Torts AMP Set - Strict Liability And Nuisance Flashcards
Which of the following is not a factor for whether strict liability will be imposed for a trespassing animal?
A Whether the damages caused were reasonably foreseeable
B Whether the animal was a household pet
C Whether the owner knew about the trespass
C
Whether the owner knew about the trespass is not a factor for strict liability for a trespassing animal. The owner may be liable even though he used reasonable care to keep his animals from trespassing and was not aware of the trespass. The owner is strictly liable for the damage done by the trespass of his animals other than household pets as long as the damage caused was reasonably foreseeable. QUESTION ID: T0063B Additional Learning
Which of the following best states the majority approach as to who may bring a strict liability action against a defendant engaging in abnormally dangerous activities?
A Any foreseeable plaintiff injured as a result of the dangerous propensity of the activity
B Any foreseeable plaintiff as long as she was directly injured by the activity
C Anyone injured as a result of the dangerous propensity of the activity
D Anyone directly injured by the activity
A
A defendant engaging in an abnormally dangerous activity may be liable only to foreseeable plaintiffs injured as a result of the dangerous propensity of the activity. This is the best statement of the scope of the duty owed. In most states, a defendant will be liable only to those persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. In general, strict liability is not imposed for injuries to a plaintiff to whom no reasonable person would have foreseen a danger. Only a minority of courts find liability for ANYONE injured as a result of the dangerous propensity of the activity, on the basis of the intrinsic danger of the defendant’s activity. The defendant will not be strictly liable to all plaintiffs who were directly injured by the activity. Rather, the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the “normally dangerous propensity” of the activity involved. Conversely, a foreseeable plaintiff may recover even if she was not directly injured by the activity as long as the injury was from the dangerous propensity (e.g., injuries caused by fleeing the danger from the activity). QUESTION ID: T0065A Additional Learning
In a jurisdiction applying traditional contributory negligence rules in a strict liability case, which of the following statements is true?
A It is a partial defense that the plaintiff failed to guard against the existence of a danger.
B It is a total defense that the plaintiff failed to guard against the existence of a danger.
C It is a partial defense that the plaintiff knew of the danger and acted unreasonably.
Correct
D It is a total defense that the plaintiff knew of the danger and acted unreasonably.
D
In a strict liability case, it is a total defense that the plaintiff knew of the danger and acted unreasonably. Application of traditional contributory negligence rules to strict liability actions results in the following rules: If a plaintiff simply failed to realize the danger or guard against its existence, the plaintiff’s contributory negligence is no defense. However, if the plaintiff knew of the danger and his unreasonable conduct was the cause of the harm from the danger, the plaintiff has committed “knowing” contributory negligence (i.e., a type of assumption of risk) and will be barred from recovery. It would not be a total defense that the plaintiff failed to guard against the existence of a danger. The plaintiff has to know the danger. “Unknowing” contributory negligence is not a defense in a contributory negligence state. It would not be a partial defense either that the plaintiff knew of the danger and acted unreasonably or failed to guard against the existence of a danger. These answer choices more accurately describe what would occur in many comparative negligence states, which apply the same rules for a strict liability case as for a negligence case. In such an instance, the extent of liability would be based upon the relative percentages of fault for each of the parties. Unlike in those jurisdictions, in a jurisdiction applying a contributory negligence approach, a contributory negligence defense is either all or nothing. As discussed above, if the plaintiff knew of the danger and acted unreasonably, it is a total defense. If the plaintiff merely failed to guard against the existence of a danger, it is no defense. QUESTION ID: T0066 Additional Learning
Both _________ and __________ are required elements of a prima facie case for strict liability.
A Breach of duty; causation
B Abnormally dangerous activity; causation
C Causation; damages
D Abnormally dangerous activity; damages
C
To establish a prima facie case for strict liability, the following elements must be shown: (i) The nature of the defendant’s activity imposes an absolute duty to make safe; (ii) Causation (i.e., the dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury); and (iii) Damages (i.e., the plaintiff suffered damage to person or property). It is not required that the defendant be engaged in an abnormally dangerous activity. While such activity will result in the application of strict liability, it is not the only basis for imposing that standard. Strict liability may also be imposed for dangerous animals and defective products. Breach of duty is not an element of the prima facie case for strict liability; rather, it is an element of a negligence cause of action. QUESTION ID: T0062A Additional Learning
In a state retaining traditional contributory negligence rules, which of the following correctly states the rule in a strict liability action?
