Torts Second Semester

Torts – Second Semester

STRICT LIABILITY

General Information
Liability without fault
However, there are some defenses
Public policy: In certain situations, the π should be given right to recovery, notwithstanding that there was no fault on part of Δ
There still must be causation
Abnormally Dangerous or Hazardous Activities
Abnormally Dangerous (ADA): So dangerous they involve serious risk of harm to others despite the use of utmost care to prevent harm
Strict liability is imposed on those who engage in such activities
Ultrahazardous: Those abnormal to the area, which necessarily involve risk to persons, land or chattels
Cannot be eliminated by the use of utmost care
The Rylands Rule: A landowner is liable to adjacent landowners when he brings onto his land an unnatural, artificial device that causes something to escape from the land and harms another’s land or chattels.
i.e., introducing something to the land that would not occur in its natural condition is done at landowner’s risk at being held absolutely liable for consequences that result
Accepted by majority of American courts
Not followed in Texas, where the courts found that such reservoirs were common in the area, and not held to the same rule
Jurisdictions are split as to whether to apply rule to personal injury as well
Set forth in English case – landowner built reservoir on land, saw mine shafts, and continued to build anyway; flooded neighbor’s mine shafts; is prima facie answerable for all damage that is the natural consequence of its escape. Rylands v Fletcher
Conversely, the rule does not apply if water accumulated naturally (from rain, etc) and ran onto neighbor’s land – there would be no valid complaint in such a case
The court does not set forth a definition of unnatural, but makes suggestions:
Most likely: Uncommon and inappropriate for the location
e.g., if dealing with building mining shaft, and mining is common to the area, anyone moving to the area would have taken on a type of assumption of risk for any damage caused by such activities
Placement of something human-made on one parcel of land for the benefit or industrial usage of another parcel of land
Something that benefits only the landowner
Use may be deemed natural if surrounding landowners also benefit from use
Distinguishable from traffic and other cases that require proof of a Δ’s negligence for recovery
Disadvantages:
Some industries may not be started at all for fear of being held strictly liable for any damage
Charge higher prices for goods created by the industry in order to compensate for lawsuit fees
Restatement Formulation
§519 – liable even if landholder exhibits reasonable care to prevent the harm
Comment e – applies only to harm that is within the scope of the abnormal risk that is the basis for liability; carrying on the activity does not make one liable for every possible harm that may result from carrying it on (CAUSATION)
Example: If a car transporting dynamite blows up – strict liability; If the same car runs over a child, it is not related to the dangerous activity of transporting dynamite – negligence, not strict liability
§520 – sets forth way to determine whether something is abnormally dangerous:
high degree of risk of some harm to other person’ land, person or chattels;
great likelihood harm would result;
inability to eliminate risk by exercise of reasonable care;
extent to which activity is not of common usage;
Certain activities, notwithstanding their recognizable danger, are so generally carried on as to be regarded as customary
Example: accidents of cars and planes – generally held outside the provisions of the code due to their common usage
inappropriateness of activity to the place; AND
extent to which its value to the community is outweighed by its dangerous attributes
“social utility” is a subjective, controversial requirement – and has been removed by the proposed R.3d Torts
Together they set forth SIX STANDARDS for determining whether something is abnormally dangerous – none are conclusive
Example: Transportation of gasoline, especially ay high speeds on a highway, meets the requirement of strict liability. Involves a high degree of risk, and it is likely that any explosion would destroy all evidence. Siegler v Kuhlman
CAUSATION
Still must prove causation when the activity is abnormally dangerous
Examples of no strict liability:
Where a landowner does blasting on his land, and causes minks at a nearby farm to eat their young, that result is too remotely connected to the blasting to be upheld to strict liability. Madsen v Jordan Irrigation
Was actual cause, but not legal causation
Court discussed “anticipation” (foreseeability approach) and “remoteness of harm” (directness approach)
Wherea railroad car carrying chemicals spills, and the RR switching company sues the company that loaded the material into the car for money it had to pay for chemical cleanup, was not strict liability. The injury was cause by carelessness, not by the nature of the chemicals. Indiana Harbor Belt RR v American Cyanamid
An action for negligence would be perfectly adequate given the situation.
The rule looks to the hazardousness of the activity, not of the substances involved (e.g., chemicals)

