Select Page

University of Toledo School of Law
Martyn, Susan R.

Torts II Outline
Martyn 2007

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
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
a)    RISK: The court should encourage crop dusting. Adopting this rule will further this value because crop dusters can still benefit economically from spraying other farms. Because they benefit economically, they can also pay for the damages they cause. Since they can spread the cost of damage to other consumers, they can pay for damages. Here, D _________________and therefore the risk outweighed th

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
1.    Majority view prefers knowledge as what the P should have known. Courts like easy rules. Adopting this rule will further this value because it is a consistent and predictable standard for future cases. Here, P was an *adult, child of ___yrs old, and therefore should have known________.
2.    Alternative: The court should deter careless actions. adopting this rule will further this value because it will place liability on the person in the best position to anticipate danger and change their behavior. People will want to change their behavior because they are motivated by money, and this is a behavior they can change. Here, P was careless and therefore should have known the danger.