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TORTS OUTLINE
I. BASICS OF INTENTIONAL TORTS
INTENT - the D's state of mind, the desire or
substantial certainty that something will happen.
A. Approach
1. Identify all possible
torts
Consider all torts suggested by the facts, sort the facts out into respective groups for
all torts.
2. Prima Facie Case - look
for all of the elements, apply intent to the result not the act.
3. What defenses can you use?
B. Elements of a Prima Facie Case
1. Act - must be volitional,
voluntary
2. Intent of consequences -
state of mind of D. Different definition for each intentional tort. In general all include
"a desire or substantial certainty"
a.
Volition - D's desire to perform a certain act (to pull the trigger)
b.
Deliberate and purposeful act or substantial factor
c.
Includes transferee intent
d.
Minors and incompetents can manifest intent
3. Causation - legal and
factual
4. Damages
C. ASSAULT - Act+Intent+Apprehension+Causation
1. Intention - intent to
create in the victim fear or apprehension of eminent harmful or offensive contact
a.
There is still an assault even if victim isn't afraid. Must simply be the intent of the
attacker to create a fear.
b.
Intentional infliction of harmful bodily contact upon another. Absence of intent to hurt
doesn't absolve knowledge that contact will happen.
c.
Requisite Intent Standards
(1) Intention to do unlawful act
(2) Intention to do an act
(3) Intention to do an act w/ knowledge that contact is substantially
certain.
(4) Intent to do harm.
#3 is sufficient for most cts
#2 w/o knowledge that contact was certain is probably insufficient.
d.
Youth in intentional torts are liable when capable of understanding result that contact
will happen.
e.
Transferred Intent: intent was to hurt someone doesn't need to be victim specific. It
applies to:
1)Identity of victim - requisite intent to commit tort but hits a different victim.
2)To the tort - requisite intent to commit battery, but only commits assault; transfers
intent to commit battery to assault, same if commits battery w/ original intent to commit
assault.
2. Act - an act that arouses
in another a reasonable apprehension of harmful or offensive contact (HOT). Some kind of
an act & not mere words even if act may be small. NO ASSAULT W/O AN ACT. Imp to keep
act element separate from P's perception.
3. P must perceive the
threat.
4. Perception must be
REASONABLE.
5. Perceived contact must be
immediate.
6. Conditional threats not
assault.
7. Must be a reasonable
apprehension - measured by reasonable man standard.
D. BATTERY - harmful or offensive contact
1. Act+Intent+Touch+Causation
2. judged by reasonable
standard
3. Act must be volitional,
not a reflex or unconscious
4. Youths and Incompetents
liable
5. Apply must of the above
standards
5. Even though not hurt,
still a battery because batter tort set up to protect ag/ intentional physical contact.
E. DEFENSES
1. CONSENT: varies who has
burden of proof, but if have consent it is a complete defense.
a)
lack of content - no consent at all, element of P's case
b)
lack of informed consent - didn't have suff info, couldn't make
good judgment, neg.
c)
types of consent:
(1)actual consent - words or conduct
(2)implied in fact consent
d)
If consent is procured by fraud it vitiates consent.
e)
You can consent to a crime unless the statute was intending to
protect a certain group; ie minors, minorities; ex. statutory rape case - minor to be
protect donc her consent is not a defense.
f)
Emergency consent - consent implied from circumstances. But if
knew before re/ life threatening risk it is not a defense. Applies when not in position to
have consent. Legal Fiction.
g)
Consent in the medical context - not emergency but patient not
capable to give consent; ie child, incompetent
(1)need guardian appointed
(2)guardian gives consent
h)
consent not good:
(1)fraud - must relate to a material element
(2)duress - must have been immediate and serious
(3)scope - action exceeds scope of intended consent
2. INSANITY - not a real
defense, depends on ct, like small child who pulls chair but doesn't understand that
contact is certain. A rational choice isn't required, liable though insane
3. SELF-DEFENSE - If all
circumstances would lead a reasonable person to believe they were being attacked it is
enough.
Was the amount of force reasonable? Was there a means of escape?
