TORTS II OVERVIEW
I. TRADITIONAL STRICT LIABILITY *Always plead Negligence AND Strict Liability if possible* A. Activities giving rise to Strict Liability: 1. Animals a) Wild b) Domesticated Animals with known dangerous propensities Note: One Bite Rule is a BAD Rule c) Trespassing Animals: SL if a barnyard animal (ex. cow, sheep pigs, horses, etc.) 2. Unnatural Conditions on Land In order for there to be SL: (Rylands Rule) 1. there has to be a non-natural use of land (ex. building a reservoir) 2. unnatural device must be of a nature that it would be dangerous if it escaped (i.e., cause harm to another’s property) 3. Abnormally Dangerous Activities Whether an activity is abnormally dangerous and actor is strictly liable 6 Factors considered: 1. Inability to eliminate the risk of accident by the exercise of due care 2. Degree of risk in the activity 3. Gravity of the potential harm 4. How common the activity is 5. Appropriateness of activity wrt the location in which it takes place 6. Utility of the activity in relation to its risk(s) Ordinary flying is a common activity Blasting is generally an ultra-hazardous activity, esp in city areas B. Cause-in-Fact C. Proximate Cause of type of harm making the animal OR activity dangerous 2 Factors courts will at when trying to be predictive about SL: 1. unusually dangerous 2. something that is NOT too common (ex. as a pet or as an activity) D. Damages
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E. Affirmative Defenses 1. Assumption of Risk 2. Comparative Negligence 3. Contributory Negligence: not applicable to strict liability claims F. Limitations on Traditional Strict Liability: 1. Injury must have been within the group of risks which made the activity ultra-hazardous (ex. Foster case-minks) 2. Unforeseeable intervening causes: even where the damage is within the fx risk, the majority of cts hold that there is no SL if it was brought about by an unforeseeable intervening cause 3. Acts of God: when the damage is caused by an unforeseen act of god, which the owner could not have anticipated, SL does NOT apply If act of god, ask: Is it a rx fx act of god? If no, it is a superceding intervening cause and D not liable If yes, NOT superceding Is the harm what you would fx expect that makes the activity dangerous? 4. Contributory Negligence: generally, NOT a defense to SL, unless P’s negligence and NOT the ultra-hazardous activity was the cause of the injury 5. Comparative Negligence II. PRODUCTS LIABILITY ( 3 possible causes of action) *Elements in which defectiveness is analyzed* Three Possible Causes of Action: 1. Negligence 2. Warranty 3. Strict Liability in Tort (402A) A. NEGLIGENCE 1. ELEMENTS: 1) Duty 2) *Breach* 3) Causation (CIF and Proximate Cause) 4) Damages 2. TYPES OF NEGLIGENCE ACTIONS: 1) Manufacture Manufacturing Defects Test: Simple Negligence (Reasonableness Test) 2) Design: Design Defects Test: Risk/Utility
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3) Warning Warning Defects Test: Risk/Utility B. STRICT LIABILITY IN TORT (402A) 1. ELEMENTS: 1) 2) 3) 4) 5) “Seller” *Defective Condition Unreasonably Dangerous* No Substantial Change in Condition in which Sold Causation (CIF and Proximate Cause) Damages
2. TYPES OF STRICT LIABILITY IN TORTS ACTION: (3 types of defects) 1) Manufacture Manufacturing Defects Test: Consumer Expectations (Restmt 3rd: differing from intended design) 2) Design Design Defects Tests: *1. Risk/Utility: (*dominant test) 2. Wade-Keeton Risk/Utility 3. Consumer Expectations 4. Alternative Liability (Barker Test) 3) Warning Warning Defects Tests: *1. Risk/Utility 2. Wade-Keeton Risk/Utility 3. Consumer Expectations
C. WARRANTY THREE TYPES OF WARRANTY ACTION: 1. EXPRESS WARRANTY a) ELEMENTS: 1. Express Warranty 2. Part of Basis of Bargain 3. Breach 4. Damages 5. Notice 6. Horizontal Privity (Privity: persons protected)
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2. IMPLIED WARRANTY OF MERCHANTABILITY (IWM) a) ELEMENTS: 1. “Merchant 2. *PRODUCT UNMERCHANTABLE AT TIME OF SALE* (Manufacture, Design, or Warning) 3. Causation (CIF and PC) 4. Damages 5. Notice 6. Horizontal Privity b) TYPES OF IWM ACTIONS: 1) Manufacture Manufacturing Defects Test: Consumer Expectations 2) Design Design Defects Tests: *1. Risk/Utility 2. Consumer Expectations 3) Warning Warning Defects Tests: *1. Risk/Utility 2. Consumer Expectations 3. IMPLIED WARRANTY FIT FOR A PARTICULAR PURPOSE (IWFPP) a) ELEMENTS: 1. Knowledge of Particular Purpose by Seller 2. Reliance by Buyer on Seller’s Skill & Judgment 3. Product not fit for Particular Purpose 4. Causation (CIF and PC) 5. Damages 6. Notice 7. Horizontal Privity PERSONS PROTECTD (PRIVITY) DEFENSES TO PRODUCTS LIABILITY: 1. Contributory Negligence 2. Comparative Negligence 3. Assumption of Risk 4. Abnormal use of product: unfx misuse (misuse of product must be rx for D to
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be liable) DEFENDANTS OTHER THAN PRINCIPAL MANUFACTURERS 1. Retailers, Wholesalers, and others in the “Chain of Distibution” 2. Real Property 3. Services PUNITIVE DAMAGES III. DEFAMATION A. NATURE OF DEFAMATORY COMMUNICATION 1. Must be a false statement of fact 2. Must be “of or concerning” the Plaintiff (Colloquim) B. PUBLICATION: define it D. BASIS OF LIABILITY: (actionable level of intent) 1. Strict Liability
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