'Strict Liability in Business Law\r'

'The Ameri bear usual natural jurisprudence adopted the concept of rigid obligation in early 1960’s. They began to adopt the view that the sellers should back up the cost of injuries or shifts in their crossways as they be in the best position to distinguish the risks associated with their crossings. The moves of advanced sentences also provide the sellers the indisputable financial obligation for their big harvest-festivals with bulge out the disregard or fault on the lot of the seller. The Ameri git law institutes call for the assorted state law departments to recapitulate the developments in tight financial obligation in Section 402A of the Restatement (Second) of torts in 1977.In 1997 ALI bumonical the Restatement (Third) of Torts point of intersectionions financial obligation, which expands the general language of Section 402A into all over 20 different sections addressing circumstantial actions of the unforgiving indebtedness establish for r ecovery. In 1999, the ALI ap experimentd Restatement the apportionment of obligation, completely win and expanding upon comparable provisions of Restatement (Second) of Torts. This Restatement gives paramount importance to the designulas of law governing apportionment as liability in encases whither on that point ar multiple actors who whitethorn wangle up differing degrees of liability.(1)The application of unforgiving liability is important in various segments of barter law. hither we shall discuss the mise en scene of unforgiving liability, its subjectives and exceptions etc. muchover we shall try to look the relationship and contrast of the uncompromising liability with almost a nonher(prenominal) dimensions in the business law like come up in Rylands Vs Fletcher, mens rea, oversight, harvest-festival liability and contract. ——————————————————R 12;————————————————— 1. Restatement (Third) of Torts products liability, 1999 unyielding obligation 2 Introductionâ€Å"He elicit apologia himself by video displaye that the fountain was owing to complainant’s default; but as nada of this sort exists here, it si unnecessary to require to what self-justification would be decent. †Blackburn J Sec. 402A of Restatement (Second) of Torts, 1977 enunciates that seller of some(prenominal) regretful product which is unreasonably suicidal to the drug riding habitr or consumer is subject to liability for physical victimize in that respectby wooing to the ultimate determinationr or consumer, or to his place, if the product is expected to and does r to each one the user or consumer without squ ar(a) change in the condition in which it is sold.It does non matter that the seller has exercised all possible do le out in the preparation and sale of his product; and the user or consumer has non bought the product from or entered into any contractual relation with the seller. still the recreate up below discover of nonindulgent liability can be turn over a gather inst Property disparage, Compensation for wrongful death, tangible and mental pain and suffering Loss of puddle for loss of love and affection, Past, present and future medical examination bills and Lost past and future wages, Definition uncompromising liability is a legal doctrine that makes virtually persons responsible for alter their actions or products ca-ca, regardless of any â€Å"fault” on their part. at that place argon situations when a person whitethorn liable for slightly disablement stock- allay so though he is not hit-and-run(prenominal) in cause the same or there is no innovation to cause the harm or some eras he whitethorn even shake up made some positive efforts to avert the same. I n other haggling the law recognizes such(prenominal) type tight indebtedness 3 of â€Å"no fault â€Å"liability. (Salmond,1996)(2)The liability arises when a person or company sells a unsound product which is un sound and precarious to the user.The crack may in the products design or manufacturing, in the book of instructions or model necessary for the product’s asylum or in the container or packaging. The master(prenominal) feature of this aspect is, here the injure is excluded from proving the disrespect of seller. Scope Generally our legal system typically imposes liability for m unmatchabley regaining only upon a showing that a person was negligent (i. e. , failed to use due(p) manage) or somehow mean to let about an blot or toll to another. thither are cases, however, where a defaulter can be held responsible for an blot even where no failure or evil intent can be sh sustain .The doctrine of strict liability imposes legal responsibleness for injur ies sustained by or as a terminus of an actors lead, whether or not the actor utilise sensitive aid and regardless of the actors state of mind. austere liability cases are limited to certain(a) narrowly-defined areas of the law, including products liability, ultra speculative activities, fretfulness of animals and certain statutory offenses. ( Faegre & Benson, 2003) (3) The figure of strict liability is mainly attributed to find oneself in Rylands Vs Fletcher (4) in which the House of Lords well reared the precept of as strict liability.In this case, the ———————————————————————————————————— 2. Salmond , Heuston (1996) , Law of Torts, , publisher: Sweet & maxwell; 21Rev Ed edition , ISBN-13: 978-0421533509 3. Faegre & Benson, (Nov. 2003) UK Trade an d Investment, US