4. 3RD PARTY DEFENSE - what
amount of force can a 3rd party use to repel an attack?
a.
what else could've been done?
b.
could the party being attacked reasonably use this self-defense
c.
some states it will be determined by whether the 3rd party was right about the situation
d.
possible rules: equal strength of force or can sue suff force to repel the attack
e.
always need to have an attack or reasonable believe there's an eminent attack
f.
attacker has no self-defense privilege
5. DEFENSE OF PROPERTY - one
can justifiably use reasonable force that will NOT wound.
a. if
it's a dwelling house some states have special rules allowing greater force.
b.
Standard is reasonable for the use of force after a request to depart.
6. RECAPTURE OF PROPERTY
a.
privilege of recapture must be exercised promptly, in the action of hot pursuit, cannot
have delay.
b.
must be right, not just reasonable
c.
cts are reluctant to allow self-help unless it is immediately justified in the situation.
7. NECESSITY - privilege to
reasonably invade the property rt of another in an emergency.
a.
Allows trespass w/o tort but it doesn't permit for damages. Damages must be pd.
b.
Public necessity - if damage done in interest of public, not just personal, person will
not be held liable. Arg can be made that the public (gov etc) should pay for damages.
c.
actor must act REASONABLY
II. STRICT LIABILITY VS. NEGLIGENCE; HISTORIC AND ANALYTIC FOUNDATIONS
A. COMMON LAW HISTORY
B. BASES FOR COMPETING THEORIES OF LIABILITY
1. Corrective Justice Theory:
tort law ought to assume a preexisting set of requirements; any infringements on the
person or on property should be protected, thus this leads to STRICT LIABILITY.
*problems - all kinds
of injuries are caused by other persons but you don't want to compensate for some, ie
economic damage for loss of business, rebuttal is a causation discussion. There are many
other ways that one could injure another's property that we may not want the law to step
in on. Another problem, government stepping in and enforcing inequalities in wealth.
2. Reciprocity theory - all
people are entitled to the same amount of personal security. If one party takes a risk
greater than the other party and the other party is injured the party taking the grater
risk should be liable for the injury to the other party. If both parties are taking the
same level of risk there should be no liability. VERY DIFFICULT TO DEFINE NON-RECIPROCAL
RISK. When risk are from different sources but both are risks, which is the greater?
3. Economic Efficiency theory
- doesn't ask what is just between the parties, takes the broader view of what is better
for society as a whole. tort law should lead a set of rules that leads to the lowest costa
and the lowest number of accidents. Departs from looking at justice of the parties of the
particular case. Focus on cost/benefit analysis. Causes problems when trying to put a
value on life.
EXAMPLE
Powell v. Fall - no negligence but sparks from a rr set fire
Corrective justice theory - rr would be liable, caused the fire thus
pay for it.
Reciprocity theory - would have to balance the individual risk
Economic Efficiency theory - need to know how much these accidents cost
us and how must it would cost to prevent them.
4. Coase Theorem - the
liability rule, which every party the ct decides to hold liable, doesn't really affect the
economic outcome. If the ct doesn't work out the cheapest cost avoidance then the
free-market will. Assumption of 0 transaction costs. You want a liability rule that
minimizes the effect of the transaction
III. LIABILITY BASED ON NEGLIGENCE
A. ELEMENTS OF STANDARD NEGLIGENCE CAUSE OF ACTION
every element must be
established
1. Act or Omission
2. Duty of Due Care
3. Breach of Duty
4. Causation
5. Harm or Damages
B. THE STANDARD OF THE REASONABLE PERSON
Duty of due care - Reasonable Person Standard
(objective--intent is irrelevant)
1. Reasonable people never
forget
2. Categories of
Reasonable People
a) mental disabilities--held
to the same reasonable person standard; unless no forewarning of mental disability (some
cts)
b)
age--older people generally held to the same standard; youth generally held to reasonable
person of won age, unless they are doing an adult activity (look for license)
c)
physical disabilities--held to lower standard; CONFLICT: older people generally have no
defense if physical disability is caused by age.
d)
intoxicated--no defense; same reasonable person standard
e)
knowledge--highly trained held to higher standard (dr.'s, lawyers); beginners usually held
to standard of reasonably competent
f)
gender--self defense & Title 7 (gender discrimination) some cts hold females to
different standard
g)
culture--some cts hold to standard of person's own culture.
C. ATTEMPTS TO FASHION A STANDARD FOR EVALUATING THE REASONABLENESS OF RISK-TAKING
P must show that D's conduct created an
unreasonable risk of foreseeable harm.
