Torts II Flashcards
DEFENSES NOT ON THE MERITS
STATUTE OF LIMITATIONS
2 Purposes of S.O.L:
- To bar stale cases which might be unfair or costly because evidence is lost or subtly altered with time
- Permit both personal and business planning and to avoid the economic burden that would be involved if defendants and their insurance companies had to carry indefinitely a reserve for liability that might never be imposed
***Statute of Limitations Elements:
The statute of limitations will not begin to run until at least:
- All elements of the tort are present
- The plaintiff discovers, or as a reasonable person should have discovered that,
a. she is injured and
b. the defendant had a causal role, or there is enough chance that the defendant was connected to the injury to require further investigation.
Statute of Repose
puts an outer limit on the right to bring a civil action
• clocks begins to run on the dater of the last culpable act or omission of the defendant
• effect a legislative judgement that a defendant should be free from liability after the legislatively time.
• Can be said to provide a fresh start or freedom from liability
FEDERAL PREEMPTION
(1) Expressly preempting state law by statute (express preemption)
(2) Occupying the field with heavy regulation so there is no room for state tort law OR (field preemption)
(3) By passing laws that actually conflict with state law
VREELAND V. FERRER
RULE:
Preemption may be either express or implied, and “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.
VREELAND V. FERRER
ISSUE
Does the federal law preempt Florida state law with regard to the liability of aircraft owners under the dangerous instrumentality doctrine, and if it does, how broadly the scope of that preemption covers.
JOINT TORTFEASORS
• A joint tortfeasor can be held responsible to pay a lot of the P’s damages even though other tortfeasors are also responsible for the harm:
o Where Ds act in concert to cause the harm
o Where Ds are held liable by operation of law or
o Where Ds cause a single indivisible injury
RULE: JOINT TORTFEASOR/ACTING IN CONCERT RESTAT. 2ND 876
• For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:
o Does a tortious act with the other or pursuant to a common design within or
Done by acting in accordance within an agreement to a particular line of conduct OR
Acting in accordance with an agreement to accomplish a particular result
o Knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself
• 3 Bases for Joint and Several Liability
o Acting in concert
o By operation of law (respondent superior, agency or by statute, products liability)
o Independent tortfeasor causing indivisible injury
Vicarious Liability:
One D may be vicariously liable for the acts of another
• A very common form of vicarious liability is when an employer answers in damages for a tort committed by the employee, acting within the scope and course of employment
o Individual contractors cannot use vicarious liability to hold a business they work for responsible
Non-Delegable Duty of Care:
• An actor will have a non- delegable duty of care in cases that involves activities that carry a high degree of danger and special risks of harm, or where an actor has traditionally been responsible for a particular type of actor
Respondent Superior Liability:
• The test for scope of employment boils down to the foreseeability of a risk (i.e. a kind of proximate cause)
• If employees tortious actions were clearly from a motive or purpose solely and alone to satisfy the sensous desire of the employee, and not in furtherance of the business
o Employee was in a “frolic of his own”
• Conduct may be within the scope of employment, even if not expressly authorized by the employer, but if it is purely personal in nature, vicarious liability is not appropriate
LINDEMAN V LATTER DAY SAINTS
FACTS:
Plaintiff attended Defendant church’s Sunday school classes taught by Frank.
• Frank was 40 at the time, plaintiff was 15 years old
• Frank pled guilty to asexual assault with a ten-year age difference
• The church holds thousands of Sunday school classes and is only aware of one instance of sexual misconduct on church property
• Bishop miller, who selected frank to be the Sunday school teacher, had no knowledge of any criminal history involving frank
• Nothing inappropriate happened between frank and plaintiff on the church’s property; but they eventually began to communicate through text messages and ultimately had sexual intercourse in Frank’s car outside of his house
• Bishop miller became aware of the relationship and removed Frank as Sunday school teacher
LINDEMAN V LATTER DAY SAINTS RULE
In a claim for negligent supervision against an employer, the plaintiff must prove that the defendant knew his employee posed a risk of harm to the plaintiff. (i.e. the plaintiff must prove that the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employers knows or should have known that the employee would cause harm)
• Whether the employee owes a duty of care to the injured third party boils down to issues of knowledge and causation, whether the employee’s acts are so connected with the employment in time and place such that the employer knows that harm may result from the employee’s conduct and that the employer is given the opportunity to control such conduct
LINDEMAN V LATTER DAY SAINTS REASONING/HOLDING:
There is no evidence the conduct complained was reasonably foreseeable by the church thus triggering a duty to impose specific forms of supervision to prevent it. • Plaintiff’s argument that Frank groomed her during Sunday class and that the sexual conduct would not have occurred without the grooming (that occurred because of negligent supervision) fails to identify specific conduct constituting grooming, to tie that conduct to the Sunday school, and to explain how that conduct would have been deterred by some specific form of supervision. • Defendant’s church’s motion for summary judgement on all claims is granted and it is dismissed from this case entirely, Plaintiff’s motion for summary judgement on the claims for negligent hiring and supervision is denied, and Plaintiff’s motion for summary judgement on the claim of battery is denied. Holding affirmed. For Defendant
