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Torts II - JH - Torts II Outline Justin Hoffman Professor...

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Torts II Outline – Justin Hoffman – Professor Lyndon I Introduction to Modern Tort Liability A) Intent B) Negligence – In negligence, the duty was calculated through the defendant’s point of view at the time of the act (Learned Hand Formula). The question is: Did the defendant take reasonable care at the point (the right cost benefit analysis) in acting? C) Strict Liability – State of mind of the defendant is not in question. Gone is the “moral weight” accorded to the first two categories (custom, common sense grounds). The factors used in assessing an “abnormally dangerous activity” are essentially a cost benefit analysis by the judge, looking at the activity now. If the activity is dangerous enough (abnormally dangerous), then we won’t require the plaintiff to prove negligence. a. Strict liability (absolute liability) was often treated as too broad and unacceptable. The abhorrence of absolute liability came from the idea that the government would be interfering without any moral justification. II Strict Liability A) Animals a. Domestic animals – The owner of animals that are likely to roam (and do damage if they roam) will be strictly liable for their trespass. Even if the cattle owner takes all possible care, the owner will still be liable. 1. Exceptions i. Household animals (dogs, cats). a. Difficult to restrain b. Not considered to have value (if restrained, because their function relies on their being free to roam) ii. Cattle that stray from the road (exemption only for owner of land adjacent to the highway) a. Need to driven from place to place. b. Common law doctrine from England to the US – the US is much bigger and is suited to economic expansion, with great variety of settlement areas. iii. Fencing statutes – varied according to the local economy. In settings were farming was predominant, fencing in was the rule. In situations where cattle raising was the norm, fencing out was the rule. When the economy changed, the statute would change. b. Wild Animals Rule – Someone who undertakes to maintain a wild animal is strictly liable, regardless of the level of care. The issue then becomes the classification of the animal. Utility of having such an animal is outweighed by magnitude of risk of harm. (Minority: Impose negligence standard with level of care enhanced to “extreme caution.”) 1
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1. Vicious / Dangerous exception – If owner knows (or has reason to know) its domestic animal is vicious, liability is imposed. If defendant can’t prove plaintiff’s knowledge, then go to negligence standard. 2. Statutory provisions – Leash statute violations constitute negligence per se. 3. Beware of Dog signs – Can relieve owner of liability if conspicuous and disregarded (Florida). B) Abnormally Dangerous Activities – a. Rylands v. Fletcher –A reservoir is like cattle, because if it gets out of control, it’s likely to cause damage. “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 as his peril
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