2007-2008 Torts
APT-English Legal Terminology (Prof. Robert Turk)
Negligence & Strict Liability (7 pages)
A Civil Court Action Involving 'NEGLIGENCE'
∏
Plaintiff's case:
Through testimony and other evidence,
∏ must be able to prove certain elements:
∆ Defendant's case:
In defense, ∆ could perhaps try to prove:
A 'DUTY of Care' held by the ∆. For example: there was no duty that
Such as your duty/duties as a licensed driver of an auto;
your duties as a lawyer or a doctor;
your duties as possessor of real property, house, etc.
There are 'duties' in every part of our lives.
was held by ∆ in this case;
and/or
BREACH of that Duty by the ∆. For example: even assuming such a
duty was held by ∆ in this case,
∆ did not 'breach' that duty;
and/or
CAUSATION, or more specifically, For example: any breach of duty, if it
that the ∏'s harm was 'proximately even happened at all,
was 'TOO REMOTE'
caused' by the ∆'s intended act.
and therefore 'unforeseeable' and so
'Proximate cause' = 'legal cause'
meaning that the harm that results was not a proximate cause of the harm.
'foreseeable' to the ∆ at that moment
the duty was breached. This was NOT
merely a factual cause, too remote to
and/or
hold the ∆ liable for negligence.
For example: even assuming that there
DAMAGES
was a duty, etc.,
The resulting harm to ∏'s 'person'
there were no damages to plaintiff.
and/or 'property' can be measured in
'monetary damages' , to be paid by ∆.
ANY DEFENSES ??
Consent? Self-Defense? Of Others? Of Property? Also:
'Contributory Negligence' In a few US states,
no damages will be awarded to the ∏, if evidence at
court proves that the ∏ himself was also negligent.
'Comparative Negligence' In most US states,
negligence is measured in 'percentage terms' so that if
evidence at court also proves that ∏ himself was 20%
negligent, the ∏ would recover (=get back) only 80%
of the total amount of damages; BUT he recovers NO
damages if he was 50% or more responsible for the harm.
'Assumption of Risk'
No recovery of damages
if ∏ gave express/implied consent to risk some danger.
(Example: spectator at a professional game or match)
Here, remember plaintiff's 'burden of proof' …………… A 'burden' that may 'shift' to defendant.
.
 Robert Turk 2002-2008
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Duties of 'Real Property Possessors'
Those persons who are in the possession of real property (such as land, buildings, apartments,
etc.) have special 'duties of care' regarding the safe condition of property that they possess.
Trespassers
A trespasser is any person who, without permission or privilege,
enters the real property (e.g. land) of another person;
or
remains on the real property of another.
Generally, a lawful possessor of real property is not liable (legally responsible) to trespassers
for failing to maintain the property in a reasonably safe condition. The reason is obvious: if
the trespasser comes or stays on the property without permission, he has no reason to expect
maintenance of safe conditions by a possessor who may not even know of his existence.
Nonetheless, a lawful possessor is not completely free to do what s(he) desires to do on the
real property under possession. Just as no one is completely free to inflict intentional injury
on any other person, so a lawful possessor may not freely commit intentional torts, injurying
a trespasser who comes on, or stays on, the land. Everyone in society, even trespassers, enjoy
certain freedoms (of movement, from apprehension, etc.) that are protected from interference
by others through the law of torts.
Therefore, the lawful possessor is said to owe his lowest tort duty to a trespasser (entering or
remaining on the property): the possessor's duty not to intentionally injure a trespasser.
Most if not all jurisdictions (i.e., states in the U.S.A.) follow this rule.
Note that some courts have held that lawful possessors must 'exercise reasonable care' for
the safety of trespassers, once the presence of those trespassers on the real property has been
discovered.
Note further that the law generally gives greater protection to child-trespasssers, illustrated
by the following example from the Restatement of Torts:
A has on his land a small artificial pond full of goldfish. A's land adjoins
a nursery in which children from two to five years of age are left by their
parents for the day, and such children are, as A knows, in the habit of
trespassing on A's land and going near the pond. A could easily prevent
this by closing and locking his gate. A does not do so. B, a child three
years of age, trespasses, enters the pond to catch goldfish, and is drowned.
A is subject to liability for the death of B.
Restatement of Torts, § 339, Illustration 7.
 Robert Turk 2002-2008
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Licensees
A licensee is any person who is privileged to
enter the real property (e.g. land) of another person;
or
remain on the real property of another,
only by or through the consent of the lawful possessor. Restatement of Torts, § 339.
The licensees who may come or stay on the property of the lawful possessor may include
members of the possessor's 'household', as well as social guests who visit the possessor.
