Select Page

Torts II
University of Dayton School of Law
Todd, Adam G.

Torts II
Prof. Todd
Fall 2015
a.       Definition: Liability for all injuries proximately caused by a party’s conducting of certain inherently dangerous activities without regard to negligence or fault
b.      Often result of a finding of res ipsa
c.       Only imposed for the type of risk inherent in the activity (Ex. Tripping over a wild animal and getting injured; owner not liable for injury)
d.      Abnormally sensitive individuals usually cannot claim under strict liability
                                                                           i.      Animals
i.         Wild animals
ii.       Livestock
iii.      Domestic – (dogs, cats, house pets) – may not be liable, unless animal is known by owner to be dangerous
                                                                         ii.      Escape from land – water/pollution
i.         Cattle
ii.       Sewage
iii.      Fire (in certain cases)
iv.     Water from reservoir
                                                                        iii.      Abnormally dangerous activity – fire/explosives
i.         Siegler – res ipsa appropriate – Overturned Gas tanker spills gas, car driver ignites/dies
a.       Dangers cannot be eliminated by exercise of reasonable care
ii.       PSI Energy – asbestos inherently dangerous, but care could be taken to reduce exposure
a.       No strict liability
                                                                       iv.      Restatement (Second) of Torts, § 520: “In determining whether an activity is abnormally dangerous, the following factors are to be considered:
a.       existence of a high degree of risk of some harm to the person, land, or chattels of others
b.      likelihood that the harm that results from it will be great
c.       inability to eliminate the risk by the exercise of reasonable care
d.      extent to which the activity is not a matter of common usage
e.       inappropriateness of the activity to the place where it is carried on; and
f.        Extent to which its value to the community is outweighed by its dangerous attributes.”
                                                                         v.      Vicarious liability –  
                                                                       vi.      Products liability – defective product (Could be intentional, negligence, warranty, or contract)
i.         Expansion of common-law previous need for privity of K
a.       Eliminating need for privity
ii.       Causation – Actual and proximate
a.       Res Ipsa Test applies for causation under restatement 3d
iii.      Implied Warranty of Merchantability
a.       Henningsen v Bloomfield Motors
                                                                                                                                                   i.      Impose strict liability without privity
                                                                                                                                                 ii.      Expands implied warranty to manufacturer in addition to seller
                                                                                                                                                iii.      Extension of implied warranty to family/others using auto with consent
iv.     Liability for manufacturing defects
a.       (Usually strict liability)
b.      Four

duct (Heaton v. Ford Motor Co.) (2d Restatement)
                                                                                                                                                   i.      Simple test, if jury can have a sense of “ordinary consumer”
e.       Combined consumer expectation and risk utility (Soule v. Gen Mtrs.)
vi.     Liability for failure to instruct or warn
a.       Usually negligence
b.      Example: The legs of a child’s highchair collapses when an unusually overweight child is sitting in it and bouncing up and down in the seat. The seat provides no instructions concerning weight limits or recommendations concerning use of the chair.
Warning Defects –
·         Restatement 2d
·         Restatement 3d
o   “Reasonable alternative design?”
·         Minority follow strict liability
“Heeding presumption” – When a D fails to warn, the court presumes that the P would have read the warning and would have avoided the warned-against risks. (Shifts burden—requires the D to show otherwise)
Sophisticated user defense – the injured party knew or had reason to know of danger (and thus no duty to warn)
Learned intermediary defense – the D warned a responsible intermediary who then had the duty to warn the injured party. (E.g. a medical device company informs doctor/technician about danger of a device. The doc/tech may have duty to warn