Welcome to Unit EightWelcome to Unit Eight

Intro to TortsIntro to Torts

What Are We Studying What Are We Studying This Unit?This Unit? Strict (also called Absolute) LiabilityStrict (also called Absolute) Liability

– Abnormally Dangerous ActivitiesAbnormally Dangerous Activities– Mass TortsMass Torts– Animal Owners’ LiabilityAnimal Owners’ Liability– Proximate CauseProximate Cause

Products LiabilityProducts Liability– Theory and HistoryTheory and History– ElementsElements– Bad FaithBad Faith

Strict (Absolute) Strict (Absolute) LiabilityLiability Strict liability holds a tortfeasor Strict liability holds a tortfeasor

responsible for misconduct responsible for misconduct regardless of whether the tortfeasor regardless of whether the tortfeasor was at fault.was at fault.

Strict liability is restricted to certain Strict liability is restricted to certain types of very dangerous activities, types of very dangerous activities, including ultrahazardous materials, including ultrahazardous materials, defective product and such as defective product and such as wild/vicious animals.wild/vicious animals.

Strict LiabilityStrict Liability

Limitations: Because one is at Limitations: Because one is at fault regardless of care taken, this fault regardless of care taken, this is a very limited area.is a very limited area.

Reasoning: the risk of liability is Reasoning: the risk of liability is better placed on those who better placed on those who engage in ultrahazardous engage in ultrahazardous activitiesactivities

Ultrahazardous Ultrahazardous (Abnormally Dangerous) (Abnormally Dangerous) ActivitiesActivities

An abnormally dangerous activity An abnormally dangerous activity creates high risk of substantial creates high risk of substantial injury to victim or victim’s property.injury to victim or victim’s property.

The risk cannot be removed through The risk cannot be removed through use of reasonable care (why it’s use of reasonable care (why it’s different from negligence)different from negligence)

The activity or substance is not The activity or substance is not commonly undertaken or used commonly undertaken or used (“common usage” principle).(“common usage” principle).

Ultrahazardous Ultrahazardous (Abnormally Dangerous) (Abnormally Dangerous) ActivitiesActivities (Sometimes) The activity was (Sometimes) The activity was

inappropriately undertaken in inappropriately undertaken in place in which victim was place in which victim was harmed.harmed.

Hazards that were created Hazards that were created outweigh the benefits that the outweigh the benefits that the activity brings to community activity brings to community (another balancing test).(another balancing test).

DefensesDefenses

Statutory protectionStatutory protection Common law defenses protecting Common law defenses protecting

public utilities, private contractors public utilities, private contractors or municipal zoos.or municipal zoos.

If there is statutory protection, If there is statutory protection, then the analysis goes back to then the analysis goes back to negligence.negligence.

Proximate Cause Proximate Cause (slide 1 of (slide 1 of 2)2)

Remember for both Abnormally Dangerous Remember for both Abnormally Dangerous Activities and Animal cases:Activities and Animal cases:

The plaintiff ’s injuries must have been a The plaintiff ’s injuries must have been a reasonably foreseeable consequence of reasonably foreseeable consequence of the defendant’s actions.the defendant’s actions.

The victim must have been a foreseeable The victim must have been a foreseeable plaintiff (meaning that it must have been plaintiff (meaning that it must have been reasonably foreseeable that the plaintiff reasonably foreseeable that the plaintiff would be injured as a result of the would be injured as a result of the defendant’s activities).defendant’s activities).

These elements are defined the same as These elements are defined the same as in negligence theory.in negligence theory.

Proximate CauseProximate Cause

The victim must have been a The victim must have been a foreseeable plaintiff (meaning foreseeable plaintiff (meaning that it must have been that it must have been reasonably foreseeable that the reasonably foreseeable that the plaintiff would be injured as a plaintiff would be injured as a result of the defendant’s result of the defendant’s activities).activities).

These elements are defined the These elements are defined the same as in negligence theory.same as in negligence theory.

Mass TortMass Tort

When a large group of people are When a large group of people are injured as a result of a single injured as a result of a single tortious act, this is called a mass tortious act, this is called a mass tort. tort.

This is distinguished from a class This is distinguished from a class action where a small group of action where a small group of plaintiffs are harmed.plaintiffs are harmed.