Note, however, that a licensee can soon become a trespasser if he exceeds (goes beyond) the
consent given by the possessor, either in place or time: 1) by going to a place or part of that
property to which the possesor did not give consent, or 2) by staying on the property past the
time when the possessor's consent has expired.
Therefore, the lawful possessor is said to owe his second or middle tort duty to a licensee
entering on the property): the possessor's duty to 'warn of known dangerous conditions'.
In addition, a possessor also owes the lower duty: 'not to intentionally injure' anyone.
Thus, the possessor may be said to owe two 'property possessor duties' to an invitee.
Invitees
An invitee is any person who enters real property as either
a public invitee
or
a business visitor.
A public invitee is any person entering real property open to the public (such as a public park,
public beach, or public swimming pool) or to a governmental facility (such as a state office
building, court house, post office) where public business is transacted.
A business visitor is any person entering real property for the purpose of transacting private
business (such as shopping in a store) or engaging in some private business activity (such as a
repairman making repairs or a serviceman providing some kind of service on the property).
Therefore, the lawful possessor is said to 'owe his highest tort duty' to an invitee entering
on the property: the possessor's duty to 'exercise reasonable care to protect' against
dangerous conditions'. In addition, the possessor also owes the lower two duties to 'warn
of known dangerous conditions' and 'not to intentionally injure'. Thus, the possessor may
be said to owe three 'property possessor duties' to an invitee.
 Robert Turk 2002-2008
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Palsgraf v. Long Island Railroad Co.
Court of Appeals of New York, 1928
248 N.Y. 339, 162 N.E. 99.
Cardozo, C.J.
Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A
train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached
the platform of the car without mishap, though the train was already moving. The other man, carrying a package,
jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open,
reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the
package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and
was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice
of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at
the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.
The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in
its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the
situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence
is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ''Proof of
negligence in the air, so to speak, will not do.'' [Citations.] ''Negligence is the absence of care, according to the
circumstances.'' [Citations.]
***
If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward
seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong,
though apparently not one involving the risk of bodily insecurity, with reference to someone else. ''In every
instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to
the individual complaining, the observance of which would have averted or avoided the injury.'' [Citations.]
***
A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a
package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of
dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with
impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard
concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned,
when the guard stumbles over a valise which a truckman or a porter has left upon the walk? The passenger far
away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to
be protected against invasion of his bodily security is neither greater nor less because the act resulting in the
invasion is a wrong to another far removed. In this case the rights that are said to have been violated, the interests
said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in
danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at
all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of
this wrong to property, which threatened injury to nothing else, there was passed, we are told, to the plaintiff by
derivation or succession a right of action for the invasion of an interest of another order, the right to bodily
security. The diversity of interests emphasizes the futility of the effort to build the plaintiff's right upon the basis
of a wrong to someone else…. One who jostles one's neighbor in a crowd does not invade the rights of others
standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to
them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will
have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the
norm of conduct, the customary standard to which behavior must conform.
***
The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint
dismissed, with costs in all courts.
 Robert Turk 2002-2008
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Petition of Kinsman Transit Co.
United States Court of Appeals, Second Circuit, 1964
338 F.2d 708.
Friendly, J.
[The MacGilvray Shiras was a ship owned by the Kinsman Transit Company. During the winter months when
Lake Erie was frozen, the ship and others moored at docks on the Buffalo River. As oftentimes happened, one
night an ice jam disintegrated upstream, sending large chunks of ice downward. Chunks of ice began to pile up
against the Shiras which at that time was without power and manned only ba a shipman. The ship broke loose
when a negligently constructed 'deadman'{something built into the ground, to which a ship's cable is connected}
to which one mooring cable was attached, pulled out of the ground. The 'deadman' was operated by Continental
Grain Company. The ship began moving down the ' S '-shaped river stern first and struck another ship, the
Tewksbury. The Tewksbury also broke loose from its mooring, and the two ships floated down the river together.
Altough the crew manning the Michigan Avenue Bridge downstream had been notified of the runaway ships,
they failed to raise the bridge in time to avoid the collision because of a mix-up in the shift changeover. As a
result, both ships crashed into the bridge and were wedged against the bank of the river. The two vessels
substantially dammed the flow of the river, causing ice and water to back up and flood installations as far as
three miles upstream. The injured parties brought this action for damages against Kinsman, Continental, and the
City of Buffalo.]
The very statement of the case suggests the need for considering Palsgraf v. Long Island RR., [citation] and the
closely related problem of liability for unforeseeable consequences.
