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39 Cards in this Set
- Front
- Back
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Wild Animal Liability |
possessor is liable of a wild animal is subject to liability to another for harm done by the animal to the other, his person, land or chattels, although possessor has exercised the utmost care to confine, or otherwise prevent it from doing harm |
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Wild Animal liability limited to: |
harm that results from a dangerous propensity that is characteristic of wild animals of the particular class, or of which possessor knows or has reason to know |
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Domestic Animal Liability (NOT abnormally dangerous) |
one who possesors a domestic animal that does not know or have reason to know to be abnormally dangerous is subject to liability if: -he intentionally causes animal to do harm, or -is negligent in failing to prevent harm (except trespass) |
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Wild Animal Definition |
animal that is not by custom devoted to the service of mankind at the time and place which it is kept |
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Domestic Animal Definition |
animal that IS by custom devoted to the service of mankind at the time and place which it is kept (dogs, cat, sheep, cows, bull) |
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Animals classified by SPECIES |
:) |
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Domestic Animals: Abnormally Dangerous liability |
possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for the harm done by the animal, although he has exercised upmost care to prevent it from doing harm |
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Domestic Animals: Abnormally Dangerous liability is limited to: |
limited to harm that results from the abnormally dangerous propensity of which possessor knows or has reason to know (looked at animal by animal..hence not all bull dogs are vicious) |
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Animals Kept in Pursuance of Public Duty |
strict liability rules do not apply when the possession of the animal is in pursuance of a duty imposed upon the possessor as a public officer or employee (the zoo exception) or as common carrier (animal being transported on highway) (no strict liability..but can still have negligence) |
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Wild Animal or Abnormally Dangerous Domestic Animal Liability to TRESPASSERS |
possessor of land NOT subject to strict liability to one who intentionally or negligently trespasses upon the land, for harm done to him by wild or abnormally dangerous domestic animal that is kept on his land, even though trespasser has no reason to know that animal is kept there intentional= someone comes on land to steal..not strictly liable negligent="innocent trespassers"..not strictly liable |
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Harm done by Indigenous Animal After its Escape |
A possessor of a wild animal indigenous to the locality in which it is kept is NOT liable for harm done after it has gone out of possesion and returned to its natural state as a wild animal indigenous to the locality |
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Wild or Abnormally Dangerous Domestic Animal Contributing actions from 3rd persons, animals, or forces of nature |
possessor still subject to strict liability even if it occurred due to: i. innocent/negligent/reckless conduct of 3rd person, or ii. action of another animal iii. operation of a force of nature |
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Wild/Abnormally Dangerous Animal Plaintiff Conduct |
contributory negligence of P is not a defense to the strict liability of possessor of animal UNLESS P knowingly and unreasonably subjects himself to the risk that the wild animal or abnormally dangerous domestic animal will do harm or knowingly and reasonably (Assumption of Risk) (ex. vet getting bit by snake he is treating) |
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Liability for Trespass of Livestock |
"Fencing In Rule" P who fail to erect & maintain fences, a possesor of livestock intruding upon the land of another is subject to liability although he has exercised utmost care to prevent them from intruding |
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Liability for Trespass of Livestock extends to: |
liability extends to: - any harm to the land or lands possessor -harm to members of household -harm to their chattels which might reasonably be expected to result from trespass of livestock |
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Liability for Trespass of Livestock does NOT extend to: |
-harm done by animals straying on to abutting land while driven on highway -harm not reasonably expected from intrusion -brought about by unexpectable reckless/negligent 3rd person, action of another animal, or operation of force of nature |
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Abnormally Dangerous Activity Liability |
one who carries on an abnormally dangerous activity is subject to strict liability for the harm to the person, land, chattels resulting from the activity, although he has exercised utmost care to prevent the harm |
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Is activity "Abnormally Dangerous" 6 Determining factors: |
i. greater the risk ii. greater the harm (focus on #of people) iii. inability to eliminate risk by exercise of reasonable care iv. not common activity v. inappropriate place vi. value to community is outweighed by dangerous attributes |
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Abnormally Dangerous Activity IS STILL STRICTLY LIABLE regardless of unexpected act by 3rd party, animal, or force of nature |
