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Torts II
University of Kansas School of Law
Weeks, Elizabeth

Torts II Outline

I. Strict Liability—No Regard to the Actor’s State of Mind: “One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
A. Act
1. Abnormally Dangerous Activity
a. risk of harm
1) uncertain or uncontrollable risk
b. likeliness that the harm that results will be great
1) what property owner does with adjacent land
c. reasonable care does not eliminate the risk
d. not a matter of common usage
1) common usage
a) customarily “carried on” by the great mass of mankind OR many people in the community
b) ***ARGUMENTS FOR “CARRIED ON”***
1. “Carried on” means the person or the entity who undertakes in the activity. Courts prefer easy rules because they promote predictability and consistency for future cases. Adopting this rule will further this value because it is easier to establish who carries on the activity rather than who is affected by the activity. Here, D ____________ and therefore was the person undertaking in the activity.
2. Counter—“Carried on” means those persons affected by the activity. Easy Rules ignore relevant factors. Adopting this rule will further this value because the court can look to the surrounding circumstances and determine who is affected by the activity. Here, ____________ and therefore is affected by the activity.
3. Alternative–—“Carried on” means those persons affected by the activity. Crop dusting is a business the court should encourage. Adopting this rule will further this goal because crop dusting is widely used and beneficial to the citizens of the state. If the court penalizes this business for a mistake, it will deter this business. Here, D____________and therefore is affected by the activity.
e. Inappropriate place
1) Where is the activity?
2) Where is it taking place?
f. Balancing the risk of the activity versus the benefit to the community
1) ***ARGUMENTS FOR RISK V. BENEFIT***
a) RISK: The court should encourage crop dusting. Adopting this r

s. Here, the risk was __________ and caused the injury.
b. ***ARGUMENT FOR NON-NATURAL***
1) D is not responsible for P’s non-natural use of the land. People should only be responsible for anticipated risks. Adopting this rule will further this value because it will relax liability on those who cannot anticipate the risk and prevent frivolous claims. Here, P________________ and there for D is not responsible for the non-natural use of P’s land.
C. Defenses
1. Acts of God
a. Plainly beyond the capacity of anyone to anticipate
1) act of God not necessarily weather related
2) MAJORITY: because it hasn’t happened before
2. Contributory negligence–P’s own conduct 4-PART TEST
a. Unnecessarily
b. Probable Consequences
c. Knowledge of the Consequences
1) Actual Knowledge or Should have known
a) ***ARGUMENT FOR KNOWLEDGE***