Zisk Torts II Spring 2012
I. Traditional strict liability
· Animals
§ Negligence
· Failure to act upon the knowledge of an animal’s abnormally dangerous propensities
· Did the owner know or should the owner have known of that animals dangerous propensities?
§ Strict liability
· To trespassers: Defense -> there is no duty
o A dog is not a trap -> it serves another purpose
· In South Carolina strict liability has been imposed by
o Courts: Hossenlopp v. Cannon
o Legislature
§ 1. Person 2) attacked by a dog 3) in a public place or lawfully in a private place 4) the person having the dog in his care is liable.
§ Dog owner is not liable if a person provokes the dog.
· South Dakota holds dog owners strictly liable for damages to poultry or domestic animals
· Liability rules are strict for when harm is caused by “wild” animals.
o Not domesticated & likely to cause injury unless restrained.
· Strict liability also applies to domestic animals that have been shown dangerous propensities even if they have not bitten.
o This is more like negligence, because the “dangerous propensities” implies reasonable foreseeability.
· Liability requires ownership or possession of the wild animal. In the mongoose case, a hotel owner could not be held strictly liable when a guest was bitten by a wild mongoose because he did not own the animal.
· Strict liability couldn’t be applied when the Denver Zoo was sued for injuries caused by one of their wild animals, for public policy reasons – we like zoos. But there was a cause of action for negligence, the zebra pit was constructed so that a person could easily reach over the barriers and come into contact with the animals.
· In Texas, the owner of a domestic animal has a duty to prevent the animal from trespassing onto a neighbors land but no duty to prevent the animal from entering the roadway unless the owner knows the animal to be foreseeably vicious. Domestic animal owners have the right to let their animals not known to be dangerous to roam free
· On Mississippi statutory roads the D has the burden to show that he took reasonable care when an animal strayed onto a paved designated federal or state highway but on non-statutory roads the plaintiff has the burden to plead and prove negligence.
· Ultrahazardous or abnormally dangerous activities
o One who engages in blasting must assume responsibility, and be liable without fault, for any injury he causes to neighboring property no matter how careful you are.
o Establishing abnormally dangerous activity is a question of law
1. Risk of harm great
2. Harm would be great
3. Accidents could not be prevented with exercise of due (reasonable) care
4. Activity not a matter of common usage
5. Activity is inappropriate to the place
6. Value to the community is not outweighed by its dangerousness (this is modern view)
o Tanker case
§ Hazardous chemicals sure, but shipping them THROUGH CHICAGO TO NEW JERSEY not ultrahazardous. Chicago is a rail hub, #3 in shipping hazardous waste. Shipping chemicals through Chicago is as appropriate as anywhere else; the tracks are in better condition than alternative routes (couldn’t practically be avoided) and is common to the industrial area. It’s probably more appropriate for the houses to move than re-route the hazmat trains.
o Balloon case
§ The risk of harm was great and the harm that would ensue, though it was not, could be great had the balloonist crashed into the crowd instead of the vegetables. The confluence of these two factors established the urgency to prevent these accidents but accidents could not be prevented – balloon tech had not evolved – The activity was not common in usage so there was no presumption that it was a highly valuable despite its unavoidable riskiness. The activity was inappropriate to dense NYC and the risk could be easily shifted to a rural place. Most importantly, recreational ballooning does not have great public use.
§ If the hazards can be avoided the plaintiff has to prove negligence.
§ If the hazards cannot be avoided strict liability applies.
o Causation still has to be proved
§ Thieves and explosives: Four thieves set off explosives that were being stored to conceal their theft. The thieves were no the superseding cause of the damage done by the explosion and those who stored the explosives are liable.
§ Mink farm case: Shock, air vibrations, thrown missiles are all illustrative of the anticipated result of explosives, but if over 100 minks eat over 200 baby minks from the noise of an explosion – that can’t be anticipated. Someone who fires off explosives is not liable for every occurrence that has a remote connection to it.
o Nuisance
§ Private Nuisance
· Interference must be unreasonable -> Jury ?