NUISANCE

General Information
Is not a separate tort in itself – is a type of harm
A defendant’s interference with a plaintiff’s right , or with use and enjoyment of property
A field of liability arising from certain types of damage or harm
A landowner is entitled to use his land at the expense of some harm to the neighbors, but if the harm is unreasonable, then it is nuisance
It is possible to show that a use is reasonable, while the harm caused is unreasonable
Restatement §826 – Unreasonable means:
the gravity of harm outweighs the utility of Δ’s conduct; OR
the harm caused is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.
i.e., could continue with the conduct after compensating other party
Some believe the application of reasonableness is bringing negligence principles to the arena of nuisance
Does it hearken back to the Hand formula??
Different Principles in Nuisance
Reciprocity – Application of the “live and let live” principle – Where certain activities are done that benefit both parties, and which both parties would be entitled to do on their own land, then not held to be a nuisance
Such as emptying cesspools, home repairs, burning weeds, etc.
Also applies to public goods, such as railroads (although requires just compensation)
Should not be done wantonly or maliciously
Locality Rule – Activities that may be reasonable in one locality, may be unlawful and unreasonable (and a nuisance) in another locale
Reasonableness depends on the circumstances in each case
Types of harm recoverable
deprivation of use or enjoyment
Includes pleasure, comfort, and joy derived from use of land
temporary diminution in value
permanent diminution in value
personal discomfort
injury to health
reasonable expenses
Three bases for liability, upon which a π can be successful in nuisance claim:
Use of property was intentional and unreasonable
Interference with property was negligent
Strict liability based on abnormally dangerous activities (ADA)
NOTE: π only need prove one to be successful
CAUSATION
In some cases, courts have found effects of nuisance-like activities have been “insufficiently direct”
Water Pollution Examples:
Seafood wholesalers, retailers and distributors have not been allowed to recover where fishermen have
Natives have not been able to recover for “cultural damage” because effects on fishing somehow damaged their “subsistence way of life”
Private Nuisance
An unreasonable and substantial interference with the use or enjoyment of an individuals’ property interest in land (which plaintiff owns or to which he has right of immediate possession)
Not trespass – does not require physical entry upon land
Examples:
Where an electric company places electricity lines on a property, causing the cows to have problems and produce less milk, the court looks at whether it is intentional. It is not, and is not nuisance, because as soon as company learned of the problem, the fixed it. Vogel v Grant-Lafayette Electric
There was harm caused, but was unintentional, and would be otherwise actionable under negligence
At the very least, the company would have to pay the cow owners for their lost profits caused by the electrical lines
Where two companies are next to one another – one covers pipes with asphalt and the other produces white candles – and asphalt from the first floats over and ruins the white candles. Court must first determine whether it was intentional before it can be deemed a nuisance (look at evaluation strategies below)
ANALYSIS for a private nuisance
Strict Liability for ADA
Consider the 6 requirements under the Restatement
Ex: high degree of risk; great harm; inability to eliminate risk
Negligence
Duty
Whether it was foreseeable by a reasonable person engaged in this activity that harm may result to surrounding businesses / residences
Causation
Direct / Foreseeable causation
Breach
Can consider custom (adhering to a standard in the industry?)
Apply Hand formula
If the burden would be too high, would not be negligence
Intentional and Unreasonable
Public Nuisance
Interference with a public right or interest, common to all citizens
May be created by the same incident as a private nuisance
Must show special damages, different from that experienced by the public at large
Must be different in kind, not just degree
A plaintiff may not recover for purely pecuniary (financial) loss
Example: Where fishermen’s profits are negatively affected by pollution in a river, but they do not own the river or the fish in it, the issue is solely financial, and cannot be a nuisance. Oppen.
Minority view: Where resulting injury is foreseeable, and resulting directly from defendant’s activity, the plaintiff should be compensated
Could be an issue of:
Location (more closely positioned to cause of harm than others)
Personal injury
total loss of access to private land
DEFENSES to Nuisance
Coming to the Nuisance
Applicable where the defendant had been present doing business in a certain way for a long period of time, before plaintiff’s arrival
Is not a complete defense, only a consideration (adopting R.2d § 840D)
Courts unwilling to make a rule wherein whoever is somewhere first has the right to continue their activities in the same way forever
i.e., One cannot create a nuisance on his land and thereby attempt to control the ways in which surrounding land may be used in future years
Example: A dog breeder who operated in a way that was a nuisance (smells, noises) to the neighborhood that grew around her land was unable to continue operations in the same way
Minority view: application assumption of risk argument
In such a situation, it is likely the plaintiff received a benefit (e.g., reduction in property price), and retaining an action in nuisance could put the π in too good a situation
If where the business and residence is located is zoned commercial or industrial, some courts would allow the defendant to continue his business in the same manner.
In such a case, the residential owner chose to move to an area zoned for commercial purposes, and would assume the associated risk
Baxter-Altree Rule – takes an economic analysis to “coming to the nuisance”
“Of two incompatible land uses, the one which had but did not take the opportunity to avoid creating costs of incompatibility should bear the costs”
It follows generally that the first party to invent in a given area should be protected
Is an implicit bargain between the two landowners in which the first person allows the second person to operate on the condition that the second waives any statute of limitations objection should the first develop his land
Extra-Sensitive Plaintiffs
Restatement §821F – Liability for nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by prop. in normal condition and used for a normal purpose.
Example: A plaintiff who operates a drive-in theater on land was unable to recover from a defendant who used bright artificial lighting b/c the use was ultra-sensitive. Belmar Drive-In
Plaintiff’s Duty to Mitigate Damages
Every plaintiff has a duty to mitigate damages
Amounts to contributory negligence if pleading the nuisance case on a negligence basis
Zoning Compliance
If what the defendant is doing is in compliance with the controlling zoning ordinances, or has a use permit, the courts should not upset the land use scheme approved by the legislative body
A court can come out on either side of this issue, depending on the activity and its effects
Is not necessarily a complete defense
Conduct of Others
No one actors is liable for all the damage caused by the concurrence of his acts and others
Nuisance Remedies
Injunction
A few options:
Immediate injunction
Future Injunction
A time is set for which research and development to change operations must be completed, and operations changed, or else injunction imposed
Injunction until money damages paid
Courts are typically quite cautious in denying injunctive relief – is a presumptive, not absolute, remedy
Purchased Injunction
The plaintiff may enjoin the defendant, but only if he is prepared to compensate the defendant for the loss incurred
Example: When a developer builds homes near an existing cattle feedlot, and encourages people to buy homes there, the feed lot owner must move because he now causes an infringement on the rights of the public. The defendant is not at fault. The plaintiff, having brought people to the nuisance to the foreseeable detriment of Δ, must pay for Δ to move to a new location. Spur Industries v Del Webb
Money Damages
Permanent damages may be awarded in lieu of injunction if the value of activities is disproportionate to the relatively small damage caused thereby
Revisit of the “reasonableness” issue
Example: Where a large cement plant creates dirt and vibrations, and surrounding residences suffer damages – no injunction b/c the value of the plant is considerable and the plant cannot be operated in a different manner. Boomer v Atlantic Cement
If an injunction had been issued, they would have had to close the plant
Industry considerations
Look to custom – if there has been no other way found to conduct such a business, then an injunction would be unfair
Courts should not put the burden of changing the way an entire industry operates on one private enterprise
e.g., pollution-causing businesses
Best left to legislature to control such businesses that create a public nuisance
Two types:
Temporary damages
Made in installments
Allows the court to make an actual assessment of actual harm without having to speculate about future events
Great administrative costs – requires constant watch and reevaluation by courts
Permanent damages
Made in one lump sum
Risk of inaccuracy in valuation of award
NOTE: A plaintiff is required to mitigate damages, so if it would cost less to make a change to his own business than the amount of the award sought, the court will award the amount for change in business (not the greater amount sought from defendant)
Self-Help
By plaintiff to abate nuisance
Must be only reasonable force, which does not include bodily harm on anyone