Impact of Comparative Fault on Joint and Several Liability:
AMERICAN MOTORCYCLE ASS. V. SUPERIOR COURT OF LOS ANGELES COUNTY
FACTS:
Plaintiff Glen Gargos, a teenage boy, seeks to recover damages for serious injuries he incurred during a cross country motorcycle race for novices
• He alleges the organization that sponsored and collected the entry fee for the event negligently solicited the entrants for the race
• He alleges that as a direct and proximate cause of the negligence he suffered a crushed spine, permanent loss of function of his legs, and inability to perform sexual functions
AMERICAN MOTORCYCLE ASS. V. SUPERIOR COURT OF REASONING/HOLDINGLOS ANGELES COUNTY
A concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished only in proportion to the amount of negligence attributable to the person recovering. Comparative negligence applies
Allocating Liability when a tortfeasor fails to protect the P from the specific risk of an intentional tort:
RULE: APPORTIONMENT OF LIABILITY – RESTATE. 3RD OF TORTS 14
• A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person
Satisfaction of a Judgment and the Aftermath: Contribution and Indemnity
• On occasion, a D who either settled a case or paid a judgment may be entitled to full reimbursement from a joint tortfeasor
RULE: INDEMNITY – RESTE. 3RD 22
• (a) when two or more persons are or may be liable for the same harm and one of them discharges the liability of another in whole or in part by settlement of discharge of judgment, the person discharging the liability is entitled to recover indemnity in the amount paid to the P, plus reasonable legal expenses if:
1. The indemnitor has agreed by contract t indemnify the indemnitee or
2. The indemnitee
Was not liable except vicariously for the tort of the indemnitor or
Was not liable except as a seller of a product supplied to the indemnitee by the indemnitor and the indemnitee was not independently culpable
• (b) a person who is otherwise entitled to recover indemnity pursuant to contract may do so even if the party against whom indemnity is sought would not be liable to the P
Settlement:
• At common law, settlement with one tortfeasor released all joint tortfeasors from liability
• One problem is when one D settles with P and P reserves the right to sue the remaining tortfeasors
o The non-settling tortfeasor goes to trial and suffers a substantial judgment (may the litigating turn to settling D for contribution)
o If contribution is permitted, settling will be discouraged
o If contribution is not permitted, it will leave the non-settling D with the costs
o The 1939 Act left the settling totfeasor liable for contribution, while the 1955 Act adjusted the rule by releasing the settling tortfeasor from contribution if an only if the settlement was made in good faith
MICHE V GREAT LAKES STEEL
FACTS
37 people, members of 13 families, residing in Canada have filed a complaint against 3 corporations which operate seven plants in the U.S. immediately across the Detroit River from Canada
• Ps claim that pollutants emitted by the plants are noxious and violates various municipal and state ordinances
MICHE V GREAT LAKES STEEL RULE:
Restatement 1st of Torts 881 – Where two or more persons, each acting independently, create of maintain a situation which is a tortious invasion of a landowner’s interest in the use and enjoyment of land by interfering with his quiet, light, air, or flowing water, each is liable only for such proportion of the harm caused to the land or of the loss of enjoyment of it ny the owner as his contribution to the harm bears to the total harm
• Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors, subject of course, to subsequent right of contribution among the joint offenders
MICHE V GREAT LAKES STEEL REASONING/HOLDING
The harm here is not divisible so far as the Ps ability to apportion it among the wrongdoers, so courts will permit entire recovery from any or all Ds and the burden will shift to Ds as to which one was responsible and to what degree from the injured party to the wrongdoers
• Disallowing aggregation of the Ps claim for the purpose of establishing diversity jurisdiction, does not apply to this case
DILLION V TWIN STATE GAS
FACTS:
In a negligence action arising from a minor’s death by electrocution after falling from a bridge and grabbing D’s utility wires, D appealed
DILLION V TWIN STATE GAS RULE:
To constitute actionable negligence there must be damage, and damage is limited to those elements the statue prescribes
DILLION V TWIN STATE GAS REASONING/HOLDING:
If but for the current in the wires he would have fallen down on the floor of the bridge or into the river, he would without doubt have been killed or seriously injured. Although he died from electrocution, yet if by reason of his preceeding loss of balance he was bound to fall except for the intervention of the current, he either did not have long to live or was to be maimed. In such an outcome of his loss of balance the D deprived him, not of a normal life, but of one too short to be given pecuniary allowances, in one alterbative, and not of normal, but of limited earning capacity in the other
LIABILITY OF OWNERS AND OCCUPIERS OF LAND
• Possessors of land had a sort of sliding scale of responsibilities depending on whether the entrant to the property was a trespasser, licensee, or invitee
Trespassers:
- Duty to warn of hidden danger
* The possessor of land cannot act in a wanton and willful manner to a known trespasser
Trespassers: Exception:
- When the trespasser was known or discovered, courts imposed a duty of reasonable care on the possessor of land in conducting activities that exposed the trespasser to danger
- Some courts went further and imposed a duty of care, owed to foreseeable trespassers who frequently intrude on a limited area of land, to alert them to them to dangers pf which they would otherwise be aware
RULE: ARTIFICIAL NUISANCE RESTAT. 2ND 339
• Imposes liability on a possessor of land to a child trespasser for physical harm resulting from artificial conditions on the land when the following conditions are met:
o The place where the condition exists is upon which the possessor knows or has reason to know that children are likely to impose and
o The conditions 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