Unreasonable Risk - Hand rule
(probability of harm) x (severity of injury) = risk [Learned Hand]
risks should be balanced ag/ costs of
protection
problems w/ test: defining risk is subjective
(eye of the beholder)
risk must be view from D's perspective at
the point in time
D. CUSTOM AS A POSSIBLE SOURCE OF THE STANDARD OF CARE
1. trade or industry - custom
doesn't set standard; ct can choose what custom should've been.
2. professions -
dr.'s/lawyers; custom usually does provide standard.
a)cts won't allow for local standards, some cts will consider nonavailability of equipment
b)Glaucoma case was exception--ct set medical standard
3.*INFORMED CONSENT*
Dr. must obtain consent
and tell of material risk and benefits. In this context, custom doesn't matter--it's up to
the jury to decide if risk are material. Consider causation--would reasonable person still
have gone ahead?
E. STATUTES AS A POSSIBLE SOURCE OF THE STANDARD OF CARE
Some give express private cause of action(leg
spec allows you to sue for breach of statute). Most statutes doesn't provide private cause
of action.
Juries can view statute as:
1-irrelevant
2-evidence of breach of duty of due care
3-negligence per se
person injured
must be w/in class of statute
harm must be what
statute was intended to protect
causation - there
must be a causal connection between violation of the statute and the injury. (trouble w/
this in Brown v Sabyne)
*Unenforced statutes are not negligence Per Se,
but may be evidence.
*Ex Post Facto statutes--some courts allow as
evidence of standard of care.
*Exceptions to negligence per se:
-when safer to violate
the statute than not
-necessity
F. THE ROLE OF THE JUDGE AND THE JURY IN DETERMINING NEGLIGENCE
1. Judges take cases away
from juries
-juries are swayed by
passion
-juries don't apply the
law
-juries will stick
insured/corp/deep pockets
Won't judges do the same?
2. Judges keep cases
-rigid standard
-consistency
3. Custom and Statutes - are
used to limit juries control over standard of reasonableness.
4. Judges take cases away
from juries in 2 ways:
1)"As a matter of
law, the standard of reasonableness is..."
2)Directed Verdict, Summary Judgment, JNOV
5. Jury serves as the factfinder
-reasonableness is
usually a question of fact
-jury usually decides
reasonableness
G. PROVING NEGLIGENCE THROUGH THE DOCTRINE OF RES IPSA LOQUITUR
1. Rule of circumstantial evidence
-eg. if no eyewitness
can prove Dr. left sponges in you during operation, mere presence of sponges serve to
prove res ipsa loquitur.
2. To show Res Ipsa Loquitur:
a)act does not
ordinarily occur absent neg
b)act must be w/in D's
control
note: even if P proves
case under RIL it doesn't necessarily mean you'll receive judgment, still up to the jury
3. Multiple Parties
-generally can't get
RIL
-exception - escalator
case; ie no delegable duty
4. Multiple Actors
-ex. medical case; due
whole group and leave it up to D to prove who was actually involved/liable (poss
conspiracy of silence)
-If no one comes forth,
then all are liable
5. Conditional RIL
-bleeding case; jury
question: Was is more likely than not than neg caused this? Yes => give jury RIL
instruction
IV. THE EFFECT OF THE PLAINTIFF'S CONDUCT ON RECOVERY FOR NEGLIGENTLY INFLICTED INJURY
*All are affirmative defenses (not part of
prima facie case). The case must be establish first and if neg case proven then you bring
up these defenses.
A. CONTRIBUTORY NEGLIGENCE - almost gone from state law, replaced by
comparative neg.
-Look to see if P and D's action were
unreasonable
-Look to see if action of both caused the
injury
-if so this is a complete bar to recovery
1."AVOIDABLE CONSEQUENCES"
a) seat belt offense - states
are divided on issue; no seat belt does not equal causation or avoidable consequence by
wearing seat belt, thus mitigate consequences
b)
statutes passed that it's irrelevant whether you are wearing seat belt or not.
c)
injury and you wait until it gets worse (after the fact);ct will see if they can separate
those harms caused by D and caused by waiting
2."LAST CLEAR CHANCE" - if D could
have avoided situation then P's contributory neg will not be bar to recovery.
-D knows he is being
unreasonable.
-D didn't know but
should've known, then cts will hold that P is NOT barred.
