Advanced Torts Outline

Adv. Torts Outline
Chapter 1 -Development of Liability Based on Fault
Strict Liability
v Definition of Torts p. 1
o   Torts comes from a Latin word “tortuous” which means twisted, and the French word tort , which means injury or tort. A Tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
v Policy:
1) Peaceful means for adjusting the rights of the parties who otherwise would take the law in their hands
2) To deter wrongful conduct
3) To encounter socially responsible behavior
4) To restore the injured parties to their original position, by compensating them for their conditions
5)* To promote broad distribution of loses among the community
v Regular Tort-Review:
o   (3)Three basis of Fault(Culpability) that trigger tort liability:
§ Intentional Torts- knowledge, desire, purpose and substantial certainty.
§ Negligence-  careless, breach of duty; 5 ELEMENTS necessary to constitute a prima facie case in Negligence (1)D had duty to conform conduct to a specific standard (2)D breached that duty–failed to conform to appropriate standard (3)Causation–D’s substandard conduct was: (a) Cause-in-fact–actual cause of P’s injuries (b) Proximate cause–there was a foreseeable risk that conduct would cause P’s injuries  (4) P must prove actual damages resulting from the injury (unlike some intentional torts) Note- Judge decides (1). Jury decides (2), (3a), (3b), and (4).
§ Strict Liability # absoluteliability, liability without fault, imposed liability that is policy driven. (3) Categories:
·         Animals
·         Activity (abnormally dangerous)
·         Product (defective)
v History of Tort Law (fault based system)
o   Common law writs (originated):
§ Trespass –form of action for direct and immediate force
§ Trespass on the case – form of action for indirect injury (Ex: log on the street; Like invasion of privacy, defamation)
v Modern Tort law- civil action should be used only used to compensate for the harm done. This explains the fact that there must be proved of actual damages, except in intentional torts à if harm was done the injured party would still sue in case and recover, even if no harm was done.
Strict Liability
Generally: Liability w/o fault; no due care required
1.      Liability cannot be alleviated by due care
2.      Relieves π of burden of proof—only need to prove causation
3.      Arises in small category of cases where Δ engaged in valuable, but inherently dangerous activity.  
Useful theory in environmental cases (e.g. ammonia escaping to neighbors)
·         D must pay damages although D did not act intentionally or did not live up to the objective standard of reasonable care rooted in negligence.
·         # than strict product liability b/c fault creeps back into the system
Areas of Strict Liability
       Animals – focuses on the care and maintenance of particular animals (those who keep, posses, or harbor the animal and owners) *IL Statute- level of knowledge is not required to sue.
o   Domestic Animals – one bite; if the owner of domestic animal knows or has a reason to know that the animal has vicious propensities from its breed or class à strict liability is imposed.
o   Domesticated animals getting onto other’s land (trespassing)—owner is strictly liable—the types of animals definitely have a barnyard pattern, and household pets, such as dogs and cats, are not included. Roaming animals (cattle, sheep, etc.) are not considered to trespass when going onto adjoining land. As country became more settled, the states began to enact different statutes:
o   Fencing Out statutes—If P fenced his land properly there was strict liability when animals broke through his fence, but otherwise there was liability only if their owner was negligent.
o   Fencing In statutes—Required the owner of the animals to fence them in or otherwise restrain them, and made the owner strictly liable if he did not do so.
o   There are many states in which all four variables of the rule—strict liability, fencing out, fencing in, and no liability without fault—can be found in different counties.
o   Trespassing Animals – enchants of statues and ordinances that required some form of “fencing in/out” and imposed strict liability or negligence for the owner who did not restrain them
§ An owner is strictly liable for reasonably foreseeable damage done by trespassing animals -except dogs and cats.
§ Owner is strictly liable for injuries caused by wild animals as long as injured person did nothing to bring about injury.
§ Owner is strictly liable for injuries caused by domestic animals only if the domestic animalhas known dangerous propensities
o   Wild Animals – strict liability and negligence is imposed to owner or possessorof non-domesticated animals
o   Wild or Dangerous Animals: majority US position—Owner or possessor of non-domesticated animals will be strictly liable if animal injures anyone. On the other hand, an owner of a domesticated animal, such as a dog or cat, is not strictly liable unless it is known that the animal had dangerous propensities. Owner can be seen as negligent.
o   Strict liability is not applicable to zoos, although they can be seen as negligent. 
o   In many states, common law regarding liability for dog bites has been changed by statute, owner is strictly liable unless victim was trespassing or interfering with the chattel. 
o   Dog leash ordinances—Person injured due to failure of the owner to comply with such ordinance—owner becomes “negligent per se” and is liable for damages. 
§ 506 Wild Animal and Domestic Animal Defined (1)  A wild animal as that term is used in this Restatement is an animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept.(2)  A domestic animal as that term is used in this Restatement is an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept.
       Abnormality Dangerous Activities – Strict liability – all injures proximately caused by a party conducting of certainly inherently dangerous activities without regards to fault or negligence. For an activity to be abnormally dangerous not only must it create a danger of physical harm to others but the danger must be an abnormal one.
       Defendant is strictly liable for an “abnormally dangerous activity” if:
Ø Activity involves serious potential harm;
Ø Activity involves high degree of risk that cannot be made safe; and
Ø Activity is not commonly performed in the community or area.
       Ultra-hazardous activity (1st Rest.) or Abnormally Dangerous (2nd Rest.): (§ 520/519) àMiller v. Civil Construction
o   In determining whether an activity is abnormally dangerous, the following factors are to be considered:
o   A high degree of risk of harm
o   Likelihood that any harm will be substantial
o   The Exercise of reasonable care
o   The commonness of the activity
o   The activity’s appropriateness for the place where it occurs
o   The degree to which the community benefit from the activity outweigh its danger
2nd Restatement of Torts §520: Uses the term “abnormally dangerous” activity and makes the decision depend on the nature of the location where the activity takes place. Six factors to be considered in determining whether an activity is ultra-hazardous:
1.      Great probability of harm.
2.      Potentially serious level of harm.
3.      The activity is not a matter of common usage.
4.      Harm cannot be prevented by utmost care.
5.      The activity is inappropriate for the location.
6.      The social value of the activity is not sufficient to offset the risks.
The basic purpose behind the ultra-hazardous activity doctrine is to encourage the use of alternative methods when possible.
NOTES/Comments:
–          Analysis evolves around the question of law
–          * one factor by itself is not suffici