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Torts II
St. Johns University School of Law
Villiers, Janice D.

Torts II – Prof. Villiers
I. Strict Liability
A. Policy Rationales:
1. Helps plaintiffs to be able to prove their case more expeditiously
2. Ensures people who benefit from the dangerous activities will bear the burden of loss
3. Shifts the burden to “deeper pockets”
4. Provides a greater deterrence than negligence standards
B. Dangerous animals
1. Wild Animals
a) An animal that “is not by custom devoted to the service of mankind at the time and place at which it is kept” (Restat 2d Torts s. 506)
b) An animal that belongs to a category which has not been generally domesticated and which is likely, unless restrained, to cause personal injury (Restat 3d Torts s. 22)
c) Geographical factors may influence determination of “wild animal” (e.g. Cow in NYC vs. Elephant in India)
d) Injured party does not need to prove owner’s knowledge of danger because owner of wild animals is conclusively presumed to know of the danger
2. Domesticated Animals
a) Vicious Propensities – Abnormally dangerous, meaning that there is a natural inclination or habitual tendency to act in a manner that might endanger the person or property of others.
b) Knowledge or Constructive Knowledge
(1) Actual knowledge of the animal’s dangerous propensities could be demonstrated, for example, if the owner tied up the animal.
(2) Constructive knowledge – It is not necessary to find that [the owner] actually knew of the vicious propensities. If the vicious propensities had existed for such a period of time that a reasonable person should have known about them, you will find that [the owner] knew about them. NYPJI 2:220
(a) Fact-finder may consider the nature and frequency of the animals acts as well as the length of time over which they had continued. NYPJI 2:220
c) Clark v. Brings, p 634
3. Trespassing Animals
a) Owners may be held strictly liable for injury caused by a domesticated animal if it is trespassing on another person’s property.
b) But owners of animals who cause injury on a public highway are liable if, but only if, he intentionally causes the animal to do harm, or if he was negligent in failing to prevent the harm.
c) Fencing in statutes
(1) If an animal owner fences his animals in, but they escape, he will be held liable under an intentional or negligence standard
d) Fencing out statutes
(1) If landowner properly fences his land, he is entitled to recover in strict liability from the owner of animals that break through the fence and enter his property
C. Abnormally dangerous activities
1. Restatement 2d s. 520
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;
(1) Customarily carried on by the great mass of mankind or by many people in the community (Restat 2d, comment i)
(2) i.e. Very few persons engage in these activities
(3) Rylands, p 644 (Landowner built a reservoir on his land that burst and caused damages to neighbors)
(4) Fireworks display. (Although many people frequently and regularly enjoy fireworks display, very few people engage in setting them off for public display. People without a proper license are often prohibited from setting off fireworks displays)
e) inappropriateness of the activity to the place where it is carried on; and
(1) Fireworks display was found to be in an appropriate place when the audience could be seated at a reasonable distance from the display.
f) extent to which its value to the community is outweighed by its dangerous attributes
(1) Value of fireworks displays on the day celebrating our national independence outweighs the risks of injuries
2. Restatement 3d
a) Consolidates the old restatement factors into a two-part test:
(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) the activity is not a matter of common usage
II. Products Liability:
A. There must be a showing that there is a defect in the product. This defect must render the product unreasonably dangerous.
B. Four [Main] Theories of recovery
1. Negligence
2. Express Warranty
3. Implied Warranty
4. Strict Products Liability (Five elements)
C. Strict Products Liability
1. Policies behind strict products liability
a) Ordinary consumers cannot detect defects
b) Costs can be spread among multiple consumers
c) Prevents injustice and pressures manufacturers to develop safe products
d) Difficulty for injured consumers to prove negligence
2. Old Restat 2d definition
a) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property…
3. Three types of defects (as defined by Restatement Third):
a) Manufacturing Defect
(1) NY: Plaintiff must prove that the product did not perform as intended and that it was defective when it left the manufacturer’s control. Denny v. Ford
(2) When the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product
b) Design Defect
(1) NY: Use the seven factor analysis below (see risk-utility)
(2) [DO NOT USE] When the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoptions of a reasonable alternative design by the seller or other distributor and the omission of the alternative design renders the product not reasonably safe
(a) Most courts have rejected the “alternative design” test and relieved plaintiffs from having to prove that an alternative design is available because

of the product or carrying liability insurance (Wade, on Strict Liab Law Review article)] 7. Dichotomy between risk-utility test and consumer expectations test
a) Different approaches
(1) Permitting plaintiffs to choose between [the two tests] (2) Permitting plaintiffs to show a defect using CE test, then allowing defendants to rebut the showing using RU test
(3) Permitting the CE test only in appropriate cases and otherwise requiring RU test
(4) Rejecting CE test completely and permitting only the RU to proving product defects
b) Suitability of each test
(1) CE test is not suitable in all cases because in many instances it is simply impossible to eliminate the balancing or weighing of competing considerations
(2) CE test is appropriate when “there were neither complicated design considerations, nor obscure components, nor esoteric circumstances surrounding the accident and because the product failure was beyond the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers”
8. Federal Pre-emption
a) Express pre-emption:
(1) An express pre-emption clause in a federal statute or regulation may pre-empt state standards of safety
b) Implied pre-emption:
(1) Pre-emption can implicitly override state law either:
(a) when the scope of the statute indicates that Congress intended federal law to occupy a field exclusively, or when state law is in actual conflict with federal law.
i) e.g. where it is “impossible for a private party to comply with both state and federal requirements, ” or “where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'” (p 725)
c) Pre-emption in Prescription Drugs cases (see Compliance w/ FDA warnings, below)
9. Defenses:
a) Unintended users
b) Misuse (comparative fault)
c) State-of-the-art
(1) The defense was inappropriate when using a consumer expectations standard. Under the consumer expectations standard it is the reasonable expectations of an ordinary consumer, and not the expectations of the scientific community, that is relevant to the determination of strict liability.
(2) Some courts assumed that the manufacturer had to know of the current state of the art (see Richter v. Limax, p 701)
(3) Statutory treatment, p 696
d) Compliance with Statutes and Regs (see