TORTS I: OUTLINE
- Prima Facie Case: is there a prima facie case for that tort?
- Defenses: What defenses or justifications may D be able to raise (e.g. self-defense, necessity, etc.)
- Meaning of intent: Purpose or knowledge to substantial certainty of the legally relevant consequences (where consequences are defined separately for each tort). Intent is defined subjectively with objective (reasonable person) being evidentiary support.
1. No intent to harm: intentional torts generally do not require that D intend to harm the plaintiff.
2. Substantial Certainty: [Garratt v. Dailey]; [Spivey v. Battaglia]
- High likelihood or “Grave Risk” not enough: [Garratt v. Dailey]
- Intent w/o substantial certainty? YES! Purpose… [Dr. Evil shoots on windy day]
- SC of Legally Relevant Consequences: diff’rnt from what you thought might happen.
- as to consequences that do not indicate a disposition to commit an intentional tort negates intent. [Spivey v. Battaglia – D was not liable for battery]
- as to consequences that DO indicate a disposition to commit an intentional tort do not negate intent. [Ranson v. Kitner] [Talmage v. Smith]
4. Intent is judged Subjectively [Garratt v. Dailey] reasonable person is evidentiary support
- ‘Transferred’ Intent [Talmage v. Smith – D threw a stick in direction of kids on his shed; liable for 2nd P]
- Definition: Battery is the intentional infliction’ of a harmful or offensive bodily contact that occurs.
- ‘Battery’ protects: our dignity in addition to protecting us from physical harm. [This has changed since Cole v. Turner because originally there had to be physical contact.]
- Elements of Battery
1. Intent to commit harmful or offensive contact: “Harmful” is based on the nature of the contact
2. Harmful or offensive contact occurs:
- Offensive contact is subjective: [example: host on ’anti-smoking’ radio show]
- Harmful contact is objective based on nature of contact.
- P need not be aware: different from assault;
- What if D is trying to help P: Doesn’t matter as long as they intend the contact
- Not just person to person contact: [Fisher v. Carrousel Motor Hotel, Inc – D grabs P’s plate]; also [Garratt v. Dailey - D pulls chair out from under P]
- Definition: Assault is the intentional causing of an apprehension of harmful or offensive contact.
1. Intent: two types of intent
- Intent to create apprehension of H or O contact
- Intent to create contact: [D shoots at P trying to hit P. P is scared but the shot misses]
2. Imminence: [Western Union Telegraph Co. v. Hill – D says he’ll fix P’s clock if she comes behind the desk and ’loves’ him. Relevance of length of desk, to imminence, etc.]
3. P’s awareness of threat: [Dr. evil fires on Powers w/ silencer when his back turned – not assault]
4. No hostility is required: [D points a toy pistol hoping to scare P]
5. Words alone are not enough: [Cucinotti v. Ortman, "words in themselves, no matter how threatening, do not constitute an assault"]
6. Conditional Threat: assault depends on if D had a legal right to compel P to perform the act.
- Definition: False imprisonment is the intentional infliction of a confinement without adequate legal justification (e.g. no privilege).
1. Intent to confine
2. Confinement occurs
- Means used: imprisonment can be carried out by physical means or by threats or by assertion of legal authority.
- Force [Big town nursing home v. Newman – P, in home of own volition, was caught and brought back 5-6 times. He was taped to a restraint chair; FI]
- Threat of Force: D threatens to use force if P tries to escape
- Assertion of legal authority: [Enright v. Groves - cop tells P to give him her license and she refuses. He arrests her. successful claim of FI] however, [Hardy v. LaBelle’s Distributing Co – P accused of stealing a watch is asked to talk to the manager in an office w/ two armed guards – no FI because there was not sufficient assertion of legal authority. She was free to leave.]
- Failure to furnish an exit when you have a legal duty to do so: [Whitaker v. Sandford – religious sect leader refuses to provide P a boat to get ashore- FI]
3. P must be aware of confinement or suffer actual harm
- Aware at time of confinement [Parvi v. City of Kingston – P was drunk and can’t remember being confined now. However, judge ruled he was aware at the time.]
- Suffer actual harm [baby left in car seat suffers dehydration – FI]
4. No reasonable means of escape: doesn’t take much for P to prove escape is “unreasonable”
5. Mistake: Mistake about circumstances does not excuse intent. [hospital confines P thinking he is involuntarily committed – still FI]
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
- Definition: intentional or reckless infliction, by extreme and outrageous’ conduct, of severe emotional or mental distress, even in the absence of physical harm.
