Torts, Fall 2011

Julie Steiner

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I. Intentional Torts

A. Battery:

1. Definition - An actor is subject to liability to another for battery if
(a) he acts intending to cause
(i) a harmful or offensive contact with the person of the other or a third person,
(ii) or an imminent apprehension of such a contact,
(b) and a harmful or offensive contact with the person of the other directly or indirectly
results.

2. "Act" definition - denotes an external manifestation of the actor's will and does not
include any of its results, even the most direct, immediate, and intended. (An involuntary
muscle reaction, the actions of an unconscious person, or the actions of someone in a
seizure do not constitute an act.)

3. "Intends" definition - denotes that the actor desires to cause the consequences of his
act, or that he believes that the consequences are substantially certain to result from it.
(Can prove either that the actor desired the h/o contact or that the h/o contact was
substantially certain to result. Crazy choice can be intent. Intent follows the bullet.)

4. Cases -
a. Waters v. Blackshear (firecracker in shoe) - an intentional act, intent of damage
was not necessary, only the intent to contact
b. Polmatier v. Russ (insane defendant kills father-in-law) - once again, the intent
of damage is not necessary to finding liability, only the intent to contact, contact
can be proven as valid, even with "crazy choice".
c. Leichtman v. WLW Jacor Communications, Inc. (blowing smoke in face) -
offensive contact is that which is disagreeable to a reasonable sense of personal
dignity. Tobacco smoke is particulate matter, so it has the physical properties
capable of making contact.
d. Andrews v. Peters (knee tapping) - offensive contact is in the eyes of the person
being contacted, not through the intent of the tortfeasor. A joke can be construed
as being funny to one person but offensive to another. All that matters is if the
contact offends a reasonable sense of personal dignity.

B. Assault:

1. Definition - An actor is subject to liability to another for battery if
(a) he acts intending to cause
(i) a harmful or offensive contact with the person of the other or a third person,
(ii) or an imminent apprehension of such a contact,
(b) and the other is thereby put in such imminent apprehension.

2. "Imminent" definition - immediate physical threat, rather than from some contact in the
future.
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3. Cases -
a. Cullison v. Medley (pistol-waving family invades trailer) - language and
motions can indicate an assault even if the language sounds conditional. Waving a
gun in someone's face is basis for assault (imminent apprehension of contact).
b. Brower v. Ackerley (threatening phone calls) - harassing phone calls are not
imminent unless the actor happens to be in the same room. They denote future
action.

C. Transfer of Intent:

1. Among people - if a tort is done with the intention of acting against a third person but
results in the act being committed against another, the actor is liable to such other as fully
as though he intended so to affect him.

2. Among torts - if an actor intends to commit one type of tort and another type results,
the actor is liable for the tort that results. This is included in the definitions of Assault and
Battery.

3. Cases -
a. Hall v. McBryde (gang shootout hits neighbor) - applies the intent follows the
bullet doctrine. Intended to shoot to scare off gang members but instead hit his
neighbor. The original intent was assault against the people in the car but
transferred to the neighbor as battery.

D. Defenses to Assault and Battery:

1. Consent - A participant in games or sometimes even fights may give express or
implied consent to what is happening. If this involves contact that would normally be
considered harmful or offensive, then the participant gives up his rights to claim
damages. Express notice must be given that consent is withdrawn so that other
participants understand.

2. Excessive Force - The force used must be consistent "with the rules of the game." You
can give consent to a fight, but if the force used goes beyond what is expected, then it can
negate consent. Don't bring a gun to a fist fight. Consent is vitiated by unnecessary or
excessive force.

3. Defense of Self and Others - A person is privileged to use force to defend his self or
property as long as the force used is proportionate to (1) the interest the actor is
protecting; and (2) the injury or harm threatened by the other.

