Torts II

Strict Liability

Strict liability is when one is liable even if he was not negligent nor acted intentionally.

To establish strict liability, there must be:

  1. Duty
  2. Causation
  3. Damage
Animals

The basis of strict liability for animals is on those keep, possess, or harbor the animal, not just the owner.

One is not liable for wild animals unless he controls or possesses one.

Trespassing Animals

There are four different rules in use for trespassing animals:

  1. Some courts impose no strict liability for trespassing animals and just use a negligence standard.
  2. Common Law Trespassing Animals Rule

    The owner of animals likely to roam and do damage is strictly liable for their trespasses.

    An owner is strictly liable for the damage done by the trespass of animals as long as it was reasonably foreseeable.

    Livestock straying from a highway on which they are lawfully being driven are exempt.

    Dogs and cats are not included.

  3. Fencing Out Statute

    A fencing out statute states that there is strict liability for the owner of an animal that breaks through another's properly fenced-out land.

  4. Fencing In Statute

    A fencing in statute holds an owner of animals strictly liable if an animal is not properly restrained.

    If the animal is fenced in properly and escapes anyway, there are three different responses:

    1. No strict liability, instead just using negligence
    2. Strict liability
    3. Common Law Trespassing Animals Rule

      The owner of animals likely to roam and do damage is strictly liable for their trespasses.

      An owner is strictly liable for the damage done by the trespass of animals as long as it was reasonably foreseeable.

      Livestock straying from a highway on which they are lawfully being driven are exempt.

      Dogs and cats are not included.

Wild Animals

The majority rule imposes strict liability upon the possessor of wild animals that injure someone.

  • An increasing number of states forgo this in favor of a negligence standard for zoos.
Domestic Animals

There are three rules for liability concerning domestic animals:

  1. One-Bite Rule

    Some states allow domestic animals "one free bite" for which the owner of the animal cannot be held liable for at all, but they then hold owners strictly liable for any future bites by the animal.

  2. A majority of states impose strict liability if an owner knows or has reason to know that a domestic animal has vicious propensities abnormal to its class.
    • Generally, breed does not matter.
    • If the owner does not know or have reason to know, a negligence standard is used.
  3. Some states set a rule by statute, often doing away with the requirement that a plaintiff prove scienter.
    • (Scienter is the "knows or has reason to know" part.)

In comparative negligence states, it can be a defense to strict liability to reduce the recovery. The Restatement Third says to compare the plaintiff's negligence to the defendant's strict liability in cases involving abnormally dangerous activities and animals.

In comparative negligence states, assumption of risk is also a defense to strict liability.

Abnormally Dangerous Activity

The majority of jurisdictions follow the rule from Rylands, which provides that those who use, or permit others to use, land for the conduct of abnormally dangerous activities are strictly liable for resultant damages.

To determine if an activity is abnormally dangerous, courts generally impose two requirements:

  1. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors.
  2. The activity is not a matter of common usage in the community.
Restatement Second of Torts § 520
Restatement Second of Torts § 520

Abnormally Dangerous Activities

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In determining whether an activity is abnormally dangerous, the following factors are to be considered:

  1. existence of a high degree of risk of some harm to the person, land or chattels of others;
  2. likelihood that the harm that results from it will be great;
  3. inability to eliminate the risk by the exercise of reasonable care;
  4. extent to which the activity is not a matter of common usage;
  5. inappropriateness of the activity to the place where it is carried on; and
  6. extent to which its value to the community is outweighed by its dangerous attributes.
Copyright, The American Law Institute

The majority of states have strict liability for blasting.

Less Important Examples

These activities are sometimes found to be abnormally dangerous, but some are sometimes not:

  • Transportation and storage of toxic chemicals and flammable liquids
  • Pile driving
  • Crop dusting
  • Fumigation
  • Rocket testing
  • Fireworks displays
  • Plutonium production
  • Hazardous waste disposal
  • Oil well operation
  • Storage of large quantities of liquids

An overwhelming majority is against strict liability for the sale of firearms.

A majority uses negligence instead of strict liability for ground damage resulting from airplane crashes.

There is no strict liability for the acts of a third party over whom the defendant has no control even if the defendant's activity is subject to strict liability.

Public Duty Exception

The rules as to strict liability for abnormally dangerous activities do not apply if the activity is carried on in pursuance of a public duty imposed upon the actor as a public officer or employee or as a a common carrier

Product Liability

Product liability is the liability of a manufacturer, seller, or other supplier of chattels to one who suffers physical harm therefrom.

Product liability can be based on three different theories:

  1. Negligence
    • All jurisdictions accept that one does not have to be in privity for a claim based on negligence.
    • Generally, negligence liability is imposed upon all sellers of chattels—whether damage is to person or property, the manufacturer produced the whole product or a component part, or the injured person was the immediate purchaser or not.
  2. Warranty
    Express Warranty

    A manufacturer is liable for a breach of an express warranty, even though a consumer purchased the good from a third-party.

    For a warranty to be express, the manufacturer must have made a representation of a material quality of the product, on which the consumer relied.

    Liability for express warranties is based on the principle that:

    1. The original act of delivering the product is wrong.
    2. The article is not safe for the purposes for which the consumer would ordinarily use it.
    3. It lacked qualities which the manufacturer represented it as having.
    4. The absence of the qualities could not be readily detected by the consumer.

    It also must still cause damage.

    Implied Warranty
  3. Strict Liability

There are three kinds of defects that can lead to product liability:

  1. Manufacturing Defect
  2. Design Defect
  3. Warning Defect
Product Liability Table
Manufacturing Defect Design Defect Failure to Warn
Negligence

Breach of duty of care results in the product departing from its intended design

Plaintiff must prove failure to measure up to standard of care. Plaintiff would be expected to produce evidence of unreasonable conduct during the manufacturing process (an impossible task in many instances)

The design decision is evaluated.

Plaintiff must prove reasonable alternative design.

Risk/Utility analysis is used by overwhelming majority of courts.

State of the art evidence is a factor to consider.

Breach of duty of care

Plaintiff must prove that adequate warnings or instructions were not provided and defendant had actual or constructive knowledge of the potential risk or danger

Obvious dangers/generally known risks – no liability

State of the art evidence is a factor to consider.
Strict Liability

Product departs from the intended design.

Plaintiff must prove that the product does not conform to the design or the other products in some way.

Foreseeable risks of harm could have been reduced or avoided by adoption of reasonable alternative design.

Design decision is evaluated

Plaintiff must prove reasonable alternative design.

Risk/utility analysis is used

The majority considers the O'Brien factors, state of the art evidence, and whether the defect was open and obvious.

Foreseeable risks of harm could have been avoided by the adoption of reasonable instructions or warnings.

Plaintiff must prove that adequate warnings or instructions were not provided and that defendant had actual or constructive knowledge of the potential risk or danger.

Obvious dangers/generally known risks – no liability

State of the art evidence is a factor to consider.
Breach of Warranty

Express warranty is breached when there is a misrepresentation of a material quality of the product, on which the consumer relies.

Implied warranty of merchantability is that it is fit for its intended use.

Express warranty is breached when there is a misrepresentation of a material quality of the product, on which the consumer relies.

Implied warranty of merchantability is that it is fit for its intended use.

Implied warranty of merchantability is that it is fit for its intended use.

State of the art evidence is a factor to consider.