***
We see little similarity between the Palsgraf case and the situation before us. The point of Palsgraf was that
the appearance of the newspaper-wrapped package gave no notice that its dislodgement could do any harm save
{here, meaning 'except'} to itself and those nearby, and this by impact, perhaps with consequent breakage,
and not by explosion. In contrast, a ship insecurely moored in a fast flowing river is a known danger…
Note how the case of Palsgraf has likely been raised by the defense lawyers in this case.
How are these two cases similar?
How are the two cases different?
Strict Liability
Can someone who has not acted intentionally or negligently still be held legally responsible
for harm that they have caused to the injured plaintiff? Yes, defendants can be held liable for
plaintiff's injuries in the form of strict liability ('liability without fault'). One type of 'strict
liability' was already mentioned in the judge's opinion in the case of Mirabile v. Continental
Casualty, discussing 'workers' compensation' plans generally. All States in the United States,
for example, have enacted 'Workers' Compensation Statutes' which make employers liable to
their employees for injuries arising out of 'the course of employment.' Why is it considered
to be a form of strict liability? Because liability is imposed on the employer without regard to
the employer's negligence - if the worker was injured in the course of employment, then that
employer is held strictly liable (legally responsible for the injury), and so the worker can then
receive some compensation payment(s) from the 'Workers' Compensation' fund . (But in the
Mirabile case, supervisors (not the firm) were personally responsible for the intentional torts.)
 Robert Turk 2002-2008
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Certain socially desirable activities 'pose sufficiently high risks of harm' (in other words, they
present a high-enough risk to other members of socieity) that those persons who engage in
such activities are determined by the law to be held 'strictly liable' for injuries which result
to other persons, without regard to how carefully the activities were performed, or whether
the results were 'intended'.
A Civil Court Action Involving 'STRICT LIABILITY'
∏
∆ Defendant's case:
Plaintiff's case:
Through testimony and other evidence,
∏ must be able to prove certain elements:
'Abnormally dangerous activities':
Harm caused by 'extraordinary', 'unusual', 'abnormal'
activities by ∆ (as determined by place/ time/ manner performed)
In defense, ∆ could perhaps try to prove:
For example, the activity was not so
dangerous for this place, etc.
-Blasting with explosives;
-Storing explosives/flammable liquids in large quantities;
-Even collecting water in such 'quantity/location' to be dangerous;
-Drilling for oil, etc. in populated areas.
BUT NO LIABILITY for:
-Driling for oil in Texas oil fields, etc.
-Transmitting gas in gas pipes or electricity in electric wiring, etc.
'Keeping of animals':
Harm against people/property caused by ∆'s animals:
By all wild animals: (such as monkeys, bears, tigers, lions, etc.)
By trespassing animals: keeper strictly liable for harm
(EXCEPT for cats & dogs: keeper is only liable for 'negligence'.)
By non-trespassing domestic animals (= meaning those
in service of mankind: dogs, cats, horses, cattle, sheep, etc.)
Keeper is strictly liable if he knew/should have known
about the animal's dangerous propensity (= meaning its
natural inclination or liking … for example, to bite, to jump
on other people, etc. ) The one-bite rule? Has this same
dog bitten in the past? Then the keeper will likely be liable.
'Products liability':
There is a modern trend to
impose a 'limited form of strict liability' on certain
manufacturers/merchants selling goods in 'defective
condition' unreasonably dangerous to user/consumer.
Any Defenses ?
'Contributory negligence' is NOT a defense.
'Comparative negligence' may be a defense
in some states regarding products liability, etc.
'Assumption of risk' is a defense IF such
assumption of risk was truly 'voluntary':
EXAMPLE: An auto owner knowingly and voluntarily
parks his auto in a 'blasting zone' where signs clearly
say that dynamite is being used, etc. Auto owner may
not then recover 'damages' for any harm to his auto.
 Robert Turk 2002-2008
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Some Important Principles Relevant in Tort actions:
Wrongful Death
In the various cases reviewed above, there were many situations of physical harm, even
serious bodily injury, caused by tortious conduct by defendant, whether intentional, negligent,
or by strict liability. But what is the situation where a defendant's tortious conduct has resulted
in the death of the plaintiff?
A 'wrongful death' action or lawsuit seeks to recover damages for the death of a plaintiff
that has been caused by the defendant. The action for 'wrongful death' can be based on any of
the three tort categories discussed above: intentional tort, negligence, or strict liability.
Sovereign Immunity
This is an immunity which precludes (bars or prevents) lawsuits against the 'sovereign' (now
in the meaning of the 'state' or the 'government') without the 'sovereign's consent to the suit,
when the 'sovereign' is engaged in a government function.
The Federal Tort Claims Act, enacted in 1946, is an example of the 'waiver' (the intentional
and voluntary surrender of some known right) of sovereign immunity in some circumstances
by the United States government.
 Robert Turk 2002-2008
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