Answer to MBE Question from October 23rd
(B) is correct.
Issue: What is the best defense to a strict liability claim?
Rule: One who sells any product in a defective condition unreasonably dangerous to the consumer or to his property is subject to liability for physical harm thereby caused to anyone whose injury was foreseeable, including the ultimate consumer, or to his property, if (1) the manufacturer or supplier is engaged in the business of selling the product in question; (note that a commercial supplier has a duty to supply a safe product); (2) the product is unreasonably dangerous to the consumer or to his property (in which case the duty to supply a safe product is breached); (3) the defect existed while in the hands of the manufacturer (meaning the product was not altered after it left the hands of the manufacturer); and (4) there is actual harm to the person or property. Pure economic loss – i.e., the value of the defective product itself –cannot be recovered. Privity is not a requirement under strict liability. Defenses to a claim of strict liability include, inter alia, assumption of risk, which is when the plaintiff continues to use the product unreasonably even after he learns about the risk and the failure to heed the warning accompanying the product.
Analysis: Here, the manufacturer issued a warning for the swing set and thus protected itself against a strict liability claim for exactly the activity that the manufacturer warned against. By failing to heed the warning, the parents and child can be said to have assumed the risk of using the swing set. Thus, (B) is the correct answer.
(B) is correct because it is the best defense to a strict liability claim.
(A) is incorrect because strict liability extends to beyond just the purchasers of the product. The manufacturer may be liable to anyone whose injury was foreseeable.
(C) is incorrect because while modification of the product may be a defense to strict liability, here, (B) is the better answer given that the manufacturer warned against the exact activity that caused the child’s injury.
(D) is incorrect because the “last clear chance” theory is not applicable to strict liability actions.