PRODUCTS LIABILITY

Types of Liability

Liability Theories -- General Information
Four Types
Intentional Product Liability
Negligence
Warranty Theory (implied / express)
Strict Liability
On exam – should consider each individually, unless the question indicates one over another
Liability Based on Intent
A Δ will be liable to anyone injured by an unsafe product if Δ intended the consequences or knew that they were substantially certain to occur
Not very common, because a plaintiff would have to prove that a manufacturer intended to make a product to harm people
If the requisite intent is established, the tort of battery will most likely be employed
PRIVITY is not required
Damages: In addition to compensatory damages, punitive damages would be available
Defenses: Usual intentional tort defenses would be available – e.g., consent
Negligence defenses (contributory negligence / assumption of risk) are not available
Negligence Liability Theory
Must prove typical negligence elements:
Duty – by defendant to that particular plaintiff
Breach
Cause – actual or proximate
Damages

DUTY

Duty of due care arises when the Δ engages in affirmative conduct associated with being a commercial supplier of products
“Suppliers” include: manufacturer of product or component part, assembler, wholesaler, retailer, or the seller of reconditioned or rebuilt products
NOTE: Those who repair generally are under a duty, but not under product liability
PRIVITY: “MacPherson Rule” – Any foreseeable user of a product can sue for harm done by the product negligently made. MacPherson v Buick Motor
i.e., The manufacturer AND supplier are under a duty to all foreseeable users to exercise reasonable care in the manufacture and supply of the product
Followed by every jx
Applications of the rule:
Damage to foreseeable users, where the product itself is reasonably certain to place life and limb in peril when it is negligently manufactured
Would be a different outcome if the only foreseeable user of the product is the original purchaser
Damage to property in the vicinity of expected use, where the product itself is dangerous to life and limb b/c it is negligently made
Damage to reasonably foreseeable non-users in the vicinity of the expected use of the product
Damage to the product sold resulting from its own defects
Damage caused by defects in design as opposed to defects in manufacture
Liability for products negligently manufactures but posing a foreseeable risk to property only
Liability of a processor of a product at an intermediate stage
Liability of one who sells another’s product as his own (ex: dealers, distributors, and any other party in the chain of sale)

BREACH