I. DAMAGES – only personal injury or property damage is recoverable
Must be actual
Collateral source rule: P is entitled to recover her put-of-pocket expenses, even if P was reimbursed for these losses by a 3rd party.
Defenses
Contributory Negligence – generally a P who is negligent and whose negligence contributes proximately to his injuries is barred from recovery (4 states)
Comparative Negligence – divides liability b/w P & D in proportion to their relative degrees of fault. (46 states have some form of this)
Pure comparative negligence jurisdictions (very few) permit a negligent P to recover even where his negligence exceeds that of the D.
Modified (2 types)- P’s negligence cannot be
as great as D’s
or greater than D’s
Joint-and-several liability – the D’s that can be found are responsible to pay P’s whole loss even if they are only partly at fault
Most states have abolished this make D pay only his share
Some states use a hybrid approach
II. ASSUMPTION OF RISK
Bars recovery if P knew of the risk
Expressed assumption: If P explicitly agrees in advance to assume the risk of harm – bungee jump
P’s express assumption will not bar recovery if there is a public policy concern – medical services; unequal bargaining power; protected party intentionally causes harm or engages is gross negligence
Implied assumption: P’s actions demonstrated that she knew of the risk in question and voluntarily consented to bear the risk.
v Exception: In Rush, P did not assume the risk when she fell through the bathroom floor b/c manager had a duty to render the property safe. There were no other facilities; going to the bathroom is involuntary.
III. STRICT LIABILITY
Even if a person exercises the utmost care to prevent harm – still liable
· Trespassing animals (property damage)- owner’s are liable for property damage caused by the animals if they trespass on another’s land unless:
o Not reasonably to be expected from the intrusion,
o Done by animals straying onto neighboring land while driven on the highway, or
o Brought about by the unexpected operation of a force of nature, action of another animal, or intentional, reckless, or negligent conduct of a 3rd person
· Dangerous animals (bodily harm)
o Wild animals – owner is strictly liable for all damage done by it, as long as the damage results from a dangerous propensity typical to the species
o Domestic animals – injuries caused by domestic animals do not give rise to strict liability unless the owner knows or has reason to know of the animal’s dangerous characteristics
· Fencing in statute – owner not strictly liable if she properly fences animals in
· Fencing out statute – if P properly (non-negligently) fences animals out then D is strictly liable
Abnormally dangerous activities – a person is strictly liable for any damage which occurs when he is conduction an abnormally dangerous activity. E.g. operating nuclear reactor, crop dusting, explosives
o Six Fact
has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant detriment upon the public right.
Private citizens cannot bring an action for public nuisance – the city must
Exception – unless they can show they suffered a different kind of harm
Usually no monetary damages available only injunctive relief
Private Nuisance § 821 D
A nontrespassory invasion of another’s interest in the private use and enjoyment of land.
Generally have to show it was intentional, negligent, or a strict liability act that proximately causes a substantial (long lasting, not overly sensitive) and unreasonable interference (harm>social value) with P’s use & enjoyment of property (condition & use).
§ 826 Unreasonableness of Intentional Invasion:
gravity of the harm outweighs the utility of actor’s conduct, or the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make continuation of the conduct feasible.
Defenses to Private Nuisance