product liability law 4. Rylands Vs Fletcher (1868) L. R 3 H. L 330 Strict obligation 4 suspect got a reservoir constructed by means of individual contractors, over his land for providing pissing to his mill.There were old disused shafts chthonian(a) the site of the reservoir, which the contractors failed to observe and so did not clog them. When the water was filled in the reservoir, it burst destroyed the shafts and the complainant’s cold mines on the next land. The suspects did not know the shafts and had not been negligent although the independent contractors had been. In this case the address found that even if the suspect was not negligent or rather, even if the suspect did not headingally cause the harm or he was criminal maintenanceful, he could still be made liable downstairs the rule.The defendant may excuse himself by showing that the occurrence was owing to the plaintiff’s default or that was the sequel of vis major or the act of good. But in this case the address firmly conserves that it is unnecessary to inquire what excuse would be sufficient. Normally in these cases, the liability arises not because there was ant fault or negligence on the part of persons, but because he kept such incorrect products and the same was caused some sort of personal damage to another. In Smedleys Vs Breed, (5)a banging manufacturing company of tinned peas was convicted as there found the carcass of a caterpillar.On dismissing the appeal of company the coquet held it was offence of strict liability, therefore it was not sufficient show that the company had grapplen all reasonable care to avoid the event. ———————————————————————————————————— 5. Smedleys Vs Breed,(1974) Strict Liability 5 The same view w as suckn in the far-famed case Donogue Vs Stevenson (6) in this case A purchased a bottle of ginger beer from a retailer for the appellant.While pour to the tumbler the appellant found a decomposed dead body of a snail floated out with her ginger beer. The appellant alleged that she seriously suffered in her health in consequence of having drunk the beer which contains the contaminated contents. On her claim for restitution, the court declared that a person who is for gain engages in the business of manufacturing articles of food and drink intend for consumption by members of the public in the bod he is fulfills them, is on a lower floor a debt instrument to take care in the manufacture of these articles.That handicraft moldiness be to whom he intends to consume his products. The fact is that he manufacturers his commodities for humanity consumption. Due to this informal nexus he places himself in a relationship with all the capability consumers of his commodities, and th at relationship which he assumes and desires for his own ends impose upon him a duty to take care to avoid injuring them. ” thereof the manufacturer owed her a duty to take care that the bottle did not contain any injurious matter and that he would be liable for the collapse of the duty.Moreover the law looks into the scope of strict liability epoch it is arising out of indeed consumer’s case. In Berrier v. informality Manufacturing, Inc (7), the leg of four years old was amputated as the result of injuries sustained when her grand father accidentally backed over her foot while shear the lawn with ———————————————————————————————————— 6. Donoghue v Stevenson [1932] AC 562 (HL) (Sc) 7. Berrier v. Simplicity Manufacturing, Inc. , (3d Cir. Jan. 17, 2008) S trict Liability 6 a riding mower.Her parents moved a case against the manufacturer of the riding mower on the basis of strict liability and negligence base on design shift and inadequate warning theories. But the court followed the decision of Phillips v. Cricket Lighters, (8)and held that since the intend user or consumer is limiting the wide application of rule of strict liability the issue still remains that the child is neither user nor intended user or consumer of the mower. Strict liability and mens rea So the offences of strict liability, we can say, are those crimes which do not require mens rea with regard to at least one or more elements of the actus reus.In R Vs Storkwain (9) the defendant supplied drugs for which a prescription was postulate, after being handed a forged prescription. There was no evidence of any negligence or wrong doing on the part of the pharmacist.. On appeal against conviction, it was held that the formula created an offence of strict liability; therefore no proof of mens rea was required. In Gammon (Hong Kong) Ltd vs Attorney-General for Hong Kong (10) following points has been laid down to check out the circumstances to which strict liability to be imposed.(1) There is a presumption of law that mens rea is required originally a person can be held discredited of a criminal offence; ———————————————————————————————————— 8. Phillips v. Cricket Lighters, 841 A. 2d 1000 (Pa. 2003) 9. R Vs Storkwain (1986) 10. Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong [1984] 2 All ER 503 Strict Liability 7 (2) The presumption is particularly strong where the offence is â€Å" authentically criminal” in character;(3) The presumption applies to statutory offences, and can be displaced only if this is distinctly or by necessary implication the effect of the statute; (4) The only situation in which the presumption can be displaced is where the statute is pertain with an issue of neighborly concern; (5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the earthly concern of strict liability volition be hard-hitting to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.Essentials of strict liability For the application of this rule the following tether essentials should be there: 1) Injury by a risky product: In order to advance the strict liability under the law the plaintiff mustiness show that the injury must be caused by a defective product whose defect existed at the time of injury and the product should be plaintiff’s maneuver. In the recent case of Ceiba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ‘n Ander (11) it was held that the liability arising from the defective products not only link up to the personal injury but financial loss also.It was further substantiate that when a manufacture undertakes or market the return without any prior tests and ———————————————————————————————- 11. Ceiba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ‘n Ander, 2002 (2) SA 447 (SCA) Strict Liability 8 consequently it turns hazardous to the consumer such negligent activities expose a liability to the consumer. here a contractual nexus in the midst of the manufacturer and the consumer is not required. (Weir, Tony 2006), (12)2) The goods must be serious or defective in nature: Here the plaintiff must show that due to the dangerous nature, such goods can not be used for the ordinary purpose or for some other reasonably foreseeable purpo se. Thus, a manufacturer owes a duty to supply a product flare-up for the ordinary purposes and it is to be used and safe tho a reasonably foreseeable contumely that could cause injury. The decisions in notable cases like Batcheller Vs Tunbrige Wells burn out co. ,(13) National Telephone Co. Vs Baker (14)and western United States Vs Bristol Tramways Co.(15)manifests that the defective products are whatever in form ,whether it is gas, galvanisingal energy noxious fumes ,the rule of strict liability can be use. 3) The goods should cater the manufacturer: It is essential that the thing caused injury to the plaintiff must leave from the possession and control of eth defendant. So those defective goods are still with the manufacture is safe from the claim of compensation. In Read Vs Lyons (16) (text) the plaintiff was the employee in the defendant’s munitions factory. While performing her duty a re star(predicate)nd was exploded and she was injured . Even——&# 8212;————————————————————————————————†12. Weir,Tony,( 2006),an introduction to Tort law,2nd edn. , Oxford University Press 13. Batcheller Vs Tunbrige Wells Gas co. 84 L. T 765 14. National Telephone Co. Vs Baker (1893) 2 ch 186 15. West Vs Bristol Tramways Co. (1908) 2 K. B 14 16. Read Vs Lyons (1947) A. C 156, 161 Strict Liability 9 though the example exploded was dangerous in nature it was held that defendants were not liable as the shell was not left from outside the defendant’s premises and the rule of strict liability could not be applied in this case.4) Breach of warranty: Generally, the law imposes certain warranties (or guaranties) on the sale of products. Such warranties include that the goods are in proper condition for use and acquit of defects and that they are fit fo r a particular purpose. Since the court doesn’t disregard the liability of the waivers against the policy and the warranties are limited, the manufacturers and retailers are continuously held responsible for injuries from the defective and dangerous products. The aspect of breakout of warrenty enables the plaintiff to act against the defendant with his complete freedom.Here he need not assert that the defendant is fault. Usually the product claims under the breach of warranty are in quasi contractual nature. Any factual statement or annunciate about the product ,a description of the product made ,any sample or model provided constitutes the warranty upon which the vendee rely to purchase the goods. ( Faegre & Benson,. 2003)(17) Exceptions/limitations The following are the exceptions to the rule of strict liability. 1) Plaintiff’s own default: Damage caused due to the plaintiff’s own default was considered to be good confession in rule of strict liabili ty.If the plaintiff suffers damages by ———————————————————————————————————— 17. ibid 3 Strict Liability 10 his own intrusion into the defendant’s position he can not complain for the damage so caused. When the damage to the plaintiff’s products/property is caused not so much by the escape of eth thing s collected by the defendants as by the unusual sensitiveness of plaintiff’s property itself, the plaintiff cannot recover anything. In east and South African wire C. Ltd. Vs Capetown Tramways Co.(18) the plaintiff gun cable transmissions were disturbed by escape of electric car current from the defendant’s tramways . It was found that the damage was due to the unusual sensitiveness of the plaintiff’s apparatus and such damage entrus t not occur to person carrying on the ordinary business and the defendant held not liable for the such occurrence. 