July 21, 2025 • 13 mins
Welcome back to the Bar Exam Toolbox podcast! This episode is the final in our Torts trilogy, where we're summarizing the topics from Torts we've covered in our "Listen and Learn" series. Today we're talking about strict liability and vicarious liability, and we review the key defenses - assumption of risk and comparative negligence.
In this episode, we discuss:
- Strict products liability of manufacturers and sellers
- Vicarious liability, or when one person becomes legally responsible for the torts of another
- Defenses in liability cases
- An attack plan for answering liability questions on the bar exam
Resources:
- Private Bar Exam Tutoring (https://barexamtoolbox.com/private-bar-exam-tutoring/)
- Podcast Episode 131: Listen and Learn – Strict Products Liability (https://barexamtoolbox.com/podcast-episode-131-listen-and-learn-strict-products-liability/)
- Podcast Episode 197: Listen and Learn – Vicarious Liability (Torts) (https://barexamtoolbox.com/podcast-episode-197-listen-and-learn-vicarious-liability-torts/)
- Podcast Episode 107: Listen and Learn – Assumption of Risk (Torts) (https://barexamtoolbox.com/podcast-episode-107-listen-and-learn-assumption-of-risk-torts/)
Download the Transcript
(https://barexamtoolbox.com/episode-319-spotlight-on-torts-part-3-strict-and-vicarious-liability/)
If you enjoy the podcast, we'd love a nice review and/or rating on Apple Podcasts (https://itunes.apple.com/us/podcast/bar-exam-toolbox-podcast-pass-bar-exam-less-stress/id1370651486) or your favorite listening app. And feel free to reach out to us directly. You can always reach us via the contact form on the Bar Exam Toolbox website (https://barexamtoolbox.com/contact-us/). Finally, if you don't want to miss anything, you can sign up for podcast updates (https://barexamtoolbox.com/get-bar-exam-toolbox-podcast-updates/)!
Thanks for listening!
Alison & Lee
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:01):
Welcome to the Bar Exam Toolbox podcast.
Today we have another episode in oursubstantive spotlight series, and we are
talking about torts - strict liability,vicarious liability, and defenses.
Your Bar Exam Toolbox hosts are AlisonMonaghan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
(00:22):
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
(00:43):
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
Welcome to the final installment of ourTorts trilogy, on substantive spotlight.
(01:03):
Today we're exploring what I like tocall "liability without fault" - those
fascinating situations where someonecan be legally responsible even
when they've done nothing wrong, orwhen someone else caused the harm.
If you thought intentional tortsand negligence covered all the
bases, you're in for a treat!
What makes strict liability and vicariousliability so intriguing is how they
(01:25):
challenge our basic sense of fairness.
Most of us intuitively think you shouldonly be responsible when you've done
something wrong, but tort law sometimessays, actually, you are liable simply
because of your relationship to therisk or to the person who created it.
Understanding when and why thishappens is crucial for both
(01:47):
law school exams and the bar.
So, let's start with strict productsliability, which we covered extensively
in our "Listen and Learn" episodes.
This doctrine holds manufacturers andsellers responsible for defective products
regardless of whether they were careless.
In other words, even if a companytook every reasonable precaution,
(02:08):
they can still be liable if theirproduct causes harm due to a defect.
There are three types of productdefenses to look for on an exam.
First, manufacturing defects - theseoccur when a particular product
deviates from its intended design.
Think of a batch of pain relieverscontaminated with a harmful
(02:29):
substance, or a car with animproperly installed brake line.
The key here is that most products inthe line are fine, but this particular
one didn't match the specifications.
As we discussed in our "Listenand Learn" episode, even if the
manufacturer had amazing qualitycontrol, they're still liable if
(02:50):
a defective product slips through.
Second, design defects - these exist whenan entire product line is designed in a
way that makes it unreasonably dangerous.
Perhaps an SUV is designed with a centerof gravity so high that it tips over
during normal turns, or a children'stoy has small parts that easily detach
(03:12):
and would create choking hazards.
The test here is usually whethera reasonable alternative design
would've reduced the foreseeablerisks while maintaining the product's
utility at a reasonable cost.
Third, failure to warn - this occurswhen a product carries a non-obvious
risk that should have been disclosed.
