Select Page

Advanced Torts
Southern Illinois University School of Law
Mekel, Michele L.

Prof. Mekel


Spring 2012

I. Strict Liability

i. Assignment of Fault/Liability [Culpability]

LEASTà Strict LiabilityàProducts LiabilityàNegligenceàIntentional TortsàMOST

ii. Policy:

1. Certain acts are inherently dangerous, and therefore we want to regulate—deter—same. [minimize the engagement in dangerous activities].

2. Justice or Fairness for the party that is least at fault [even though many times neither party is really at fault]. This is usually the party that is most likely be able to bear the brunt (burden) for same. Also, they are the most likely to have knowledge that their activities are dangerous.

3. Judicial efficiency: It is often hard in these cases to meet the burden of proof, and therefore, this side-steps that process and makes someone liable.

4. Incentivize safety: We want people who are doing these dangerous activities to do them in the safest way possible.

b. Animals:

i. Wild: Liability will attach when harm results from an action of the animal that is CHARACTERISTIC of the class. à Broad.

ii. Domestic: Liability will attach when: (Sinclair)

1. Owner KNOWS or has reason to know

2. The animal has “DANGEROUS PROPENSITIES”, that are abnormal to its class.

3. HARM/injury stemming from the dangerous tendency.

a. The harm must be the type that extends from the action of the animal—cannot be far removed! Owner is not responsible for things that stem from the action of the animal (other than the harm itself).

iii. People sue for dog bite cases because dogs are covered by Home Owners Insurance—deep pockets. Additionally, this assures that the attorney that is taking the case gets paid (contingent).

iv. Often, in a dog bite case, you will sue for:

1. Strict Liability

2. Negligence (Duty, Breach, Causation, Harm)

3. Negligence Per Se (Law in jurisdictions that restrict or prohibit certain types of dogs; Ex: Pit Bulls).

c. Abnormally Dangerous Activities:

i. Fletcher v. Rylands: THE CASE that established SL at common law.

1. Outcome: When someone engages in a non-natural activity/use aka ABNORMAL activity, and tries to constrain, and something happens which affects someone else—Liability attaches.

2. Fletcher = Unpopular—Restatement First: “Ultra Hazardous”

a. Viewed to be even BROADER than Fletcher—became even more unpopular.

ii. Restatement Second: “Abnormally Dangerous Activities”

1. SL attaches for any harm to person, land or chattels resulting from the activity. LIMITS to kind of harm—the activity must be deemed FIRST “abnormally dangerous”

a. FACTORS: One can be enough!

i. HIGH degree of RISK to others

ii. Likelihood of HIGH (great gravity of) HARM

iii. REASONABLE CARE to eliminate risk?

1. Probably the most singly used**

2. If factor C doesn’t exist, then negligence should be the route used rather than SL.

iv. Appropriate to LOCATION? Common?

v. DESIRABLE activity? Social determinate

vi. VALUE to activity to Community? Social determinate

1. **Courts dislike**

2. Is it FAIR for the liability to attach?

iii. Siegler v. Kuhlman:

1. RIL: Res Ipsa Logquitor—the thing “speaks for itself”

a. Doesn’t happen w/o Negligence

b. Defendant has control

c. Plaintiff must have “clean hands”

2. Suasponte, the court raises: Strict Liability

a. Risk should fall on the person engaging in this activity because they are in a better position.

b. High risk, high harm & reasonable care are factors used.

i. Hauling gas = SL.

iv. Indiana Harbor v. Cyanamid:

1. Posner: Law in Economics Theory

a. Economically risk/benefit drivenàFavors Ds if they are businesses.

2. The KEY factor is whether or not the risk can be eliminated with reasonable care.

a. Posner says that SL does not apply, but rather negligence does because negligent duty can be applied to many parties.

3. P tries to hone-in on the “Appropriateness of Location”. However, Posner knocks this down because he says that is the whole point of economic transportation—the carrying of these chemicals through

he metal company. Again, this balances the equities because the court took into consideration how long the company had been in business, what business the company was doing, etc.

c. Remedies

i. Damanges—Legal–$$

ii. Injunction—Equitable—Fairness (mandamus or prohibition)

1. Mandamus = “You MUST”

2. Prohibition = “Stop”

iii. In Practice: Ask for MORE than 1 remedy. What does the client ultimately want?

1. Is the activity ongoing? What is the economic value to the parties involved?

III. Products Liability

a. History: New area of law

i. Replaces the notion of Caveat Emptor (Buyer Beware)

1. Does NOT require a privity of contract

a. A direct relationship by contract, or a relationship that stems from the original contract.

2. Follows from contract law notion of Implied Warranty (but WITHOUT ability to disclaim).

a. UCC: Article 2: Applies to Goods from Merchants, which is implied by use or purpose, but the Merchant can DISCLAIM.

i. Products Liability does NOT allow disclaimer/waiver of liability.

b. Basics: RESEMBLES Strict Liability

i. Focus is on the CONDITION of the product—NOT the conduct of the seller.

1. Product INCLUDES packaging.

ii. 3 Types:

1. Manufacturing Defects: Product comes off (leaves) the manufacturing line in an unintended and ineffective manner.

a. Manuf. Defect is when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

i. This is done by comparing to exact/alike products by the Manufacturer [fungible].

ii. Direct evidence is NOT needed.