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TORTS II - JA - Torts II By Jeff Amato Professor Lyndon I...

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Torts II By Jeff Amato Professor Lyndon I. Goals of Tort Law Compensation Deterrence Administrability Claiming – Lawsuits brought to advance an agenda II. Strict Liability No fault No breach of duty required Those engaged in certain kinds of activities do so at there own peril, and must pay for the damages even if the activity has been carried out in the most careful way. Policy – If an enterprise deliberately engages in an activity that is highly dangerous even when reasonable care is exercised and the activity is not of common usage, then such an intentional exposure to danger, however socially desirable, can be regarded as a sound basis on which to allocate the risk of loss to the person engaging in the activity. Policy – If it is possible to lessen the risk of harm by more care it would be detrimental to impose strict liability because it will cause the enterprise to avoid taking steps to promote due care. Economic Analysis Negligence protects those activities that are cost effective to prevent Strict Liability makes them pay for all activities Social policy dictates that the enterprise should bear the costs of injury Because the activities are relatively rare, each represents a situation in which the operator imposes risks on others, but there is a small chance that they will be subject to the same harm from someone else. (Driving an automobile distinguished from an unusually dangerous activity) Wild Animals Owners of trespassing animals, that are likely to roam, are strictly liable for the damage they cause. Cats and dogs were excepted because their utility is lessened when they are caged. Cows on the western US were also excepted… law evolved to fit the custom of the area. Enterprise Liability Business should pay for the extra costs that they impose on others… 1
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“Externalities” A failure in the market… i.e. when a company pollutes a river instead of treating the pollution which would cost money. The system is suppose to correct this failure. Efficient to make businesses pay for their social costs. Abnormally Dangerous Activities 1. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm 2. The defendant’s hazardous enterprise will be tolerated by the law but must pay its way because it is socially valuable. 3. Liability is imposed on those best able to shoulder it. 4. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. 5. Emphasis on the naturalness or unnaturalness of the activity.
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