4. Cases -
a. McQuiggan v. Boy Scouts of America (paper-clip games) - joining in a game
gives consent to be bound by the rules of the game, including any possible
injuries. Simply sitting down without notifying others that you have withdrawn is
not an effective means of withdrawing consent.
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b. Hogan v. Tavzel (ex-husband gives ex-wife genital warts) - consent to sex does
not amount to consent to spread sexual diseases. The husband had a duty to
inform his wife of his condition, magnified by the fact that he lied about being
disease free. Fraudulent concealment of facts can negate consent.
c. Richard v. Mangion (kids fight at rope swing) - knowingly going to a place
where you are expected to fight another can constitute consent to the fight. Even
when serious injury occurs as the result, if the force used is not excessive, it will
still be consensual.
d. Slayton v. McDonald (bully traps kid in home, gets shot in knee) - Slayton
harasses McDonald all the way into his house. McDonald grabs his shotgun and
in order to protect himself from what he fears is imminent danger of serious
bodily harm, shoots Slayton in the knee. Court agrees that McDonald was in fear
of his life due to the circumstances and used only the amount of force necessary
to protect himself.
e. Woodard v. Turnipseed (get off my land boy or I'll beat you with a broom) -
After firing Woodard, Turnipseed threatened him to leave his land. When
Woodard refused, he hit him with a broom, causing injury. The use of force was
excessive, considering that Turnipseed was a grown man and Woodard a small
boy. He could have simply grabbed him and physically removed him from the
property.

E. Intentional Infliction of Emotional Distress:

1. Definition - One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm.

2. Elements -
(1) Outrageous conduct by the defendant
(2) The defendant's intention of causing, or reckless disregard of the probability of
causing emotional distress
(3) The plaintiff's suffering severe or extreme emotional distress, and
(4) Actual and proximate causation of the emotional distress by the defendant's
outrageous conduct

3. Transferred Intent for IIED -
Where outrageous conduct is directed at a third person, the actor is subject to liability if
he intentionally or recklessly causes severe emotional damage
(a) to a member of such person's immediate family who is present at the time, whether or
not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

4.. Cases -
a. Zalnis v. Thoroughbred Datsun Car Co. (car dealership drives woman crazy) -
Having sold a car for under price, the manager tries to get it back by harassing the
customer. Using information that he knows about her husband who had
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committed suicide, he uses outrageous conduct that causes her severe emotional
distress. Even though under normal circumstances this conduct wouldn't be too
outrageous, the special circumstances and knowledge of the person's particular
issues makes it outrageous.
b. Strauss v. Cilek (friend has affair with wife) - Even though the conduct is
immoral and could cause the plaintiff grief, it does not go to the bounds of being
outrageous.
c. Miller v. Willbanks (expert testimony not always necessary) - Court ruled
against plaintiff because no expert testimony in the form of medical or scientific
proof was entered. Some jurisdictions require this, others do not.


II. Unintentional Torts (Negligence) - by its definition, not intentional, prima facie is the bare
elements of case needed to succeed on a claim (duty, breach of duty, causation, damages)

A. Duty: Is there a duty? (no, no liability; yes, what is the duty?; Cardozo adds that a duty
should be to someone reasonably foreseeable in Palsgraf- zone of danger, foreseeability of
harm becomes a big addition to duty)

1. Reasonably prudent person - Generally speaking, there is a duty to a reasonably
foreseeable plaintiff to use some degree of care to prevent foreseeable harm.

2. Learned Hand Formula - reasonable conduct of a balance of costs and benefits
B < PL (Burden of prevention avoidance is less than the probability of loss
multiplied by the magnitude of loss)

3. Especially Dangerous Instrumentalities - The care required is always reasonable care.
The standard never varies, but the care which it is reasonable to require of the actor varies
with the danger involved in his act and is proportionate to it. The greater the danger, the
greater the care which must be exercised. (Under the circumstances is usually enough
instruction)

4. Emergencies - An emergency is defined as a sudden and unexpected encounter with a
danger which is either real or reasonably seems to be real. If a person, without negligence
on his part, encountered such an emergency and acted reasonably to avoid harm to self or
others, you may find that person was not negligent. This is so even though, in hindsight,
you find that under normal conditions some other or better course of conduct could and
should have been followed. (Instruction permitted but not necessary)

5. Special Knowledge and Skill -
The actor is required to recognize that his conduct involves risk of causing an invasion of
another's interest if a reasonable man would do so while exercising
(a) such attention, perception of the circumstances, memory, knowledge of other
pertinent matters, intelligence, and judgment as a reasonable man would have, and
(b) such superior attention, perception, memory, knowledge, intelligence, and judgment
as the actor himself has.
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(Standard becomes that of a reasonable man with superior abilities.)

6. Minors - In considering the claimed negligence of a child, you are instructed that it is
the duty of a child to exercise the same care that a reasonably careful child of the same
age, intelligence, maturity, training and experience would exercise under the same or
similar circumstances. (Exception - inherently dangerous activities reserved for adults
operating motorized vehicles)

7. Physical & Mental Disabilities - Degree of care varies with the disability but is
generally still reasonable care under the circumstances (a blind man should use a cane or
other assistive device).

