who is the merchant in the chain
of a decentralized open source neural network?
How on earth does a plaintiff prove a design defect or propose
a reasonable alternative design when the machine's code is a
black box that is constantly learning and rewriting itself
without human input? Those are the exact questions
currently paralyzing the lower courts.
The historic doctrines of the Industrial Revolution are being
forced to govern the artificial intelligence revolution.
It is the cutting edge legal frontier you will be tasked with
navigating in practice. Keep questioning the boundaries
of these rules, keep analyzing the underlying economic
policies, and we we will see you on Day 6 to explore the torts of
the mind. All right, everyone, up to this
point in our journey through torts, everything is revolved
around 1 central idea, fault. We've been hunting for blame,
whether it's the intentional act in a battery case or the
carelessness in a negligence case.
Well, today we're stepping through the looking glass into a
totally different world. Welcome to strict liability.
Where fault? Well, it just doesn't matter.
Think of it this way. On one side of the map you have
the world we know where liability is tied to a wrongful
act. You did something bad or you
weren't careful enough. But on the other side, in the
world of strict liability, we throw that whole idea out the
window. Here, a defendant can do
everything right, take every precaution known to humanity,
and still be held liable for the harm they cause.
It's a complete mind shift. So you have to be asking why on
earth would the law do this? It seems unfair, right?
Well, it's all about policy. The law has made a decision that
some activities are just inherently so dangerous that if
you choose to engage in them, you have to bear the full cost
of any accidents that happen. It's basically seen as a cost of
doing business. The risk is factored right into
the price of the activity and the person profiting from it is
the one who has to pay when things go wrong.
OK so here's our game plan. We're going to start with the
classic cases, animals and abnormally dangerous activities.
Then we're hitting the big one. The topic you are absolutely
going to see on your exam? Strict roducts liability.
We'll finish U with nuisance and then put it all together with a
practice. HYO.
First up, animals. Now, the law isn't subtle here.
It draws a massive bright line in the sand.
On one side you've got your golden retriever, on the other
you've got a pet cobra. And let me tell you, the rules
for those two could not be more different.
Your first job on an exam is to figure out which kind of animal
you're dealing with. So here's the deal for your
everyday domesticated animals, dogs, cats, cows.
The law has what we call the one bite rule.
It's a bit of a saying, but the idea is that the owner is
generally not strictly liable until they know the animal is
dangerous. That first bite, or the first
time it acts viciously, puts the owner on notice.
After that, the switch is flipped to strict liability.
But for wild animals, Oh no, there is no one bite rule.
If you keep a tiger, you are strictly liable from the very
beginning for the harm that tiger causes.
A bear does not get a free bite. And listen up, because this is a
classic exam question. There's a special little sub
rule just for trespassing livestock.
If your cows or sheep get loose, wander onto your neighbor's
property and say, trample their prize winning petunias, you are
strictly liable for that foreseeable damage.
It's a simple, clean rule and professors love to test it.
OK, let's move on to our second big category.
This is for activities that are so risky we sometimes call them
ultra hazardous. The key idea here is that these
are things that pose a severe risk of harm that cannot be
eliminated no matter how careful you are.
The danger is baked into the very nature of the activity
itself. The whole idea really comes from
this foundational English case, Rylands V Fletcher.
You had a guy who built a giant reservoir on his land.
Unbeknownst to him, there were old abandoned mine shafts
underneath. The water broke through and
flooded his neighbor's working coal mine.
The court's ruling was simple and profound.
You brought that unnatural amount of water onto your land
for your own purposes. If it escapes and does damage,
you're libel. Period.
You keep it at your peril now for a long time.
Courts use this kind of cumbersome 6 factor balancing
test to figure out what qualified is abnormally
dangerous. They'd weigh all these things,
the degree of risk, the potential for harm, whether it
was common. It was a very holistic, squishy
analysis. As you can imagine, that made it
really hard to predict the outcome, which is why the law
started to move in a clearer direction.
And here it is. The modern test, which you'll
find in the third restatement, is so much cleaner.
It boils everything down to two simple questions.
One, does the activity create a foreseeable and major risk of
harm even when you're being as careful as possible?
And two, is this activity something the average person
does? Is it a matter of common usage?
If the answer to the first is yes and the second is no, you've
got an abnormally dangerous activity for your exam.
This is the analysis you want to use.
It's direct and it gets you to the right answer.
So what kind of stuff are we really talking about?
Well, the classic examples are things like using dynamite for
blasting. Even if you're an expert, the
vibrations can shatter in neighbors windows.
Or think about crop dusting from an airplane with toxic
pesticides. The wind can carry that stuff
anywhere. Storing huge amounts of
gasoline, handling radioactive waste.
