Torts II Outline

II) Strict Liability (SL): Liability without proof of fault, BUT causation must still be proved

Prima Facie Case
1. The existence of an absolute duty on the part of the defendant to make safe;
2. Breach of that duty;
3. The breach of that duty was the actual and proximate cause of P’s injury; AND
4. Damage to P’s person or property.

A. Activity Subject to Strict Liability
1. Harboring Certain Animals
a. Intruding Animals
i. If likely to roam and cause damage when roaming
– Applicable to barnyard pattern (cattle, horses, sheep, hogs, goats, etc.)
ii. Dogs and cats not included
– Very difficult to confine and restrain
– Damage usually trivial, no serious harm
b. Wild Animals (Ferae naturae)
i. The customs of the community influence the determination of what is “wild”
ii. D responsible for ANY harm resulting from animals known dangerous propensity
c. Domestic (if Abnormally Dangerous + Scienter)
i. Animal with known dangerous propensity not shared by most members of the animal’s class
– Harm MUST result FROM that dangerous propensity
– Contributory negligence may release D from liability
EX: P slaps viscous horse in the face and horse stomps him
d. Possible Limitations
i. Driving Farm Animals on highway
ii. Fencing statutes
– Fencing Out
° If P fenced his land properly, there was SL when the animals broke through the fence
– Fencing In
° Required the owner of the animals to fence them in or restrain them
° SL if he did not do so
– Public Display of Wild Animals
e. Possible Expansion
i. Dog-bite Statutes
2. Abnormally Dangerous Activities
a. Generally
i. Court, not the jury, decides if an activity is abnormally dangerous and subject to SL
ii. Escape of dangerous “thing”
– SL for Non-natural use of thing
° Its relation to its surrounding
EX: Water collected in large tanks in dangerous proximity to P’s land
– No SL for natural use of thing
EX: Water in water pipes
– SL for ALL natural consequences that result from anything brought unto one’s land
– Needs to be likely to cause “mischief” if it escapes
iii. Requirement of the Activity to be under D’s Control
b. Ultra Hazardous Activities (First Restatement)
i. Some activities create such grave risks when accidentally released from the control of the manufacturer, transporter, or user, that responsible parties maybe strictly liable (without fault) even where they exercised scrupulous care.
ii. Modern definition uses the term abnormally dangerous
c. Factors that Determine an Abnormally Dangerous Activity (Second Restatement):

i.

Most important factors are [i-iv]. The most important of all is [iii].

*Involves a risk of serious harm to the person, land or chattels of others which can’t be eliminated by the exercise of the utmost care,

ii. *Likelihood that the harm that results from it will be great
iii. **Inability to eliminate the risk by the exercise of reasonable care
iv. *Extent to which the activity is NOT a matter of common usage
v. Inappropriateness of the activity to the place where it is carried on, AND
vi. Extent to which its value to the community is outweighed by its dangerous attributes.
B. Causation
1. In Fact: Usually controlled by but-for test
2. Proximate
a. Scope of harms that made the activity dangerous
i. No intervening, superseding event?
ii. Hypersensitivity not applicable
EX: Mink eating babies due to becoming frightened from dynamite explosion
C. Compensable Harm
D. Defenses
1. Based on P’s Conduct
a. Negligence (comparative responsibility)
i. Certain jurisdictions will reduce P’s recovery for her unreasonable conduct that contributes to her injury
b. Assumption of Risk (When plaintiff voluntarily confronts a known hazard)
i. Will be a complete bar to P’s recovery
ii. D’s failure to use Reasonable Care is irrelevant
iii. For Obvious dangers and generally known risks
c. Unforeseeable Intervening/Superseding Forces
i. Acts of God
ii. Independent Acts of third persons
d. Statute of Limitations
i. Repose
ii. Immunities
E. Persons Protected
1. Invitees, Licensees
a. Landowner strictly liable
b. Public duty exception
i. Landowner is under a public duty to keep the animals
ii. In such cases, negligence must be shown (zookeeper)
2. Trespasser
a. Usually NO strict liability, UNLESS:
i. EX: A “viscous watchdog” injured the trespasser AND adequate warning of the dog’s presence was NOT posted.
3. Duty owed to Foreseeable Plaintiffs
a. Persons to whom a reasonable person would have foreseen a risk of harm under the circumstances
i. Some courts find liability for all activities that have an intrinsic danger to them
III) Products Liability (PL)
A. Definition:
1. The umbrella term for the liability of a manufacturer, seller, or other supplier of chattels, to one with whom he is NOT in privity of contract, who suffers physical harm caused by the chattel.
B. Theories of Recovery
1. Negligence (Focuses on Conduct)
a. Focuses on compensating persons suffering personal injury or property loss due to another’s failure to act with due care under the circumstances
i. A Negligence products liability claim may be available in virtually any setting against the product seller, including claims for mismanufacture, defective design, and failure to warn.
– In each instance, a cost benefit analysis comparable WILL be an element of the requisite negligence analysis
b. Elements
i. Legal Duty
– Owed by the manufacturer to ALL persons who might foreseeably be affected by the product
° Whether a duty is owed to P is a question of law
° Issues of Foreseeability and Causation are questions of fact
ii. Breach
– P must Identify and prove that point in the process of manufacture or sale that the seller’s conduct fell below the requisite due care under the circumstances
– Actor’s conduct creates an unreasonable risk of harm where the burden of taking measures to avoid the harm would be less than the multiple of the likelihood that the harm will occur times the magnitude of the harm should it occur
° In the formula (B<(P)(L)), the actor bill be considered in breach of its duty when B is less than (P)(L), that is, B (Burden of Preca