Strict Liability & Res Ipsa Loquitur – Torts

Escola v. Coca Cola Bottling Co.

  • Bottle came from bottle manufacturer.
  • Bottles are used and reused
  • The used bottles are not again subject to testing for defects after the first inspection by the manufacturer
  • If the tests are economically not feasible then they shouldnt be tested (Learned Hand Test)
  • Cafe probably bought the Cokes from a wholesaler
  • Cases can be abused during shipping etc

This is an expanding Res Ipsa Loquitor case

Traynor Wants to impose strict liability

Becasue even if the maufacturer can prove it was not negligent they still need to be liable.

There can be other sources of defect that arent the fault of negligence.

Inferance of Negligence may be dispelled in Res Ipsa Loquitur by an affirmative showing of proper care.

In leaving it to the jury to decide negligence as in Res Ipsa, maybe it is improper to give to the jury because the jury will always find for the plaintiff and approaches Strict Liability anyways. It may be VERY difficult for the plaintiff ot show negligence on the part of the manufacturer. You will have injuries from defective products even when the manufacturer cant be implicated. You are simply letting jurys impose strict liability.

Traynor concurs with the judgement but not in the reasoning.

If public policy demands that a munufacter be responsible then just say it openly, call a spade a spade, it is strict liability because the jurys will almost always find in favor of the injured person

McPhereson v Buick early 1900

Law called privity, people who were injured as bystanders could not sue. ONLY the person who actually bought from the amnufactureer. But this was thrown out later by Cardozo

It is evident that a manufacterer can anticipate defects whereas the gen pub cannot.

why not have a system like workers comp for auto accidents, insurance companies did not like this at all

In Seffert v LA Transit Traynor said well ordinarily pain and suffering should not exceed pecuniary damages this was two years before he said it should be strict liability for products manufs

Expand liability to strict liability as in Escola (to Manufs), BUT limit damages as in Seffert (Pain&Suff Not to exceed pecuniary)

In Brown v Kendal it was about shifting losses because Kendall would have to sell his farm to compensate Brown

Now we have insured defendants like auto cases, loss is shifted and then spread. (CokeACola pays out damage, but then raises prices a few cents to distribute loses

Much to Traynors distress they failed to limit damages, becasue Escola said nothing about damages, (but damages were addressed in Seffert.

Sortof a makeshit compensastion system based on common law.

Trying to use Tort laws of negligence on insurance, this is very very cumbersome and coslty way to do things

Traynor now has made the policy argument, he now needs a doctrine not just “trust me”

Look at Cardozo warranty law. When you buy a product there is an implied warranty that it is quality.

Ryan v. Bread Seller


  • The bread had a pin in it, breach of warranty of the marketable goods. Cardozo allowed for personal injury pain and suffering (more than the dif in value between good loaf vs a bad loaf). In K law you used to need Privity (K of the buyer) but since his wife acting as his agent then there was privity.
  • Ryans wife buys a loaf of bread, wife makes a samwich as she should, Mr Ryan bites the sammy and gets a needle through the nose cuz a needle was in bread. Breach of warranty doesnt require fault. The bread company breached the warranty by not keeping needles out of the bread. Traynor says Ryan sued the bread company under strict liability. In K law u had to have privity, but his wife was his “agent” so he was the purchaser. Traynor uses this to justify strict liabiltiy in Tort law
  • Has doctrine, has policy, now needs precedent. The damages came from the doctrine of warranty K breach which was translated into a tort
  • Retailers can be held liable for defective products.
  • The warranty law shows that it is similar to a tort, why not just make it a tort?

Greenman v. Yuba Power Power Products

Greenman bought a combo power tool saw/drill/wood lathe. He used a few   attachments to work with a piece of wood. The wood flew out injured him. Expert testified the screws were loose and should have been tightened by manuf

Suit on breach of warranty

Yes manuf is strictly liable for products, breach of warranty

Liability should be on the manuf who puts the product on the market, not on the consumer who is helpless.

If you find a defect you have to tell us according to Warranty Rule (but this was used when the person dealt directly with the warrantor.

DOES NOT apply because the customer never dealt with the manufacturer (designed for Manuf/Retailer relationship)

Cost of injury should be bourne by manufacturers not by consumers who are helpless

Dual Escola policy examples. Place liability on manuf not powerless consumer, because manuf can reduce risk associated with products.