8. Recklessness - A standard that goes above common negligence but is still
unintentional. (Willful, wanton, or reckless also gross negligence)
A person acts with recklessness in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or knows facts that make
that risk obvious or anyone in the person's situation, and
(b) the precaution that would eliminate or reduce that risk involves burdens that are so
slight relative to the magnitude of the risk as to render the person's failure to adopt the
precaution a demonstration of the person's indifference to the risk.
(Reason to know is also sometimes used)

9. Special Relationships It is necessary to balance the societal interests involved, the
severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the
relationship between the parties Other factors which may give rise to a duty include
the foreseeability of the harm, the defendants ability to comply with the proposed duty,
the victims inability to protect himself from the harm, the costs of providing protection ,
and whether the plaintiff has bestowed some economic benefit on the defendant. Some
generally recognized special relationships include common carrier-passenger, innkeeper-
guest, employer-employee, landlord-tenant, and invitor-invitee.

10. Social Host Liability - usually defined by statute but can be common law, determines
a social hosts duty for the actions of her guests (especially while intoxicated)

11. Vicarious Liability
a. Respondeat Superior - an employer can be responsible for the torts of his
employee when the employee is acting within the scope of his employment,
important to ask if the employee was within this scope or was on a frolic and a
detour, can use a factor test to determine this:
(1) Employees intent
(2) Nature, time, and place of employees conduct
(3) Work employee was hired to do
(4) Employers reasonable expectations
(5)Employees freedom in performing duties
(6) Amount of time consumed in personal activity

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b. Vehicle Owners Every owner of a vehicle used or operated in this state shall
be liable and responsible for death or injuries to person or property resulting from
negligent in the use or operation of such vehicle, in the business of such owner or
otherwise, by any person using or operating the same with the permission, express
or implied, of such owner.

12. Owners and Occupiers of Land duty varies based on the plaintiffs
classification:
a. Mere trespasser a landowner can be liable to a trespasser only for
intentional torts and for reckless or wanton conduct

b. Trespasser with intent to commit a crime a landowner owes only the
duty not to intentionally injure them

c. Trespasser is a child (attractive nuisance doctrine applies) a possessor
of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor
knows or has to reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to
know and which he realizes or should realize will involve an unreasonable
risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or
realize the risk involved in intermeddling with it or in coming within the
area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden
of eliminating the danger are slight as compared with the risk to children
involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger
or otherwise to protect the children.

d. Licensee those allowed or invited on the land for non-business
purposes, usually social or for convenience, the duty owed is not to injure
the licensee by willful, wanton, or grossly negligent conduct, and that the
owner use ordinary care to either warn a licensee of, or to make
reasonably safe, a dangerous condition of which the owner is aware and
licensee is not, licensee must prove
(1) that a condition of the premises created an unreasonable risk of harm
to him;
(2) that the owner actually knew of the condition;
(3) that the licensee did not actually know of the condition;
(4) that the owner failed to exercise ordinary care to protect the licensee
from danger; and
(5) that the owners failure was a proximate cause of injury to the licensee

e. Invitee those person invited on as public invitees or business invitees
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(1) a public invitee is a person who is invited to enter or remain on land as
a member of the public for a purpose for which the land is held open to the
public
(2) a business visitor is a person who is invited to enter or remain on land
for a purpose directly or indirectly connected with business dealings with
the possessor of the land
A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of harm
to such invitees, and
(b) should expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Slip and fall are common cases and may focus on constructive knowledge
of hazardous conditions

f. Tenants and their Guests There is a general rule of non-liability once
the tenant becomes the possessor of the land. Exceptions are:
(1) Undisclosed dangerous conditions known to lessor and unknown to the
lessee
(2) Conditions dangerous to persons outside of the premises
(3) Premises leased for admission of the public
(4) Parts of land retained in lessors control which lessee is entitled to use
(5) Where lessor contracts to repair
(6) Negligence by lessor in making repairs

g. Some states are changing so there are no categories and there is a duty
of reasonable care to all. Other states are simplifying and changing it
trespassers and combining other categories into lawful entrants with the
same duty of care.

13. Good Samaritan laws may protect those offering assistance to injured parties
at the scene of an accident, relieving them of duty for negligence under certain
circumstances. Also, danger invites rescue doctrine may come into play,
making a tortfeasor obligated to a rescuer. However, the firefighters rule may bar
recovery for emergency service personnel since this is part of their job and they
are compensated for the risk.