These are the slam dunk cases. OK, everybody take a deep breath
because we are now arriving at the main event.
This is without a doubt the most important and most heavily
tested area of strict liability. Defective products that harm
consumers. This is the law that governs
everything from your laptop to your car to the food you eat.
This slide right here. This is your Holy Grail.
For products liability. You have to have this four part
framework called to win. A plaintiff has to show 4
things. One, the defendant is a
merchant, 2 the product had a defect, 3 the product wasn't
substantially changed after it left the defendant's hands, and
four, the plaintiff was using the product in a foreseeable
way. Let's dig into each of these.
First up, the easiest defect to spot, the manufacturing defect.
This is a one off mistake. It's a glitch in the assembly
line. The designer's blueprint was
perfectly safe, but one item that came off the line is messed
up. The classic law school example
is the soda bottling plant where 999,999 bottles are fine, but
one bottle accidentally ends up with a Shard of glass in it.
That's a manufacturing defect. The second type of defect is
much bigger. In a design defect, the problem
isn't a one off glitch. The problem is the blueprint
itself. Every single product coming off
the assembly line is dangerous because it was designed that way
and the test scores To use here is to ask, was there a
reasonable alternative design, what we call a rad?
Could the manufacturer have made a safer, economically feasible
version that wouldn't destroy the product's purpose?
And #3 is the information defect or failure to warn?
This is for products that have some kind of hidden danger that
can't be safely designed away. The product itself might be
fine, but it's dangerous if you don't know how to use it
properly or you're not aware of a non obvious risk.
The defect then isn't in the product, it's in the lack of a
clear and adequate warning that comes with the product.
Now, here's a huge point for your exam.
If you get hurt by a defective product you bought at Target,
who can you sue? Just the company in China that
made it? No, you can sue anyone and
everyone in the commercial chain of distribution.
That means the manufacturer, the wholesaler, the distributor, and
yes, even the retail store that sold it to you.
Target can't just say, hey, we didn't make it.
If they sold it, they are on the hook.
All right, let's shift gears to our last major topic for the
day, nuisance. Now be careful.
Nuisance is a different beast. We're no longer talking about
physical injuries to a person. We are now protecting a person's
right to the use and quiet enjoyment of their land.
You could call this the law of really, really bad neighbors.
The nuisance breaks down into two categories.
You have private nuisance, which is a substantial and
unreasonable interference with one person or a small group of
people's use of their land. Think your neighbor starting a
death metal band that practices at 3:00 AM.
Then you have public nuisance, which affects the health,
safety, and welfare of the community at large, like a
factory spewing toxic smoke over the whole town.
Now, usually only a public official like the Attorney
General can sue for a public nuisance.
A private citizen can only bring a claim if they've suffered some
kind of unique harm, something different in kind from what
everyone else is experiencing. So what's the magic word in
nuisance? It's unreasonable, but it
doesn't just mean annoying in law.
Unreasonable means we do a balancing test.
The court is going to weigh the severity of the harm to the
plaintiff against the social value or utility of what the
defendant is doing. So the noise from an ambulance
siren has huge social utility. The noise from your neighbors
illegal fireworks display, not so much.
That's the balance. OK, enough with the theory.
We've covered a ton of ground. Now let's see how these rules
actually play out in a classic exam style fact pattern.
So here's our hypo. A person buys a new camera from
a big box store. The battery inside has a small
impurity, a mistake from the factory.
While using the camera exactly as the instructions said, the
battery overheats, starts a fire and damages his car.
Simple facts. Let's run the analysis.
The claim is strict products liability.
We grab our four part test. 1 Is the retailer A merchant?
Yes, the facts say major retailer. 2 Was the product
defective? Absolutely.
That slight impurity from the factory is a textbook
manufacturing defect. 3 Was it substantially altered?
No, the facts tell us he was using it as instructed. 4 Was
the use foreseeable? Of course, using a camera to
film things is exactly what it's for.
So does the plaintiff win against the retailer?
Yes, it's a slam dunk. And notice what we didn't ask.
We never asked if the retailer was careless or did anything
wrong. We didn't have to.
That is the essence of strict liability.
So let's wrap it all up. This slide is your mental
checklist for any strict liability question on an exam.
When you're reading a fact pattern, you ask yourself, is
there an animal? If so, is it wild or domestic?
Is there an activity? If so, could it be abnormally
dangerous? Is there a product that caused
harm? Then you run your four part
test. Or finally, is there an
interference with someone's land?
That's your signal for nuisance. If you can learn to spot these
issues and apply these frameworks, you will absolutely
crush this part of the exam.