o 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
o The utility to the possessor of maintain the condition and the burden of eliminating the danger are slight as compared with the risk to children involved AND
o The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
Licensees:
• Duty to make safe dangers of which possessor is aware and to warn of hidden dangers
• Licensees are persons who are on the land with the consent of the owner but are there for their own purpose
o Courts consider social guests as licensees
• The law treats licensees similar to trespassers
• The possessor has a duty to conduct activities on the land in a reasonable manner and to warn of hidden dangers known to him
Invitees:
- Highest standard of care is owed to invitees
- Duty to warn, inspect, and eliminate danger
- Exercise reasonable care to protect invitees against both known and unknown (dangers that would be revealed by inspection) dangers
RULE: INVITEES – RESTATE. 2ND 332
• 2 categories of invitees
- Persons who are invited to come on the land for a purpose connected with the business dealings of the possessor and
- Persons who come on the land as a member of the public for a purpose for which the land is held open to the public
RULE: INVITEES – RESTATE. 2ND 343
• Possessor of land is liable to invitees for harm caused by obvious dangers when possessor should anticipate that harm may befall them despite the obviousness of the danger
- All entrants of land are trespassers until the possessor of the land gives them permission to enter
- All persons who enter a premise with permission are licensees until the possessor of the land has an interest in the visit such that the visitor has reason to believe that the premise have been made safe to receive him
CARTER V KINNEY
FACTS
Jonathan Carter, a member of the Northwest Bible Church, attended an early morning bible study at Kinney’s home
• Mr. Kinney had previously shoveled snow from his driveway but was unaware that more ice had formed over night
• Carter slipped on a patch of ice and broke his leg
CARTER V KINNEY RULE
The possessor’s intention in offering the invitation determines the status of the visitor and establishes the duty of care the possessor owes the visitor. The possessor owes a trespasser no duty of care, the possessor owes a licensee the duty to make safe dangers of which the possessor is aware, and the possessor owes invitees the duty to exercise reasonable care to protect them against both known danger and those that would be revealed by inspection.
• All entrants to land are trespassers until the possessor of the lad gives them permission to enter. All persons who enter a premise with permission are licensees until the possessor has an interest in the visit such that the visitor has reason to believe that the premises have been made safe to receive him.
CARTER V KINNEY
Social guests are a subclass of licensees. The invitation was not tendered with any material benefit motive, and the invitation was nit extended to the public generally or to some undefined portion of the public from which entrants might reasonably expect precautions to have been taken to protect against danger.
• An entrant becomes an invitee when the possessor invites with the expectation of a material benefit from the visit or extends an invitation to the public generally
• Mr. Carter did not enter the Kinneys land to afford them any material benefit, he is therefore not an invitee
• The Kinneys also did not throw open their premise to the general public in such a way that would imply a warranty of safety. They took no steps to encourage general attendance by some undefined portion of the public. They only gave permission to a limited class of persons (church members) to enter their property.
• The trial court was correct in concluding that Mr. Carter was a licensee, and the Kinney’s had no duty to protect him from unknown dangerous conditions, and that the defendants were entitled to summary judgment as a matter of law. Holding for defendant.
Rejecting categories:
RULE – DUTIES OF LAND POSSESORS: RESTSTE. 3RD 52
• The tripartite division of entrants should be abolished in favor of the reasonableness standard
• The reasonable standard draws a distinction between ordinary and flagrant trespassers
o For ordinary trespassers, the landowner owes a duty of reasonable care
o For the flagrant trespassers, the landowner’s duty is limited to
Not acting in an intentional, wanton, or willful manner to cause physical harm
Exercising reasonable care for a trespasser who reasonable appears to be in peril (helpless and unable to protect him/her self
**Use old categories on final, but mention the reasonable person standard in analysis
**Proof of being known has to be clear or it cannot be said that D knew
***D either knows or did not know, if a q says D should have known, he will not be liable
ROWLAND V CHRISTIAN
FACTS:
Plaintiff alleged that Ms. Christian told the lessors of her apartment that the knob of the cold water faucet was cracked and needed to be replaced
• Plaintiff entered her apartment after being invited and was injured while using the broken faucet, suffering severe severed tendons and nerves of his right hand
• He further alleged that Ms. Christian was aware of the dangerous conditions
ROWLAND V CHRISTIAN RULE:
Everyone is responsible, not only for the result of his willful acts, but also for injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself
• All persons are required to use ordinary care to prevent others being injured as the result.
• Old Rule: The general rule is that a trespasser and licensee or social guest are obliged to take the premises as they find them insofar as any alleged defective condition may exist and the possessor of land owes them only the duty of refraining from wanton or willful injury. An exception is when the occupier is aware of the dangerous condition, the condition amounts to a concealed trap, and the guest is unaware of the trap
ROWLAND V CHRISTIAN REASONING/HOLDING:
• The status of the plaintiff related to its proper place in determining such liability, and ordinary principles of negligence applied, the result in the instant case presents no substantial difficulties.