14. Medical Professionals may have a duty to warn others when a patient might
cause harm to others. If they can determine there is a serious danger, they must
use reasonable care to protect the intended victim(s) against such danger.

15. Primary Assumption of Risk protects defendants from liability in some
circumstances where risks either cannot be eliminated or would be too costly to
eliminate and where those risks are typically obvious to the people who encounter
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them. Usually the inherent risks associated with engaging in a sporting activity.
There may be statutes for specific types of sports, especially if they are important
to the local economy, limiting liability and spelling out the inherent risks.
However, other risks that may be associated with the activity but which are not
necessarily inherent can still lead to liability.

B. Breach of Duty -

1. Violation of Statute (Negligence Per Se) - A legal duty imposed by common law or
statutory law, when breached, constitutes negligence. (proof of a violation must exist)

2. Industry Custom - When an industry uses a certain standard that is common among the
industry, this standard can be used as some evidence of a breach of duty. It is not
conclusive though. The industry custom can also be wrong, lacking, or simply outdated.

3. Res Ipsa Loquitor - The thing speaks for itself. This doctrine shifts liability for the
breach to another party, the defendant. The nature of the act is unknown but due to the
circumstances, the plaintiff has no ability or less ability than the defendant to speak to the
cause of the breach.
In order for the doctrine to apply, it must be found that the following facts existed at the
time of the occurrence in question:
(1) That the plaintiff was injured as a proximate result of the occurrence.
(2) That the instrumentality causing the injury was under the exclusive control of the
defendant.
(3) That the occurrence was of a sort which usually does not occur in the absence of
negligence on the part of the person in control.


C. Causation -

1. Cause-in-fact: but for causation (legal causation), but for the defendants action, would
the harm have occurred

2. Alternatives:
a. Multiple Sufficient Causes - where two causes, each attributable to the
negligence of a responsible person, concur in producing an injury to another,
either of which causes would produce it regardless of the other because,
whether the concurrence be intentional, actual or constructive, each wrongdoer, in
effect, adopts the conduct of his co-actor, and for the further reason that it is
impossible to apportion the damage or to say that either perpetrated any distinct
injury that can be separated from the whole. Some jurisdictions excuse liability if
one cause was an Act of God, others do not.

b. Concert of Action - For harm resulting to a third person from the tortious
conduct of another, one is subject for liability if he
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(a) does a tortious act in concert with the other or pursuant to a common design
with him, or
(b) knows that the others conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and
his own conduct, separately considered, constitutes a breach of duty to the third
person.
- 5 factor test for assistance: (1) nature of the wrongful act, (2) kind and amount
of assistance, (3) relation of the parties, (4) presence or absence of the defendant,
and (5) defendants state of mind.

c. Alternative Liability - plaintiff should prove
(1) that two or more defendants committed tortious acts, and
(2) that plaintiff was injured as a proximate result of the wrongdoing of one of the
defendants.
Only then will the burden shift to the defendants to prove that they were not the
cause of plaintiffs injuries.

d. Market Share Liability - The requirements for market share liability seem to be:
(1) injury or illness occasioned by a fungible product (identical-type product)
made by all of the defendants joined in the lawsuit;
(2) injury or illness due to a design hazard, with each having been found to have
sold the same type product in a manner that made it unreasonably dangerous;
(3) inability to identify the specific manufacturer of the product or products that
brought about the plaintiffs injury or illness; and
(4) joinder of enough of the manufacturers of the fungible or identical product to
represent a substantial share of the market.
If manufacturers are found liable, then they are responsible for their amount of
market share in damages, regardless of each ones actual liability.

3. Proximate Causation (Limitations on Liability):
***Palsgraf*** (Cardozo- take another look at duty, what was the foreseeable zone of
danger; Andrews- duty to the whole world, if limit is placed it should be in proximate
casuation)
Proximate causation asks the question of whether the but-for cause was the actual cause
of the harm. Was close enough to be said it was the reason for the harm, or was it too far
removed to be the actual cause. There are different tests used to make this determination,
and each jurisdiction may use a different test, and some may even combine tests.

a. Directness an act that is the cause-in-fact of an injury will be treated as a
proximate cause of the injury if there is a direct connection between the act and
the injury.