B. ASSUMPTION OF RISK - to lessen or bar recovery
two elements to prove
1. P must know or should've
known of risk and have some understanding of its nature.
-Somewhat subjective, not a reasonable person set standard. P may lie, but jury may infer
from circumstances knowledge of P.
2. P must VOLUNTARILY
assume the risk
examples
1-
conscious decision to ignore the risk and are injured by another unknown risk, you are NOT
held to assume risk; what standard do you use? subjective standard - P has to know of risk
but jury can infer reasonable person should've known.
2- express assumption of risk (oral or written)
-purely voluntary - bar to recovery
-K = is it valid? governed by K law? adhesion K?
-equal bargaining power and understood?
3. Contributory Neg v. Assumption of Risk
P creates unreasonable risk of harm <->knowledge, voluntary
a)blend together
b)separate by looking
at elements of either to distinguish
c)can be same when
actions are unreasonable
Ee/Er - Worker's compensation
C. COMPARATIVE NEGLIGENCE
1. Problems:
difficult to bring
all parties
difficult to
assign percentages
2. Pure Comparative Neg: P
can recover what % the D caused. P's damages are reduced in proportion to the fault, even
when the P's neg is greater than the D's neg.
ex. if the P suffered $100,000 in damages and jury found the P 51% neg and D 49% neg, the
P could recover $49,000.
3. Modified Comparative
Neg:
a)
Modified Equal Fault: If P's neg is less than the D's neg, the P can recover but the P's
damages are reduced by the % of her fault. (P's neg < D's neg = P's recovery - P's % of
fault) If the P's neg is equal to or greater than the D's neg, the P is barred from
recovery. (P's neg > or = to D's neg = no recovery)
D's neg must exceed P's neg
ex. damages = 100,000 If jury found P and D each 50% neg P would be barred from
recovery. If jury found P 49% neg and D 51% neg P could recover 51,000.
b)
Modified Greater Fault: If P's neg is equal to or less than D's neg, the P can recover but
the P's damages are reduced by his or her percentage of fault. (P's neg < or = D's neg
= P's recover reduced by P's % of fault.) If P's neg is greater than D's neg P is barred
from recovery. (P's neg > D's neg = no recovery).
ex. 100,000 damages If jury found P & D each 50% neg P could recover 50,000. If
jury found P 51% neg and D 49% neg P would be barred from recovery.
c)
Slight-Gross: P's con neg is a bar to any recovery unless P's neg is slight and D's neg by
comparison is gross. If this is so the P's recover is reduced by the % of P's fault.
ex. 100,000 damages If jury found P and D each 50% neg P couldn't recover anything.
If jury found P only 5% neg and D 95% neg P could recover 95,000.
4. Assumption of Risk -
often merged in comp neg analysis.
5. Last Clear Chance - merged
w/ doctrine of comp neg, alter damages by neg %.
6. Some states give everything to P if D is
wanton.
7. Avoidable Consequence
Most cts ask what % P contributed to the accident.
Some cts ask what % P contributed to damages.
D. THE EFFECT OF COMPARATIVE NEGLIGENCE ON LIABILITY
OF CONCURRENT TORTFEASORS
1. Difficult Questions
When determining
P's % of fault do you compare P w/ all of the D or w/ each D individually? If done w/ each
D seaparately and under a modified comp neg the P wouldn't be able to recover.
Most cts combine all the D to compare neg.
If a P gets a
judgment for a total amount of his damages, how much of that judgment can P get from one
D? If one D is completely insolvent, skips town, etc. can he get all the damages from the
other D?
Can D who has to
pay all go after the other D to recover some of the damages?
What if a D
settles for less than their fair share prior to the trial? How much can P collect from the
other Ds?
2. Cts have answered
these questions very differently. NO CONSENSUS IN THE LAW.
Before adoption of
comp neg most states followed a doctrine of joint and several liability = if 2 or more
tortfeasors caused a liability P can recover fully from either of the D. Doesn't have to
sue both, but can get entire amount of the damages from one. Idea is to protect P, put
burden on tortfeasors.
CONTRIBUTION - tortfeasor #1 seeks from tortfeasor #2 % of damages he paid out to P.
INDEMNITY - complete reimbursement from the active tortfeasor for whatever D had to pay.
Several Liability
- each D only liable for their %.
Ways settlements
can be handled.