• Ms. Christian was aware that the faucet handle was defective and dangerous and the defect was not obvious, and the plaintiff was about to come into contact with it. The trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.
***uses whether or not defendant was negligent instead of classifying visitors
• Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precaution when he comes in contact with it. Judgment reversed, Holding for Plaintiff.
Firefighter’s Rule:
- Firefighters or police who entered in the premise of another to perform their job were treated as licensees
- The owner of the land owed no duty to make the premise safe for a licensee nor to inspect for dangers unknown to the possessor
Recreational Use:
• When private landowners open up their property for public recreational use, courts may classify entrants as licensees or public invitees, or otherwise hold the landowner to a full duty of reasonable care
Duties owed to those outside the Premise:
• Third restatement recognizes the artificial v natural distinction
o For artificial conditions, the landowner has a duty of reasonable care to persons or property not on the land
o For natural conditions, a user of land has a duty of reasonable care, however if the land is used for other (residential) purposes the possessor has a duty only if the risk is known or obvious
Duties owed by lessors:
- A lessor is treated as the equivalent of a vendor of property who had sold the land, unless the vendor knows of dangerous conditions and conceals them
- The third restatement imposes a duty of reasonable care on lessors for portions of the leased premises over which they retain control
SARGENT V ROSS
FACTS
D resided on the ground floor of the apartment building and her son and daughter in law occupied a second story apartment serviced by the stairway in which P’s daughter fell.
• There was no apparent cause for the fall except for evidence that the stairs were dangerously steep and the railing was insufficient to stop somebody from falling
SARGENT V ROSS RULE
Old Rule: A landlord is not liable, except in limited circumstances, for injuries caused by defective or dangerous conditions in the leased premises
• New Rule: A landlord is generally conceded to be liable in tort for injuries resulting from defective and dangerous conditions on the premise if the injury is attributable to 1) a hidden danger of which the landlord but not the tenant knows about 2) a premise leased for public use 3) a premise retained under the landlord’s control such as common stairways and 4) premise negligently repaired by the landlord (Restatement 2nd of Torts 358-362)
• A landlord must act reasonably under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden or reducing or avoiding the risk. The questions of control, hidden defects, and common or public use which were formerly a prerequisite required to even consider negligence of a landlord, will now be relevant only inasmuch as they bear on the basic tort issues such as the foreseeability and unreasonableness of the particular risk of harm (reversed rule of nonliability for landlords)
SARGENT V ROSS REASOING/HOLDING:
- Both P and wife tenant testified that the stairs were too steep and the husband tenant testified that his wife complained to him of this fact. In any event, the use of these steps by young children should have been anticipated by D.
- The dangerous quality of the steps might have been obvious to an adult, but the danger and risk to a child would likely be imperceptible
- We have carefully reviewed the record and conclude that there is sufficient evidence, on the basis of the principles set forth, to support the verdict of the jury. Sustained Holding for Plaintiff.
POSCAL V WALMART STORES
FACTS
Mrs. Posecai went to Sams club to make an exchange and to do some shopping
• As Posecai was placing her purchases in her trunk, a man who was hiding under her car grabbed her ankle and pointed a gun at her.
• The assailant instructed her to hand over her jewelry and her wallet
• She lost a two and a half carat ring given to her by her husband, a diamond and ruby bracelet, and a diamond and gold watch, all valued close to $19,000
• At the time of the armed robbery a security guard was stationed inside the store to protect the cash office , he could not see the outside parking lot
• Two police officers testified that the subdivision behind the Sam’s club is generally known as a high crime area but the Sam’s parking lot is not considered a high crime location
• An expert on crime risk assessment testified that the robbery could have been prevented by an exterior police presence
POSCAL V WALMART STORES RULE
Business owners do have a duty to take reasonable precautions to protect invitees from foreseeable criminal attacks and have a duty to protect their patrons from criminal acts when those acts are foreseeable.
POSCAL V WALMART STORES REASONING/HOLDING:
• There are four approaches to resolve the foreseeability issue
1. Specific Harm Rule (outdated) – a landowner does not owe a duty to protect patrons from the violent acts of third parties unless he is aware of specific, imminent harm about to befall them (courts agree this rule is too restrictive in limiting the duty of protection)
2. Prior Similar Interests Test – foreseeability is established by evidence of previous crimes on or near the business. The idea being past history of criminal conduct will put the landowner on notice of future risk
3. Totality of the Circumstance (most common) – This test takes additional factors into consideration such as the nature, condition, and location of the land. Tends to place a greater duty on business owners to foresee the risk of criminal attacks on their property and has been criticized as being too broad a standard
4. Balancing Test – Seeks to address the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons
The foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against harm. (This court used the balancing test)
• We adopt the following balancing test to be used in deciding whether a business owes a duty of care to protect its customers from criminal acts of third parties. The foreseeability of the crime risk on the D’s property and the gravity of the risk determine the existence and the extent of the D’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business
• The most important factor to consider is the existence, frequency, and similarity of prior instances of crime on the premises, but the location, nature, and condition of the property should also be taken into account
• In this case there were only 3 predatory offenses on Sam’s premises in the 6 and a half years prior to this robbery
• Although the neighborhood bordering Sam’s is considered a high crime area by local law enforcement, the foreseeability and gravity of harm in Sam’s parking lot remains slight
• We conclude that Sam’s did not possess the requisite degree of foreseeability for the imposition of a duty to provide security patrols in the parking lot. Nor was the degree of foreseeability sufficient to support a duty to implement lesser security measures. Accordingly, Sam’s owed no duty to protect P from the criminal acts of third parties under the facts and circumstances of this case. Reversed. Holding for D.