The safety

The application of liability should make manufacterers inspect more carefully

Liability costs are shifted from plaintiff to defendant, in old days had to sell farm and pay plaintiff

Most manufacturers have insurance for liability and so the public ends up paying anyways

Traynor wants non-pecunuary not to exceed pecuniary

At the time Traynor had said there should be Strict Liability but no court had yet found it to be so

Vandermark v. Ford Motor

  • Breaks locked up, crashed, injured Vandemarks
  • Problems with warranty law, the manufacturer says look it was the retailer who installed wrong.
  • Ford said look Mr Vandermark, well fix it just bring the brakes in and we will replace them, thats it

Traynor says retailers are subject to strict liability, because they are the only party the consumer works with.

Retailer liability makes safety in two ways

Retailers can pressure manuf to create safer products (they can also sue the manuf, or threaten to not sell their products)

They can inspect the products in some casaes

Compared to the consumer, the retailer can prevent accidents more than the consumer

Elmore v. American Motors 1969

  • Rambler was purchased, driveshaft falls of the car, car swerves across road crashes into BYSTANDER WHO SUES
  • Might be a hard issue because no privity
  • Bystander had no privity and wasnt even a user
  • No court had ever allowed the bystander to recover
  • Justice Peters in this case, says that Prosser is not so sure about it because no case law.
  • But Peters says if anything the bystander should be entitled to greater protection, because consumers can at least inspect the product.

Now everyone can recover: buyers, users, and bystanders

the court is changing the law by referring back to cases that took other small steps forward and branching off of warranty law

Evolution of the liability in Tort

New Jersey cases are a little clunky because it trys to stick to warranty

California cases jsut call it Tort and throw out any warranty defenses like notification

Price v. Shell Oil

Shell leases out the gasoline tankers, this applies to persons in the Business Of Leasing, not just a joe shmo

How is the Barker doctrine different from the negligence rule as expressed in the learned hand test?

Which is easier to apply the policies? Hertz “lease” or BMW “lease”

Would these new policies apply to Seffert, answer on 12A

12B landmark barker case and similarly important  souel case, How is Barker test Different from learned hand?

What does the Souel case do to Barker?

Res ipsa loquitur

1. The accident must be of the kind which ordinarily does not occur in absence of negligence

2. It must be caused by an agency in exclusive control of the D

3. It mus not have been due to any voluntary act by the Plaintiff

Strict liability applies to both BMW lease long term lessor, vs short term leassor Hertz rental car.

  • BMW collecting fees on a long term basis
  • Lease is more similar to a sale
  • Precedent has been set in other cases already, so this is more well established strict liability


  • Hertz because there is a one time payment
  • Hertz has more control over the product, can inspect regularly
  • Consumer not very involved in inspection, upkeep etc.

Seffert related to these examples

Is the Transit company stricty liable for the bus? they are not leasing the bus, they are providing a service

Short term lease isnt a sale (hertz) it is more like a service.

Where will we draw the line??

Strict liability has stopped at the line of NOT holding service providers strictly liable

Court has not focused on what constitutes a defect.

In lathe case not focused on whether or not there was a defect, it was assumed that the part was defective

Courts have not so far defined defectivness

Restatment 2nd of Torts

402A. page 566

When the product is unreasonably dangerous

We do have a system in workers comp where there is absolute liability, if you drop your coffee on your foot, you can recover workers comp.

Turns out there are different types of defects

Manufacturing Defect – Comes off the assembly line in a more dangerous wya than it was supposed to, doesnt mathc the norm for this product

Design Defect – Product was defective because it was too dangerous as designed unreasonably dangerous !!! isnt that negligence ? !!!.  (well where does it start, tank car very safe, smart car not so safe, at waht point is it defective?) Ford Pinto placed the gas tank in bac that would blow up on rear ends, this was a design defect

No liability  >>  Negligence Liability  >>>  Absolute Liability

Barker Two prong test for defectiveness

  1. Excessive preventable danger
  2. Ordinary consumer expectations when used in an intended or reasonably foreseeable manner (the P can use it in a non intended manner as long as the use is reasonably foreseeable

Adding of the second prong is good for the P because they get two shots to collect liability damages

Negligence test was a reasonable manufacturer at time of manufacturing the product

Now it is the danger found to be in hindsight at  the time of the trial (the foreseeability of the accident now)

Barker puts the burden on the Defendant to prove that the injury was not caused by the design defect. this is very PRO PLAINTIFF

During this time liberal era 25 years following 1960

Extends SL based on these policys

manuf, wholesaler, reatailer, and lessors

For safety insentives and loss spreading

they then see that they never really defined a defect.