1- Settlement w/ and release of one tortfeasor can release other
tortfeasors. Small settlement releases all claims. Beware of this rule in some states, it
could lead to a malpractice suit.
2- Amount P can recover is reduced from settlement w/ one tortfeasor.
3- Amount P can recover from other Ds is reduced by % of settling
tortfeasor. Disadvantage of being hard to administer. Difficult for jury to determine w/o
that party there.
4- Settlement affects a pro rata reduction. ie. a 25% reduction w/ D to
pay equally on jury damages and one settling.
In most states
there've been statutes passed to clarify these questions.
V. CAUSATION - required for all torts; not just neg.
A. FACTUAL CAUSATION - cause-in-fact/but-for/factual causation
Asking if D's conduct in-fact caused in injury.
1- More-Likely-Than-Not: the
standard for determining when factual causation exists. Is it more-likely-than-not that
the injury would've occurred...
one problem w/ the
MLTN std is that a D may pay more than her fair share. ie.if a mfr causes water pollution
that increases likelihood of cancer 60%, then D potentially liable for 100% of stomach
cancer cases.
2- Determining Factual
Causation: Pretend you're on a jury and ask if it's morelikelythan not that the injury
wouldn't have occurred but for the D's action. (It doesn't have to be the sole cause for
factual causation; just the more likely than not cause.)
B. LEGAL CAUSATION/PROXIMATE CAUSE
Asking where we draw the line for liability. Is
it fair to hold D liable?
exception
Herskovits(p377) when P already has less than 50% chance of survival, and the D
misdiagnoses cancer, there are two reason why cts may find factual causation (note: this
only applies to medical malpractice suits w/ less than 50% chance of survival rate).
1- We want to compensate for the damages, so the MLTN standard is
abandoned.
2- Redefine MLTN to mean it's MLTN that misdiagnosis caused a decrease
of 14% in the chance of survival.
Statutory
violations; must show factual and legal causation, the injury must be from violation of
the statute, must also show that the injury and person are included in that which the
statute is meant to protect.
Polemis case: Ct
just asked if D were neg, if so, it impled that D liable for all things DIRECTLY flowing
therefrom.
-nobody knows what
direct means here though, in effect, all that had to be shown was factual causation. This
is bad law. Today, the foreseeability test is used.
-whether liability
should be attached if a certain TYPE of injury is not anticipated; ie. a beam falling
causing a fire isn't ordinarily expected. Could argue this either way.
Only apply the
Responsibility Standard to a breach of duty (use probability and hand formula, etc) don't
use responsibility test when trying to determine legal causation.
Don't use
Responsibility test when determining legal causation, use foreseeability test; don't use
foreseeability test when determining breach of duty.
C. Concurrent causes - where each cause on its own
could've caused the damage.
To get around the finger pointing game
(when 2 Ds point at each other and say "he did it, not me" to escape liability),
both D are held liable and the burden is shifted to Ds to prove otherwise.
This is when you have two neg actors, both
of which could've caused the harm.
Difficult to know impact if one was a
natural cause.
Summers v Tice same
idea-shift burden to Ds, both liable unless can prove. Rationale: don't want to have
uncompensated, innocent victim when both Ds neg and don't know who caused it.
DES case: market share
theory, P has difficult factual causation burden, Ct said if you include a significant
share of the drug companies you will meet this burden. Damages then apportioned according
to what proportion of the market share you held at the time.
LEGAL CAUSATION & concurrent causes
-rr fire case re/
remoteness of the fire. This argument is pretty much gone. Where do we draw the line?
Different tests, foreseeable test, intervening causes, etc.
D. Intervening Act by 3rd Party - effect on legal causation
1- Criminal Intervening Act:
Use foreseeability test, is it foreseeable, then D is liable.
ex. Brower RR held
liable for stole ale barrels because it could've foreseen thievery after an accident;
remember to first establish factual causation.
2- Escape/Resuce cases:
"Danger Invites Rescue" Rule: anytime you have a rescue attempt (when D neg
causes an accident) any injuries resulting from the resuce attempt are foreseeable.
RR case where P's
cousin falls off rr and P goes to find him and is injured by a fall.
3- Eggshell P Test: Take P as
you find him. This is an exception of the foreseeability rule.
one may not
foresee that kicking P in leg causes leg to be amputate, but D liable because she must
take P as she finds him.
4- Liability to some extent
depends on how specific a foreseeability test the ct uses.