STRICT LIABILITY
• D actor who causes harm is liable even if the actor exercises reasonable care and does not intend to interfere in any way with the P
o Liable with no fault
Strict Liability Categories
- Animals
- Abnormally Dangerous Activity
- Product Liability
Animals:
• Possession of Animals: 3 categories
o Livestock, including cattle, horse, sheep
o Wild animals confined for a variety of reasons
o Dogs, cats, and other domesticated animals
• In General courts impose strict liability on possessors of livestock and wild animals, but hold possessors of domesticated animals in the 3rd category liable only if P proves D knew ahead of time that the animal was prone to violence
• Restatement 3rd 23: indicates that if an animal owner knew of her animal’s dangerous tendencies, which may include a tendency to stray, the owner will no longer merely face a negligent standard, but one of strict liability
o Exception: public zookeepers are only liable if shown to have been negligent
BARD V JAHNKE
FACTS
P Larry Bard, a self employed carpenter, arrived at Jahnke’s farm to repair ripped cow mattresses
• As he was working a number of cows wandered in and out of the barn
• A bull entered and charged Bard, causing him a fractured ribs, a lacerated liver, and exacerbation of a preexisting cervical spine condition
BARD V JAHNKE RULE:
The owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.
• Once this knowledge is established the owner faces strict liability
• The owner of a domestic animal, which the owner does not know or have reason to know or should have known to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm or is negligent in failing to prevent harm.
BARD V JAHNKE REASONING/HOLDING
- Fred (the bull) never attacked any farm animal or human being before. He had always moved unrestrained and regularly came into contact with other farm animals, workers, and members of the Jahnke family without incident or hint of hostility. He never acted in a way that put anyone at risk for harm.
- Jahnke was negligent in failing to restrain Fred or to warn of his presence is no different from arguing that Jahnke was negligent in that he should have known of Fred’s vicious propensities because bulls are generally vicious animals. We have never held that particular breeds or kinds of domestic animals are dangerous, so the owner must encounter prior vicious propensities
- Bard cannot recover under the traditional rule. (st. lia.), Appellate affirmed, with costs. Holding for D. (neg.)
Abnormally Dangerous Activities:
RULE – ABNORMALLY DANGEROUS ACTIVITIES: RESTATE. 3RD 20
• An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity
• An activity is abnormally dangerous if:
1. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
2. The activity is not one of common usage
FLETCHER V RYLANDS
FACTS:
: P was damaged in his property being flooded by water, which without any fault of his own part, broke out of a reservoir constructed on D’s land by the D’s orders and maintained by the Ds.
• D selected competent engineers and contractors to make the reservoir, and were totally ignorant of any defects
• RULE: A person who, for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape> (strict liability)
• He can excuse himself by showing that the escape was owing to the P or that the escape was the consequence of an act of God.
***when going out into the world you are exposing yourself to danger, i.e taking risks, so strict liability isn’t applicable but P was on his own property so he had no reason to expect that he would be subject to risk
FLETCHER V RYLANDS
A person who, for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape> (strict liability)
• He can excuse himself by showing that the escape was owing to the P or that the escape was the consequence of an act of God.
FLETCHER V RYLANDS REASONING/HOLDING
- P took no assumption of the risk and there were no acts of god to excuse D from strict liability.
- P is entitled to recover (no judgment regarding the amount owed to P b/c it was not argued). Holding for P.
TURNER V BIG LAKE OIL CO.
FACTS:
Ds in the error of operation of certain oil wells constructed large artificial earth ponds into which they ran the polluted water from the wells
• Water escaped from one or more of these ponds and passing over the grass lands of the Ps injuring their turf
TURNER V BIG LAKE OIL CO. RULE:
The impounding of water in stream ways, being an obvious and natural use, was necessarily within the contemplation of the parties to the original and adjacentg rants, and damages must be predicated upon negligent use of a granted right and power, while things not within the contemplation of the parties to the original grants, such as unnatural use of the land, the landowner do at his own peril. (Natural use = negligence while Unnatural use = Strict liability)
TURNER V BIG LAKE OIL CO. REASONING/HOLDING:
• The storage of water in Texas is necessary because it is an arid or semiarid region, and almost without any streams or ponds that would naturally store water, without water storage the livestock industry would perish. As a result, the rules predicated in Rylands v Fletcher do not apply here
INDIANA HARBOR BELT RR V AMERICAN CYNAMID CO.
FACTS
American Cyanamid Co is Major manufacturer of chemicals, including acrylonitrile, a chemical used in large quantities in making acrylic fibers, plastics, dyes, etc.