Obvi applies to manufacturers

How about design defects, unreasonably dangerous (wait no, that would be negligence JK)

Third Restatement of Torts

Despise the Barker test

they wrote, Barker is so unstructured that invites a jury to impose absolite liabiltiy cus there is no standard

Shifts the burden to the D for merely showing that the product was the source of the accident.

Now we have a third standard. Restatement 3rd pg 567

  • This new restatement triumphs
  • Manuf defects
  • design defects
  • warning/instructions defects
  • product was defective in design, the foreseeable risk could be avoided by an alternative design. the decision to use the unsafe design returns this to a negligence standard.
  • Barker test no longer used –> its too close to Strict Liability

Three were knocked off the bench for their leaning in favor of defendants in death penatly and not killing them (roughly conservative court?)

12A supplement

We modify the second prong of Consumer Expectations

reserved it for cases where the normal everyday use violated minimum saftey requirements

D cannot bring in experts testimony to counter the Consumers belief of how the product should be used

P can use always, only when the everyday use of the product should expected to perform.

The very fact that the product is new doesnt restrict consumer expectations

Airbags, very complex design out of reach of the reasonable consumer

Can a P use this test in the airbag test? no…? well actually maybe

Answer is Maybe, one Ct of App. said yes, One said No. CA Supreme court has not resolved this.

Ybarra, Res Ipsa case. Gives the clearest thinking in the courts reasoning >> Medical malpractice.

Ybarra v. Spangard 1944 Supreme Ct CA

  • P goes in for appendectomy, goes under anesthesia
  • Comes out with injured arm , doesnt know how/who
  • D are the Dr. Tilly (diagnosing dr), Dr Spangard (perf surgery), Dr. Swift (hospital owner respondeat superior), Nurse Gisler (wheeled him into surg), Dr. Reser (anesthesiologist), Nurse Thomson (helped in morning)
  • Wanted a way to bring in all the defendants
  • Said res ipsa didnt apply because there were so many couldnt prove could have been a combo of people
  • D view P shouldnt be required to show who caused the harm

Court says this is a  common sense rule, because the P was unconscious one of the D is the only one who really  knows who injured him

They would have to implicate themselves in order for some one the be liable, would end up finger pointing. Would probobly result in conspiracy of silence, (Dr wont testify against each other.)

We can adopt strict liability,????

Courts have relaxed res ipsa loquitur like in Escola case

We hold when a P gets an unusual injury to unrelated part of body while unconcious in the course of treatment. all D who have interaction can be held responsible as a group unless they can show they were not negligent

This means that anyone who even stepped foot in the room could be liable

Ybarra Quickly

  • In Ybarra they gave an expansive interpretation, (like the Escola case) that since the plaintiff had an unusual injury to an unrelated body part
  • all those who had control over the situation P can use Res Ipsa against them


Note 5 pg 108

Inouye v. Black

  • P wants to use Ybarra as precedent
  • Dr inserted steel wire into neck, wire was supposed to remain in body and cause no harm
  • Instead the wire broke apart and migrated to lower spine, now needing surgery to remove
  • Client wants to use res ipsa loquitur
  • 1 Plaintiff not contributory (nope)
  • 2 doesnt ordinarily occur w/o negligence (Probly not)
  • 3 Dr. was in exclusive control?? no, it is one of many available speculations, (could have been in the supply room to long, could have had manuf defects, or could have been Dr)
  • We dont know what instrumentality cause accident
  • What should the lawyer have done?
  • SHOULD have sued everyone, manufacturer, staff, Dr, etc.
  • This case is different of
  • Ybarra because you have a non-medical defendant wasnt in operating room
  • Defect may have been defective because of hospital
  • Dr may have inserted incorrectly
  • Point is there is no way for the Plaintiff to point to the cause of the accident

Chin v. St. Barnabas Med Center

  • Clearly the fault of negligent medical instrument, but not clear who was at fault for using the instrument
  • P sued all defendants
  • Jury told to find at least one negligent


Fireman’s Fund America Insurance Cos. v. Knobbe

  • Hotel burned down
  • Insurance company sued hotel guests who were smoking in rooms
  • Attempt to use Res Ipsa outside medical setting
  • Now the “loss spreader” is trying to kick the losses back to one individual.
  • Traynor says you must be very careful with Res Ipsa outside Med profession
  • This is not respondeat superior…

Now how do you prove negligence:

Traditional rule until last few decades you have to prove constructive notice.

