TORTS 2 AND TREECE’S FINAL EXAM QUESTIONS:
HERE IS THE OUTLINE FOR THE CLASS:
TORTS II – Prof. Treece
Five theories of Tort Recovery –
1. Intentional Torts
2. Negligence
A. Duty
B. Breach
C. Causation – legal and proximate
D. Damages
3. Strict Liability – Restatement 519 and 520
4. Warranty
5. Strict Products Liability – Restatement 402 A
I. Strict Liability
A. Abnormally Dangerous Activities
1. A person using his or her land for a dangerous, non-natural use is strictly liable for any damage to another’s property resulting from that non-natural use.
2. A superceding cause will preclude strict liability
3. The storage of dynamite per se is not an ultra hazardous activity. Rejects the per se rule of ultra hazardous activities. Looks at the factors of hazardous activities and will decide on a case by case basis.
4. Restatement 520 – Whether or not an activity is abnormally dangerous and whether the actor may beheld strictly liable will depend on –
1. The probability of harm is great,
2. If the risk materializes, the harm would be great
3. The accident can’t be prevented by due care.
4. The activity is not a matter of common usage, so there is no presumption that the activity is a highly valuable one despite it’s risk.
5. The activity is inappropriate to where it takes place
6. The value of the activity to the community must be great enough to offset the risks.
B. Limitations on Strict Liability –
1. The policy of the law does not impose strict liability to protect against harms incident to the plaintiff’s extraordinary and unusual use of land.
A. Restatement 519 – One who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.
2. Where an event is beyond the ability of anyone to anticipate, and was clearly an act of god, or a non foreseeable intervening superceding cause, the rule of strict liability does not apply.
A. Restatement 522 – One who carries on abnormally dangerous activity is still subject to strict liability even though the strict liability activity was caused by the unexpected –
1. Innocent, negligent or reckless conduct of a third party
2. An act of an animal
3. An operation or a force of nature or act of god.
The restatement is the majority view of jurisdictions that have adopted 519 and 520. Texas has not adopted 519/520. Restatement has no opinion if the act of the third person was an intentional act. Recklessness is gross negligence – if there is gross negligence, there is no excuse. No clear rule on this. On exam will need to make a choice based on a public policy.
B. Requirements to determine the application of strict liability –
1. (Assuming that the activity is ultra hazardous) Is there an appropriate plaintiff? Has the plaintiff been harmed by the ultra hazardous activity?
2. The merits of the case will determine if it is an appropriate case under restatement 519
the manufacturer made an express warranty that flows from the manufacturer to the dealer to the downstream purchases who is in a class of persons who would purchase the car.
B. Implied Warranties – When a manufacturer and a dealer put into the stream of commerce a new automobile and promote it’s purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser, despite any contractual provisions to the contrary.
In strict liability you can sue the downstream retailer, as long as they are in the business of selling the product – if they are merchants.
Contributory negligence will not apply to a Warranty claim, or to a products liability claim.
If a plaintiff is outside of privity? Three options –
1. a sellers warranty expressed or implied will extend to any person who is in the family or household in the home of the buyer or a guest in the home –
2. A sellers warranty express or implied extends to any person who may reasonably expected to use consume or be affected by the goods and who is injured by breach of warranty. A seller can’t limit or exclude or the operation of the warranty. Majority Rule.
3. Warranty, express or implied extends to any pe