• Its manufacturing plant loaded 20,000 gallons of liquid acry. Onto a railroad tank car
• The next day a train of the Missouri pacific railroad picked up the car, they carried the car to the blue island railroad yard of Indiana, Harbor Belt Railroad (P), who is a small switching line that has a contract with Conrail to switch cars from other lines to travel east
• Several hours after the car arrived in Indiana employees noticed fluid gushing from the bottom of the car
• The lid on the outlet of the car was broken
• The supervisor was able to stop the leak but it was unknown as to how much of the fluid leaked out so local authorities evacuated nearby homes
• Only about a quarter of the liquid spilled out
INDIANA HARBOR BELT RR V AMERICAN CYNAMID CO. RULE
A particular type of accident cannot be prevented by taking care but can be avoided, or its consequences minimized, by shifting the activity in which the accident occurs to another locale, where the risk of harm of an accident will be less, or by reducing the scale of the activity in order to minimize the number of accidents caused by it. The greater the risk of an accident and the costs of the accident if one occurs, the more we want the actor to consider the possibility of making accident reducing activity changes; the stronger, therefore is the case for strict liability. Finally if an activity is extremely common, like driving an automobile, it is unlikely either that its hazards are perceived as great or that there is no technology of care available to minimize them, so the case for strict liability is minimized
INDIANA HARBOR BELT RR V AMERICAN CYNAMID CO
The case for strict liability has not been made. Judgment reversed and remanded on the P’s claim for negligence. Holding for P.
***when due care avoids the harm, negligence is a more applicable claim than strict liability
FOSTER V PRESTON MILL CO.
FACTS:
Blasting operations conducted by the Preston Mill company frightened a mother mink owned by Foster, and caused the mink to kill its kittens
• Foster bought this action to recover damages
FOSTER V PRESTON MILL CO .RULE
Strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility
• One who carries on an ultrahazardous activity is liable to another whose person, land, or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the upmost care is exercised to prevent the harm
FOSTER V PRESTON MILL CO. APPLICATION
- The thing which makes blasting ultrahazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air
- The relatively moderate vibration and noise which appellant’s blasting produced at a distance of two and a quarter miles was no more than a usual incident of the ordinary life of the community
- It is our conclusion that the risk of causing harm of the kind here experienced, as a result of the relatively minor vibration, concussion, and noise from distant blasting, is not the kind of risk which makes the activity of blasting ultrahazardous.The doctrine of absolute liability is therefore inapplicable under the fact of this case, and respondent is not entitled to recover damages.
PRODUCTS LIABILTY
• Injury caused by defective and dangerous products
• Legal Theories Used:
o Negligence
o Strict Liability
o Express Warranty
o Misrepresentation
o Implied Warranty of Merchantability
o Implied Warranty of Fitness for a Particular Purpose
• Privity: P has direct contact with D manufacturer does not bar negligence or strict liability but it remains an obstacle to recovery when a P seeks to recover for economic loss
o Because claims for economic loss are based in contract law and the lack of direct contractual relationship may be fatal for recovery
• Privity required in implied warranty of merchantability is practically useless for a P seeking recovery for injuries because of all of the restrictions and requirements in UCC
RULE: SPECIAL LIABILTY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER – RESTATE. 2ND 402
• 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:
o The seller is engaged in the business of selling such product AND
o It is expected to and does reach the user or consumer without substantial change in the condition in which it was sold
• This rule applies although
o The seller has exercised all possible care in the preparation and sale of his product and
o The user or consumer has not bought the product from or entered into any contractual relation with the seller
3 Categories of Defect
- Manufacturing Defect
- Failure to Warn
- Defective Design
RULE – LIABILITY OF COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM CAUSED BY DEFECTIVE PRODUCTS
• One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect
RULE: CATEGORIES OF PRODUCT DEFECT
• A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product
a) Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product
b) Is defective in design when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe
c) Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced of avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings render the product not reasonably safe
WELGE V PLANTERS LIFESAVERS CO.
FACTS
Welge bought planters peanuts and a week later he removed the plastic seal from the jar, uncapped it, took some peanuts, replaced the cap, and returned the jar to the top of the refrigerator, all without incident
• A week after that Welge took down the jar, removed the plastic cap, spilled some peanuts into his hand, and replaced the cap, but as he pushed down the cap on the open jar the jar shattered. His hand was severely cut
WELGE V PLANTERS LIFESAVERS CO. RULE
If it is the kind of accident that would not have occurred but for a defect in the product, and if it is reasonably plain that the defect was not introduced after the product was sold, the accident is evidence that the product was defective when sold.