1. Intent to cause “severe” emotional distress:
- Types of Intent
- D desires to cause P “severe” emotional distress [Slocum v. Food Fair Stores of Florida – P had heart attack after D’s employee verbally insulted her; court felt that a "toughening of the mental hide is a better protection than the law could ever be"]; [Harris v. Jones – employee w/ speech problem ridiculed; NOT IIED]
- D knows w/ SC that P will suffer “severe” emotional distress
- D recklessly disregards high probability that “severe” E.D. will occur [Harris v. Jones – speech problem"conduct must be intentional or reckless"]
- Does NOT require physical harm [State Rubbish Collectors Ass’n v. Siliznoff]
- Transferred Intent: does not apply. [Taylor v. Vallelunga – P witnessed D beat up her father. No liability]
- Ordinary Person absent special knowledge: intent to cause SED to an ordinary person [Slocum v. Food Fair Stores of Florida – "…a person of ordinary sensibilities, in the absence of special knowledge or notice"]
2. Severe emotional distress occurs:
3. D’s conduct is “Extreme and outrageous”: [State Rubbish Collectors Ass’n v. Siliznoff]
DC Tax Attorney: DEFENSES OF INTENTIONAL TORTS
1. Actual “Express” Consent: actual consent must come from the individual; not wife, for instance
- Manifestation of Consent (Implied Consent): Existence of consent may be implied from P’s conduct, from custom or from circumstances.
1. Objective Manifestation: NOT subjective. [O’Brien v. Cunard – D offers to vaccinate; consent]
- Exceeding Scope: Construe scope of consent narrowly: [Mohr v. Williams – D fixes left ear not right ear]; [Hackbart v Cincinnati Bengals, Inc - football is not consenting to be battered against the rules.]
- Consent Negated By: Consent is invalidated if P is incapable of giving consent because they are
1. Incompetency (Child); ;
2. Deceit: Deceit must go to the act of consent: [De May v Roberts – physician sent to treat P brings "partner" who knows nothing. P believes him to be a physician; P recovers despite consent to his presence under false pretenses.]
3. Duress if it threatens a legal entitlement, it is duress…
5. Unconscious: Exception: if 1. P is unable to consent; 2. risk of serious bodily harm; 3. no indication P would not consent; 4. a reasonable person would consent in the circumstances
- BURDEN OF PROOF: different than other defenses. Burden is on plaintiff to establish consent.
- Privilege generally: a person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment.
- Only for protection:
1. Retaliation: once battery is no longer threatened, privilege terminates
2. Imminence: D may not use force to avoid harm which is not imminent,
- Degree of Force: Only degree of force necessary to prevent threatened harm may be used. If more is used D will be liable for the damages caused in excess.
1. Deadly force: D may not use deadly force unless he himself is in danger of death or serious bodily harm.
- Retreat: Courts disagree about when D has a “duty to retreat”
- BURDEN OF PROOF: on defendant
PRIVILEGES: DEFENSE OF PROPERTY
- Privilege generally: a person may use reasonable force to defend her property, both land and chattels.
1. Warning is required: unless it reasonably appears that violence or harm will occur immediately.
- Mistake: if D’s mistake is about whether force is necessary, D is protected
- Deadly Force: D may not use deadly force unless he himself is in danger of death or serious bodily harm.
- Mechanical devices: [Katko v. Briney – "shotgun trap"; "A possessor of land cannot do indirectly with a mechanical device that which, were he present, he could not do immediately and in person."]
- Privilege generally: D has privilege to harm the property of P where it is necessary to prevent great harm to third persons or D himself.
- Public Necessity: to prevent public disaster, one is privileged to interfere w/ chattels of 3rd party [Surocco v. Geary – D trying to stop a fire blew up D’s house. "individual rights of property give way to the higher laws of impending necessity."]
- Private Necessity: preventing injury to himself or his property, this is protected under “private necessity”.
- Actual Damage: private necessity is a complete defense unless P suffers actual damage, in which case D must pay for the damage caused. [Vincent v. Lake Erie Transp. Co. – D’s boat was docked during a storm and caused damage to P’s dock; D had to pay for the damages.]
- Exception: PROPERTY not LIFE: Necessity is only a privilege for property, not life.
