Torts II – Outline
I. Strict Liability
Definition – liability without fault. Typically based on foreseeability of harm and unreasonable conduct
– Some forms of strict liability are more strict than others
Advantages of strict liability over negligence:
1. More-effective deterrence than a negligence-based standard
2. It increases the likelihood that persons will be compensated
3. It may be effectively employed as a device for spreading losses or shifting losses to “deeper pockets”
4. Ensures persons benefiting from dangerous activities bear the burden of resulting losses; or
5. Easier to apply than the negligence standard.
Categories of strict liability:
1. Worker’s compensation
2. Employer liability to third parties
3. Harm caused by certain animals
4. Hazardous activities
5. Defective products
6. Statutorialy imposed strict liability
B. Worker’s compensation – statutes enacted in all 50 states. Provided that an employee injured on the job is entitled to compensation in an amount specified by the statute according to the nature of the injury.
– Covered employee does not have to prove that the employer was at fault for the accident
– Employee cannot sue employer for negligence or recklessness
– Immunity from lawsuit also applies to co-employee’s and other agents of the employer
– Certain types of workers are exempt from statute (i.e. farm workers or employees of very small firms).
– Certain types of injuries may not be covered by the statute
– Intentional torts are not covered by workers compensation
– Tort-action may be brought against a third party to the employer-employee relationship
– Employers may opt out of workers compensation
– Not allowed in most states
– If allowed employer may not be able to assert defense of contributory negligence, assumption of risk, or fellow-servant rule
– Fellow-servant rule: despite the principle of respondeat superior, an employer cannot be held liable for harm to an employee which results from the conduct of a fellow worker
1. compensate victims
2. make those who benefit from dangerous practices (employers) bear resulting losses, and
3. broadly spreads costs of work-related injuries as part of the price of the goods or services produced
C. Employer liability – 3 different grounds to hold employers liable
1. Respondeat Superior – 2 questions to ask:
a. Is the tortfeasor an employee rather than an independent contractor?
– An employer is not liable for torts of an independent contractor
– Except when it is a non-delegable duty
b. Whether, if the tortfeasor is an employee, the tort occurs within the scope of employment.
To determine whether employees conduct is within the scope of employment ask:
i. Is the conduct the kind he is employed to perform?
ii. Does the conduct occur substantially within the authorized time and space limits?
iii. Does the conduct (at least in part) serve the employer?
iv. If force is intentionally used by the employee against another, was the use of force unexpected by the employer?
– conduct is not “outside the scope of employment” merely because it violates the rules of the employer
c. If yes for both (a) and (b), the employer is held liable
a. encourages persons in authority to exercise control over employees to prevent harm
b. even if control is not possible, employer is more capable of absorbing losses or spreading them through price of goods or services
Even if respondeat superior is inapplicable, it may be possible to hold an employer liable for negligent hiring.
a. The employer had actual or constructive knowledge of the employee’s (or agent) incompetence
b. The injury resulted from that incompetence
2. Non-delegable duties: an employer can be held liable for independent contractor’s torts if activity is a non-delegable duty.
Non-delegable duties may arise if the work: (from restatement second)
a. requires special precautions
statutes – if the possessor of land fences his property properly, damages by any trespassing animal then the owner of the animal will be strictly liable). If the owner of land does not fence his property then any damage from trespassing animals will be based on negligence.
E. Strict liability for hazardous activities
1. Abnormally-Dangerous activities under Second Restatement – factors to consider in whether an activity is abnormally dangerous:
a. existence of a high degree of risk of some harm to the person, land, or chattels of others
b. likelihood that the harm that results from it will be great
c. inability to eliminate the risk by the exercise of reasonable care
d. extent to which the activity is not a matter of common usage
e. inappropriateness of the activity to the place where it is carried on
f. extent to which its value to the community is outweighed by its dangerous attributes
– i.e. activities involving flammable liquids, pile driving, poisonous gases, rockets, hazardous waste disposal, and escaping water
2. The single-injurer accident rationale: consider whether, with respect to a particular activity, the likelihood of an accident turns upon only the defendant’s activities and safety precautions, or whether it depends upon the activities and safety precautions of both the defendant and the injured plaintiff.
a. If only the defendant is realistically positioned to control or prevent the amount of harm done – Strict liability.
b. If both the defendant and the plaintiff can take precautions for a particular activity then – Negligence standard.