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Lauren Magnotti Torts 2

Lauren Magnotti Torts 2 - Torts II Spring 2004 Professor...

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Torts II, Spring 2004 – Professor Tamanaha By: Lauren Magnotti I. STRICT LIABILITY – The π does not need to show breach or fault. A. Animals 1. Trespassing Animals a. English common law – Owner of an animal likely to roam (ie. cattle, goats) was strictly liable for damage caused by trespassing animals, but not so for domestic animals. b. American Rule – In most US jurisdictions, the English rule applies, particularly in the Eastern US. 1) Western states – Because economy relies in part on grazing livestock, some states did not adopt strict liability. a) Fencing-in Statutes – an owner is strictly liable only if he does not try to fence in his animals. b) Fencing-out Statutes – if a π properly fences in her land, she ahs a strict liability claim against a person whose animals break in. 2) Use of highway – Even in some Eastern states, if the ∆ is using a public road to transport animals to market, he is not strictly liable if they wander onto land immediately adjoining the road. 2. Non-trespassing Animals – Strict liability sometimes exists for harm done by “dangerous animals” kept by ∆. “Dangerous” turns on whether the animal is wild or domestic. a. Wild Animals – A person who keeps a wild animal is strictly liable for all damage done by it, as long as either 1) the damage results from a “dangerous propensity” that is typical of the species , or 2) the damage results from a “dangerous tendency” of the particular animal of which the owner is or should be aware. a) Thus injuries from a domestic animal do not give rise to strict liability except when the owner knows or should know of the animal’s dangerous characteristic. i. This does not mean that every dog gets one free bite (ie. it may have bit unsuccessfully before. 1
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ii. In distinguishing wild from domestic, a domestic animal is, by custom, “devoted to the service of mankind,” such that bulls and stallions are domestic. a.a. The basis is that owning the animals serves a social function, and should not be discouraged by excessive liability. B. Abnormally Dangerous Activities , aka Ultrahazardous Activities 1. Elements a. Abnormally Dangerous Activity – The Second Restatement gives six factors to decide whether an activity is abnormally dangerous: 1) The risk of harm is great. 2) The harm that would ensue if the risk materialized could be great. 3) The accident could not be prevented by the exercise of due care. (KEY requirement) a) Can argue that had the ∆ used due care, the accident would not have occurred, and raise both causes of action. If, even if you are careful, the harm can follow, then negligence is not enough. If negligence would be enough, and there is no breach, then you don’t pay. i. EXAMPLE – The guy who owned the tiger had a duty of care to restrain
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Lauren Magnotti Torts 2 - Torts II Spring 2004 Professor...

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