b. Substantial Factor considers whether the contribution of a partys act was
relatively important compared with other but-for causes in producing the harm
suffered by the plaintiff.
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The following considerations are in themselves or in combination with one
another important in determining whether the actors conduct is a substantial
factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the
extent of the effect which they have in producing it;
(b) whether the actors conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces for which the actor is not
responsible;
(c) lapse of time.

c. Foreseeability a defendants conduct is a proximate cause of a plaintiffs
harm if (1) the conduct is a cause-in-fact if the accident and (2) the general type of
accident was a reasonably foreseeable consequence of the defendants conduct.
(Defendants must take victims as they come eggshell plaintiff, shabby
millionaire)

d. Restatement (Third) Comes close to adopting Andrews position for
proximate cause. A defendant is liable only for those types of accidents that made
the defendants conduct negligent in the first place. It uses a risk standard to
define the scope of the defendants liability. (Applies more to breach of duty)

e. Intervening and Superseding Forces Is there some outside act that comes in
between the defendants act in the chain of events and before the plaintiffs
injury? If so, this is an intervening act. Was that act foreseeable? If so, then the
defendant is still liable. If it was unforeseeable, then the intervening act is a
superseding act, and the defendant is not liable.

D. Defenses

1. Contributory Fault - traditional common law treatment to a plaintiffs contributory
negligence, any amount of contributory negligence, no matter how small, completely bars
recovery by the plaintiff, only a small number of jurisdictions still use this approach

2. Comparative Fault - modern approach by the vast majority of jurisdictions, a plaintiffs
contributory negligence will not automatically bar recovery, instead it will reduce
damages by the percentage of blame assigned to the plaintiff, and there are 3 types:
a. Pure no matter what amount the plaintiff is negligent, he can always recover
the percentage that the defendant was negligent
b. 50% - Same as pure but if the plaintiffs negligence is greater than the
defendants (51% or greater), recovery is barred
c. 49% - Same as pure but if the plaintiffs negligence is greater than or equal to
the defendants (50% or greater), recovery is barred

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3. Recklessness If a defendants negligence is classified as reckless, it will not bar the
plaintiff from recovery for contributory fault, unless the plaintiffs negligence was also
reckless. Comparative fault takes this into account when apportioning blame.

4. Last Clear Chance must prove that
(1) plaintiff, by her own negligence placed herself in a position of peril from which she
could not escape;
(2) defendant saw, or by the exercise of reasonable care should have seen and understood,
the perilous position of the plaintiff;
(3) defendant had the time and the means to avoid the accident if the defendant had seen
or discovered plaintiffs perilous position;
(4) defendant failed or refused to use every reasonable means at his command to avoid
impending injury to plaintiff; and
(5) plaintiff was injured as a result of defendants failure or refusal to avoid impending
injury.

5. Assumption of Risk:
a. Express Assumption of Risk agreement by plaintiffs (usually by a signed
release or waiver) to accept risks created by defendants activities, enforceability
is based on two main questions:
(1) Does public policy permit releases in connection with the activity?
(2) If so, does the particular release provided by the plaintiff merit enforcement?
To determine if a release is permissible, there is a six factor test.
(1) The agreement concerns and endeavor of a type generally thought suitable for
public regulation.
(2) The party seeking exculpation is engaged in performing a service of great
importance to the public, which is often a matter of practical necessity for some
members of the public.
(3) Such party holds itself out as willing to perform this service for any member
of the public who seeks it, or at least for any member coming within certain
established standards.
(4) Because of the essential nature of the service, in the economic setting of the
transaction, the party invoking exculpation possesses a decisive advantage of
bargaining strength against any member of the public who seeks the services.
(5) In exercising a superior bargaining power, the party confronts the public with
a standardized adhesion contract of exculpation, and makes no provision whereby
a purchaser may pay additional reasonable fees and obtain protection against
negligence.
(6) The person or property of members of the public seeking such services must
be placed under the control of the furnisher of the services, subject to the risk of
carelessness on the part of the furnisher, its employees or agents.
***Releases must also be specific as to what is waived. A waiver of the common
dangers associated with an activity is common. However, negligence on the part
of an instructor or guide is not waived unless specified and may still be
unenforceable depending on the law of the jurisdiction. Blanket waivers of all
liability are generally held to be unenforceable.
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b. Implied Assumption of Risk Secondary implied assumption of risk requires a
subjective test of whether the plaintiff actually knew and appreciated the risk
created by the defendants wrongful conduct and voluntarily accepted the risk.

c. Mitigation and Avoidable Consequences a person has a duty to use ordinary
care to minimize his own damages after he has been injured, compensation may
not be made for any portion of his damages which resulted from his failure to use
ordinary care. This may include such things as not seeking suggested medical
attention. A jury may be instructed to determine the damages less any mitigation
factors or simply to address the amount in comparative fault.