- Justification generally: Even if D’s conduct does not fit one of the narrower defenses, she may be entitled to the general “justification” defense, a catch-all phrase used where there are good reasons for preventing D from being liable.[Sindle v. New York City Transit Authority – 14 yr old kid was in a school bus. Boisterous kids were breaking lights, banging on windows. Driver drove to police station bypassing some stops. Father sued for False Imprisonment. Appellate Ct. reversed sending it to trial saying defense of justification should be considered]
Annandale lawyers: NEGLIGENCE GENERALLY
ELEMENTS OF TORT OF NEGLIGENCE
- Generally: negligence occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other. Negligent tortfeasor’s mental state is irrelevant.
- Prima Facie Case: The components of negligence
1. Duty: a legal duty requiring D to conduct himself according to a certain standard.
2. Breach: A failure by D to conform his conduct to this standard.
3. Causation: a sufficiently close causal link between D’s negligence and the harm suffered.
- Cause-in-Fact: defendant’s conduct directly caused the damages (“BUT FOR”)
- Proximate Cause: if there is cause-in-fact, how far down the causation chain should we have liability?
4. Actual Damage: P must suffer actual damages.
- Normative vs. Empirical: Duty and Proximate cause are normative. The rest empirical.
- Optimal Deterrence vs. Corrective Justice
- Optimal Deterrence: Impose cost of injury on the least cost provider. Collective focus (Greatest good for the greatest number.), efficiency-based (Law&Econ), follows negligence formula (B>PL)
- Corrective Justice: rectify a wrong by restoring moral balance between parties. Individual focus, equity-based, individual justice, the reasonable person standard.
Reasonable Care: REASONABLE PERSON
- Objective Standard: reasonableness of D’s conduct is viewed under an objective standard. Would a “reasonable person of ordinary prudence” in D’s position, do as D did under the circumstances.
- Ordinary Care: [Blyth v. Birmingham Waterworks Co – D pipes burst after severe frost. "a reasonable man would act…average circumstances of the temperature at ordinary times"]
- B>PL [United States v. Carroll Towing Co – Learned Hand]; [Lubitz v. Wells – D leaves golf club in backyard and kid hits someone with it. B>PL]; [Delair v. McAdoo – D is driving car w/ worn tires. Tire blows & injures P.]
- Physical and Mental Characteristics:
- Physical Disability: standard for negligence is what a reasonable person with that disability would have done. [Roberts v. State of Louisiana – D (blind), doesn’t use cane. Found not guilty]
- Mental Characteristics: ordinary person is not deemed to have the particular mental characteristics of D (D being more stupid or careless than an ordinary person is not a defense)
- Insanity – insane are liable for their torts. Exception: [Breunig v. American Family Ins. Co. – driver thought God had taken over the wheel. Court said "a sudden mental incapacity is equivalent to…a sudden heart attack; found for D]
- Stupidity – stupid people are liable for their torts.
- Intoxication: Intoxication is no defense. Standard of care of a reasonably sober person.
- Children: A child is held to the level of conduct of a reasonable person of that age and experience, not of an adult.
- MAJORITY EXCEPTION: Adult Activity: [Robinson v. Lindsay – 13 yr old driving a snowmobile should have used an adult standard of care.]
- MINORITY EXCEPTION: Inherently dangerous activity:
- Custom: Following customs is evidence reasonable care was used. However, it is not conclusive.
- Evidence by D: [Trimarco v. Klein – P was sliding a door to his bathtub and it shattered. P contends w/ expert testimony that since 1950s using shatterproof glazing materials was custom so that doing this in 1976 was negligent; NY Court of Appeals said "a common practice" is not a " compelling test of negligence" but that "the jury must be satisfied with its reasonableness"]
- Proof by P: Similarly, if P proves that other’s in D’s industry use a certain precaution and D did not, this will not be conclusive evidence that D was negligent.
- Emergencies: If D is in an emergency, D must behave as a reasonable person would in that emergency [Cordas v. Peerless Transportation Co. – thief jumped into the taxi and had a gun. Taxi driver pulls emergency breaks and jumps from car. Law "does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action.]
VIOLATION OF STATUTE
- Summary of Negligence per se:
- Person harmed is part of class of people that statute is designed to protect
- Injury that results is the sort of injury statute was designed to prevent
- Injury was a direct result of statute’s violation (causation)
- Defendant did not have a reasonable excuse for violating statute
- Violation of statute is not safer than compliance
- Negligence Per Se” Doctrine: Most courts apply “negligence per se” that says a violation of a statute is “negligence per se” and conclusively establishes that D breached a duty to P. You still have to prove causation and damages. [Osborne v. McMasters – poison sold from drugstore did not have label as required by statute. Court found negligence per se regardless of whether custom was not to require labels. Statute was the standard of care.]