• The P in a strict liability suit is not required to exclude every possibility, however fantastic or remote, then the defect which led to the accident was caused by someone other than one of the Ds. The doctrine of res ipsa loquitor teaches that an accident that is unlikely to occur unless the D was negligent is itself circumstantial evidence that the D was negligent. The doctrine is not strictly applicable to products liability cases because unlike an ordinary accident, the D in a products liability case has parted with possession and control of the harmful object before the accident occurs
WELGE V PLANTERS LIFESAVERS CO. APPLICATION
- If Welge is to be believed it excludes all reasonable possibility that the defect was introduced into the jar after it was plucked from the shelf at K-mart, from the shelft put in a shopping cart, then handled by the checker at the check out counter, then placed in a plastic bag, then carried to the car and placed on the car floor, drove home, and placed in the refrigerator without incident. This argument overlooks two things, one is that karen godfrey took a knife to the jar
- The experts agreed that the jar must have contained a defect but they could not find the fracture that had precipitated the shattering of the jar and they could not figure out when the defect that caused the fracture that caused the collapse of the jar had come into being
- Here we know to a reasonable certainty that the accident was not due to mis-handling after purchase but to a defect that had been introduced earlier
The restatement and case law on inference of defect:
RULE: CIRCUMSTANTIAL EVIDENCE SUPPORTING INFERENCE OF PRODUCT DEFECT
• It may be inferred that the harm sustained by the P was caused by a product defect existing as the time of sale or distribution, without proof of a specific defect, when the incident that harmed the P
a) Was of a kind that ordinarily occurs as a result of product defect AND
b) Was not, in the particular case, solely the result of caused other than product defect existing at the time of sale or distribution
DESIGN DEFECT
Design Defects: factors relevant in determining whether the omission of a reasonable alternative design renders a product not reasonably safe
o A product is defective in design if the omission of a reasonable alternative design renders the product not reasonably safe
• The rick utility balancing test is used to define defects
Risk Utility Balancing Test:
- Used to decide whether a product design is reasonably safe
- Restatement 2(b) requires a P establish that the foreseeable risks of harm could have reduced or avoided by the adoption of a reasonable alternative design’
Factors used to determine if a design is reasonably safe:
• The magnitude and probability of foreseeable risks of harm
• The instructions and warnings accompanying the product
• The nature and strength of consumer expectations regarding the product
o Includes expectations which arise from product portrayal and marketing
• Alternative design costs
PRENTIS V YALE MANUFACTURING CO.
FACTS
P John and his wife Helen bought suit alleging both negligence and breach of implied warranty, predicating D manufacture’s liability upon the alleged defective design of the forklift
• John was employed as foreman of the parts department at an automobile dealership, and he sustained a hip injury in an accident involving the use of a forklift manufactured by D Yale Manufacturing
• John was never formally instructed how to use the forklift upon employment
• John knew that the forklift acted erratically when it was on a low batter on prior occasions, and on the day of the accident John was aware that the battery was low
PRENTIS V YALE MANUFACTURING CO. RULE
Whether a suit is based upon negligence or implied warranty, requires P to prove that the product itself is actionable, thus that something is wrong with the product that makes it dangerous
• Injuries caused by the condition of a product may also be actionable if the product’s design, which is the result of intentional design decisions of the manufacturer, is not sufficiently safe
• Approaches to determine defect: 1) negligence utility analysis, which focuses upon whether the manufacturer would be judged negligent if it had known of the product’s dangerous condition at the time it was marketed 2) the risk and utility of the product at the time of trial 3) Consumer Expectations of the product and 4) a combination of the risk utility and consumer expectation test
PRENTIS V YALE MANUFACTURING CO. APPLICATION
- The overwhelming consensus among courts deciding design defect cases is in the use of some form of risk utility analysis, either as an exclusive or alternative ground of liability
- Risk utility involves an assessment of the decisions made by the manufacturers with respect to their products
- The issue is whether the manufacturer properly weighed the alternatives and evaluated the trade-offs, and thereby developed a reasonably safe product
- When a jury decides a risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be) it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have.
- A manufacturer of a product made under a plan or design which makes it dangerous for uses for which it is manufactured for, subject to liability to others whom he should expect to use the product or to be endangered by its probable use from physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design
- A manufacturer has a duty to use reasonable care in designing the product and guard it against a foreseeable and unreasonable risk of injury and this may even include misuse which might reasonably be anticipated
- We hold that in a products liability action against a manufacturer, based upon defective design, the jury need only be instructed on a single unified theory of negligence, and the jury here was instructed to consider whether the manufacturer took reasonable care in light of any reasonably foreseeable use of the product which might cause or injury, so the instruction is adequate
VANTOUR V BODY MASTERS SPORTS INDUSTRIES INC.
FACTS
Mr. Vantour was injured while using the leg press machine manufactured by D
• Mr. Vantour contends the location of the safety stops exposed users to an unreasonable risk of harm and that the design defect caused his injuries
• An expert witness testified that the machine, as designed, is hazardous because it does not adapt well to a wide range of body sizes and weightlifters may perform calf exercises without the upper stops engaged
VANTOUR V BODY MASTERS SPORTS INDUSTRIES INC. RULE
To prevail on a defective design products liability claim, a P must prove the following four elements. (1) the design of the product created a defective condition unreasonably dangerous to the user, (2) the condition existed when the product was sold by a seller in the business of selling such products, (3) the use of the product was reasonably foreseeable by the manufacturer and (4) the condition caused the injury to the user or the user’s property
• Under a risk utility approach, a product is defective as designed if the magnitude of the of the danger outweighs the utility of the product
• In order to determine whether the risks outweigh the benefits of the product design, a jury must evaluate many possible factors, including the usefulness and desirability of the product to the public as a whole, whether the risk of danger could have been reduced without significantly affecting either the product’s effectiveness or manufacturing cost, and the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable users
• The Restatement Third of Torts 2 requires a P in a design defect case to prove that the risks of harm posed by the product could have been reduced or avoided by a reasonable alternative design…”a product is defective in design when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product nor reasonably safe
VANTOUR V BODY MASTERS SPORTS INDUSTRIES INC. APPLICATION
- We are satisfied that the risk utility test as currently applied protects the interests of both consumers and manufacturers in design defect cases, and we decline to adopt the restatement
- Here, the P presented sufficient evidence that the leg press machine was unreasonably dangerous pursuant to the risk utility balancing test. The P’s expert testified that the D’s design was dangerous to the user, from an injury perspective, and his proposed design was safer than the D’s current design
- Thus we hold that the trial court erroneously granted D’s motion for directed verdict upon the P’s strict liability design defect claim
Consumer’s Expectation Test:
- One argument is the way to move toward strict liability is not to ask whether there was a better way to design the product, but to impose liability if the product disappoints consumer expectations.