(03:32):
Classic examples include medicationswithout warnings about potential
side effects, or chemicals withoutproper handling instructions.
Remember, manufacturers don't needto warn about obvious dangers.
A knife manufacturer doesn't needto warn that a blade is sharp.
For a plaintiff to succeed in a strictproducts liability case, they must prove,
(03:56):
[1] the defendant is a commercial supplierwho routinely deals in goods of this
type; [2] the product was defective whenit left the supplier's hands; [3] the
product wasn't substantially altered afterleaving the supplier; and [4] the product
caused injury during foreseeable use.
(04:16):
Notice that nowhere in these elementsdo we ask whether the supplier
was careless or negligent - that'swhat makes it strict liability.
But products aren't the onlysource of strict liability.
As our episodes explained, keepingwild animals has traditionally
been a strict liability activity.
If you decide to have a tiger as a petand it escapes and injures someone,
(04:38):
you're liable regardless of how securethe cage was or how careful you are.
Similarly, engaging in abnormallydangerous activities often
triggers strict liability.
Blasting with explosives,storing toxic chemicals, or crop
dusting are classic examples.
The logic?
If you choose to engage in activitiesthat pose extraordinary risks, even
(05:00):
with reasonable precautions, you shouldbear the costs when things go wrong.
Now let's shift to vicarious liability- when one person becomes legally
responsible for the torts of another.
The most common form is respondeatsuperior, which we explored in
our "Listen and Learn" episodes.
Under this doctrine, employers areliable for their employees' torts
(05:23):
committed within the scope of employment.
Now, there are two key questions inany respondeat superior analysis:
1 (05:33):
Is the person an employee or independent contractor?
2 (05:38):
Was the tort committed within the scope of employment?
For the first question, we look at thelevel of control the employer exercises.
The more control over how workis performed, the more likely
someone is an employee ratherthan an independent contractor.
As we discussed in our episodes,other factors include method of
(05:58):
payment, hourly versus by job, whosupplies tools and equipment, and
length of the working relationship.
For the second question - scopeof employment - we ask whether the
employee was performing assignedwork or engaging in conduct
subject to the employer's control.
A delivery driver who causesan accident while making
deliveries - within the scope.
(06:20):
The same driver who takes a two-hourdetour to visit a friend and causes an
accident - probably outside the scope.
But wait, what aboutintentional torts by employees?
Generally, these fall outside thescope of employment, unless they were
specifically authorized, driven bya desire to serve the employer, or
resulted from the nature of the job.
(06:43):
A bouncer who uses excessive forcewhile removing a disruptive patron
might still create liability forthe employer, because some level
of force is inherent to the job.
Remember, independent contractorsgenerally don't create vicarious
liability for those who hirethem, but watch for exceptions.
If the activity is inherentlydangerous, involves non-delegable
(07:04):
duties, or the principal holdsthe contractor out as their agent,
vicarious liability might still attach.
Now let's talk about defenses.
What happens when the plaintiff hascontributed to their own injury?
Well, that's where assumption ofrisk comes in, which we covered in
an early "Listen and Learn" episode.
Assumption of risk applieswhen a plaintiff voluntarily
(07:26):
assumed a known risk.
The classic example is thebaseball fan hit by the foul ball.
They knew balls sometimes fly into thestands, yet choose to sit there anyway.
This doctrine has two varieties.
Express assumption occurs whensomeone explicitly agrees to accept
a risk, usually by signing a waiver.
(07:47):
"I acknowledge skiing is dangerous andaccept all risks" is express assumption.
Implied assumption happenswhen someone's conduct suggests
they knowingly accepted a risk.
Jumping into a mosh pit at aconcert implies acceptance of the
risk of being jostled or bumped.
An important subset isthe firefighter's rule.
(08:08):
Professional rescuers generally can'tsue for injuries caused by the very
risks they're employed to confront.
If you negligently start a kitchenfire, the firefighter who is injured
putting it out typically can't sue you.
They've implicitly assumedthat risk by taking the job.
But assumption of risk isn't absolute.
(08:28):
In many jurisdictions, it's beenpartially or fully absorbed into
comparative negligence principles,which reduce damages based on the
plaintiff's percentage of fault,rather than barring recovery entirely.
Speaking of comparative negligence, that'sanother critical defense to understand.