- Ordinances and regulations: MAJORITY – apply it; MINORITY – don’t apply it
- “Failure to Report” Statutes: most states say failure to report child abuse is not negligence per se. [Perry v. S.N. and S.N. – D’s new of negligent day care but said nothing. P claims negligence per se for breaking a statute. Texas Supreme Court found for D.]
- Statute must apply to facts: negligence per se will apply only where P shows the statute was intended to guard against the very kind of injury in question.
- Class of Persons Protected: P must be a member of the class of persons whom the statute was designed to protect. [Stachniewicz v. Mar-cam Corp. – bar fight w/ Native Americans. "P was within the class of persons intended to be protected" and "harm caused to him was the kind the statute was intended to prevent" therefore, negligence per se.]
- Protection against particular harm: statute must have been intended to protect against a particular kind of harm that P seeks to recover for. [Stachniewicz v. Mar-cam Corp.]
- Excuse of Violation: court is always free to find that the statutory violation was excused, as long as the statute itself does not show that no excuses are permitted.
- Typical excuses: 1. D in emergency not of his own making; 2. compliance would have involved a greater risk of harm; 3. D made a reasonable and diligent attempt to comply. [Zeni v. Anderson - Lady gets hit by a car while walking on street, when statute requires that she walk on sidewalk. But it was during a snowstorm and the sidewalk was more dangerous. P wins]
PROOF OF BREACH
- Burden of proof in negligence cases, P bears the “burden of proof.”
- Function of Judge and Jury
- Judge decides law: judge decides all questions of law.
- Jury decides facts: jury is the fact finder. Jury typically decides “reasonable person” standard.
- Kinds of Evidence
- Direct Evidence: evidence that comes from personal knowledge or observation
- Circumstantial Evidence: proof that requires drawing an inference from other facts.
- Weak Circumstantial Evidence (Banana Cases)
- [Goddard v. Boston & Maine R.R. Co. - Man slips on banana peel on train platform. There was no evidence that the reasonable ordinary duty of care was breached.]
- [Anjoy v. Boston Elevated Railway Co. - Woman slips on banana peel on train platform. Banana peel was dark, gritty, sandy, flattened down. Sent to jury.]
- [Joye v. Great Atlantic and Pacific Tea Co. - Man slips on banana peel in supermarket. Banana was brown with dirt and sand on it. Floor went 35 minutes without the floor being swept. D wins from lack of evidence.]
- [Jasko v. F.W. Woolworth Co.- Woman slips on pizza dropped on floor. "storekeeper is allowed a reasonable time to discover and correct the condition"]
RES IPSA LOQUITUR
- Generally: doctrine of res ipsa loquitur allows P to get into court with little evidence.
- [Byrne v. Boadle – barrel of flour falls on P’s head as he walks down street. P has no other evidence except that barrels do not fall out of windows w/o negligence. Under res ipsa' loquitur, P has enough evidence.]
- [McDougald v. Perry - P sued D for injuries sustained when D’s tractor-trailer’s spare tire came out of its cradle and bounced into P’s windshield. Res ipsa loquitur applied. Verdict for P.]
- Requirements for: courts generally impose four requirements for the res ipsa’ doctrine
- Doesn’t ordinarily occur without negligence: P must show that the harm does not normally occur except through negligence. P only has to prove that most of the time, negligence is the cause of such occurrences.
- Exclusive control of D: P must demonstrate that the instrument causing the harm was at all times in the exclusive control of D.
- [Larson v. St. Francis Hotel – P, while walking on sidewalk next to D hotel, was hit by a falling armchair. Without more proof, P had not satisfied "exclusive control" requirement of res ipsa' b/c a guest may have had the control]
- Multiple Defendants: If there are two or more Ds, P can show that at least one of the Ds was in control, some cases allow P to recover. This is particularly likely where Ds participate together in an integrated relationship.
1. [Ybarra v. Spangard – P had appendicitis and woke up unable to move his arm. P got res ipsa and it was up to each person to prove they were NOT negligent.]
