Strict Liabilty – The Tort
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Strict Liabilty – The Tort

Strict Liabilty – The Tort

Strict liability is one of those torts that is pretty straight forward.  It does appear in other torts (Product Liability, Negligence) but remains the same.  Strict liability means that the defendant is guilty.  It doesn’t matter if there was any fault or not, the defendant loses. There are a few defenses but for the most part, these defendants lose.

The prima facie case requires the defendant take any and all steps necessary to protect from harm, the harm experienced was the actual and proximate cause of the harm and there were damages resulting from the harm.

There are two main concerns to watch for the baby bar.  Strict liability with animals and ultra hazardous/abnormally dangerous activities.

Animals

Animals can be either wild or domestic with regards to strict liability.  Persons keeping a wild animal are strictly liable for any harm caused by that wild animal.  If the animal is domestic the owner will not be liable unless the animal has a known propensity for causing harm.  Regardless of the classification of animal, if an owners animals trespass, the owner is strictly liable for the trespass.

On MCQ’s and in essay fact patterns your spidey senses should perk up anytime you see a lion, tiger, or bear, oh my, show.

Try this on for size:  Bob wanted to pick up chicks so he purchased a Mountain Lion and kept it as a pet.  Bob named the Mountian Lion “Softey” because he was just the sweetest kitty cat in the world.  One day while Bob was taking Softey for a walk, Softey took off down the street and attacked a neighbor kid who was walking in front of Bob on the sidewalk, seriously injuring him.  If the neighbor kids parents assert a claim against Bob for his damages, the neighbor kid will be successful in his claim against Bob because:”  You should automatically be thinking “Do I have my elements for a dangerous animal?”  The fact the animals name is Softey should also peak your senses to the fact that the graders are trying to convince you this isn’t a dangerous animal; but your smarter than that, you know they are.  DON’T LET THEM FOOL YOU.

Ultra Hazardous and Abnormally Dangerous

When talking about activities there are two restatements to consider.  The 1st restatement which uses the descriptive term Ultra Hazardous.  The 2nd and more current restatement of Torts uses the more familiar Abnormally Dangerous term. While both are correct, I have yet to find a definitive answer as to what the baby bar requires.  If or when I get an answer I will update this section.  However, for now, I will cover both directly from the restatements.

First Restatement: One who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm. Section § 520 defines ultrahazardous activity as follows: An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of utmost care, and (b) is not a matter of common usage.

According to the Restatement (Second) of Torts, § 520: “In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.”

In general, when talking about either restatement, you should look for two main factors.

1. Does the activity create a foreseeable high risk of harm and,

2. Is the activity a matter of common usage to the area.

Damages must be either to property or a person(s) in order to also collect economic losses.  Otherwise, pure economic loss recovery not allowed.

Even though this is liability without fault, there are a few defenses a defendant can use.  Assumption of the risk is where plaintiff knew of the danger involved and voluntarily assumed the risk.  The other is comparative negligence where plaintiff was at least partially responsible for their own injury.

Remember when working in strict liability your replacing duty and breach of duty with the specific strict liability.  Your outline for you answer should be:  Absolute duty to make safe (replaces duty and breach), causation (actual & proximate Cause), damages and defenses.

 

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