Under pure comparative negligence, aplaintiff's recovery is reduced by their
(08:50):
percentage of fault, no matter how high.
Under modified comparativenegligence, a plaintiff who is more
than 50%, or in some jurisdictions51% at fault, recovers nothing.
This is a major shift fromthe harsh traditional rule of
contributory negligence, where anycontribution to your own injury,
(09:11):
even just 1%, barred all recovery.
While a few jurisdictions still followthis approach, most have adopted
some form of comparative negligence.
So, let's bring it all together withan example: Manufacturer produces
power tools and sells one to HardwareStore, which then sells it to Customer.
The tool has a design defect thatcauses it to overheat during normal use.
(09:35):
Customer is injured while using thetool, but was also ignoring a different
warning about proper eye protection.
So, who can the customer sue?
Well, both the manufacturer and hardwarestore under strict products liability
- they're both in the distribution chain.
What must Customer prove?
That the tool was defective whenit left the defendant's control and
(09:58):
that the defect caused the injury.
What defenses might apply?
Well, assumption of risk, if Customerknew about the overheating issue.
Product misuse, if Customerwas using it improperly.
Comparative negligence to reducedamages, based on Customer ignoring
the eye protection warning.
Now, in analyzing strict liabilityand vicarious liability questions
(10:20):
on exams, here's your attack plan:
1. For products liability,identify the type of defect,
manufacturing design, or warning.
Determine whether all partiesin the distribution chain
are commercial suppliers.
Check whether the product wasaltered after leaving the supplier.
And assess whether theuse was foreseeable.
(10:42):
2. For vicarious liability,determine the relationship between
the parties - employer/employee orprincipal/independent contractor.
If an employee, analyze whether the tortoccurred within the scope of employment.
And if an independent contractor,check for exceptions to the
general rule of non-liability.
3. Consider all potential defenses.
(11:05):
Did the plaintiff assume the risk?
Was there comparative negligence?
Was the product misusedin an unforeseeable way?
For deeper dives into these topics, checkout our "Listen and Learn" series episodes
on strict products liability, vicariousliability, and assumption of risk.
Each episode walks through realbar exam questions with detailed
(11:26):
analysis that will help you nailthese concepts on bar exam day.
We have linked to themall in the show notes.
What makes all these doctrinesso important is how they balance
competing societal interests.
Strict products liabilitypromotes safety innovation, while
distributing the costs of injuries.
Vicarious liability ensures thatbusinesses can't escape responsibility
(11:50):
by pushing risks onto employees.
And defenses like assumption of riskrespect individual autonomy and choice.
So, this brings us to theend of our Torts trilogy.
We've covered negligence,intentional torts, and now
strict and vicarious liability.
Together, these form the core of tort law- a system designed to compensate victims,
(12:11):
deter harmful behavior, and distributelosses in ways society deems fair.
Remember, tort law isn'tjust about memorizing rules.
It's about understanding thepolicies and principles behind them.
When faced with a toughquestion, ask yourself: What
outcome best serves justice?
What rule would createthe right incentives?
And who is better positionedto avoid or absorb these costs?
(12:36):
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We would really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
(12:58):
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Welcome to the Bar Exam Toolbox podcast.
Today we have another episode in oursubstantive spotlight series, and we are
talking about torts - strict liability,vicarious liability, and defenses.
Your Bar Exam Toolbox hosts are AlisonMonaghan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
(00:22):
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
(00:43):
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
Welcome to the final installment of ourTorts trilogy, on substantive spotlight.
(01:03):
Today we're exploring what I like tocall "liability without fault" - those
fascinating situations where someonecan be legally responsible even
when they've done nothing wrong, orwhen someone else caused the harm.
If you thought intentional tortsand negligence covered all the
bases, you're in for a treat!
What makes strict liability and vicariousliability so intriguing is how they
(01:25):
challenge our basic sense of fairness.
Most of us intuitively think you shouldonly be responsible when you've done
something wrong, but tort law sometimessays, actually, you are liable simply
because of your relationship to therisk or to the person who created it.
Understanding when and why thishappens is crucial for both
(01:47):
law school exams and the bar.
So, let's start with strict productsliability, which we covered extensively
in our "Listen and Learn" episodes.
This doctrine holds manufacturers andsellers responsible for defective products
regardless of whether they were careless.