E. Damages

1. Compensatory damages awarded to make the plaintiff whole, two categories:
a. general noneconomic damages that are difficult to quantify, sometimes
argued as a per diem (golden rule argument generally not allowed)
i. pain and suffering
ii. hedonic loss of enjoyment of lifes pleasures, may be easy to confuse
with pain and suffering
iii. mental anguish
iv. inconvenience
v. disability
vi. disfigurement

b. special economic damages, more easily quantified, includes both past and
future damages
i. medical expenses
ii. loss of earnings
iii. burial costs
iv. loss of use of property
v. cost of replacement or repair
vi. cost of obtaining substitute domestic services
vii. loss of employment
viii. loss of business or employment opportunites

2. Punitive damages paid in excess of what is needed to make the plaintiff whole, also
called exemplary damages, usually only awarded the defendant is malicious or extremely
culpable (only reckless negligence or intentional torts qualify, and are restricted to those
acting maliciously in most states), many states have statutory limitations on punitive
damage awards and the Supreme Court has indicated that such awards should never be
excessively high (multiplier of compensatory damages should probably not exceed a
single digit)

3. Apportionment among Tortfeasors generally, each defendant must pay his share as
determined at trial (usually through comparative fault)
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a. Joint & Several Liability each defendant is responsible for the entire
judgment, and the plaintiff can pick and choose how and who he collects from,
usually resulting in the defendant with the deepest pockets having to pay
regardless of how much this defendant was at fault, even if only 1%, that
defendant then has a right to collect (contribution) the amounts that other
defendants would have been liable for directly from them

b. Several Liability each defendant is liable only for the amount of his share and
cannot be forced to pay more
i. divisible injuries are apportioned based on who caused them
ii. indivisible injuries are usually the result of some alternative liability (concert of
action, market share, etc) and if this is the case, joint and several liability may still
apply

III. Strict Liability

A. Traditional

1. Injuries Caused by Animals Owners of animals are liable for harm done by them to
others when:
(1) The owner of wild beats, or beasts that are in their nature vicious, is, under all
circumstances, liable for injuries done by them.
(2) If domestic animals injure any one, if they are rightfully in the place where they do
the mischief, the owner of such animals is not liable for such injury, unless he knew that
they were accustomed to do mischief.
(3) The owner of domestic animals, if they are wrongfully in the place where they do any
mischief, is liable for it, though he had no notice that they had been accustomed to do so
before. (Cannot trespass on public land. Fence statutes may apply)

2. Selected Dangerous Activities also called abnormally dangerous or ultrahazardous
activities, some things like collecting sewage and using dynamite are considered this,
others are determined by a six factor test
(a) existence of a high degree of risk of some harm to the person, land 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 to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes
*** The last two factors may be less important as they have been taken out in other tests

B. Products Liability common law protected manufacturers if they did not sell directly to the
end consumer but the consumer was injured by the product, the law has changed to allow
consumers to attach manufacturers to the lawsuits

1. Restatement of Torts (Second)
Torts, Fall 2011
Julie Steiner

14

(1) 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 such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and
(b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.

2. Defect the product causing the injury must have some defect which caused the injury
a. Manufacturing Defect a defect that occurs when a particular unit does not
conform with the actual design and differs from other models which do, showing
a manufacturing defect can be done with expert testimony or using the
indeterminate product defect test
It may be inferred that the harm sustained by the plaintiff was caused by a product
defect existing at the time of sale or distribution, without proof of a specific
defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of a product defect; and
(b) was not, in the particular case, solely the result of causes other than product
defect existing at the time of sale or distribution.

b. Design Defect the defect with a product is inherent in its design or
engineering, it is common to all products manufactured under that same design
and is not the result of a manufacturing error, two tests are generally used
i. consumer expectation a product is defective if it is dangerous to an
extent beyond that anticipated by the ordinary user
ii. risk-utility a product may be found defective in design, even if it
satisfies ordinary consumer expectations, if through hindsight the jury
determines that the products design embodies excessive preventable
danger, or, in other words, if the jury finds that the risk of danger inherent
in the challenged design outweighs the benefits of such design

c. Inadequate Warning beyond the scope of this class