Torts II Outline

I. Strict Liability – liability without fault: no intent, no fault, and no lack of reasonable care à only need to show injury caused by someone’s harmful activity – MUST HAVE HARM TO PERSON, CANNOT BE STRICTLY ECONOMICAL
This is not absolute liability because that would mean there are no defenses, but there are defenses to strict liability, such as not a proximate cause and lack of forseeability. The duty is what is absolute and that duty is not to harm.
It’s an allocative system because we choose who bares the risk in liability.

A. Animals – there are 2 forms of liability for trespassing animals:
1) strict liability – animals that are likely to roam and due damage – barnyard animals because they are more valuable animals that generate profit for a farmer and tend to cause more damage
wild animals – look at what’s custom for pets w/in community
Fencing out – P puts up a fence and D’s animal gets through fence
Fencing in – D fences in his animals and they escape
Contributory negligence is not a defense.
2) negligence – domestic (varies from state to state and county to county – look at area); unless they have known dangerous propensities
It’s common for household animals to roam onto others’ land.
Example – Wolf-dog – find out if there were known dangerous propensities to owner or others in the community

B. Abnormally Dangerous Activities –
Magic Johnson case – if he knew he had AIDS and engaged in sex w/o a condom then strict liability, but he didn’t know and sex in itself is not a dangerous activity, dangers in sex can be reduced w/reasonable care and sex is common
*Rylands v. Fletcher – strict liability for non-natural uses of land (common law rule)
D is liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings
Unless damages are immediate there can be no trespass to land.
One who brings anything on land that is likely to cause harm is strictly liable.
1st Restatement = Ultra-hazardous – 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

2nd Restatement = Abnormally Dangerous = B > < (P)(L)
a) existence of high degree of risk of harm to others/property = P
b) likelihood that resulting harm will be great = L
c) (P)(L) = Risk
d) Inability to eliminate risk via reasonable care
e) Extent to which activity is not a matter of common usage
f) Inappropriateness of activity to the place which it is carried out
g) Extent of value to the community outweighed by its dangerousness
Ultra-hazardous = always dangerous and always strict liability
Abnormally dangerous = may or may not be strict liability

Miller v. Civil Constructors – discharge of firearms is usually a question of negligence, can be ultra-hazardous, there’s hesitation to call things ultra-hazardous because they may be a benefit to society
Guns in shooting range is a matter of common usage.

IN Harbor Belt RR v. Amer. Cyanamid – can the risk be reduced w/reasonable care – Posner said it was the most impt element of 2nd Restatement

C. Limitations on Strict Liability
Foster v. Preston Mill – the risk that occurs must be the risk that makes the activity ultra-hazardous
Blasting is not an ultra-hazardous activity because mink may eat their young.
Golden v. Amory – no strict liability for acts of God unless reasonable anticipation
Sandy v. Bushey – contributory negligence is not a defense for strict liability

II. Products Liability – the umbrella term for the liability of a mfr, seller, or other supplier of chattels, to one w/whom he is not in privity of K, who suffers physical harm caused by the chattel – normal use of a product includes foreseeable misuse – the difference btwn a product and a service is that a product can be consumed (def from Restatement 3rd)
The question is when is the danger acceptable to society and when not…who bares the risk, the P or the D.
A. Development of Products Liability Law
*MacPherson v. Buick Motor – old rule was that you needed privity of K for strict liability but it changed in this case
Cardozo – duty is from foreseeability of injury from product not being made w/reasonable care
*Escola v. Coca-Cola Bottling – lawyers/courts use res ispa (permitted inference of negligence – does not ordinarily occur in absence of negligence) to make products cases easier for P; and, Traynor asks for strict products liability but does not get it! But in the process key policy rationales are established for products liability
Rationales of the Traynor Concurrence:

Reduce hazards to life and health inherent in defective products – public policy to reduce product hazards
Mfr. is better able to anticipate and guard against problems in products
Cost of injury may be huge to innocent product user and easily insured against by mfr who can spread cost to all users
Negligence is hard to prove, and res ispa is not a good tool for getting around the problem
In day of mass production, consumers don’t have means/skill to investigate soundness of products for themselves
Mfr. marketing efforts lull consumers, make them less vigilant, make them trust mfr reputation

McCabe v. L.K. Liggett Drug – implied warranty of merchantability = product is fit for its ordinary uses
We do not expect a coffee maker to explode in peoples faces w/normal use. (Statute of Limitations is usually 4yrs after purchased new.)
*Greenman v. Yuba Power Products – Traynor gets his way. CA adopts strict products liability against mfrs.
(warranty law has notice provisions – must notify mfr w/in certain time for claim to be valid)

B. Restatements
§402A – One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
a) the seller is engaged in the business of selling the product
b) it is expected to and does reach the user or consumer w/o a substantial change in the condition in which it is sold
The rule applies although a) all reasonable care has been exercised in the sale and preparation of the product (strict liability) and b) the user or consumer has not bought the product from (chain of distribution) or entered into and contractual relation w/the seller (no privity)
C. Who Is Liable?
§1 Res. (3rd) – liability of commercial seller or distributor – one engaged in the business of selling or otherwise distributing products who sells or distributes a defective pr