Exploding truck
case, P injured by tripping over a chair in her own business. Ct said it wasn't
foreseeable. If ct had used a more general foreseeability test D may have been liable.
VI. TORT REFORM: Four Things to Know
1- Some states have statutes
which cap non-econ damages.
2- Many states have review
panels (w/a lawyer, dr. etc). their authority varies from state to state.
3- There is a nat'l
discussion about capping contingency fees.
4- There is also a weak arg
that loser pays winner's legal fees (this is not in effect anywhere, nor will it likely
take effect).
VII. AFFIRMATIVE DUTIES
A. The Duty to Rescue
1. general rule: no general
duty to rescue
2. know arguments on both
sides for this issue
3. Modifications to this rule
a.
Where a person is responsible for another person being in a position of increased danger
but they didn't do this negligently--> may have duty
b. If
you injure someone, you have duty to get aid whether you are negligent or not.
c.
When you find someone injured and you start to help them, you have duty to continue.
See also Good Samaritan statutes protecting you from liability unless you are reckless
d.
When you know someone is trying to give aid, you have duty to allow them to give it (can't
prevent them)
(1) Problem: did someone prevent aid or not give of his resources?
(2) see also, elements of necessity
e.
Sometimes where there is a special relationship, then they have an affirmative duty to
give care. ie hotel guests
B. Property owners:
1. Classification
a.
decide what is the duty property owner owes to person
b.
decide if the property owner has breached that duty
2. Once classified, you have
different duties
3. If some is harmed on
property, the owner might not have duty of care
4. Common law
classifications:
a.
Trespasser
(1) establish trespass
(2) General rule - no duty to make land safe, to warn of dangers or to
protect trespasser.
(3) BUT if there is willful or wanton conditions by owner
(recklessness) then owner will be liable for those types of conditions
(4) ALSO, where there is frequent trespass, he has a duty to use
reasonable care for active operations and a duty to warn of dangerous artificial
conditions.
(5) If owner sees trespasser, he has a duty of reasonable care.
(6) Attractive Nuisance Doctrine: imposes a special duty of care on the
land occupier with respect to conditions on the land that involve a risk of harm to
children unable to recognize the danger involved.
(7) If there is an accidental trespass and they are injured, then owner
has duty of care even if it is in a minor way.
b.
Licensee
(1) a person who has owner's permission to enter land but does not have
a business purpose for being on land - ie a social guest or one who gives no economic
benefit to the owner.
(2) General Rule - no duty to warn if danger is unknown to the owner.
(3) BUT there is a duty to reveal hidden and concealed conditions that
the owner knew or should have known.
c.
Invitee
(1) The person is invited by owner to conduct business (bestows an
economic benefit on the owner)
(2) General Rule - owner owes duty of reasonable care to inspect house
of possible dangers and warn invitee of possible dangers.
d.
Roland v Christen--1st case to get rid of categories of trespasser
(1) established duty of due care for all trespasser
(2) even though categories were done away with, still apply reasonable
man standard
(3) some states have totally abandoned categories for reasonable man.
(4) some state kept trespasser category applying Commonlaw standard and
did away with other 2 categories for one reasonable man standard.
**On the test you'll want to go through all 3: 1)3 categories, 2)no categories, 3)2
categories
e.
Traditional categories of people on land only applies to people on the land. There are
duties for those off the land injured by artificial hazard on the land.
(1) Landowner has reasonable duty of due care
(2) If abnormally dangerous it could be strict liable
5. Gratuitous
undertaking--promise then perform recklessly or no performance
a.
cat case: ct said liability established because of the promise to keep the cat in
b.
other cts will go opposite way, no duty though there was reasonable reliance there was no
tort
c.
another variation: RR crossing man not there, motorist injured. Ct said once RR put him
there he must act reasonably and act reasonably in his removal.
Once undertake duty have to act reasonably and once discontinue you must act
reasonably
6. Special Relationships
a.
Landlord/Tenant
(1) security of common areas--in our case the ct found duty and breach.
Found by the idea that the landlord in the control of these areas.
(a) generally accepted by most cts
(b) arg ag/: if paying less and renew rent w/ knowledge of low/no
security = Assumption of Risk (or comp neg)
b.
Same arguments can be made for others, ie hotels, common carriers, schools
c.
Tarasoff--therapist should've warned a 3rd person, very controversial case.
