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Unformatted text preview: TORTS PROFESSOR TAMANAHA SPRING 2004 I. STRICT LIABILITY- D Liable without any fault (no intent or negligence) A. Prima Facie Case: 1. Act or omission by D 2. Duty to Avoid Harm (to foreseeable plaintiffs against foreseeable hazards) 3. Breach of Duty 4. Actual Cause 5. Proximate Cause 6. Damages B. Animals 1. Escaped Animal : strict liability not available against owner if someone else has taken possession of animal 2. Trespassing Animal : • General Rule: owner of animals likely to roam + do damage are strictly liable for their trespasses o Exception #1: household pets because difficult to confine 3. Fencing Out Statute : if the P fenced his land properly there was strict liability when the animals broke through the fence. Otherwise, there was liability only if their owner was negligent 4. Fencing In Statute : required the owner of the animals to fence them in or otherwise restrain them, and made the owner strictly liable if he did not do so. 5. Wild Animal : possessor is strictly liable for any harm resulting from animals’ normally dangerous propensities (no knowledge necessary) 6. Domesticated Animal : strict liability if owner knew/ had reason to know animal had vicious propensities OR if animal had dangerous propensity abnormal to its class 7. Dog Bite Statutes- many jurisdictions have enacted statutes that reversed common law rule that every dog was entitled to one bite before they became known as animal with dangerous propensities. Animal keeper is liable for all damage done by animal unless P is trespasser or was committing a tort. 8. Defenses: • If P was trespasser- defense for damage done by animal • Acts of third persons (third person took animal off of D’s land)- defense for damage done by animal • Acts of god- (ie. storm broke the fence that normally held in the animals) C. Abnormally Dangerous Activities 1. General Rule- one who maintains an abnormally dangerous activity on his premises, or engages in an activity that presents an unavoidable risk of harm to the person or property of others, are strictly liable for the harm caused even if D has exercised reasonable care to prevent the harm. 2. Restatement 2d- six factors to be considered in determining abnormally dangerous a. Whether activity includes high degree of risk of harm b. The gravity of that risk c. Whether risk can be eliminated by exercise of reasonable care d. Whether activity is matter of common usage e. whether the activity is appropriate to the place where it is being carried on (one who places something that involves nonnatural use of land can be strictly liable if escapes and causes harm) f. the value of the activity to the community 3. Examples of Abnormally dangerous activities- a. common carriers required to carry abnormally dangerous cargo b. blasting if done in city or populated area. If in unpopular area, D is judged on negligence standards....
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- Spring '99
- Prima facie, prima facie case