Welcome to Unit Eight
Intro to Torts
What Are We Studying
This Unit?
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Strict (also called Absolute) Liability
– Abnormally Dangerous Activities
– Mass Torts
– Animal Owners’ Liability
– Proximate Cause
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Products Liability
– Theory and History
– Elements
– Bad Faith
Strict (Absolute) Liability
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Strict liability holds a tortfeasor
responsible for misconduct regardless
of whether the tortfeasor was at fault.
Strict liability is restricted to certain
types of very dangerous activities,
including ultrahazardous materials,
defective product and such as
wild/vicious animals.
Strict Liability
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Limitations: Because one is at fault
regardless of care taken, this is a very
limited area.
Reasoning: the risk of liability is better
placed on those who engage in
ultrahazardous activities
Ultrahazardous (Abnormally
Dangerous) Activities
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An abnormally dangerous activity
creates high risk of substantial injury
to victim or victim’s property.
The risk cannot be removed through
use of reasonable care (why it’s
different from negligence)
The activity or substance is not
commonly undertaken or used
(“common usage” principle).
Ultrahazardous (Abnormally
Dangerous) Activities
(Sometimes) The activity was
inappropriately undertaken in
place in which victim was harmed.
 Hazards that were created
outweigh the benefits that the
activity brings to community
(another balancing test).
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Defenses
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Statutory protection
Common law defenses protecting
public utilities, private contractors or
municipal zoos.
If there is statutory protection, then
the analysis goes back to negligence.
Proximate Cause (slide 1 of 2)
Remember for both Abnormally Dangerous
Activities and Animal cases:
 The plaintiff ’s injuries must have been a
reasonably foreseeable consequence of
the defendant’s actions.
 The victim must have been a foreseeable
plaintiff (meaning that it must have been
reasonably foreseeable that the plaintiff
would be injured as a result of the
defendant’s activities).
 These elements are defined the same as
in negligence theory.
Proximate Cause
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The victim must have been a
foreseeable plaintiff (meaning that it
must have been reasonably
foreseeable that the plaintiff would be
injured as a result of the defendant’s
activities).
These elements are defined the same
as in negligence theory.
Mass Tort
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When a large group of people are
injured as a result of a single tortious
act, this is called a mass tort.
This is distinguished from a class
action where a small group of plaintiffs
are harmed.
Where the Wild Things Are:
Wild Animals Liability (slide 1 of 2)
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Wild Animals
– Defined: Ferae naturae = “wild
nature.” Lions, Tigers and Bears, oh
my! (Also snakes, and bees and
chimps—any animal that can’t be
fully tamed)
Wild Animal Ownership:
The person exercising dominion and
control over the wild animal is the
legal owner of the beast.
Where the Wild Things Are:
Wild Animals Liability
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If the wildlife escapes control, then
former possessor loses ownership until
animal is recaptured by him or her—no
liability of no ownership.
Absolute Liability: Owners are strictly
liable for injuries caused by their wild
animals—even if the owner took care
with the animals.
Domestic Bliss—Domestic
Animals (slide 1 of 2)
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Domestic Animal Defined: Domitae
naturae = “domesticated nature.”
Tame animals (domestic livestock,
dogs, cats, etc).
Ordinary Liability Rule: Owners are
liable for injuries caused by their
domestic animals only based upon
other torts, such as negligence, or
certain intentional torts, such as
assault, battery, and false
imprisonment.
Domestic Animals
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Vicious Propensity Rule: Owners are
absolutely liable for injuries caused by their
domestic animals only when those animals
have vicious propensities.
Vicious propensity= The domestic animal’s
behavior (reputation) in past biting or attack
episodes, in which the animal has hurt
people (or property).
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State Dog-Bite Statutes: Most states have
statutes that determine owner liability (and
available defenses) in dog-bite Cases.
Defenses
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Strict Liability, but…there are
exceptions for animal cases
– Assumption of Risk
– Contributory or Comparative Negligence
– Consent
– Self-Defense or Defense of Others
– Provocation
Products Liability
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Historical: Privity of Contract
Winterbottom v. Wright (no privity, no
case)
Exception: Imminent Danger Thomas
v. Winchester (privity not required for
dangerous products)
Products Liability
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MacPherson v. Buick Motor Co. Privity
not required for defective products
California Case:Escola v. Coca Cola
Bottling Co. suggests strict liability for
products cases
Public Policy: Business best bears the
costs
Products Liability Parties
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Manufacturers: Makers of defective products
giving rise to lawsuit.
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Sellers:
– Anyone in business of selling goods such as defective
one.
– Includes manufacturers, wholesalers, and retailers.
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Ultimate User: the reasonably foreseeable user
of defective product
– Purchasers that use defective product.
– Persons who use defective product that purchaser
bought (usually family members, friends, employees)
Products Liability
Elements (slide 1 of 2)
Typical analysis:
 A defect renders product unreasonably
dangerous to use (flawed design, flawed
manufacture, or failure to warn).
 The seller or manufacturer must be in
business of selling products such as
flawed one.
 The product cannot have been
substantially changed between time it
left seller or manufacturer’s hands and
time it reached ultimate user.
 Ultimate user must have used product
Products Liability
Elements
Additional Elements (used in some
jurisdictions):
 The ultimate user must have been
foreseeable.
 The seller or manufacturer must have
been responsible for condition in
which product was maintained.
 In a few states, a product sale must
have occurred.
Products Liability
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Proximate Cause: Defective product
must proximately cause ultimate user’s
injuries.
Liability rule applies although:
– Seller has exercised all possible care in
preparing and selling defective product.
– User or consumer has not bought product
from, or formed contract with, seller.
Unreasonably Dangerous
Defective Products (slide 1 of 2)
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Fault in Product Design:
– Product unreasonably dangerous because of faulty
design.
(2) Court tests for faulty design:
(a) Consumer Contemplation Test—Product is
unreasonably dangerous if consumer ordinarily would not
reasonably anticipate danger created through its design.
(b) Danger/Utility Test—Product is unreasonably
dangerous if danger created by its design outweighs benefits
derived from its use.
(c) State-of-the-Art Discoverability test—If
manufacturer could have discovered hazards created by
defective product designs, using current, state-of-the-art
technologies, then failure to do so makes design-flawed
product unreasonably dangerous.
Unreasonably Dangerous
Defective Products:
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Error in product manufacture or assembly:
Defects were created while product was being
manufactured or assembled.
Improper Product Maintenance:
(1) Seller failed to properly maintain product before
injured user used it.
(2) This failure makes product unreasonably
dangerous.
Manufacturer or seller’s failure to warn user of
product dangers: Product becomes unreasonably
dangerous because of manufacturer’s or seller’s
failure to warn user of potential dangers.
Defenses to Products
Liability
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Ultimate User’s Misuse of Product=
uses that were not reasonably
foreseeable. (Some misuses can be
foreseeable).
Assumption of Risk
Contributory negligence is not a
defense however, some statutes
specifically allow comparative
negligence.
Bad Faith
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A tort that has developed from
situations where an insurance
company unreasonably denies a claim
or fails to pay a claim in a timely
fashion within the policy limits.
A Little Reminder….
You all are doing a great job!!!
Questions?