Torts II Outline

OUTLINE
TORTS II
I. STRICT LIABILITY
Ø      Defendant is engaged in legal conduct, acting without fault, but is liable because he/she caused the harm due to policy reasons
³     Defendant must pay the damages although the defendant neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been at the root of negligence law. 
Ø      Strict liability is an area of pure policy
³     It is about allocation of the risk
·         More economically efficient for D to insure their activities, rather than the public to insure against anything & everything
ü      Cost of liability is added to transactions, so this becomes distributed to the consumer
·         Incentive for D to be very careful
Ø      Who decides if strict liability is imposed on an activity?
³     The judge – this is a question of law
Ø      1) Strict Liability for Ownership of Animals
³     A) Trespassory Harm
I. Barnyard Animals/Livestock
·         strict liability exists for barnyard animals that are likely to do harm when they trespass
·         there is no strict liability for livestock on a highway who stray onto adjacent property
ü      The owner of the adjacent land will have to prove negligence to recover.
©     However, if the cattle stray though the adjacent land to a 3rd person’s land that is not alongside the road, that owner may recover through strict liability
[Highway] Cattle (or any livestock being driven to market) on the Road
[Blackacre] Adjacent land – if the cattle trespass and damage the property, there is no strict liability. However, the land owner may still recover through negligence
[Greenacre] Next land owner over – this person may recover through strict liability if the cattle trespass all the way over here and damage the land
 
·         Fencing In/Out Statutes
ü      Fencing in statute
©     The owner of livestock is SL when that owner fails to have a sufficient fence and the cattle (livestock) escape to do harm
©     Fence must be of sufficient strength to hold those animals
©     A single barbed wire strand is insufficient for cattle – this may be negligence, but even if the fence is much stronger, the burden is on the owner, so even if the cattle break through a very strong fence, that cattle owner is SL for the damage to another’s property to which the cattle trespass
ü      Fencing out statute
©     The owner of livestock is SL when their cattle (livestock) break through the fence of another, causing damage
©     In this jurisdiction, a landowner who does not have a fence but seeks to sue a cattle owner for cattle who enter the field would have to prove negligence
II. Household Pets
·         there is no strict liability for household pets
ü      If domestic animals trespass, negligence must be proved
©     If an animal is known by the owner to commit acts of damage around the neighborhood and fails to use reasonable care to prevent such damage, and the animal causes such damage and that landowner sues, this will be a proper cause of action, for the owner was indeed negligent.
©     Some jurisdictions have ‘leash laws’, requiring owners to keep their dogs and cats (domestic animals) on leashes or enclosed, an exception to the negligence rule.
                                                                                                                                      i.      Ordinarily, these laws are minor regulatory statutes that specify a fine or the city’s right to confiscate the animal, but they usually do not indicate a change of standard of care for the owner when the pet escapes, trespasses and causes damage to property
1.      However, the doctrine of negligence per se may allow the ordinance to become the duty
³     B) Non-trespassory Harm
·         Whether an animal is wild or domestic is determined by the custom of the community and whether the animal is of service to mankind
·         1) Domestic Animals
ü      owners are not strictly liable for harm their animal causes
©     UNLESS the owner has scienter (owner knows or has reason to know) about the dangerous propensity of the animal AND the harm is the result of that dangerous propensity
                                                                                                                                      i.      This is because the harm is now foreseeable, so
                                                                                                                                    ii.      Liability is imposed if the owner failed to use reasonable care to control the animal (the owner was negligent)
©     Do dogs and cats get one free bite?
                                                                                                                                      i.      Yes, because it was not foreseeable – dogs don’t usually bite, or are dangerous toward humans
                                                                                                                                    ii.      Exception – the owner is strictly liable for that first bite if the owner knows or has reason to know (scienter) of the dog’s vicious propensity.
1.      Some statutes say otherwise
                                                                                                                                  iii.      The animal does not have to have bitten/harmed before for the owner to have scienter of the animal’s dangerous propensity. If it was a trained attack dog, or some other indi