- Burden of Proof: the burden of proof is still on P to show D was negligent. Res ipsa just gets you into court. [Sullivan v. Crabtree - Son was riding in D’s truck. Truck swerved off a highway. P’s son died. Court said "in the ordinary case...res ipsa loquitur merely makes a case for the jury]
- Exception: Unconscious Medical Treatment: burden of proof shifts to D’s when P is unconscious undergoing medical treatment… [Ybarra v. Spangard – P had appendicitis and woke up unable to move his arm. P got res ipsa and it was up to each person to prove they were NOT negligent.]
ACTUAL AND PROXIMATE CAUSE
- “BUT FOR” Test: majority of the time, P shows “cause in fact” by showing that D’s conduct was a “but for” cause of P’s injuries – “but for” the defendant’s negligence, plaintiff would not have been injured
- [Perkins v. Texas & New Orleans Ry. Co. – passenger in an automobile with a negligent driver gets hit by a train that is speeding. Railroad not liable if the accident would have occurred even if the train were not speeding.]
- [Gentry v. Douglas Hereford Ranch: a guy hunting on a ranch trips and accidentally shoots Gentry’s wife in head. RULE: Proof that it is possible that plaintiff’s injury would not have occurred in the absence of defendant’s negligence does not establish but for causation.]
- [Kramer Service, Inc. v. Wilkins: guest in hotel gets cut in forehead from piece of glass from window. Suing for damage from cut and for eventual cancer. RULE: Could not recover for cancer because he could not prove that plaintiff’s injury probably (50.1%) would not have occurred in the absence of defendant’s negligence establishes but for causation.]
- [Reynolds v. Texas & Pac. Ry. Co.: fat woman waiting for train told to hurry up down unlit stairway. She missteps and falls. RULE: Proof by the defendant that it is possible that plaintiff’s injury would have occurred in the absence of defendant’s negligence does not establish that there is not but for causation.]
- SUBSTANTIAL FACTOR: it is not sufficient for there to be “but for” causation to prove “cause in fact”.
- EXCEPTIONS TO “BUT FOR” TEST:
- Increased Likelihood of Harm from Another Source: If P fails to protect D from harm from another source AND it increases the likelihood of that harm. [Herskovits v. Group Health Cooperative: P had cancer. Doctors misdiagnosed it. His chance of survival was <50%, but chances were reduced 14%.]
- Concurrent Causes: sometimes D’s conduct can meet a “cause in fact” even though it is not a “but for” cause. This happens when two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other. [Hill v. Edmonds – P is passenger in a car. Car collides w/ truck negligently parked in the middle of the road w/ no lights on. Court said that "where separate acts of negligence combine to produce a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it"]; [Anderson v. Minneapolis, St. P. ¬– sparks from D’s railroad car start a forest fire. Fire merges with another unknown fire. Combined fire burns P’s property. D’s fire is a cause in fact even though it is not a "but for" cause.]
- Multiple Fault: If P can show that each of two or more defendants was at fault, but only one could have caused the injury, the burden shifts to defendants to show that the other caused the harm.
- [Summers v. Tice – Defendants go hunting. Both simultaneously fire negligently and P is struck by one of the shots. It is not known who fired the fatal shot. Court put burden on Ds to show it was the other that hit P.]
- The “Market Share” theory: If P cannot prove which of 3 or more persons caused his injury, but can show that all produced a defective product each D must pay a percentage of P’s injuries equal to their percentage market share of that product at the time of injury. [Sindell v. Abbott Laboratories – 200 manufacturers make drug DES. P shows her mother took the drug while pregnant and it caused her to develop cancer. Court said it was up to D’s to prove they could not have produced the particular dose taken by P’s mother or they would pay the percentage of their market share at the time]
PROXIMATE CAUSE – GENERAL
- Foreseability in most courts hold that D is liable only for consequences of his negligence which were reasonably foreseeable at the time she acted.
- [Ryan v. New York Central R.R. Co.(1866) – D’s railroad set fire to a woodshed. P’s house, 130 ft away caught fire and a number of other houses burn down. Only liable for first house. Others are not proximate.]
- RULE 1: Foreseeable type + unforeseeable manner/extent = PC. [Bartolone v. Jeckovich – P suffers injury from negligent driving. P says it aggravated a pre-existing paranoid schizophrenic condition permanently disabling him. Extent of the injury is unforeseeable]
- RULE 2: Unforeseeable type of harm = NO PC: [Wagon Mound No. 1 – D negligently discharged fuel into the ocean and it ignited seriously damaging the wharf. At trial, P’s win under "direct traceability standard". Highest court overrules Polemis’ "direct traceability" rule stating that there is no proximate cause if the type of harm was unforeseeable.]