Where the Wild Things Where the Wild Things Are:Are:Wild Animals Liability Wild Animals Liability (slide (slide 1 of 2)1 of 2) Wild AnimalsWild Animals

– Defined: Defined: Ferae naturae Ferae naturae = “wild = “wild nature.” Lions, Tigers and Bears, nature.” Lions, Tigers and Bears, oh my! (Also snakes, and bees oh my! (Also snakes, and bees and chimps—any animal that and chimps—any animal that can’t be fully tamed)can’t be fully tamed)

Wild Animal Ownership:Wild Animal Ownership:The person exercising dominion The person exercising dominion and control over the wild animal is and control over the wild animal is the legal owner of the beast.the legal owner of the beast.

Where the Wild Things Where the Wild Things Are:Are:Wild Animals LiabilityWild Animals Liability If the wildlife escapes control, If the wildlife escapes control,

then former possessor loses then former possessor loses ownership until animal is ownership until animal is recaptured by him or her—no recaptured by him or her—no liability of no ownership.liability of no ownership.

Absolute Liability: Owners are Absolute Liability: Owners are strictly liable for injuries caused strictly liable for injuries caused by their wild animals—even if the by their wild animals—even if the owner took care with the animals.owner took care with the animals.

Domestic Bliss—Domestic Bliss—Domestic Animals Domestic Animals (slide 1 of (slide 1 of

2)2)

Domestic Animal Defined: Domestic Animal Defined: Domitae Domitae naturae naturae = “domesticated nature.” = “domesticated nature.” Tame animals (domestic livestock, Tame animals (domestic livestock, dogs, cats, etc).dogs, cats, etc).

Ordinary Liability Rule: Owners are Ordinary Liability Rule: Owners are liable for injuries caused by their liable for injuries caused by their domestic animals only based upon domestic animals only based upon other torts, such as negligence, or other torts, such as negligence, or certain intentional torts, such as certain intentional torts, such as assault, battery, and false assault, battery, and false imprisonment.imprisonment.

Domestic AnimalsDomestic Animals Vicious Propensity Rule: Owners are Vicious Propensity Rule: Owners are

absolutely liable for injuries caused by their absolutely liable for injuries caused by their domestic animals domestic animals onlyonly when those animals when those animals have vicious propensities.have vicious propensities.

Vicious propensity= The domestic animal’s Vicious propensity= The domestic animal’s behavior (reputation) in past biting or attack behavior (reputation) in past biting or attack episodes, in which the animal has hurt people episodes, in which the animal has hurt people (or property).(or property).

State Dog-Bite Statutes: Most states have State Dog-Bite Statutes: Most states have statutes that determine owner liability (and statutes that determine owner liability (and available defenses) in dog-bite Cases.available defenses) in dog-bite Cases.

DefensesDefenses

Strict Liability, but…there are Strict Liability, but…there are exceptions for animal casesexceptions for animal cases– Assumption of RiskAssumption of Risk– Contributory or Comparative Contributory or Comparative

Negligence Negligence – Consent Consent – Self-Defense or Defense of OthersSelf-Defense or Defense of Others– ProvocationProvocation

Products LiabilityProducts Liability

Historical: Privity of Contract Historical: Privity of Contract Winterbottom v. Wright Winterbottom v. Wright (no (no privity, no case)privity, no case)

Exception: Imminent Danger Exception: Imminent Danger Thomas v. Winchester Thomas v. Winchester (privity not (privity not required for dangerous products)required for dangerous products)

Products LiabilityProducts Liability

MacPherson v. Buick Motor Co.MacPherson v. Buick Motor Co. Privity not required for defective Privity not required for defective productsproducts

California Case:California Case:Escola v. Coca Escola v. Coca Cola Bottling Co.Cola Bottling Co. suggests strict suggests strict liability for products casesliability for products cases

Public Policy: Business best bears Public Policy: Business best bears the coststhe costs

Products Liability Products Liability PartiesParties

Manufacturers: Manufacturers: Makers of defective products Makers of defective products giving rise to lawsuit.giving rise to lawsuit.

SellersSellers::– Anyone in business of selling goods such as Anyone in business of selling goods such as

defective one.defective one.– Includes manufacturers, wholesalers, and retailers.Includes manufacturers, wholesalers, and retailers.

Ultimate UserUltimate User: the reasonably foreseeable : the reasonably foreseeable user of defective productuser of defective product– Purchasers that use defective product.Purchasers that use defective product.– Persons who use defective product that purchaser Persons who use defective product that purchaser

bought (usually family members, friends, bought (usually family members, friends, employees)employees)

Products Liability Products Liability Elements Elements (slide 1 of 2)(slide 1 of 2)

Typical analysis:Typical analysis: A defect renders product unreasonably dangerous A defect renders product unreasonably dangerous

to use (flawed design, flawed manufacture, or to use (flawed design, flawed manufacture, or failure to warn).failure to warn).

