KENT’S TORTS II OUTLINE I. TRADITIONAL STRICT LIABILITY (Abnormally dangerous activity or animal) a. Act – Act that involves risk of serious harm and can’t be eliminated by exercise of utmost care b. Abnormally Dangerous Animal i. Domestic animal rules: 1. the possessor of a domestic animal (including livestock) with a known dangerous propensity abnormal to its class is strictly liable for all harm done as the result of that dangerous propensity a. Minority exception: there are statutes saying owners are strictly liable even without notice ii. Trespassing Animals – Animals that have a propensity to roam (farm animals, usually) 1. Common law-you are liable for your animal causing harm (dogs and cats were excluded) 2. Fencing out a. if you put a fence up, and the animal goes through it, you could recover b. it is your obligation to keep animal out, but if they got through, you could recover 3. Fencing in a. animal owner was liable for fencing in their animal b. if you didn’t fence in, then you were strictly liable 4. Some courts just use negligence standard iii. Wild animals (animals that have a vicious propensity built into them): 1. owner is presumed to have notice, and the owner is strictly liable a. if the lion gets away, the owner must pay b. pl must suffer an injury for the reason the animal is dangerous c. Abnormally Dangerous activities i. Majority: Restatement 2nd Sec. 519 1. If you carry on an abnormally dangerous activity, you are liable for harm to the person, land or chattels of another resulting from the activity, even though you exercised the utmost care ii. Majority: Rstmt 2 nd Sec. 520 (factors, not elements) (determined by the judge) 1. In determining whether an activity is abnormally dangerous a. What is the risk of harm? i. higher the risk, more likely we will use strict liablity b. What is the likelihood harm will be great i. higher the gravity of harm, the more likely we will use strict liability c. Can the risk can be eliminated by using reasonable care? i. If no, then strict liability will apply 1. most important factor, must have it to have strict liability d. Is the activity a matter of common usage? i. If no, then strict liability will apply e. Is the location appropriate for the activity? i. If no, then strict liability will apply f. Is the value of the activity to community outweighed by its danger i. if more dangerous, then we will use strict liablity rd iii. Minority is Rest 3 - § 20 Abnormally Dangerous Activities 1. If you carry on an abnormally dangerous activity, you are subject to strict liability for physical harm resulting from the activity 1
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2. An activity is abnormally dangerous if: (elements) (these 2 are really a-d in rest 2nd) a. a high degree of harm is foreseeable b. the likelihood the harm will be great is foreseeable c. the risk can’t be eliminated by the use of reasonable care d. the activity is not a matter of common usage iv. extra stuff on abnormally dangerous activity 1. Strict liability for abnormally dangerous activities is a matter of law, and the judge should decide it. 2. The question is whether hauling the dangerous substance on the RR is an abnormally dangerous activity, not the substance itself. 3. Aviation-flying is not an abnormally dangerous activity Cause in fact Proximate Cause type of analysis of Restatement 2 nd sec 519(2) i. For strict liability, the harm that resulted has to be the kind of harm which makes the activity abnormally dangerous (mink case and blasting) 1. Ex. The court said the harm (death of minks) was not the kind of harm that would normally be caused by blasting. a. Majority: activity has to be foreseeably dangerous to ARP for there to be strict liability i. Some acts of God are foreseeable b. Minority: you don’t have to foresee dangerousness for strict liability to apply Damages Defenses i. Majority: Comparative fault is allowed if pl was also negligent 1. in the end, we compare the negligence (or assumption of risk) of one party against the strict liability (or negligence) of another (this process is called comparative fault)
PRODUCTS LIABILITY Falls into 3 general categories: -Negligence -Warranty -express -implied warranty of merchantability -implied warranty of fitness for a particular purpose -Strict Products Liability Products Liability for Negligence: (very little testing this semester on this subject) 1-Duty to act as a reasonable person in whatever field you are in (manufacturing, design, etc.) 2-Breach -neg. inspection -neg. design -neg. manufacture -neg. warnings -neg. testing 3-Factual cause 4-Prox cause 5-Damages 2
Warranty: -Express -Implied warranty of merchantability -Implied warranty of fitness for a particular purpose Express Warranty UCC 2-313 1. Express warranty: a statement of fact or a promise (oral or written) a. Affirmation of fact can be made intentionally, neg, or innocently (Not knowing representation was false is NOT a defense) i. Whether something is a fact or puffery is a matter for the jury 1. can’t rely on state of art as a defense a. ex. even thought it is not shatter proof, it is the best out there 2. Breach of Warranty, meaning the statement turned out to be false (the product must fail) 3. Warranty formed the basis of the bargain a. Majority: Buyer had to detrimentally rely on the warranty 1. it is only reasonable to rely if an ordinary inspection would not reveal a. You can’t recover for an affirmation made after you buy the product, b/c it didn’t induce you to buy b. Minority: modern trend says you don’t have to rely on warranty: the company made the promise to get you to buy, they benefit from advertising, you are paying for it whether you know it or not. 4. Causation 5. Damages 6. Horizontal Privity- UCC 2-318 7. Notice- UCC 2-607 requires that a buyer must within a reasonable time after he discovers or should have discovered the breach [of warranty] notify the seller or be barred from any remedy Implied Warranty of Merchantability § 2-314 (This is not an express warranty, it is inserted in K automatically) 1. seller is a merchant 2. selling goods 3. the goods are not fit for ordinary purposes for which goods are used (meaning they are defective) (falls into 3 categories) a. manufacture i. the product, due to manuf. error, differs from way product was designed b. design i. good conforms to original design, but is dangerous to reasonable person c. warning/labeling 4. Causation 5. Damages 6. Horizontal Privity: 2-318 of UCC 7. Notice- UCC 2-607 requires that a buyer must within a reasonable time after he discovers or should have discovered the breach [of warranty] notify the seller or be barred from any remedy Who can sue? Horizontal privity: 2-318 of UCC (use for all 3 types of warranty) 1. Alternate A (Majority)- purchaser, family, guest in home who may be reasonably expected to use or be affected by goods and is personally injured -must be a natural person, not a corp 2. Alternate B-any natural person who may reasonably be expected to use, consume or be affected by the goods and who is personally injured 3. Alternate C- any person (doesn’t have to be natural, and includes a corporation) who may reasonably be expected to use, consume or be affected by the goods and who is injured in (person or property) by breach (this is CA) 3
Implied warranty of fitness for a particular purpose (IWFPP)1. Seller knows buyer’s particular purpose in buying the good 2. Reliance by buyer on seller’s skill and judgment 3. the product was not fit for the purpose 4. causation 5. damages 6. horizontal privity 7. notice State of the art is not a defense for Express warranty or for IWFPP Strict Products Liablity Products Liability Elements: 1-Seller (one engaged in business of selling the product) 2-Product-something tangible and identifiable at time of the sale 3-Defective -manufacturing defect-when a product fails to conform to its intended design Manufacturing defects test: -ask: 1. Does it conform to the intended design? 2. Is the product more dangerous than a reasonable consumer would expect? (this is Consumer Expectations Test) State of the art is not a defense How do we treat food? -Majority: treat as a manufacturing defect. 1-Does product conform to its intended design? Should there be a pit in the cherry pie? No 2-then we use a consumer expectation test, and ask if a reasonable consumer would expect the pit? No, they would expect the pit to be removed -Minority: foreign/natural analysis (ex. Glass in meat would be defect, but bone in meat would not) -design defect-the design itself has more risk that utility 1. Risk Utility test- (basically, a B