Chapter Eleven Flashcards
In what types of cases is strict liability an appropriate theory of recovery?
Strict liability is applicable even when a defendant is neither negligent nor has any intent of wrongdoing. It is a particularly useful theory in situations involving abnormally dangerous activities.
Is strict liability synonymous with absolute liability or liability without fault?
No
What is the general rule regarding liability for damage caused by trespassing animals?
The owner of the animal is liable.
What do the “fencing in” and “fencing out” statutes provide?
“Fencing in” statutes provide that an owner is not strictly liable if the owner attempts to fence in the animals, but is strictly liable if the owner does not. Under “fencing out” statutes, property owners who properly fence their land have a strict liability claim against those whose animals trespass onto their land.
Under what conditions are animal owners strictly liable for damage caused by nontrespassing animals?
One who keeps “dangerous animals” is strictly liable for the harm done by those animals.
What are the six factors considered in accordance with the Restatement to determine if a particular activity is abnormally dangerous?
(1) high degree of risk: “high degree of risk of some harm to the person, land or chattel of others”; (2) risk of serious harm: “likelihood that the harm that results from it will be great”; (3) cannot be eliminated even by due care: “inability to eliminate the risk by the exercise of reasonable care”; (4) not a matter of common usage: “extent to which the activity is not a matter of common usage”; (5) inappropriateness: “inappropriateness of the activity to the place where it is carried on”; (6) value: “extent to which its value to the community is outweighed by its dangerous attributes.”
Give examples of two activities that courts have classified as abnormally dangerous, and explain why they were considered to be so.
Crop dusting, poisonous gases, storage of flammable liquids in urban areas, disposal of hazardous waste, testing of rocket fuel. These activities meet the factors (or at least some of them) set out in the Restatement.
Give examples of two activities that courts have classified as not being abnormally dangerous, and explain why they were not considered to be so.
Airline crash, irrigation dam, falling tree, defective lawn sprinkler that resulted in an automobile crash, defective plumbing that caused damage to the plaintiff’s apartment, defective electrical wiring that resulted in property damage. These activities did not meet the factors (or at least some of them) set out in the Restatement.
What is the rationale underlying strict liability for defective products?
The rationale underlying strict liability in the area of product liability is that it is easier for the defendant to bear the risk of loss than for the plaintiff. Another reason for imposing strict liability is that product safety is better promoted by a strict liability theory than by traditional negligence theory.
What are the possible defenses that can be raised in response to a strict liability claim?
First, a defendant can argue lack of proximate cause, i.e., that the damage that occurred was not the result of the kind of risk that made the activity abnormally dangerous. Second, a defendant can argue that a plaintiff who has “assumed the risk” should be barred from recovery.
