Torts Outline Spring 2014
Strict Liability
Abnormally Dangerous Acts
Was there a duty to refrain from ADA?
If no à Stop
If yesà Ask did they engage in ADA?
Was there an injury of something recoverable?
Did the breach cause the injury?
Balancing Test- always look @ all the factors. Don’t have to have all of them.
1. Duty to refrain from ADA
a) Precedent
b) §520
2. Breach of that duty
3. Injury- Physical injury to chattels, people, real property. SED argue if or if not recoverable
4. Proximate Cause- breach must be the proximate cause of P’s injury
1) 2 Steps Cause:
But for that which makes the activity abnormally dangerous the injury would not have occurred.
A) Identify that which makes the activity abnormally dangerous
B) But for the activity would the injury have resulted/ or occurred
If answer is no we stop
If answer is yes we go to proximate
2) Proximate When we get to proximate argue policy
Ex. This is the person liability should fall on for this reason
Social policy deterrent, cost spreading, deep pockets, between two innocents the one who caused the injury must pay.
Factors (Weigh) Langan 5 out of 6/// Cynamid C most important
A) Existence of a high degree of risk of some harm to the person, land, or chattels of others;
a) Uncertain and Uncontrollable factors— Look at 2 things
1) I.d. those factors
2) Significance of the factors to the activity (they affect the activity)
b) Our ability to eliminate the affect of the uncertain and uncontrollable factors through knowledge and technology
a) Predict (more able to eliminate its affect)
b) Respond (more able to respond to it the less uncontrollable it is)
c) Statistical history of accidents. High or low degree of risk?
How frequently activity is undertaken?
How often are there accidents?
—–The greater the risk of some harm the more likely ADA—–
Limit uncertain and uncontrollable factors there could be 45
To determine that risk courts must consider 1) significance or presence of uncertain and uncontrollable factors 2) the ability to eliminate the factors through knowledge and technology, 3) statistical history of accidents.
B) Likelihood that resulting harm will be great
1) Determine what is the worst thing that would happen
2) Determine how bad that would be
—- the more bad/harmful the more likely the activity is ADA—-
C) Inability To Eliminate The Risk of Harm through the use of reasonable care
1) Look for the Effect of the certain & uncontrollable factors in (A) ACTIVITY
2) Extent to which EVIDENCE of reasonable care would survive an accident
(Look @ activity—less evidence of reasonable care the more likely strict liability)
A) Evidence of reasonable care (identify)
B) Likelihood it would survive an accident (determine)
If D wins both stays in negligence
—-When activity is typically done—-
D) Extent to which the act is not a matter of common usage
Whether the Activity is Common Usage
RULE: An activity is a matter of common Usage when it is Customarily Carried on by the great mass of mankind or many in the community
ARGUE 1) Who carries on the activity
a) Only carry
d be easier to move?
F) Extent To Which Its Value To The Community Is Outweighed By Its Dangerous Attributes
1) Value to community
2) Dangerous attributes refer back to A & B for the reasons discussed in A&B
3) Weigh /balance
Distributive—–Liability should be placed on the person best able to pay. If its valuable cost spread, more likely ADA, more profitable.
Allocative——Social policy deterrence we want them to change their behavior, liability should be placed on person who can eliminate the danger. Since we r trying to deter blank behavior the attributes outweigh…
4) Either approaching in an allocative or distributive approach theory
5) How it affects the ADA (more or less likely ADA)
Breach D breached duty b/c he engaged in ADA.
Injury Harmful contact w/ person, apprehension of contact, confinement, severe emotional distress, private/public nuisance, injuries to chattels, injuries to real property
Proximate Cause
1. Causalà but for that which makes the activity abnormally dangerous. What makes hot air ballooning abnormally dangerous? High altitutude. But for floating in the air would not be hurt
2. Proximateà Subjective. Policy Cost Spreading, Social Policy Deterrence, SPOD. Injury to d cause we don’t like what he was doing…..
What limits liability = cause