- RULE 3: Unforeseeable P = NO PC. If the plaintiff is unforeseeable (outside a foreseeable zone), there is no proximate cause and no liability. [Palsgraf v. Long Island R.R. Co. – P standing on platform of train. Two men run to catch it. A package containing fireworks falls onto the rails, explode, and throw scales to the other end of the platform many feet away injuring P. Cardoza says P must be within "the range of reasonably foreseeable danger."
- INTERVENING CAUSES: an intervening cause is a force which takes effect after D’s negligence, and which contributes to that negligence in producing P’s injury.
- Superceding Cause: Intervening causes that are sufficient to prevent D’s negligence from being a proximate cause are called superceding causes because they supercede or cancel D’s liability.
- RULE 1: Unforeseeable harm from Intervening Cause = superceding cause = No PC.
- RULE 2: Intervening Cause is foreseeable IF type of harm from the intervening negligence is the same type of harm that is foreseeable to the original D.
- [Derdiarian v. Felix Contracting Corp. – D, forgetting to take medicine, suffers a seizure and drives into a worksite throwing P into a 400 degree boiling hot liquid. Company found negligent for failing to put up a barrier. There was PC.]
- CRIMINAL ACT typically UNFORESEEABLE (no PC) [Watson v. Kentucky & Indiana Bridge & R.R. – R.R. negligence allows a car to derail spilling gasoline. Third party lit a match and gasoline caught fire injuring P. Court said if intervening cause was malicious and intentional and criminal, then it would be an unforeseeable cause.]
- SUICIDE typically UNFORESEEABLE (no PC)
1. Exception: must be a direct causal connection from the original injury that causes the impulse. [Fuller v. Preis – P was in a car accident and started having bad seizures. 7 months later, frustrated by the seizures, he committed suicide. P’s estate could recover for wrongful death.]
- RESCUE, ESCAPE, Medical Malpractice typically FORESEEABLE (is PC)
1. “Danger invites rescue” [Wagner v. International R.R. Co. – conductor runs train full of people with door open. A vestibule falls out. Train stops and cousin jumps out, slips off the bridge and falls. P says conductor encouraged him to go out onto the bridge after his brother as well.]
2. “Danger invites escape” [Cordas v. Peerless Transportation Co. – thief jumped into the taxi and had a gun. Taxi driver pulls emergency breaks and jumps out of car. "the law in this state does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action.]
- Trespassing animals: owner of livestock are typically liable for property damage caused if they trespass.
- Non-trespass liability: a person is liable for non-trespass damage done by a “dangerous animal“
- Domestic animals: don’t count unless the owner knows the animal has dangerous characteristics
ABNORMALLY DANGEROUS ACTIVITIES
- General Rule: person is strictly liable for any damage which occurs while conducting “abnormally dangerous” activities
1. Six Factors: to determine if it is “abnormally dangerous”.
- 1) is there a high degree of risk of harm to others?
- 2) the harm is likely to be serious,
- 3) the risk cannot be eliminated by the exercise of reasonable care
- 4) the activity is not common,
- 5) the activity is not appropriate for the place where it is carried out,
- 6) the danger outweighs the activity’s value to the community.
- [Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. - D is a manufacturer of a dangerous chemical. At its manufacturing plant it loaded 20,000 gallons onto a railroad car and sent it through Chicago. P is the switching line. There was a $981,022.75 clean up cost mandated by Dept. of Environ. Protection. P wants D to pay for it and sues them for negligence and strict liability]
- Nuclear Reactor
- Crop dusting
- Limitations on Strict Liability
- Scope of risk: usually only liable for damage which results from the kind of risk which made the activity abnormally dangerous. [Foster v. Preston Mill Co. - blasting operation caused a mother mink to kill her kittens. No liability.]
- Assumption of risk: It can be a defense to strict liability. If P assumes the risk knowingly and voluntarily, D may not be liable.[Sandy v. Bushey - injured party voluntarily put himself in the situation knowing the probable consequences, he cannot recover. Puts mare in pen w/ horse that has "vicious propensitites]
- Act of God:
- Golden v. Amory [hurricane: the rule from Rylands does not apply when the injury occurs from an "act of god." ]