:) |
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Abnormally Dangerous Activity P's "Assumption of Risk" |
P's genuine assumption of risk (voluntarily, knowingly, and reasonably encountering the risk) of harm from abnormally dangerous activity bars his recovery (ex. fire in nuclear power plant, special fire team comes in and one is hurt) |
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Abnormally Dangerous Activity P's Contributory Negligence |
contributory negligence of P is not a defense UNLESS P's contributory negligence in knowingly and unreasonably subject himself to risk of harm from the activity (ex: ppl want to see leak from nuclear power plant so they see how close they can get) |
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Abnormally Dangerous Activity P's Abnormally Sensitive Character |
NO strict liability for harm caused by abnormally dangerous activity if the harm would not have resulted but-for abnormally sensitive character of P's activity |
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Nuisance General Rule |
one is subject to liability for private nuisance if his conduct is cause of an invasion to another's legally protected but NON-EXCLUSIVE interest in the private use and enjoyment of land, and its either i. Intentional and Unreasonable (strict liability) or ii. Unintentional (actionable under negligence, or has abnormally dangerous conditions) |
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Nuisance "Unreasonableness" |
invasion of another interest is unreasonable if: i. gravity of harm outweighs utility of actors conduct ii. actors conduct is malicious or indecent sole purpose of causing harm to other or conduct is contrary to common standards of decency ii. harm caused by conduct is serious and financial burden of compensating would not make continuation of conduct not feasible ("financial feasibility") |
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Gravity of Harm Factors |
i. Extent of harm ii.Character of harm ii. Social value that law attaches to type of use or enjoyment invaded iv. Suitability |
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Utility Factors |
i. Social value that law attaches to primary purpose of conduct ii. Suitability of conduct to character of the locality iii. impracticality of preventing or avoiding the invasion |
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Respondent Superior |
master is subject to liability for torts of his servants committed while acting in the scope of employment |
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Respondent Superior 3 Elements |
1. D was "an employee" of "employer" (servant) 2. D was acting in scope of employment, and 3. front line D acted negligently (or tortiously) injuring the P |
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Respondeat Superior NOT liable for independent contractors/ppl working outside scope of employment UNLESS: |
i. D appears to be an employee (apparent authority) ii. Non-Delegable Duty (hire to perform abnormally dangerous activity, higher to do job you are required by statute to do, hire somebody to perform task that would endanger the public, hire somebody to perform obligation of lesser that you owe to lessees) iii. master intended conduct/consquence iv. master was negligent/reckless |
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Respondeat Superior "Negligence Collateral to the Risk" |
even if one of the independent contractor exceptions is satisfied, if the injury is caused by negligence collateral to the risk of the injury, the employer is NOT liable |
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Respondent Superior 2 prong test "acting in scope of employment" |
1. Employment Relatedness (same general nature/incidental to conduct relatedness) 2. Power or Ability to Control |
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Workers Compensation 3 Elements |
1. Employee injured 2. Injury "arose out of" and "in course of" employment 3. Physical injury or occupational illness |
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Products Liability Categories of Product Defect |
A product is defective when, at the time of sale or distribution, it contains a: -Manufacturing Defect -Design Defect -Inadequate warning/instruction defect |
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Manufacturing Defect |
product departs from its intended design in though all possible care was erected in the preparation and marketing of product (ex. coke bottle explodes due to defect in glass) |
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Design Defect |
foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or distributor, or a predecessor in the commercial chain of distribution, and the omission of alternative design renders product not reasonably safe |
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Design Defect Consumer Expectations Test |
whether reasonable person would consider the product to be unreasonably dangerous |
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Design Defect Risk/Utility Test |
whether the danger of the design outweighs the utility (how juries decide if its 'unreasonably dangerous') |
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in determining design defect..courts look at both Risk/Utility AND consumer expectation test Factors: |
i. usefulness of the product ii. danger posed by design iii. cost of improved design iv. ability to reduce danger without impairing usefulness v. availability of feasible alternative design (p MAY prove..not must) |
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Design Defect P must prove: |
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