Terms And Concepts From Chapter Four Of Tort Law 4Th Ed.

Front 1

Domestic animal (definition)

Back 1

An animal devoted to the service of mankind by custom.

Front 2

Strict Liability (definition)

Back 2

Liability imposed without intent or negligence.

Front 3

Abnormally dangerous activity (definition)

Back 3

Activity with a high risk of serious harm that cannot be eliminated with due care and whose value is outweighed by its dangerous attributes.

Front 4

Strict Liability for Owners of Non-Trespassing Wild Animals

Back 4

Owners are strictly liable for damage resulting from a dangerous propensity typical of that particular species or from a dangerous tendency of the particular animal in question that the owner was aware of or should have been aware of.

Front 5

Strict Liability for Owners of Non-Trespassing Domestic Animals

Back 5

Owners are strictly liable when they know or have reason to know of that the animal has dangerous propensities.

Relaxed strict liability requirement because the ownership of animals serves a valid social purpose.

Front 6

Strict Liability for Owners of Trespassing Animals

Back 6

Owners are strictly liable for the property damage caused by animal when it trespasses onto another's land. (most jurisdictions)

Out west (fencing in and fencing out statutes)

-Follows from English common law, which applied only to animals likely to roam.

Front 7

Ryland v. Fletcher

Back 7

Case in which the defendants hired an enginer and contractor to plan and construct a reservoir to supply their mill with water. When the defendants filled the reservoir with water, it broke through into abandoned mine shafts and then flooded the adjacent mine shaft owned by the plaintiff. An abitrator found the defendants not guilty, but the engineer and contractors negligent. The House of Lords established the rule that any person who, for his own purposes, collects or keeps something on his land that is likely to cause mischief if it escapes is prima facie answerable for the damage that is a natural consequence of its escape.

-Establishes strict liability for abnormally dangerous activities.

This is the majority and the Restatement position.

Front 8

Six Factors for Determining whether an Activity is Abnormally Dangerous

Back 8

1. High degree of risk (of harm to the person, land or chattels of another).


2. Risk of serious harm (likelihood that the harm that results from it will be great).

3. Cannot be eliminated even by due care (inability to eliminate the risk by the exercise of reasonable care)

4. Not a matter of common usage (extent to which the activity is a matter of common usage)

5. Inappropriateness (to the place in which it is carried out)

6. Value (whether its value to the community is outweighed by its dangerous attributes).

Any one factor alone is not sufficient to warrant strict liability, but all of the factors need not be present.

-Essential question is whether the risk is created is so unusual (either b/c of the magnitute or b/c of the circumstances surrounding it) as to justify strict liability even though the activity was carried out w/ all reasonable care)

Courts are more likely to classify an activity as abnormally dangerous if it occurs in a highly populated area.

-Courts appear reluctant to classify the household use of gas, water or electricity as an abnormally dangerous activity.

Front 9

Examples of Some Activities Some Courts Have Considered Abnormally Dangerous

Back 9

1. Crop dusting

2. Using poisonous gases

3. Storage of flammable liquids in urban areas.

4. Disposal of hazardous waste.

5. Testing of rocket fuel

Front 10

Examples of Some Activities Some Courts Have NOT Considered Abnormally Dangerous

Back 10

1. Airline crashes b/c flying is not considered abnormally dangerous so most courts have retreated to a negligence standard.

2. Irrigation dam

3. Falling tree

4. A defective lawn mower that resulted in an automobile crash.

5. Defective plumbing that resulted in property damage.

6. Defective electrical wiring that resulted in property damage.

Front 11

Product Liability

Back 11

Rationale: It is easier for the defendant to bear the risk of loss than for the plaintiff b/c merchants and manufacturers have the ability to internalize the costs of accidental losses and can distribute such losses among the consumers who purchase their products.

Product safety is better promoted by strict liability theory than by negligence theory b/c defendants arguably have a strong incentive to prevent the occurrence of future harm.

Front 12

Defenses to Strict Liability

Back 12

1. Lack of proximate cause (the damage was not the result of the kind of risk that made the activity abnormally dangerous.)

2. Assumption of Risk

Front 13

Lack of Proximate Cause

Back 13

A defendant is strictly liable only for damages that result from the kind of risk that made the activity abnormally dangerous.

A defendant will not be liable if the harm occurred only because the plaintiff was conducting an "abnormally sensitive" activity. (ex: minks case)

Defendants are not liable for harms incident to the plaintiff's extraordinary and unusual use of land.

Some courts will relieve defendant of strict liability when the harm occurred in an unforeseen manner ("an act of God") or if the harm that occurred was clearly out of the control of the defendant.

-Courts are more likely to find proximate cause in a negligence case than in a strict liability case and is more likely to deny liability if there is an unforeseen, intervening cause in a strict liability case because the defendant is not at fault.

Front 14

Assumption of Risk

Back 14

A plaintiff who knowingly, voluntarily and either reasonably or unreasonably subjects himself to danger is barred from recovering on the basis of strict liability.

Contributory negligence usually will not bar a plaintiff from recovering on the basis of strict liability.