A The plaintiff’s contributory negligence is a defense, even if the plaintiff failed to realize the danger of an abnormally dangerous activity
B The plaintiff’s contributory negligence is never a defense
C The plaintiff’s contributory negligence is a defense, if the plaintiff knew of the danger of an abnormally dangerous activity and his unreasonable conduct caused the activity to miscarry
Which of the following is a required element for a prima facie case in any strict liability cause of action?
A An abnormally dangerous activity
B Breach of duty
C A product with a dangerous defect
D Damages
D
Damages is a required element of the prima facie case for strict liability. To establish a prima facie case of strict liability, the following elements must be shown: The nature of the defendant’s activity must impose an absolute duty to make safe;The dangerous aspect of the defendant’s activity must be the actual and proximate cause of the plaintiff’s injury; andThe plaintiff must suffer damage to person or property. Breach of duty is not an element of the prima facie case for strict liability; rather, it is an element of a negligence cause of action. Neither an abnormally dangerous activity nor a product with a dangerous defect is required to establish a prima facie case of strict liability. Strict liability may be imposed in both of those situations, but it may also be imposed in other instances, such as for a trespassing animal or a wild animal that causes harm. QUESTION ID: T0062 Additional Learning
Which of the following will not negate a claim of strict liability for an abnormally dangerous activity?
A The type of harm that occurred was not foreseeable.
B There was an unforeseeable intervening force.
C The plaintiff was not foreseeable.
D The defendant did not foresee a risk of harm.
D
The fact that the defendant did not foresee a risk of harm will not negate a claim of strict liability for an abnormally dangerous activity. To prevail, a plaintiff need only show that a reasonable person could have foreseen the risk of harm, regardless of whether the defendant did not. If the plaintiff was not foreseeable, the strict liability claim is not established. The defendant’s liability for an abnormally dangerous activity extends only to foreseeable plaintiffs, who are persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. Note, though, that the nature of the abnormally dangerous activity may create a large class of foreseeable plaintiffs. If the type of harm was not foreseeable, the plaintiff cannot establish a strict liability claim. The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the “normally dangerous propensity” of the condition or thing involved. An unforeseeable intervening force may allow a defendant to avoid liability in a strict liability action for an abnormally dangerous activity. The same rules govern causation for strict liability as they do for negligence, and thus a defendant’s liability may be cut off by an unforeseeable intervening force that brings about the injury. QUESTION ID: T0065 Additional Learning
Which of the following is correct regarding a nuisance?
A Criminal activity may not be the basis for a public nuisance action
B The defendant cannot continue an activity that is a nuisance merely because it was in existence before the plaintiff’s arrival
C A private party may not recover damages for a public nuisance
B
“Coming to the nuisance” generally is not a viable defense to a nuisance action. The defendant cannot continue an activity that is a nuisance merely because it was in existence before the plaintiff’s arrival. While the defendant’s priority in time may be a factor in evaluating reasonableness, the purchaser is entitled to reasonable use or enjoyment of his land to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit. In certain circumstances, a private party can recover damages for a public nuisance; the private party must have suffered some unique damage from the nuisance not suffered by the public at large. Criminal activity MAY be the basis for a public nuisance action. A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, including using a building to commit criminal activities such as prostitution, bookmaking, etc. QUESTION ID: T0020A Additional Learning
For an interference to be characterized as unreasonable in a nuisance claim:
A The plaintiff’s right to exclusive possession of the property must outweigh the utility of the defendant’s conduct
B The severity of the injury must outweigh the utility of the defendant’s conduct
C The utility of the defendant’s conduct must outweigh the severity of the injury
B
For an interference to be characterized as unreasonable in a nuisance claim, the severity of the injury must outweigh the utility of the defendant’s conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant. If the opposite is true, i.e., the utility of the defendant’s conduct outweighs the severity of the injury, the interference will not be considered unreasonable. The plaintiff’s right to exclusive possession is not weighed against the utility of the defendant’s conduct; the right to possession is protected by trespass law rather than nuisance law. QUESTION ID: T0019B Additional Learning
A defendant engaged in an abnormally dangerous activity may be liable __________.
