Torts Notes Outline
I. Strict Liability: Liability without fault. Like neg., still have duty, breach, cause, and harm.
A. Animals-
1. Wild Animals- one that by custom is not devoted to the service of mankind. This liability is limited to damage caused by the dangerous propensity of the animal, so damage caused by tripping over a lion is not covered by strict liability.
Strict liability always applies.
2. Domestic Animals- one that by custom is devoted to the service of mankind at the time and place in which they are kept.
Strict liability only applies if the D knows of the animal?s dangerous propensities, hence the one bite rule.
3. Trespassory livestock- if livestock gets out and eats P?s crops, D shall absorb the loss.
B. Abnormally Dangerous/ Ultra Hazardous Activities- those activities that involve a risk of serious harm that cannot be eliminated by the exercise of due care. Trucking av-gas, blasting, harm from a non-natural use of land which causes harm.
[TX has misinterpreted the land use rule under Rylands v. Fletcher as to encompass strict liability for anything that escapes the land, thus has not adopted it.]
Strict liability always applies, regardless of care taken by D.
1. Duty [is it abnormally dangerous and if so, was it that dangerous propensity that caused the harm?]- A matter of law for the court to decide after looking at six (6) factors. [R. 2d ? 520]. Any combination will work, court determines the weight to give each factor in each particular case. These 6 factors focus exclusively on the actions of D to first determine if there is a duty. After duty is found, then any contributory actions on part of P will be examined.
1. Risk of harm is great to the person, land, or chattels of others.
2. Likelihood of the harm that results from the risk will be great.
3. Inability to eliminate the risk by exercising due care.
4. Extent to which the activity is not a matter of common usage.
5. Inappropriateness of activity to the place where it is carried on.
6. Extent of the activity?s value to the community versus its dangerous attributes.
2. Causation [if answer to 1 is yes, then look at D?s actions]- P must prove actual and proximate cause, jury question.
3. Excuses [If D liable after step 2, then D looks for excuses, not defenses]- looking for responsibility from anyone but the Plaintiff. However, D is still liable, 3rd party action is no excuse, yet D can seek contribution damages from the 3rd party.
There is no opinion on excuses which are intentional acts of 3rd parties intended to bring harm, however, Treece thinks intentional acts will relieve D of liability. Jury will decide intentional issue, then judge will decide whether this intervening cause/excuse relieves liability; on exam, argue policy of why/why not SL should be imposed here. For the most part there are not many v
ble plaintiffs for damages caused by the product?s dangerous defect. Product must reach consumer without substantial change to condition in which it was sold. 402A was made to pick up the cases were there was no sale, thus warranty not applicable.
Unreasonably Dangerous determined by the court after looking at consumer expectations, magnitude of risk posed by product, and whether product could be made safer while maintaining its utility [this includes technological as well as economical considerations].
Defective condition has 3 categories:
i. Manufacturing Defect- one car was defective out of many.
ii. Design Defect- all cars of that model are defective.
iii. Marketing Defect- inadequate warnings on products about the dangers that seller knew or should have know.
IN MOST CASES, YOU SEE A DESIGN & MAN. COA TOGETHER.
HOW TO DEFINE “DEFECT” UNDER 402A:
i. Manufacturer?s viewpoint- look at what knowledge the manufacturer had of [or assumed to have!] the defect (risk), was it then reasonable to introduce product into stream of commerce. This is the consumer friendly approach.
ii. Consumer viewpoint [majority rule, used in
