Bisom-Rapp
Tort 2
Spring 2012
Strict liability theory:
· A SL claim does not depend on fault, this is not based on negligence, or intent to do harm, rather It is abased on a breach of absolute duty to keep something safe
4 steps in determining whether some is SL
1. Determine whether the fact fall within SL regarding animals. OR SL due to an activity.
2. Determine whether the harm suffered was the result of the inherent risk
3. Assess proximate cause
4. Defenses
Analysis of Steps:
1. Determine if fact fall within SL regarding animals or SL due to an activity:
a. Animals –
i. Trespassing livestock – (any barnyard animals). Under both CL and MD the keepers of a livestock is SL for the harm suffered as a result of the trespass. H/e there are exception. Both ML
1. Exceptions:
a. Both CL and ML do not impose SL on keeper if animal were on highway and strayed on to the adjacent land.
b. ML has 3 additional approaches:
i. Fencing in: D not liable if they put up a fence to restrain the animals. Not liable if the animals break out unless it was a result of the owners neg.
ii. Fencing out: P failed to enclose property, no liability on D, unless animal broke in/neg. on part of D.
iii. Requires some fault from D such as neg. or foreseeable that animal may trespass.
b. Domestic animals: cats, dogs, pigs, parrots etc.
i. NOT SL unless D knew or has reason to know of the animals dangerous characteristics and the harm suffered must be a direst result of the dangerous propensity of that particular animals.
1. So must prove D had scienter:
a. vicarious propensities/aggression – behavioral tendencies
b. look at individuals animal personality instead of species (don’t get one free bite)
2. if can’t prove scineter can hold D liable if prove negligence.
a. Statutory law – need to see if locality has created exception to the rule
c. Wild animals: most jurisdictions impose SL for will animals with dangerous propensity.
i. Need to look at custom of the community
ii. Risk to the community (non-reciprocal risk)
iii. SL for harm suffered as a result of the dangerous propensities that is characteristic of particular class of wild animal.
1. NOTE: Some jurisdictions do not impose SL for places such as zoo, carnivals, parks.
iv. Don’t look at animals particular personality
v. use neg if not the dangerous characteristics of the species.
d. Abnormally dangerous activity: Applied to activities that are truly exceptional and abnormal. Not based on normal activities in that area. There are three approaches that render an activity as SL activity:
i. Rylands V. Fletcher: requires that those who engage in non-natural uses of their land be held SL when the injury producing instrumentality “escapes” and causes harm on the land of another. 2 approaches: .
1. Blackburn: if D for his own purposes brings and keeps something that would cause mischief if it escapes, D is SL if does escape and cause damage to P.
a. Only deals with dangerous DA on the land of one person, which escaped and causes injury on the land of another
2. Cairns: where non-natural use of land causes property damages on neighboring land D is Sl.
a. Non-natural: what is not customary or common use. Referring to unusual activities that are out of place in the area where D chooses to conduct them. Not custom in the community.
ii. 2nd restatement 6 factors: balancing test as to whether the activity is AD – if it is AD the enterprise should pay regardless of it’s common use or social value
1. § 519: one who carries on an ADA is subject to liability for harm to the person, land, chattels of another resulting from the activity. Although he has exercises reasonable case. this SL is limited to the kind of harm, the possibility which makes the activity SL
2. §520 – 6 factors:
a. risk of harm – existence of a high degree of risk of harm to person or prop.
b. Severity of harm – likelihood that harm will be great
c. Inability to eliminate risk w/ reasonable care (unavoidable)
d. Whether the activity is matter of common use in the locale
e. Inappropriateness of the activity where it was carried on
f. Extend to which its value to the community outweighs the dangerous/unavoidable risks.
iii. 3rd restatement:
1. the activity is dangerous if it creates a foreseeable and highly significant risks of physical harm even when reason care are exercised by all actors AND
2. the activity is not one of common usage
2. Determine if the harm suffered was within the inherent risk of ADA or animal:
a. Trespassing animals: fencing in/out; CL/ML highway; some sort of fault is required.
b. Wild animals: the harm must be result of the dangerous propensities that are characteristics of that class of species.
c. Domestic Animals: the harm must be the result of the d
ic (not w/in scope) or detour (w/in scope of employment); whether frolic or detour –
a. EE intent: the nature, time and place of deviation; time consumed in deviation; the type of work which ee was hires; incident acts reasonably expected by the ER; the freedom allows to the EE in performing his job duties; is deviation reasonably foreseeable?
5. Was EE going or coming from work (not w/in scope) – unless special risks are created
a. Exception: Acts necessary to comfort, convenience, health and welfare of the EE don’t take it out of scope of employment
6. Deep pocket which D has ability to pay
7. Enterprise to pay its way – VL cost of doing business
8. Foresseability – is the EE’s conduct so unusual and unforeseeable that it seems unfair to make the ER responsible for it?
a. ER employs risks arising from or related to work
c. EE/ER (intentional tort): if EE furthering ER’s purpose or engaged in activity generally connected with work, ER is Vl.
i. Acts where there is VL: normal accidents (starting fire while smoking a cig on break) OR bumps into a visitor on the way to BR; Takes places during business hours at the place of employment;
ii. Acts where there is no VL: acts occurring during non-business hours aka not on the clock.
d. VL for EE/IC; NO VL UNLESS one of the 4 exceptions apply
i. ER is negligent is his hiring or supervising an IC
ii. Illegal activities: ex – hit man
iii. Non – delegable duties: owner delegated the work to an IC, but can’t delegate liability for tortuous acting during work SO is duty of care so important person doing them will not be allowed to delegate them to anyone else?
1. If work is being don in public space- maintaining highways or street – both liable
2. Landowner owes ever P a duty to keep his premises safe
3. Peculiar risk – the work involved inherent danger or requires special precautions. If the special precautions are not take and injury results from what was deemed as the PR, the ER is VL
