TORTS II
LEE
SPRING 2013
Notes:
Positivist – law is objective
Realist – Law is not bound by objective, but policy. Understanding of world affects how we apply law.
When arguing about what rule to use (for modifying reasonable person) you must argue it in the rule section. Will argue what rule to use and then what the other side will argue.
***Exam tip – will look to see if person wanting to recover could do so under vicarious liability
Strict Liability
1. Duty: To refrain from abnormally dangerous activities
2. Breach: By so actingàengaging in abnormally dangerous activities
3. Injury: Real property, person, private and public nuisance
4. Cause: Proximate cause
Elements
1. Duty
a. Precedents:
i. Crop dusting in an area with organic farming.
ii. Dynamite blasting
iii. Hot air ballooning
iv. Transporting hazardous chemicals
v. Damming water
b. Test if no precedent:
i. (A) Factors
1. Existence of a high degree of risk f some harm to the person, land, or chattels or others
a. Uncertain uncontrollable factors
i. Identify these factors
ii. Show significance to the activity
b. Ability of knowledge and technology to eliminate the effect of the uncertain and uncontrollable factors
i. Ability of knowledge and technology to predict the uncertain and uncontrollable factors
ii. Ability of knowledge and technology to respond to the factors
c. Statistical history of accidents
2. Likelihood that the harm that results from it will be great
a. What is the worst thing that could happen
b. How bad would that be
3. Inability to eliminate the risk by the exercise of reasonable care (note absence of any of the below factors point to negligence).
a. Look at (A)(1) and (2).
b. The degree to which evidence of the lack of reasonable care (or use of) would survive an accident
i. What would be evidence of reasonable care associated with this activity
ii. How much of that evidence would be likely to survive an accident
1. ***For negligence, a person must prove that person did not use reasonable care and if evidence will survive the accident. If no evidence, we can’t prove negligence and it is therefore strict liability.
4. Activity is a matter of common usage: customarily carried on by the great mass of mankind or many in the community
a. Carried on
i. Those who do
ii. Must argue whether we also count those that pay for the benefit
b. How many of those carry on “customarily” (regularly engage in the act)
i. Those who do it regularly (must argue this)
ii. People who do it frequently (if frequent, element is met)
c. Compare those who customarily carry on to great mass of mankind or many in the community
5. Inappropriateness of the activity to the place where it is carried on.
a. Incompatible with neighboring uses
i. If NOànot inappropriate
ii. If YESàlook at the following
b. If yes above, now we must determine which incompatible use is inappropriate.
i. Arguments will be made about
1. Defendants behavior
2. Plaintiffs behavior
3. 3rd party behavior
4. Nature/acts of god (
a. Ex) Golden p. 739 when dam breaks
i. Courts like economic benefit of electric plant in community so no liability
b. Ex) Foster (minks kill their kittens)
i. Court values economic benefits of blasting, and therefore will not hold the blasting company liable for the minks (SPD)
c.
Affirmative Defenses to strict liability
1. Assumption of the risk
a. Unnecessarily
b. Voluntarily
c. Put himself in a way to be hurt
d. Knowing the probable consequences of his act (capacity to know)
Negligence (We examine the sequence of events at the time the sequence starts, not at the time of injury. Don’t be confused by this. See notes 2/1 for clarity if needed) ***NOTE FOR FINAL – See transfer intent scenario on pages 322-323. This will be on final, where transfer intent across people.
1. Duty
a. Foreseeability and Reasonably Prudent Mind: To refrain from those acts which a reasonable person should foresee posing an unreasonable risk of harm to a particular interest of a particular person. This results in liability. (Cardozzo says we must limit liability at some point and this is where)
i. Reasonable person
1. We do modify for:
a. Cowardice
b. Blindness
c. Children
d. Mental illness
e. Professionals
f. Lawyers
g. Doctors
h. Parents
2. We DO NOT modify for:
a. Stupidity as acceptable standard
Court does not recognize an exception for stupid people because determining what is in everyone’s head is too