In other words, even if a companytook every reasonable precaution,
(02:08):
they can still be liable if theirproduct causes harm due to a defect.
There are three types of productdefenses to look for on an exam.
First, manufacturing defects - theseoccur when a particular product
deviates from its intended design.
Think of a batch of pain relieverscontaminated with a harmful
(02:29):
substance, or a car with animproperly installed brake line.
The key here is that most products inthe line are fine, but this particular
one didn't match the specifications.
As we discussed in our "Listenand Learn" episode, even if the
manufacturer had amazing qualitycontrol, they're still liable if
(02:50):
a defective product slips through.
Second, design defects - these exist whenan entire product line is designed in a
way that makes it unreasonably dangerous.
Perhaps an SUV is designed with a centerof gravity so high that it tips over
during normal turns, or a children'stoy has small parts that easily detach
(03:12):
and would create choking hazards.
The test here is usually whethera reasonable alternative design
would've reduced the foreseeablerisks while maintaining the product's
utility at a reasonable cost.
Third, failure to warn - this occurswhen a product carries a non-obvious
risk that should have been disclosed.
(03:32):
Classic examples include medicationswithout warnings about potential
side effects, or chemicals withoutproper handling instructions.
Remember, manufacturers don't needto warn about obvious dangers.
A knife manufacturer doesn't needto warn that a blade is sharp.
For a plaintiff to succeed in a strictproducts liability case, they must prove,
(03:56):
[1] the defendant is a commercial supplierwho routinely deals in goods of this
type; [2] the product was defective whenit left the supplier's hands; [3] the
product wasn't substantially altered afterleaving the supplier; and [4] the product
caused injury during foreseeable use.
(04:16):
Notice that nowhere in these elementsdo we ask whether the supplier
was careless or negligent - that'swhat makes it strict liability.
But products aren't the onlysource of strict liability.
As our episodes explained, keepingwild animals has traditionally
been a strict liability activity.
If you decide to have a tiger as a petand it escapes and injures someone,
(04:38):
you're liable regardless of how securethe cage was or how careful you are.
Similarly, engaging in abnormallydangerous activities often
triggers strict liability.
Blasting with explosives,storing toxic chemicals, or crop
dusting are classic examples.
The logic?
If you choose to engage in activitiesthat pose extraordinary risks, even
(05:00):
with reasonable precautions, you shouldbear the costs when things go wrong.
Now let's shift to vicarious liability- when one person becomes legally
responsible for the torts of another.
The most common form is respondeatsuperior, which we explored in
our "Listen and Learn" episodes.
Under this doctrine, employers areliable for their employees' torts
(05:23):
committed within the scope of employment.
Now, there are two key questions inany respondeat superior analysis:
1 (05:33):
Is the person an employee or independent contractor?
2 (05:38):
Was the tort committed within the scope of employment?
For the first question, we look at thelevel of control the employer exercises.
The more control over how workis performed, the more likely
someone is an employee ratherthan an independent contractor.
As we discussed in our episodes,other factors include method of
(05:58):
payment, hourly versus by job, whosupplies tools and equipment, and
length of the working relationship.
For the second question - scopeof employment - we ask whether the
employee was performing assignedwork or engaging in conduct
subject to the employer's control.
A delivery driver who causesan accident while making
deliveries - within the scope.
(06:20):
The same driver who takes a two-hourdetour to visit a friend and causes an
accident - probably outside the scope.
But wait, what aboutintentional torts by employees?
Generally, these fall outside thescope of employment, unless they were
specifically authorized, driven bya desire to serve the employer, or
resulted from the nature of the job.
(06:43):
A bouncer who uses excessive forcewhile removing a disruptive patron
might still create liability forthe employer, because some level
of force is inherent to the job.
Remember, independent contractorsgenerally don't create vicarious
liability for those who hirethem, but watch for exceptions.
If the activity is inherentlydangerous, involves non-delegable
(07:04):
duties, or the principal holdsthe contractor out as their agent,
vicarious liability might still attach.
Now let's talk about defenses.
What happens when the plaintiff hascontributed to their own injury?
Well, that's where assumption ofrisk comes in, which we covered in
an early "Listen and Learn" episode.
Assumption of risk applieswhen a plaintiff voluntarily
(07:26):
assumed a known risk.
