Torts II – Butler – Fall 2011
Strict Liability
Definition – engaging in an activity that the law supports as being strict liability
· Absolute duty, absolute liability only have to prove that they were hurt
· There are defenses in strict liability
· If you do something, then you must pay for it
· No fault is needed, No Intent
· When a Court imposes strict liability, it is saying that the D must pay damages although the D neither intentionally acted nor failed to live up to the objective standard of reasonable care (negligence)
Types of Activities where Strict Liability it Imposed against Owner or Possessor:
1. Trespassing Animals (intruding animals) and animals that cause Personal Injury
a. Category of animals are usually Barnyard animals (cows, sheep, etc.; strict liability is the rule b/c farmer benefits from the cow and should have to pay for any damage that the animal (for business) has done (ought to pay its way), unusualness v commonness (dog vs. cow to do damage)
b. Domestic animals (dog, cat) the standard is negligence, not strict liability. Historically it was common for those animals to roam about the neighborhood, won’t do as much damage (harm) as a cow or horse might
c. Fencing out statute – Pl (as long as fenced out) owner of the animal if animal gets in is liable
d. Fencing in statute – Df is liable if animal gets out fenced in area (D is owner of animal)
2. WILD ANIMALS
a. Standard for wild animals is SL
b. When is an animal wild?
i. Look at customs of the community, RE: not by custom devoted to the service of mankind at the time and in the place in which it is kept.
*Camels are not wild, totally domesticated
3. DOMESTIC ANIMALS: Personal Injury
a. Generally, negligence
b. But w/known dangerous propensities; SL, EX: like Pete an emotionally needed dog of Prof. Butler
c. In dog bite cases, first look to statutes
For Exam: ask questions to P or expert; what legal questions will you ask; What factual questions to ask:
1. Can this breed of wolf-dog be domesticated?
2. Are there any signs to be aware of before they attack?
3. Are they predatory by nature?
4. Do they have a propensity to turn on caregiver?
5. Do they have to be provoked?
6. Would you consider them wild or domestic?
7. Studies or attack history?
SL FOR ULTRA-HAZARDOUS ACTIVITIES
Abnormally Dangerous or Ultrahazardous Activities, the ACT
1. Ultrahazardous Activities – 1st Restatement:
a. Necessarily involves risk of serious harm
b. That cannot be eliminated by exercise of utmost care
c. And is not a matter of common usage
d. Some Courts add: inappropriate to the place
2. 2nd Restatement – 6 prong test – Abnormally dangerous
Ex: Whether the use of a firearm is an Abnormally dangerous/ultrahazardous activity?
R – Factors 2nd Restatement For determining if an activity is abnormally dangerous: (High P, High L, can’t eliminate)
a. High degree of risk (P) Existence of a high degree of risk of some harm to the person, land or chattels of another
b. Likelihood of great harm (L) Likelihood to eliminate the risk by the exercise of reasonable care
c. Can’t eliminate risk w/reasonable care. Inability to eliminate the risk by the exercise of reasonable care. If so, then you get into negligence, why you breached the standard of 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. Like storing dynamite in basement of Cooley; flying a hot air balloon in residential area. This encourages ppl to do dangerous things in places where you can’t hurt ppl.
f. Extent to which its value to the community is outweighed by its dangerous attributes
In short, is the risk created so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care.
Be careful when defining the activity, ex: drunk driving the activity is driving, which is not dangerous!
Limits on Liability? Proximate cause is needed
Restatement 1
Restatement 2
4. 3rd Restatement – One carrying on an abnormally dangerous activity is subject to SL for the resulting harm although it is caused by the unexpectable:
a. An actor who carries on an abnormally dangerous activity is subject to SL for physical harm resulting from the activity
b. An activity is abnormally dangerous if:
i. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
ii. The activity is not one of common usage
5. An activity is abnormally dangerous when:
a. An innocent, negligent, or reckless conduct of a third person, r
b. Action of an animal or
c. Operation of a force of nature
Check where you live for the rule
1. When can P pursue a strict liability cause of action?
a. Barn yard animals
b. Wild animals
he bouncer continues kicking the patron
Questions?
1. Did the injury occur in the scope of employment? During the duties of your work or in the course of your work.
2. Coming and going rule
3. “A risk arising from the work” and then “is this foreseeable”
4. if you make the employee an instrumentality of danger, therefore vicarious liable.
Pyne V Wittmer
Respondeat: Frolic (substantial deviations) and Detour
Is it slight or a substantial deviation from the employer’s business?
How much time, how much distance, was it a combination between you and employer like getting car you use for employment checked, is he a manager, how major is the deviation?
Incidental – time, distance and purpose
General rule: Vicarious liability for the torts of IC can be avoided if you hire Independent Contractors, unless:
a. Hire an incompetent contractor, but you must know
b. Can’t delegate statutory duties, if there is some risk that is peculiar to an activity, like abnormally dangerous /inherently dangerous activity– this is a distributive decision to keep your pocket there, strict liability.
c. Method of payment: paid by job, paid over time
d. Is it a particular skill set needed or is it like a servant
e. How much control do you have over them?
A. Partnerships
B. Joint Ventures: agreement to share profits, losses and
(1) a community of interest in the venture;
(2) an agreement to share profits;
(3) an agreement to share losses; and
(4) a mutual right of control or management of the enterprise. *Sharing in profits and losses is an essential element of a joint venture.
C. Joint enterprises: vicariously liable for each other torts
1. agreement,
2. common purpose,
3. community of pecuniary interest (pooling/combining of resources) in that purpose,
4. equal right to a voice in the direction of the enterprise, which gives an equal right of control.
Duty = Who is proper D? Who has Strict obligation to put non- product in stream of commerce?
Breach = Was product defective?
Causation = (AC, PC) Did defect actually and proximately cause harm? Mnfr defect, design defect, warning defect
Damage = Did P suffer damages? Harm