(1) Ct's reasoning: special relationship extended to 3rd person.
(2) Restatement says there's generally no special duty to control 3rd
parties unless there's special relationship.
d.
Attorney/Client privilege: some of the ethical rules allow, not require, you to breach the
confidentiality of communication received from a client who may be about to commit a
crime.
VIII. TRADITIONAL STRICT LIABILITY
A. Common law Antecedents
1. NEGLIGENCE is the major
basis of unintentional harms.
2. STRICT LIABILITY, someone
exercising the best of care still liable for harm inflicted on another.
a.
product liability is a strict liability area-even if the manufacturer used all the care
possible they would still be liable for harm done, defects, etc.
b.
other areas governed by strict liability: animals, abnormal dangerous activities.
c.
trespass and conversion treated by most js as intentional torts
d.
Rylands v Fletcher--Cts have interpreted all different ways. Some have taken a corrective
justice theory approach. STRICT liability no matter what. Other cases have made the
distinction between natural and unusual/unnatural kind of way - RECIPROCITY THEORY, the D
is taking some abnormal risk, atypical risk. Others have interpreted it as a
non-reasonable use of property, thus a negligence approach.
-Rylands has been followed exactly in similar fact situations.
B. Animals
1. Baker v Snell p541--Ct
stays w/ a strict liability standard instead of the idea that the Er is vicariously liable
for negligence of his Ee in torts. Instead Er strictly liable because knew the dog had a
ferocious nature.
a.
two classes of animals, dog falls in domestic class and must know of his ferocity before
he's strictly liable.
b.
wild animals are in strict liability realm always. Non-reciprocal risk
c.
some js take certain breeds of dogs into strict liability realm w/o known risk hurdle.
d.
under a strict liability it doesn't matter how careful the owner is, still liable.
e.
This case sets up the basic rule in most js. The distinctions of two classes of animals
and the liability w/ those.
2. one free bite not really
true, if the animal growls, etc and show propensity to bite the owner can be said to know.
3. Defenses: assumption of
risk, contributory neg harder because not in a neg area but can be used to break
causation.
4. trespassing livestock-
traditional rule: the owner of trespassing livestock strictly liable for injury. But in
the western states where there are more ranchers than farmers it may be that the leg set
it that the farmers must fence out the livestock. In cases w/ more farmers than ranchers
it's probably the traditional rule.
C. Abnormally Dangerous Activities
1. Span v Perini Corp--even
if they're not neg and fully careful they're still liable.
2. if P is involved in an
abnormally sensitive activity they won't be able to recover.
3. R 520 Abnormally
Dangerous Activities: in determining whether an activity is abnormally dangerous, the
following factors are to be considered:
a)existence of a high degree of risk of some harm to the person, and or chattels of others
b)likelihood that the harm that results from it will be great
c)inability to eliminate the risk by the exercise of reasonable care;
d)extent to which the activity is not a matter of common usage
e)inappropriateness of the activity tot he place where it is carried on and;
f)extent to which its value to the community is outweighed by its dangerous attributes.
4. R 519 (1)One who
carries on an abnormally dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the activity, although he has exercised
the utmost care to prevent the harm. (2) This strict liability is limited to the kind of
harm, the possibility of which makes the activity abnormally dangerous.
5. rule w/ list of factors
difficult because hard to determine and what to weigh.
6. how common is the activity
in the community, the more rare/uncommon it is the more likely it is there will be strict
liability.
7. common law generally
decides what is an abnormally dangerous activity
8. Siegler v Kuhlman--P had a
neg case, asking for a res ipsa jury instruction. Ct say that hauling large quantities of
gasoline is an abnormally dangerous activity, thus strict liability.
a.
the kinds of activities the cts have found to be abnormally dangerous: blasting, carrying
large qualities of gasoline, oil dwelling (except in Texas), gathering large amount of
waters in one area, nuclear power, other things
9. aviation disputable;
airlines strictly liable to anyone on the ground, but not strictly liable to things in the
air, to passengers, other planes, etc One way to look at this rule is to use the
reciprocity theory. for the passengers there isn't a non-reciprocal risk, but there is a
non-reciprocal risk for those on the ground. Problem is that those on the ground may be
frequent flyers and just not on this flight.
10. Madsen v EAst Jordan
Irrigation Co--the injury must come from the type of injury one would normally expect from
this activity.
