Torts II Outline

TORTS II – BISOM-RAPP – FALL ’16 – PROSSER, WADE, AND SCHWARTZ 13TH

STRICT LIABILITY

– Liability without fault imposed on owners who keep or possess animals, regardless of care, for any harm the animal does

Trespassing animals – owners strictly liable for damage caused by animals on others land or property, unless they stray from highwaylol
Wild Animals – Owners strictly liable for damage caused by wild animals, as determined by the customs of the area, and dangerous propensities of animal (ZOOZ EXCEPTED b/c they’re pros, maybe negligent though #HARAMBE)
Domestic Animals – animals in service of human kind are NOT strictly liable, unless owner has SCIENTER, knowledge that animal has dangerous propensities abnormal to its class (once scienter established, no amount of care will prevent liability)

Abnormally Dangerous Activities – Activity is abnormally dangerous if;

The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and;
The activity is NOT one of common usage;

Cairns – non-natural (uncommon) usage of land infers strict liability

4-Step Approach to Strict Liability

Determine if animal or activity falls within a class of strict liability of animals or activities
Determine if harm suffered was within the inherent risk
Assess ONLY proximate cause (was harm foreseeable?)

Comparative fault – negligence on part of plaintiff won’t bar recovery, but may reduce recovery
Assumption of Risk – may be express or implied, requires that plaintiff both (1) understands the risk and its magnitude, and (2) voluntarily encounters the risk (Knowingly & Voluntarily)
Lack of Scienter – defendant had no knowledge of danger
Privilege – legally sanctioned

VICARIOUS LIABILITY – (1) Analyze tortfeasors actions to establish base liability, then (2) determine whether EE or IC; (3) if EE analyze if working within scope of employment, or; (3) if IC analyze if an exception to non-liability applies

Employee/Employer – Employer vicariously liable if employee is acting within the of the employment

To distinguish between employee and independent contractor use right to control physical details of work test.
Then if employee, employer is liable if employee was working within the scope of employment, Or;

Motivated to serve employer? Or;
Incidental risk of business?

Independent Contractor- Generally, one is not liable for the tortious acts of Independent Contractor UNLESS:

Harm is caused by carefully selected IC who has non-delegable duty of care (dangerous stuff)
Harm is caused by IC engaging in abnormally dangerous activity
IC engaging in illegal activity (Hitman and Henchman)

MISREPRESENTATION (6 ELEMENTS)

Misrepresentation of a Material Fact

Misrepresentation – create a false impression, cover the truth, or remove opportunity to discover the truth

Active misrepresentation – oral, written, or actions
Failure to disclose when under duty – generally no duty (caveat emptor) except when special relationship exists between the parties, AND defects that seriously affect use and buyer coul