Advanced Torts
I. Introduction
a. Tort is a civil wrong, other than a breach of contract, for which the law provides a remedy
i. Tortfeasor: one who commits a tort, a wrongdoer
b. Major purposes of tort law
i. Provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands
ii. Deter wrongful conduct
iii. Encourage socially responsible behavior
iv. Restore injured parties to their original condition by compensating them for their injury
v. Promote broad distribution of losses by encouraging the buying of insurance
c. Two English common law writs are the genesis of tort law: writ of trespass and writ of trespass on the case
i. Modern tort and contract law developed from trespass on the case
ii. Writ of trespass involved injuries caused by direct action
1. Originally the only writ, if you can’t get it under here you are screwed
2. Transferred intent doctrine of intentional torts is the last vestige of the original writ of trespass
iii. Trespass on the case involved injuries sustained, but not by forcible or direct action
1. Indirect action
2. Example of indirect action: defamation, misrepresentation, invasion of privacy
iv. Today we use forms/causes of actions instead of writs
d. Types of Torts
i. Actions for nuisance
ii. Conversion
iii. Deceit
iv. Defamation
v. Malicious prosecution
vi. Interference with economic relations
vii. Negligence
viii. Etc.
e. Fault
i. Fault based liability: we hold someone responsible when they are at fault
ii. Three bases of fault
1. Intentional
2. Negligence: failure to take the level of care required by society to protect others from harm
3. Strict Liability
a. Animals
b. Abnormally dangerous activities
c. Product liability
II. Strict Liability: Animals, Abnormally Dangerous Activities and Limitations
a. Strict liability requires the defendant to pay damages although the defendant neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been at the root of negligence law
b. Absolute liability: liability without fault, holding someone liable when someone isn’t at fault
i. Policy driven concept
ii. Not truly absolute, are exceptions
c. Strict liability and animals
i. Owner of domesticated animals who are likely to roam are strictly liable for any damage
1. Cattle, etc.
2. Cats and dogs don’t count, seen as “family”
3. When animals are enroute to somewhere, owner is exempted from strict liability if it flees and causes damage
ii. Domesticated vs. Wild Animals
1. Owner for injuries caused by non-trespassing animal could be held liable, but not strictly liable
a. Exception: can be held strictly liable if the owner knows animal has dangerous propensities
2. Domesticated animals: dogs, cats, pigs, cows, horses, etc.
3. Owner of wild animal could be strictly liable if non-trespassing
4. Wild animals: bears, foxes, lions, etc.
iii. Dog bites
1. Old rule: first bite is free, can’t know dangerous propensities unless be acted at least once
2. Dog bite statutes: designed to eliminate burden for defendant of having to prove dangerous propensities
3. Statutes now see if defendant was acting peacefully/non-threatening when on premises
d. Person who brings on his lands and collects and keeps there anything likely to cause damage if it escapes, must keep it in at his peril and if not he is answerable for all damages which is the natural consequence of its escape. (Rylands v. Fletcher, 692)
i. Broad rule, could potentially flood court system
ii. Plaintiff though free from all blame on his part, must bear the loss, unless he can establish that it was the consequences of some default for which the defendants are responsible
1. Defendants are liable if they put their land to a non-natural use for the purposes of introducing onto it that which in its natural condition was not in or upon it
2. Example: a large quantity of water
iii. Defendant can excuse himself by showing that the escape was owing to the plaintiff’s default or act of God
1. Just because we can’t hold the defendant liable for strict liability, doesn’t mean they can’t be held liable for another tort
iv. Most US states originally rejected this ruling
1. 1st restatement used words like ultrahazardous activities (limiting term)
2. Later abnormally dangerous activities was used (2nd restatement)
e. The use of guns, even though dangerous, isn’t the type of activity that must be deemed ultrahazardous. (Miller v. Civil Constructors, 699)
i. Restatement 519: One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm
ii. Restatement 520: In determining whether an activity is abnormally dangerous, the following factors are to be considered:
1. Existence of a high degree of risk of some harm
2. Likelihood that the harm that results will be great
3. Inability to eliminate the risk by the exercise of reasonable care
4. Activity is not a matter of common usage
5. Inappropriateness of activi
iability would be against public policy and hurt business
j. Defendant isn’t responsible for things that escape from his land due to an act of God. (Golden v. Amary, 712)
i. Act of God can relieve someone of liability
ii. Event must be beyond the capacity of anyone to anticipate and was clearly an act of God
iii. If you exercise the utmost level of care you can and an act of God happens anyway causing damage, you won’t be held liable
k. No liability if injury is attributable, not to the keeping of the animal, but to the injured party’s unnecessarily and voluntarily putting himself in a way to be hurt knowing the probable consequence of his act, so that he may be deemed to have brought the injury upon himself. (Sandy v. Bushey, 714)
i. By common law keepers of dangerous animals can be held answerable for injuries unless plaintiff showed a want of due care
ii. Plaintiffs contributory negligence can be a defense to strict liability
1. Generally not a defense unless the type of contributory negligence rises to the level of voluntary assumption of the risk
III. Strict Liability: Defective Products and Products Liability
a. Products liability is the umbrella term for the liability of a manufacturer, seller, or other supplier of chattels, to one with whom he is not in privity of contract, who suffers physical harm caused by the chattel
b. Theories of recovery for injuries resulting from products:
i. Negligence (McPherson)
ii. Warranties
1. Evolved from writ of trespass on the case
2. Contract law embraced this idea
3. Can be expressed (Baxter) or implied (Henningsen)
4. Still viable cause of action in torts
a. Problem is they can protect manufacturer from liability
5. Warranties designed to protect consumer
a. Consumers disadvantaged when dealing with businesses
b. Warranties provide additional protection
iii. Strict Liability (Greenman)
1. Most important theory under product liability
2. Not absolute, too much of a burden to require manufacturer to insure every item he makes
3. Plaintiff needs to prove manufacturer did certain things