The seller or manufacturer must be in business of The seller or manufacturer must be in business of selling products such as flawed one.selling products such as flawed one.

The product cannot have been substantially The product cannot have been substantially changed between time it left seller or changed between time it left seller or manufacturer’s hands and time it reached manufacturer’s hands and time it reached ultimate user.ultimate user.

Ultimate user must have used product properly.Ultimate user must have used product properly.

Products Liability Products Liability ElementsElementsAdditional Elements (used in some Additional Elements (used in some

jurisdictions):jurisdictions): The ultimate user must have been The ultimate user must have been

foreseeable.foreseeable. The seller or manufacturer must The seller or manufacturer must

have been responsible for have been responsible for condition in which product was condition in which product was maintained.maintained.

In a few states, a product sale In a few states, a product sale must have occurred.must have occurred.

Products LiabilityProducts Liability

Proximate Cause: Defective product Proximate Cause: Defective product must proximately cause ultimate must proximately cause ultimate user’s injuries.user’s injuries.

Liability rule applies although:Liability rule applies although:– Seller has exercised all possible care in Seller has exercised all possible care in

preparing and selling defective product.preparing and selling defective product.– User or consumer has not bought User or consumer has not bought

product from, or formed contract with, product from, or formed contract with, seller.seller.

Unreasonably Dangerous Unreasonably Dangerous DefectiveDefective Products Products (slide 1 of (slide 1 of 2)2)

Fault in Product Fault in Product DesignDesign::– Product unreasonably dangerous because of Product unreasonably dangerous because of

faulty design.faulty design.(2) Court tests for faulty design:(2) Court tests for faulty design:

(a) Consumer Contemplation Test—Product (a) Consumer Contemplation Test—Product is is unreasonably dangerous if consumer unreasonably dangerous if consumer ordinarily would ordinarily would not reasonably anticipate danger created through its not reasonably anticipate danger created through its design.design.

(b) Danger/Utility Test—Product is (b) Danger/Utility Test—Product is unreasonably unreasonably dangerous if danger created by its design dangerous if danger created by its design outweighs benefits derived from its use.outweighs benefits derived from its use.

(c) State-of-the-Art Discoverability test—If (c) State-of-the-Art Discoverability test—If manufacturer could have discovered hazards created manufacturer could have discovered hazards created by defective product designs, using current, state-of-by defective product designs, using current, state-of-the-art technologies, then failure to do so makes the-art technologies, then failure to do so makes design-flawed product unreasonably dangerous.design-flawed product unreasonably dangerous.

Unreasonably Unreasonably Dangerous DefectiveDangerous Defective Products:Products: Error in Error in product manufacture or assemblyproduct manufacture or assembly: :

Defects were created while product was being Defects were created while product was being manufactured or assembled.manufactured or assembled.

Improper Product Improper Product Maintenance:Maintenance:(1) Seller failed to properly maintain product before (1) Seller failed to properly maintain product before injured user used it.injured user used it.(2) This failure makes product unreasonably (2) This failure makes product unreasonably dangerous.dangerous.

Manufacturer or seller’s Manufacturer or seller’s failure to warn failure to warn user of user of product dangers: Product becomes unreasonably product dangers: Product becomes unreasonably dangerous because of manufacturer’s or seller’s dangerous because of manufacturer’s or seller’s failure to warn user of potential dangers.failure to warn user of potential dangers.

Defenses to Products Defenses to Products LiabilityLiability Ultimate User’s Misuse of Product= Ultimate User’s Misuse of Product=

uses that were uses that were not not reasonably reasonably foreseeable. (Some misuses can be foreseeable. (Some misuses can be foreseeable).foreseeable).

Assumption of RiskAssumption of Risk Contributory negligence is Contributory negligence is not not a a

defense however, some statutes defense however, some statutes specifically allow comparative specifically allow comparative negligence.negligence.

Bad FaithBad Faith

A tort that has developed from A tort that has developed from situations where an insurance situations where an insurance company company unreasonablyunreasonably denies a denies a claim or fails to pay a claim in a claim or fails to pay a claim in a timely fashion within the policy timely fashion within the policy limits.limits.

A Little Reminder….A Little Reminder….

You all are doing a great job!!!You all are doing a great job!!!

Questions?Questions?