Strict Liability

Strict liability does not require a showing of negligence.


Dyer v. ME Drilling & Blasting

Black Letter Law and Theory

Restatement (Second) of Torts § 402A (1965)

  • One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

    • the seller is engaged in the business of selling such a product, and

    • it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

  • The rule stated in Subsection (1) applies although

    • the seller has exercised all possible care in the preparation and sale of his product, and

    • the user or consumer has not bought the product from or entered into any contractual relation with the seller.

    Restatement (Third) of Products Liability

    Applies to whom?

  • §1. One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

    Strict Liability

  • § 2. Categories of Product Defect

    • A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

      • contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

      • is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

      • is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

    Reasons to shift from negligence-based system to strict liability system / Goals of strict tort liability

  • Loss-spreading: Strict liability spreads losses from accidental injury to a broad class of people. This helps ameliorate devastating losses. The premise is that goals should be collectively borne. So, under this goal, a decision whether to impose strict liability depends on whether the actor engaging in the injurious activity is an appropriate party to incur and then spread a loss. This is a weighty goal. By controlling price, manufacturers can spread/adjust their price to accommodate insurance and other costs.

  • Loss-avoidance: Strict liability aims to reduce the number and severity of accidents. This goal requires appraising the actor’s ability to evaluate the risks of his activities and calculate a cost-benefit analysis of the operations. This is a less weighty goal because the company doesn't want to produce negative results (i.e. push a more dangerous alternative).

  • Loss allocation (or internalization): The goal here is for the loss to be initially borne or internalized by the enterprise whose activities engendered it. The hope is that it will lead to added charges that will constitute a signal to customers/others of the true costs of the activities of that enterprise, leading to better choices, investment in security, etc.

  • Administrative efficiency: Here the goal is to achieve an acceptable level of administrative costs. Strict liability produces administrative savings by simplifying liability determinations by removing the need for proving fault.

  • Insider Knowledge: Manufacturers are better positioned to prevent/identify injuries than the consumer. Consumers are often helpless against risk; therefore, they rely on an implied warranty of fitness.

  • Information Asymmetry: Unequal access to information places a hard-to-meet burden on consumers to prove fault. The idea is that strict liability can eliminate some administrative costs of doing corrective justice by giving manufacturers an incentive to invest appropriately in safety.

    Determining if Strict Liability is Appropriate

    One who carries on an abnormally dangerous activity is subject to liability for harm resulting from the activity, even if he exercised due care to prevent the harm. To see if an activity is abnormally dangerous, consider:

  • Inability to eliminate the risk by exercising due care. If it can be eliminated by due care, and due care was not met, then we have a negligence issue where strict liability may not be appropriate.

  • Does it create a significant risk of harm even if due care is taken? Does it pose unusual and irreducible risk?

    • Existence of a high degree of risk

    • Likelihood that the harm that results from it will be great

    • The accident can't be prevented by due care

    • Extent to which the activity is not a matter of common usage

    • Inappropriateness of the activity to the place where it is carried on

    • Extent to which its value to the community is outweighed by the activity’s dangerous attributes

      NOTE: Second Restatement does NOT limit liability to foreseeable harm

Sullivan v. Dunham

Sullivan v. Dunham

Ultrahazardous and Abnormally Hazardous Activities

a) For public policy reasons, someone blowing something up on their property (even “without negligence and with due care and skill”) is liable for any damage caused to others. (Sullivan v. Dunham)

b) Courts have held that the safety of property generally is superior to the right of one landowner to use his property in a particular way.

c) Sic utere tuo - to use your own so as not to injure another; “to protect person and property from direct physical violence, which, although accidental, has the same effect as if it were intentional.” (Sullivan)

d) Abnormally hazardous activities have a lower threshold (much more common)

If engaged in ultrahazardous activities, you have to either (1) minimize the chances someone will get hurt, or (2) buy liability insurance.


Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.

High Degree of Risk and Due Care

Strict liability is generally only imposed when the high degree of risk associated with an activity cannot be eliminated through due care.

Note: Strict liability still requires proof of causation!

Escola v. Coca-Cola Bottling Co.

Manufacturing Defect

Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship. It’s when the product departs from its intended design even though all possible care was exercised.

  • Res ipsa loquitur generally applies to manufacturing defect cases (Escola v. Coca-Cola Bottling Co.), because

    • The plaintiff generally can’t prove anything

    • The product was in the defendant’s exclusive control at the time of the negligent action.

  • Traynor’s concurring opinion in Escola: Regardless of privity, a manufacturer should incur absolute liability when it

    • Places a product on the market;

    • Knows that the product won’t be subsequently inspected; AND a defect causes injury to someone.

Soule v. General Motors Co.

Design Defects

Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured. These risks could have been reduced by the adoption of a reasonable alternative design.

There are two primary approaches to design defect cases (Barker).

Ordinary Consumer Expectations Test

  • Used for simple products.

  • Expectations of everyday experience (jury)

  • Does not require experts

  • Consumer expectations test, per California:

    • failed to perform per “ordinary consumer”

    • it was the legal cause

    • there was harm

    • it was used in a reasonably foreseeable manner (regardless of whether this use was intended by the manufacturer)

Risk/Utility—Reasonable Alternative Design (RAD)-- Test

  1. Used for complex products with which the ordinary consumer has no knowledge or expectations (Soule)

  2. The plaintiff must generally present reasonable alternative design.

  3. Jury must weigh several factors (Barker; NOTE: See Ortho factors as alternative/addition; NOTE: California shifts burden to Defendant):

    (i) Gravity of danger posed by design

    (ii) Likelihood of danger

    (iii) Mechanical feasibility of safer alternative design

    (iv) Financial cost of improved design

    (v) Adverse consequences to product & consumer that would result from alternative design

  4. Ortho factors for determining if a design is “unreasonably dangerous”: Ortho lets the plaintiff not have to bring in a product. The defendant likes it because they can say that they meet most of them.

    (a) Usefulness and desirability of product

    (b) The safety aspects of the product

    (c) The availability of substitute products that would meet need and not be unsafe

    (d) The manufacturer's ability to eliminate unsafe character of the product without impairing usefulness or making it too expensive

    (e) The user's ability to avoid danger by using the product carefully

    (f) The user's anticipated awareness of inherent dangers/avoidability because public knowledge or suitable warnings and instructions

    (g) The manufacturer's feasibility of spreading the loss by product price or carrying insurance.

Hood v. Ryobi

Warning Defects

Failure-to-warn defects arise in products that carry inherent non-obvious dangers which could be mitigated through adequate warnings to the user, and these dangers are present regardless of how well the product is manufactured and designed for its intended purpose. Warnings need only be reasonable (Ryobi).

  • A warning doesn’t need to be all-encompassing about what will happen if the warning isn’t followed in order to be adequate.