TORTS II OUTLINE
Robert McFarland, Torts: Cases and Questions by Farnsworth & Grady,
TERMS/STUFF
1. Scienter Action – “knowledge”
2. The Universal Rule of Jurisprudence – you must prove fault
3. 2 Ways to Look At A Decision
a. Ex Post – we focus on what happened and then distribute resources on the equity of that case
i. It tends to distribute between the parties to that case
b. Ex Ante – we focus on what will happen as a result of this decision
i. This view is concerned with incentives
STRICT LIABILITY
1. Strict Liability – pressures parties to consider whether they ought to be engaging in some other activity
a. Negligence – considers only whether the activity the actor chose to engage in was undertaken carefully
b. P Must Prove:
i. Existence of an absolute duty on the part of the Defendant to make safe
ii. Breach of that duty
iii. The breach of that duty was the actual and proximate cause of P’s injury
iv. Damage to the Plaintiff’s person or property
2. Liability for Animals – owners of ferocious beasts are strictly liable for damage their animals cause to others, regardless of what measures they took to prevent harm for occurring – punishes ownership of “wild” animals
a. P Must Prove:
i. D owns the animal
ii. The animal is wild
iii. D had knowledge of the animals dangerous propensity
b. Types of Animals
i. Wild
ii. Tame – 1) Tame by Nature, 2) Domesticated by Man
c. Majority/Minority Approach
i. Majority Approach
1. Wild Animals – Absolute Liability as long as the person injured did nothing voluntarily to bring about the injury
2. Tame Animals – After “One Bite” the tame animal becomes wild, so long as the owner knows or should know of the bite
3. Category of the Animal is a Question of Law based on Species Alone
a. Is the species useful to mankind (food, clothing, labor, shelter)?
4. Animals can Return to the Wild at Any Time
ii. Minority Approach – No Liability Without Fault
d. Trespassing Animals – owner is strictly liable for that damage done by the trespass of his animals (other than household pets) as long as it was reasonably foreseeable
e. Licensees and Invitees – Landowner is strictly liable for their injuries inflicted by his animal
i. Public Duty Exception – if the land owner is under a public duty to keep the animals (zoo)
f. Trespassers Must Prove Negligence – Trespassers must prove the landowner was negligent to recover
i. Intentional Use of Vicious Watchdogs – a landowner who protects his property with dogs he knows that are likely to cause serious bodily harm may be liable even to trespassers for injuries caused by the dogs
g. Statutory Regulations Different than Common Law Reasoning
i. California – dog owner is liable for dog bite regardless of former viciousness or the owner’s knowledge of such viciousness.
3. Cases:
a. Behrens v. Bertram Mills Circus, Ltd – dog scares elephant
i. P’s dog was at fun fair booth, against the rules, and scared D’s elephant which knocked down the booth, injured P, and killed the dog
ii. D strictly liable for any injury done while the elephant was out of control
iii. Strict Liability for damage if animal “escapes” or is out of control
b. Earl v. Van Alstine – bees
i. D’s bees left the hive and caused harm in a public place
ii. D not liable for any accidental injury the bees caused
c. Chandler v. Smith – escaped baboon
i. D’s baboon escaped and destroyed P’s personal property
ii. D was strictly liable for P’s nervous fight and shock injuries, because he kept the dangerous animal at his own peril – negligence is of no concern
d. Smith v. Pelah
i. D strictly liable for his dog’s second bite
ii. Court focused on owner’s knowledge that the animals had a propensity for the sort of mischief it created à such knowledge à strictly liable
e. Banks v. Maxwell (1933) – bull
i. D told P to go into the bull’s pen and was gored by the bull
ii. A person injured by a domesticated animal, must show two essential facts to recover:
1. It is dangerous, vicious, mischievous, ferocious, or has a vicious propensity
2. Owner has actual or constructive knowledge of such conduct
iii. No evidence of such à case dismissed
f. Vaughan v. Miller Bros. (1930) – ape on exhibit bit off finger
i. D’s ape, on exhibit, bit off P’s finder
ii. The right to exhibit animals is legal – all the keeper must do is take superior caution to prevent the animal for doing mischief which its propensities demand of it
g. Bostock-Ferari Amusements v. Brocksmith (1905) – chained/muzzled bear
i. A horse pulling a buggy saw a chained/muzzled bear was frightened and injured P
ii. When a person is injured by a wild animal attack, negligence of the owner is presumed, because the dangerous propensity of such an animal is known, and the law recognizes that safety lies only in keeping it secure
iii. But, the bear was secured and didn’t inflict any injury – No Liability
h. Baker v. Snell (1908) – Go it, Bob!
