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Torts II
St. Johns University School of Law
Joseph, Lawrence M.

Strict liability torts- no fault required
-don’t need to show negligence (breach of duty to act reasonably)
-don’t need to show intent (intentional inference of protected interest w/o legal justification)
>Responsibility for risk of harm should be imposed on those who create abnormal risk, not on innocent
>Blame is allocated so Ct can regulate the activity, D will alter future conduct, inappropriateness of location/social utility deters future conduct.
-proof of trespass is not necessary to recover

Non-Natural Hazards
Rule- There is no liability when natural causes on land caused mischief, but when one create an artificial condition on land; he is SL for the mischief it causes (for all natural damage of escape)
D own a mill, hired IC to construct reservoir nearby and got easement. Ps owned a mine, got flooded by improperly built reservoir.
-at the time, trespass law didn’t cover it such cases
-No intent, so today there would not be trespass today either.
-Negligence? Perhaps negligent hiring, no vicarious liability (b/c dangerous activity=exception)
-Who should bear the loss when there is no intentional/negligent misconduct?

Look to character of object/activity AND manner and place where it is maintained?

Exceptions to strict liability
1. P was negligent- comparative fault, if was unreasonable/knowing-P can’t recover
2. It was an act of God-
Golden v Armory- Hydroelectric plant overflowed by hurricane –flood by rain
-owner not liable if had no reason to anticipate the kind of harm
American courts-didn’t look at natural/non-natural distinction
(house water pipes v large water tanks)
3. Proximate cause cut off- superseding causes which are unforeseeable caused the harm.

“Abnormally dangerous activity”-USED IN NY and all jurs
General Principle Rest 2d
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from activity, although he has exercised the utmost care to prevent the harm.
(2) Factors to consider
1. High degree of risk of harm to a person, land chattle
2. likelihood that degree of harm is great
3. Inability to eliminate risk by exercise of reasonable care- if have this no need to look at SL
4. Extent that usage is not common
5. Inappropriateness of activity in certain place
6. Value to community outweighed by dangerous attributes
-who can bare the burden?
-ASK is risk is so unusual, b/c of its potential for harm or circs, that strict liability should be imposed although D exercised of reasonable care?
>difference b/n requiring D to exercise high degree of care and ensuring absolute safety of others
Is risk so unusual b/c of its magnitude or circumstances that imposing SL on the D for the resulting harm is justified even though D exercised reasonable care?

Miller (present day law)
Negligence discharge of gun in shooting range, alternatively pled abnormally dangerous activity
Shooting gun is “common” not inherently dangerous but harm caused from misuse is
– nature of activity done at a firing range & has some social utility.
-if risk can be eliminated by ordinary care- do not impose SL
-if negligence can be a theory of recovery- don’t impose SL

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. [Proximate Cause Cut-Off] Foster- where blasting carried on at a nearby mill, caused P’s mink to get scared and kill her kittens. Even though blasting is almost always regarded as an abnormally dangerous activity, it is not considered dangerous for its potential to cause a mink to kill its kittens, and so strict liability could not be imposed.
To be Sl for abnormally dang activity- the harm caused must be the type of harm anticipated by the activity

Indiana Harbor Belt RR
D- manufacture of dangerous chemicals, transports by RR- best option. Leaks, EPA orders RR to clean up.
Is shipper of a hazardous chemical liable for the damages caused in a spill in transportation?
Creating unreasonable risks of harm? Can they be eliminated by exercising ordinary care?
-Posner-If yes, no need to impose another line of liability (policy decision)
-look to # 3^ factor first when engaging in dangerous activity. Dangerousness is not in substance but in activity, Activity needs to be relevant to the harm- transportation is not dangerous.
If can have negligence actions, cannot have SL action
Look to Res Ipsa- but need to figure who is in control like Ybarra- hard to do
If have SL- need to consider allocation of activity and burden
Reason for abnormally dangerous activity- incentive to find other alternatives
-shipping the best & reasonable way to do it
-would effect entire industry-
-Cost to manufacturers will be too great to impose SL
Cts are split on certain activities-and which doctrine applies, limited to land activities?

What is generally considered abnormally dangerous?
1) Transporting or storing toxic chemicals and inflammable liquids in quantity in an urban area.
2) Pile driving, setting up excessive vibration.
3) Crop Dusting.
4) Poisonous Gases.
5) Testing Rocket Fuel.
6) Putting on Fireworks Displays.

hould have implemented that design

MacPherson- Privity of K removed-
D used defective wheel, should have inspected it
-began products liability, manufacturer can’t cut off liability by selling to wholesaler that Ks w/ consumers
-Destroyed privity of K req; all foreseeable P’s allowed to sue manufacturer in negligence down consumer line.
-unreasonable not to use standard of care
-Once product leaves manufacturer, negligence action narrows b/c duty to inspect decreases
“one who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence”

II. Breach of Warranty actions-under common law there were 3 warranties.
-UCC applies to sale of goods
Seller’s warranty (express/implied) extends to any natural person, who may be expected to use or be affected by goods and who is injured by the breach of that warranty- NY adopted
-bystander, user, family employee, etc
-regardless of whether there was any negligence or who was negligent
-regardless of seller’s honest belief in products condition
-regardless of the whether it was possible for seller to discover defect
-sellers can disclaim warranties, but cannot disclaim liability; selling product-liability runs down the line
*implied warranties- if saying sold “as is” language is plain that all implied warranties are exclaimed
*UCC Seller may make disclaimers unless they are unconscionable
-can’t disclaim consequential dams for personal injury
-can limit remedies available, only replacement/repair, no pure economic loses
*UCC Notice requirement-buyer must notify seller w/n reasonable time after discovers/should’ve discovered breach of warranty or remedy will be barred- usually does not apply to parties not it privity of K
express/implied warranty extends to all natural person
who may be expected to use consume or be affected by the goods
and who is injured by that breach
*if dealt directly w D- then better to sue on warranty action bc can get consequential dams

– Express- promise or statement of seller/manufacturer on what product does; fact about product