The classic example is thebaseball fan hit by the foul ball.
They knew balls sometimes fly into thestands, yet choose to sit there anyway.
This doctrine has two varieties.
Express assumption occurs whensomeone explicitly agrees to accept
a risk, usually by signing a waiver.
(07:47):
"I acknowledge skiing is dangerous andaccept all risks" is express assumption.
Implied assumption happenswhen someone's conduct suggests
they knowingly accepted a risk.
Jumping into a mosh pit at aconcert implies acceptance of the
risk of being jostled or bumped.
An important subset isthe firefighter's rule.
(08:08):
Professional rescuers generally can'tsue for injuries caused by the very
risks they're employed to confront.
If you negligently start a kitchenfire, the firefighter who is injured
putting it out typically can't sue you.
They've implicitly assumedthat risk by taking the job.
But assumption of risk isn't absolute.
(08:28):
In many jurisdictions, it's beenpartially or fully absorbed into
comparative negligence principles,which reduce damages based on the
plaintiff's percentage of fault,rather than barring recovery entirely.
Speaking of comparative negligence, that'sanother critical defense to understand.
Under pure comparative negligence, aplaintiff's recovery is reduced by their
(08:50):
percentage of fault, no matter how high.
Under modified comparativenegligence, a plaintiff who is more
than 50%, or in some jurisdictions51% at fault, recovers nothing.
This is a major shift fromthe harsh traditional rule of
contributory negligence, where anycontribution to your own injury,
(09:11):
even just 1%, barred all recovery.
While a few jurisdictions still followthis approach, most have adopted
some form of comparative negligence.
So, let's bring it all together withan example: Manufacturer produces
power tools and sells one to HardwareStore, which then sells it to Customer.
The tool has a design defect thatcauses it to overheat during normal use.
(09:35):
Customer is injured while using thetool, but was also ignoring a different
warning about proper eye protection.
So, who can the customer sue?
Well, both the manufacturer and hardwarestore under strict products liability
- they're both in the distribution chain.
What must Customer prove?
That the tool was defective whenit left the defendant's control and
(09:58):
that the defect caused the injury.
What defenses might apply?
Well, assumption of risk, if Customerknew about the overheating issue.
Product misuse, if Customerwas using it improperly.
Comparative negligence to reducedamages, based on Customer ignoring
the eye protection warning.
Now, in analyzing strict liabilityand vicarious liability questions
(10:20):
on exams, here's your attack plan:
1. For products liability,identify the type of defect,
manufacturing design, or warning.
Determine whether all partiesin the distribution chain
are commercial suppliers.
Check whether the product wasaltered after leaving the supplier.
And assess whether theuse was foreseeable.
(10:42):
2. For vicarious liability,determine the relationship between
the parties - employer/employee orprincipal/independent contractor.
If an employee, analyze whether the tortoccurred within the scope of employment.
And if an independent contractor,check for exceptions to the
general rule of non-liability.
3. Consider all potential defenses.
(11:05):
Did the plaintiff assume the risk?
Was there comparative negligence?
Was the product misusedin an unforeseeable way?
For deeper dives into these topics, checkout our "Listen and Learn" series episodes
on strict products liability, vicariousliability, and assumption of risk.
Each episode walks through realbar exam questions with detailed
(11:26):
analysis that will help you nailthese concepts on bar exam day.
We have linked to themall in the show notes.
What makes all these doctrinesso important is how they balance
competing societal interests.
Strict products liabilitypromotes safety innovation, while
distributing the costs of injuries.
Vicarious liability ensures thatbusinesses can't escape responsibility
(11:50):
by pushing risks onto employees.
And defenses like assumption of riskrespect individual autonomy and choice.
So, this brings us to theend of our Torts trilogy.
We've covered negligence,intentional torts, and now
strict and vicarious liability.
Together, these form the core of tort law- a system designed to compensate victims,
(12:11):
deter harmful behavior, and distributelosses in ways society deems fair.
Remember, tort law isn'tjust about memorizing rules.
It's about understanding thepolicies and principles behind them.
When faced with a toughquestion, ask yourself: What
outcome best serves justice?
What rule would createthe right incentives?
And who is better positionedto avoid or absorb these costs?
(12:36):
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We would really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
(12:58):
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
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