A Even though he exercised reasonable care
B Only if the trier of fact determines that the activity is abnormally dangerous
C Regardless of how common the activity is in that community
A
A defendant engaged in an abnormally dangerous activity may be liable even though he exercised reasonable care. If the activity creates a foreseeable risk of serious harm, even when reasonable care is exercised by all actors, then it probably is abnormally dangerous and the defendant may be strictly liable for harm caused by the activity. A defendant will not be strictly liable regardless of how common the activity is in that community. For an activity to be abnormally dangerous, it must not be common in the community. It is incorrect that an activity will be abnormally dangerous only if the trier of fact determines it to be. Whether an activity is abnormally dangerous is a question of law that the court decides. QUESTION ID: T0064B Additional Learning
A nuisance action may not be based on ___________.
A Products liability
B Strict liability
C Negligence
A
A nuisance action may not be based on products liability. Nuisance is a type of harm that may be based on different theories of liability. It may be based on strict liability, intent, or negligence. It is not a separate tort in itself, but rather a type of harm—the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability. QUESTION ID: T0018A Additional Learning
The owner of an animal is strictly liable for damage caused by the animal if it __________.
A commits an unforeseeable trespass
B is a farm animal with dangerous propensities typical for that species
C attacks a trespasser
D is a dog with known dangerous propensities
D
The owner of a dog or other family pet with known dangerous propensities will be held strictly liable for damage caused by the animal. Normally, the owner of a domestic animal is not strictly liable for injuries it causes. Strict liability will attach, however, if the owner knows of the domestic animal’s dangerous propensities, i.e., propensities more dangerous than normal for that species. This rule applies even if the animal has never injured anyone. If an animal commits an unforeseeable trespass, the owner of the animal will not be held strictly liable for damage caused by the animal. The owner is strictly liable for damage caused by the trespass of her animal only if it was reasonably foreseeable. The owner of a farm animal with dangerous propensities typical for that species (such as bulls or bees) will not be held strictly liable for damage caused by the animal. Strict liability would apply only if the animal had propensities more dangerous than normal for that species. If an animal attacks a trespasser, the owner will not be held strictly liable for damage caused by the animal. A trespasser cannot recover for injuries caused unless there was negligence on the part of the landowner, e.g., the landowner knew of the trespasser and failed to warn of a wild animal or abnormally dangerous domestic animal. QUESTION ID: T0063 Additional Learning
Which of the following is correct regarding strict liability for abnormally dangerous activities?
A To be characterized as an abnormally dangerous activity, the activity must be considered abnormally dangerous in every community
B To be abnormally dangerous, the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
C Whether an activity is abnormally dangerous is a question of fact for the jury to decide
B
An activity may be characterized as abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors. Determining whether an activity is abnormally dangerous is NOT a question of fact for the jury to decide; rather, it is a question of law that the court can decide on a motion for a directed verdict. It is also incorrect that the activity must be considered abnormally dangerous in every community. Courts generally impose a requirement that the activity must not be a matter of common usage in the community where it takes place. An activity may be considered abnormally dangerous in some areas but not in others. QUESTION ID: T0064A Additional Learning
To be actionable, the interference required for a private nuisance must __________.
A Affect the plaintiff’s use or enjoyment of the property
B Affect the plaintiff’s right to exclusive possession of the property
C Be offensive to the plaintiff
D Affect the plaintiff’s hypersensitivity
A
The interference required for a private nuisance must affect the plaintiff’s use or enjoyment of property he actually possesses or to which he has a right of immediate possession. The interference with the plaintiff’s right in his land must be substantial and unreasonable. Because the interference must be substantial, that means it must be offensive, inconvenient, or annoying to an average person in the community, not merely be offensive to the plaintiff. The interference will not be characterized as substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of his own property. The interference need not affect the plaintiff’s right to exclusive possession of the property. Such an interference constitutes trespass to land rather than nuisance. QUESTION ID: T0019A Additional Learning
Which of the following is correct with regard to nuisance?
A A nuisance is a separate tort in itself
B Nuisances are types of harm
C Nuisances are usually based on negligence
B
Nuisances are types of harm—the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability. Thus, a nuisance is NOT a separate tort in itself, subject to rules of its own. In addition, nuisances are NOT usually based on negligence. As a practical matter, nuisances generally are intentional interferences, because the defendant has been made aware that his conduct is interfering with the plaintiff’s use of her land. QUESTION ID: T0018B Additional Learning