- If it does, then even if there was no reasonable alternative design, the P prevails
IZZARELLI V REYNOLDS TOB CO.
FACTS:
D added ammonia compounds to turn nicotine into its more potent freebase form and understood that increasing the free nicotine would enhance the addictive properties of Salem cigarettes, while decreasing the nicotine yield of the cigarettes would increase the number of cigarettes needed to meet the smoker’s addiction demand
• P began smoking in the early 70s when she was about 12 years old and became severely addicted, eventually 2 to 3 pack of Salem cigarettes daily
• At age 36 P was diagnosed with cancer of the larynx and to treat it her larynx was removed and she received radiation
• After her diagnosis and treatment P commenced the present product liability action in federal court under theories of strict liability and negligent design
IZZARELLI V REYNOLDS TOB CO. RULE
The court decided to adopt a test that would incorporate risk utility factors into the ordinary consumer framework. Under the modified consumer expectation test, the jury would weigh the product’s risks and utility and then inquire, in light of those factors, whether a reasonable consumer would consider the product design unreasonably dangerous
IZZARELLI V REYNOLDS TOB CO. APPLICATION
- The ordinary consumer expectation test is reserved for cases in which the product failed to meet the ordinary consumer’s minimum safety expectations, such as res ispa type cases. A jury could not reasonably conclude that cigarettes that cause cancer fail to meet the consumer’s minimum safety expectations. Therefore, the P was required to proceed under the modified consumer expectation test
- A product might meet the consumer’s minimum safety expectations because the product’s dangers are known or obvious but nonetheless be defective because it could have been designed to be less dangerous without reasonably compromising cost or utility
- Finally, we note that other jurisdictions applying some form of risk utility test to design defect claims against cigarette manufacturers have found no impediment to the application of that test if the P identifies some defect specific to the cigarette brands at issue and/or a reasonably safer alternative
Purpose of Modified Consumer Expectation Test
Is to keep strict liability pure and not have design defect cases revert to a reasonableness test, so they add on a final consumer check after evaluating reasonableness
Two-Pronged Test for Defect:
SOULE V GENERAL MOTORS
FACTS
P was driving her 1982 Camaro and there was a slight drizzle, the roadway was damp and P was not wearing a seatbelt
• A 1972 Datsun approaching the northbound suddenly skidded into the path of P’s car
• The collision bent the Camaro’s frame adjacent to the wheel and tore loose the frame, as a result the wheel collapsed rearward and inward
• The wheel hit the underside of the toe pan, the slanted floorboard area beneath the pedals, causing the toe pan to crumble upward into the passenger compartment
• P received a fractured rib and relatively minor scalp and knee injuries. Her most severe injuries were fractures of both ankles and the more serious of these was the compound compression fracture of her left ankle
• P sued GM asserting a theory of strict tort liability for a defective product
SOULE V GENERAL MOTORS RULE
A product is defective in design if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if there is a risk of danger inherent in the design which outweighs the benefit of the design
• To establish liability for a design defect under the ordinary consumer expectations standard the P must show (1) the manufacturer’s product failed to perform as safely as an ordinary consumer would expect (2) the defect existed when the product left the manufacturer’s possession (3) the defect was a legal cause of P’s enhanced injury and (4) the product was used in a reasonably foreseeable manner
• An injured person is not foreclosed from proving a defect in the product’s design simply because he cannot show that the reasonable minimum safety expectation of the ordinary consumers were violated. Under Barker’s alternative test, a product is still defective if its design embodies excessive preventable danger that is unless the benefits of the design outweigh the risk of danger inherent in such design
• The two prong Barker test states: A product is defective in design if (1) it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if there is a risk of danger inherent in the design which outweighs the benefit of the design
• 2 Prong Test: Unless the facts actually permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing if risks and benefits required by the second prong of Barker
SOULE V GENERAL MOTORS APPLICATION
- We agree that the instant jury should not have been instructed on ordinary consumer expectations. P’s theory of design defect was one of technical and mechanical detail. It sought to examine the precise behavior of several obscure components of her car under the complex circumstances of a particular accident
- An ordinary consumer of automobiles cannot reasonably expect that a car’s frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and understanding infrom such a consumer how safely an automobile’s design should perform under the esoteric circumstances of the collision at issue here
