Zisk Torts II Outline Spring 2011
I. Traditional Strict Liability
a. Animals
i. Trespassing Animals
1. Owner is strictly liable for damage caused regardless of care used by owner
ii. Non-Trespass Liability
1. Owner strictly liable for non-trespass damage caused by any “dangerous animal” he keeps
a. Wild animals à strict liability so long as damage results from “dangerous propensity”
b. Domestic animals à no strict liability unless owner knows or has reason to know of animal’s dangerous characteristics
b. Ultrahazardous or Abnormally Dangerous Activities
i. General Rule: person is strictly liable for any damage which occurs while one is conducting an “abnormally dangerous” activity
ii. Abnormally Dangerous à RST §520
1. High degree of risk
2. Harm is likely to be serious
3. Risk not eliminated by exercise of reasonable care
4. Activity is not common usage
5. Activity is not appropriate for location
6. Danger outweighs value to community
7. Activity cannot be carried out safely, even with reasonable care
c. Nuisance
i. Elements for Prima Facie Case (look to invasion)
1. Act by D
2. Nontrespassory invasion on P’s interest
3. Basis of Liability
a. Intentional
b. Negligence (if unintentional invasion)
i. Failure to exercise due care to abate a condition under his control (smell, fires, etc.)
c. Strict Liability on abnormally dangerous activity
i. Even if D has taken “reasonable precautions”
ii. Ex: storing explosives in residential area
4. Substantial or unreasonable harm to P’s interest
a. Substantial à offensive, inconvenient or annoying to average person in the community; as opposed to a de minimis invasion
b. Unreasonable à harm done by interference outweighs justifications for conduct; balance btwn P’s property damage and value of D’s operation
5. Causation
ii. Refers to any type of injury sustained by P
iii. Supported by any of 3 D mental states:
1. Intentional interference with P rights
2. Negligence
3. Abnormally dangerous activity or conduct giving rise to strict liability
iv. Aesthetics cannot be labeled a nuisance (house color, junk in yard)
1. But if unreasonable and substantial interference (noise, odors)
v. Unreasonable and substantial interference with another’s reasonable use of land
1. Locality matters (hog farming not unreasonable in upstate, but on King?)
2. Locality Rule à a use of property in one locality and under some circumstances may be lawful and reasonable, which, under other circumstances, would be unlawful, unreasonable and a nuisance
3. To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property or such as to render its enjoyment specially uncomfortable or inconvenient
vi. Light and Air
1. No legal right to free flow of light and air from adjoining land (Fontaibleau)
a. Where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action either for damages or injunction
b. American courts traditionally reject common law easement for light and air b/c rule would inhibit growth of town and industry
2. Spite Fences
a. “A fence erected maliciously and with no other purpose than to shut out light and air from a neighbor’s window is a nuisance”
b. Exception à if object blocking light has a useful purpose and D can prove he placed the object in a reasonable place
3. Zoning
a. Not conclusive as to “reasonable use” since activities permitted under zoning laws may be unreasonable to neighbors
vii. Defenses to Nuisance
1. Contributory Negligence
a. Negligence
b. Intentional Nuisance
c. Abnormally Dangerous Activity
2. Assumption of Risk (available whether nuisance is intentional, negligent or based on SL)
a. Consent – If P consented to building of structures, knowing they will create a nuisance
b. “Coming to” the nuisance – ordinarily not a defense
i. Rationale – “The proper and legitimate regard for the rights and interests of the public”
ii. No knowledge of nuisance – If P did not foresee the damage complained of – not precluded for seeking recovery
iii. Knowledge of nuisance – even if P knew of the nuisance, majority holds recovery is still available
iv. **You can make this argument but NOT ALONE
viii. Legal Theories
1. Negligence (failure to maintain)
2. Strict liability (P must show)
a. Reasonable use of
ve products
i. Under negligence and SL, anyone foreseeable endangered by the product may sue, at least for bodily injury
b. Three Theories (to base liability)
i. Negligence à any foreseeable P
ii. Strict tort liability à anyone who uses or consumes the product
iii. Warranty
c. Negligence based Liability
i. Elements
1. Duty (differs depending on D)
2. Breach of the duty
3. Causation
4. Damages
a. Heart of product liability claim based on negligence looks at conduct unreasonable in the circumstances
ii. Principal ways Manufacturer or Supplier is Negligent
1. Manufacturing flaw
2. Failure to reasonably inspect
3. Negligent design
a. Balancing test à risk of injury against cost of making product safe
4. Failure to warn
a. Negligent if it involves an inherent danger in product’s design or intended use which consumer is likely to be unaware
5. Failure to take care to obtain quality components
iii. Difference from SL
1. Specific D must have been negligent
2. SL – you can be liable for defects created by those preceding you on the supply chain
iv. Proving Negligence
1. Res Ispa Loquitor – by showing defect is of a kind that does not usually occur in absence of negligence
v. Classes of D
1. Manufacturers
a. Careless design
b. Carelessly manufactured
c. Carelessly (or failed to) perform inspections
d. Lack of quality components
2. Retailers (may be, but usually not liable for negligence)
a. Retailer generally has no duty to inspect goods
b. Normally brought as SL or warranty theory
3. Other Suppliers
a. Bailors of tangible property (car rental companies), sellers and lessors of real estate, suppliers of product-related services (hospitals)