2) be of god: Act of god or Vis study was also considered to be a good self-abnegation to an action under the rule of strict liability. If the defect is unforeseen and it is without any human intervention the defence mechanism of cat of good can be pleaded.In Tennent Vs Earl of Glasgow (19) the court has framed a well maintained explanation for the act of god as the circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the opening move. 3) acquiesce of plaintiff: In cases of volunti non fit injuria i. e where the plaintiff has consented to the accumulation of the dangerous /defective product in defendant’s possession, then such liability does not arise. But such consent must arise for the leafy vegetable ————————————— 212;—————————————————————— 18.Eastern and South African Telegraph C. Ltd Vs Capetown Tramways Co. (1936) A. C 381 19. Tennent Vs Earl of Glasgow (1864) 2M (H. L) 22, 26-27 Strict Liability 11 value of both plaintiff and defendant. For eg: when two persons are nutrition on the different floors of eth same building each of them is deemed to energise consented to the installation of things of common hit such as the water system, gas pipes or electric wiring . When water has been collected for the common benefit of the plaintiff and the defendant will not be liable for any defects happened to such system unless there is negligence on his part.In nitrogen Western Utilities Vs capital of the United Kingdom Guarantee,etc Co. Ltd (20) ,the concept of consent for the common benefit had been suppose as there is no such common benefit between a gas or other public utility undertaking and its consumer’s . 4) Act of third party: If the harm has been caused due to the act of a weird who is neither defendant’s servant nor the defendant has any control over him, the defendant will not be liable under this rule. But if the act of the stranger is or can be foreseen by the defendant and the damage can be prevented, the defendant must by due care prevent the damage.If not so, the defendant may be held liable for his act. This principle is laid down in Richards Vs Lothian (21). In this case, some strangers blocked the waste pipes of a wash basin, which was differently in the control of the defendants, when opened the tap, and the overflowing water damaged the plaintiff’s goods. The defendants were held not liable. 5) statutory authority: Generally an act done under the authority of a statute is defense ————————————————— 212;—————————————————— 20. North Western Utilities Vs London Guarantee,etc Co. Ltd (1936) A.C 108 21. Richards Vs Lothian (1913) A. C 263 Strict Liability 12 to an action for tort. But it cannot be pleaded as a defense when there is negligence. In light-green Vs Chelsea Waterworks Co. (22) the defendant co. had a statutory duty to maintain continuous supply of water. A man belonging to the company burst without any negligence on its part, as a consequence of which plaintiff’s premises were flooded with water. It was held that the company was not liable as the company was engaged in performing a statutory duty. ( Salmond,1996)(23) In practice, the defendant may argue the defenses adopting the following claims.1) The defendant may forward an argument on the basis of use of the product sold. But it is to be remembered that the misuse of products can not be forceeble or t here is a chance of rebut this argument by the plaintiff that there should have some kind of antepast on the part of the manufacturer and prevented such misuse by its product design or in its warning. 2)Secondly the defendant can claim that the product has been adapted and modified . In order to be this he has to take adequate measures to provide warnings in radio link with the alteration of the products.3) If there is any complaint by the buyer about the defective design, then the defendant may rebut his claim by demonstrating that the product was at state of art at the time of manufacture. 4) A manufacturer might be allowed to adduce the evidence on the basis of industry ———————————————————————————————————- 22. commonalty Vs Chelsea Waterworks Co. (1864) 70 L. T 547 23. ibid 2 Strict Liability 13 custom and standards and government standards related to the manufacture and design. ( Faegre & Benson, 2003)(24)Before the buyers of tacky products were not allowed to sue a manufacturer of or seller of a harmful product in commerce. The decision owes to the principle of â€Å"caveat emptor” â€Å"let the Buyer beware”. Now the burthen to prove a products sticks on the other claims of product defect, inadequate instructions, or warnings. Here the plaintiff must prove that that the product caused him harm when it was used for its intended purpose as well. More he has to prove that the manufacturer knew or should have known the product would be used in such a way that would cause harm. Strict liability and NegligenceNegligence is an important element to determine the strict liability of a defendant. Negligence is considered to be the oldest hypothesis of product liability as well as the strict liability. As a general rule it is for the plaintiff to prove that the defendant was negligent. The initial burden of making out at least prima facie case of negligence as against the defendant lies heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff.(Jones,2007)(25) There are some elements should be proved by the plaintiff in order to make claim against the defendants under the rule of strict liability. ———————————————————————————————————— 24. ibid 3 25. Jones, A . Micheal (2007), A text book on Tort, Ch. 2, 9th ed. , publ. by Oxford University Press Strict Liability 14 Duty of care: The plaintiff must prove that a duty of care was owed by the defendant to the plaintiff. Mere carelessness on the part of defendant doesn’t entitle the plaintiff to sue him.He has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. In this connection, in famous case of Donogue Vs Stevenson it was held that a manufacturer of the products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation of putting up of the products will result in an injury to consumer’s life or property, owes a duty to the consumer to take that reasonable care.