Legacy in ultrahazardous activities blasting

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- legacy in ultrahazardous activities (blasting & explosions) - Scott/Squib case : In an open market place, D lit and threw an explosive (squib) which changed hands until is blew out P's eye. D claims it was just a joke/sport & therefore had no intent. 3 opinions of judges show limits of old torts: 1) It’s trespass, 2) It’s case, 3) It’s a causation argument . - the Industrial Revolution of the late 19th gives rise to a need for new tort law - Moderns torts:1) Intentional Torts 2) Negligence Torts 3) Special "Pockets" of Strict Liability (ultrahazardous activities, statutes, product liability) - D’s standard of care should be ordinary care (breaking up dog fight in Brown ). - Can there can be liability w/out fault ? - England says yes in Rylands : D built a reservoir on his land w/out knowledge that the reservoir was on top of a P’s coal shoot. P's coal mines are thus flooded. Reservoir = unnatural use = D liable. - US says not in Brown : D's horses became unruly & trampled on P's land thru no fault of D. - US cts reject Rylands b/c it goes against progress. - SL in Modern Times is based on the reasonable activity & significant risk (cricket & balls in Stone ). IV. NEGLIGENCE : (primary focus is duty & cause ) 1) Did D have a DUTY not to expose P to unreasonable risk of harm? a) Was P a foreseeable plaintiff ? (D had a duty to a specific P not to create an unreasonable risk) Torts Outline 3
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- 2 Palsgraff approaches: i) Cardozo: P must be in the foreseeable zone of danger for the D’s negligent conduct to count. ii) Andrews: If negligence towards 1 st person injures a 2 nd , 2 nd is foreseeable in almost all cases. b) What’s D's standard of care ? = RP, Economic, Custom, Professional, Statutory, or Affirmative/Relationship 1) Reasonable Person (RP) Standard - objective test = judge D's actions based on the "reasonable" (average, prudent) person not individually - tailored consideration (modified standard): minors engaged in minor activity (judge against children of like age, intelligence -- Roberts , hunting in Purtle ), disabilities (reasonable “blind” P in Fletcher ) - no tailored consideration : dumb (Vaughn ), old (Roberts ), young--adult activities (motorcycle driving in Daniels ), delusions/insanity (Breunig ), drunk (Robinson ), rich/poor (Denver ) 2) Economic Standard – RP and Calculus of Risk - RP does not create unreasonable risks and guards against risks when worth it - THE HAND FORMULA (deciding negligence based on economical/efficiency principles) - Precaution needed if: P x L > B (Probability of loss x Cost of Loss > Burden (Cost of Prevention)) - efficiency rule : invest in safety until it's no longer worth it - based upon ex ante risks – those perceived before the accident occurs (at the time of D’s conduct) - D must have a Perception of Risk - Blythe : D (water co.) was reasonable in not foreseeing the inordinary circumstance that causes P’s house to flood. In the circumstances, there was no perception of risk so there was no duty for D.
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  • Summer '14

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Christopher Reinemann
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