· Violation of a statute may indicate unreasonableness.
· Continuing nuisance -> injunction or permanent damage award
· Eggshell doctrine comes in only after unreasonable determination
· Substantial interference: offensive or annoying to an average person in the community
· Unreasonable interference: the severity of the inflicted injury must outweigh the utility of the D’s conduct
o Private nuisance: an un-reasonable interfere with one’s reasonable use of their land
§ Nuisance: Not physical; no detrimental change in the land required; can be non-human.
· Trespass: (1) Intent to take the action, (2) without consent (3) on another’s property with a (4)physical invasion.
§ Standard: The right to use your land for whatever is reasonable under the circumstances.
·
· Electric dairy farm
o Plaintiffs noticed problems with their herd. They discovered that the problems were associated with stray voltage. , Plaintiffs filed suit against Defendant for negligence and nuisance. Defendant alleged that farm was contributory negligent in the design, maintenance, and operation of their electrical equipment.
o A private nuisance is a non-trespassory invasion of another’s interest in the private use and enjoyment of the land
o Interest in the Use and Enjoyment of Land= “pleasure, comfort, and enjoyment”
o 1. Construe the nuisance action as an unintentional invasion and otherwise actionable under negligence, 2. Question of law ct. does not send intentional invasion to the jury. Because invasion was not intentional, the ct. can consider the plaintiffs’ contributory negligence when figuring damages.
o Tree roots case: D’s roots causing damage to P’s property. Landowner is free to cut intruding roots off at the property line but D has the right to grow trees, we like trees and it is reasonable for roots and branches to spread out.
· Vacant buildings: Urban renewal area with a local ordinance requiring vacant buildings to be guarded or sealed was a nuisance. Property values had shown an increase until D’s inaction and the damages were measured by the loss in market value attributable to D’s building. What is a reasonable use of one’s own property cannot be defined by certain rules and varies with the circumstances.
· Fountainenbleau hotel: A new hotel addition blockin
nnovations in transportation and expanding markets, the close relationship between the producer and consumer of a product has been altered. The manufacturer has the obligation to keep pace with the changing relationship between the manufacturer and consumer. Consumers cannot investigate for themselves and manufacturers are advertising directly to consumers. Concurring opinion says strict liability should apply.
o The Restatements
§ §1 RST 3rd: (1) One engaged in the business of selling or otherwise distributing products (2) who sells or distributes a defective product is subject to (3) liability for harm to persons or property caused by the defect.
§ The seller:
· §402A RST 2nd: (1) One who sells any product
· §1 RST 3rd: (1) One engaged in the business of selling or otherwise distributing products (2) who sells or distributes (3) a defective product.
§ Look to
1. Who can address the harm?
2. Would the imposition of liability serve as an incentive to safety?
3. Is the supplier in a better than the consumer to prevent the circulation of the defective product?
4. Can the supplier distribute the cost of compensation for injuries by charging for it in his business
§ Strict liability has applied to a hospital when a gown ignited, a movie theater for harmful candy, a hospital for a defective harmful product in its gift shop, to a restaurant for a broken wine glass and a franchisor when a carton caused harm. Strict liability has also applied to a seller of reconditioned products but not a 24 year old used crane.
§ Interpretation of the restatements:
· Condo concrete: D supplied concrete to build condos for P which contained too much salt and led the rebar to rust and the concrete to crack and fall off. P sued D breach for breach of implied warranty, product liability, negligence and violation of building code. P’s implied warranty claim was denied and could not sue for failure to comply with code because it didn’t cover materials suppliers. Contract law protects expectations, the buyer’s desire to enjoy the benefit of his bargain and protects society’s interest in the performance of promises. Economic loss covers damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits— without any claim of personal injury or damage to other property including the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold. Tort law protects interests beyond disappointed expectations — Protects society’s interest in being free from harm products liability. Products liability is a strict liability tort because whether a manufacturer is negligent or not policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products entering the market.