Defendant should have know

Negligent for not knowing

Make the P establish constructive notice, how long was the danger there,

Condition of substance onthe ground infer many people walked over it, many poeple walking over it means it had been there for a while

From there you can prove the time

The P can not get by just showing general negligence in inspection practices (didnt inspect often emnough/properly, not good enough)

Courts have begun to modify this rule

Mode of operation rule

Metohd of store – self service store

People drop things ont the ground

Self service stores, the hazardous condidtional regularly occurs and the store should have known about it.

When the hazard regularly arises then the P doesnt have to show that it had been there a long time (constructive notise is waived)

Now lack of inspection/ often enough IS good enough

Critics sya this rule is such a loose standard that it apporaches strict liability

If you go with this than even if the danger was only there for one second before accident

Store could be held liable even though there was absolutely nothing you could do

It is puzzling that courts are doing this now

Res ipsa case, when you cant point to a particular act by the defendant.

Barrel, dont know what happend

Exploding bottle dont know how

Accident ordinarily would not occur without negligence

There is negligence simply because the accident occured

The D had exclusive control of what caused the accident

The P did not contribute to the accident themself

Escola exploding bottle, used Res Ipsa Loquitor. Allows it to go to the jury with out a specific act

Jury said yes this is a proper use of res ipsa loquitur

Bottle wouldnt ordianrliy explode

Botteler had exclusive control (debateable)

P did not contriute to accident

Traynor thought the D had ample evidence of due care, doesnt beleive the jury should have gotten the case. The fact that the jury got was simply a default to strict liabiltiy.

Why are courts expanding liabiltiy? Thats why we turn to the doctiren of strict product liability whihc grew out of the Escola bottle case

Justice Traynor Strict liabiltiy rule provides greater incentives for saftey than does negligence rules

Second policy removing the overwheliming misfortune from the plaintiff and transfering it to the manuf who can distribute the loss over the public in the price of goods and services

Same idea occured in traynors view of damages. maybe you ought to limit this in a system of Torts that is basically a system of insureance

Courts have not adopted this view.

Greenman openly said this is strict tort liability

Once you have a beached the liability

let see how far a rule will spread

Strict liability quickly spread next year to retailers

Then to lessors, short and long bmw hertz

Bystanders can recover because they are otherwise defensliss, and its spreads loss through society. those standards make the bystander an easy case

bEcause bystander has no choice in products or how the product is used

STOPS at services, ie LA transit wouldnt be liable for defective bus, BUT Seffert could still sue the bus manuf for strict liability. But the P may want to sue the LA Transit because they may have caused the defect <<< BUT Courts say NO we stop this at use of products in services

Stirct liabiltiy does not inlude the negligence of doctrine of res ipsa loquitour those two are extra policys

By the 1950s torts looked overly favoring defendants

Now strict liabiltity for defective products

Manufactuer defect – came off line bad

Design defect – designed inherintly bad

Four tests for design Rest 2nd

– If it is unreasonably dangerous, some courts say no this is negligence

Barker >>>>

California adopted the two pronged Barker liability Under either prong

1 assumed expectation, ordinary consumer expectiation ( so amorphous that jury can impose strict liability) OR

2 OR used as intended OR used in a reasonably forseeable manner

Jury can also find defective if the jury can find excessive danger Looks initally like a neg test. Does the risk outway the benefit of the design?

In strict product liability under Barker, they only have to prove the accident was proximately caused by the item. NOW THE D has to prove that it needed to be that way

Hindsight foreseeability

Evaluate the product at the time of trial. Say it was manuf in 1962, but now in 2010 we can forsee new dangers (eg ciggarettes hindsight)

Suggests you look at time of trial what the risk is

California was asked to change in the Shoeoel case to abandon strict liability in favor of negligence

More conservative court said NO ITS FINE HOW IT IS we reject request. But it should be limited, dont give every jury this test

Reserve Barker test for times when

Cases where the everyday experience of the products users that the design fails to meet the minimum standards

IF this test is to be used you cant bring in experts to say waht the ORP should have used it

Products have special Rules

we will also see Dr. ave special rules too

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