(26) Breach of duty: Breach of duty means non observance of due care which is required in a particular situation. But here the defendant acted like a reasonable responsible man there is no negligence. In Blyth Vs Birmingham waterworks Co(27). it was clearly explained that negligence is the omission to do something which a reasonable man ,guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudential and reasonable man would not do.) Proximate cause: The plaintiff should prove that the breach of duty proximately caused the plaintiff’s injuries. Finally there should be rightful(a) and sufficient injury happened to the plaintiff due to the defective /dangerous product. ———————————————————————————————————— 26. ibid 6 27. Blyth Vs Birmingham waterworks Co (1856) 11Ex. 281Strict Liability15 The manufacturers always have the duty to exercise reasonable care in manufacturing the products.Poor assembling the products, difference in use of comp onent parts and its design specifications, failure to examine the finished products, component parts and failure in correction in any defective products are some examples to lead the plaintiff to claim under the rule of strict liability. ( Faegre & Benson, 2003) (28) In R Vs lowlife (29)the publisher of a gay intelligence information were charged with blasphemous libel against Christ through a poem which was considered as an slur to Christianity.The court held that it is the pure case of blaspheme as they had intention to publish so they are responsible for their act. Moreover in Alpha cell Vs Woodward,(30) the company was incriminate of causing polluted water to enter river by using equipment to prevent any overflow in to the river. But due to the collapse of the machine, the polluted things leaked out to the water. There was no evidence that the defendant is negligent but the court held that the defendant had caused the pollution in the water and they held liable. Strict l iability in product liabilityThe â€Å"product liability” defined as the liability of manufacturer, during the chain of distribution, for personal injury, economic loss or property damage caused by sale or use of the product. Here the term ‘product’ denotes the finished goods as well as those items which may have some impact on the consumer expectations, product safety etc. In order to brought the action under strict liability the plaintiff must prove that injury occurred by ———————————————————————————————————— 28. ibid 3, 24 29. R Vs Lemon (1979)30. Alphacell Vs Woodward, (1972) Strict Liability16 a defective product whose defect existed at the time of injury and at the time which the product left the control of manufactures control. Such product lia bility is the legal responsibility of the manufacturer to the buyers. It can be occurred at time of the transaction. Generally there are three defects in the product make defendants liable for their act. 1) Manufacturing: even though a few products turns in to the fault during the process of a manufacturing the plaintiff may held liable under rule of strict liability.2) Marketing: In the case of lack of product warning or instructions, the plaintiff can bring an action against the defendant under such liability. 3) project: A fault in design from antecedently mentioned might enable the plaintiff to claim for damages against the defendants. ( Miller, Goldberg 2004)(31) Usually the defective and unreasonably dangerous product denotes the desirability or usefulness of the product, the availability of safer goods in same need, likelihood of injury and its possible sincerity and danger.In such cases entitles the plaintiff to recover from the defendants for the injury caused by the prod uct. Here he need not prove any misconduct on the part of the defendant. The law framed such a provision to make the manufacturer vigilant about their production in safe manner. It is the duty of the manufacturer to produce the goods which will not create an unreasonable risk of injury to the consumer at any cost. Such claim can be made against the———————————————————————————————————— 31. Miller C. J, Goldberg R. S (September 30, 2004) harvest-time liability 2 edition Publisher: Oxford University Press, regular army; ISBN-13: 978-0198256786 Strict Liability17 manufacturer, wholesaler, distributor, retailer and the maker of component parts. (Restatemet,1999)(32) In recent case of Escola v. Coca-Cola Bottling Co. ,(33) 24 Cal. 2d 453 (1944) (Traynor, J., concurring) it wa s clearly stated that on the demand of public policy the responsibility should be fixed even though there is no element of negligence under the circumstances of hazardous and dangerous to life and health due to the defective products. In cost of the cases the injured would be such persons who are not sensible and unprepared to meet the consequences. It is to the public interest to warn the marketing of defective products that are a scupper to the public. It is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the man\r\n'