i. D knew dog was savage. D’s potman said “I bet dog wont bite any of you” + “Go it, Bob!” and P was injured
ii. Keepers of dangerous animals are liable for consequences of their wrongful act, even though the immediate cause of damage/injury is the act of a 3rd party
i. Opelt v. Al G. Barnes Co. (1919) – leopard scratch
i. D’s leopard was in a cage separated from spectators by a rope which P walked under
ii. P willfully placed himself within reach of the wild animal, which he knew to be vicious – No Liability due to Assumption of Risk
j. Hypo – What happens if sheep trespasses and kills a human?
i. Negligence Theory Applies – The harm must have been reasonably foreseeable. This also breaks the causation requirement … no proximate cause.
4. Rylands v. Fletcher
a. Two Rules:
i. Majority Rules, Justice Blackburn – one who accumulates anything on their property, that is likely to do mischief if it escapes, is strictly liable without fault if that “thing” escapes and causes harm to another
ii. Minority Rule, Lord Cairns – one who accumulates unnatural things on their property, that is likely to do mischief if it escapes, is strictly liable without fault if that “thing” escapes and causes harm to another
1. you escape liability if it is a natural condition/use
2. this is the link of Rylands v. Fletcher to the American Rule
b. The American View
i. Artificial Conditions seeps into American law and we see some acceptance of Lord Cairns opinion
c. Rylands is primarily limited to property damage!!!
5. Cases:
a. Rylands v. Fletcher
i. Rylands hired contractor to build a reservoir. D’s found mining tunnels during construction but didn’t discover they were owned by Fletcher.
ii. After the reservoir was completed, water broke through and flooded Fletcher’s coal mine
iii. Justice Blackburn – Person who for his own purposes brings on his lands, collects, and keeps an
arm that results, even though it is carried on with all reasonable care
9. Restatement, Third, of Torts §20 – Strict Liability
a. A defendant who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
b. An activity is abnormally dangerous if:
i. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and
ii. The activity is not a matter of common usage
10.
a. The Test
i. The activity must involve a risk of serious harm to persons or property
ii. The activity must be one that cannot be performed without risk of serious harm no matter how much care is taken
iii. It must not be a commonly engaged-in activity by persons in the community
b. Question of Law – abnormally dangerous is a question of law for the judge to decide
c. Direct Consequences – strict liability only for the direct consequences of abnormally dangerous activity and those consequences which are foreseeable
d. The Difference in §20 and §520 – public policy and social value (utility) have been removed from §20
i. Most states still apply §520, there is a trend to §20 because of the removal of social utility
e. BLASTING is abnormally dangerous
f. 2 Potential Sources of Threat – the threat of liability gives an actor an incentive to experiment with methods of preventing risk, and if there is no way to mitigate à relocate, change, or reduce activity
i. Threat for Lack of Due Care (Negligence)
ii. Threat of Activity Liability
g. The transportation of hazardous materials by rail through populated area is so hazardous an activity, even when due care is exercised, that the law should seek to create incentives to relocate the activity to non-populated areas, to reduce the scale of the activity, or to switch transportation by road rather than rail. QUESTION – the route or mode of transportation through populated area?
11. Cases:
a. Indiana Harbor Belt Ry. Co. v. American Cyanamid Co
i. D (manufacturer) loaded 20,000 gallons of liquid acrylonitrile into a railroad tank car it had leased from North American Car Corp.
ii. Missouri Pacific Railroad took D’s car to Blue Island Railroad Yard (owned by P) where it was to be transported by Conrail to New Jersey
iii. P’s employees discovered leak after the car arrived. P sued D for damages
iv. This was a case of carelessness, not an abnormally dangerous activity – the leak was not caused by the properties of the chemical
v. Another issue considered was whether placing the chemical in a rail shipment passing through a metropolitan area subject the shipper to strict liability
vi. Railroads have to go through metropolitan area, and in this case there was no other direct way for the chemicals to get to their location either by rail or by re-routing.
1. Re-routing increases trip length which increases probability of an accident
2. But this wasn’t so hazardous an activity that required transportation through a less populated area or by another mode of transportation
b. Siegler v. Kuhlman
