Torts II
Dr. Steiner

Restatement Torts 2d § 506.
Wild Animal And Domestic Animal Defined
(1) A wild animal as that term is used in this Restatement is an animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept.
(2) A domestic animal as that term is used in this Restatement is an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept.

Restatement Torts 2d § 506, cmt a
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The word “animal” is used in this topic in a broad sense to include not only animals strictly so-called but also birds, fish, reptiles and insects. Thus rattlesnakes, alligators, ostriches or tsetse flies are wild animals in the sense in which that word is here used. . . . The fact that a particular animal is kept for a socially valuable purpose does not prevent it from being a wild animal; the test is whether the animals are as a class recognized by custom as devoted to the service of mankind.

Restatement Torts 2d § 507.
Liability Of Possessor Of Wild Animal
(1) A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm.

Restatement Torts 2d § 507.
Liability Of Possessor Of Wild Animal
(2) This liability is limited to harm that results from a dangerous propensity that is characteristic of wild animals of the particular class, or of which the possessor knows or has reason to know.

Restatement Torts 2d § 509. Harm Done By
Abnormally Dangerous Domestic Animals
(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.

Restatement Torts 2d § 509. Harm Done By
Abnormally Dangerous Domestic Animals
(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.

A possessor of land or chattels is privileged to employ a dog or other animal, for the purpose of protecting his possession of land or chattels from intrusion, to the same extent that he is privileged to use a mechanical protective device for those purposes.

Is this an animal that is by custom devoted to the service of mankind?

We hold that monkeys of the type here involved are properly classified as wild animals which are capable of being domesticated or tamed . The evidence shows conclusively that Mr. Jim was domesticated. Therefore, in order to hold the defendants liable for injuries caused by Mr. Jim, there must be proof that defendants knew that the animal was accustomed to do mischief, or that the defendants committed acts of negligence which proximately caused the injury. The question here presented is one of fact.

 Type of dog
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Procedural context
Plaintiff’s theory
Defendant’s responses
 Holding

The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.

A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United
States, or when he is on such property upon the invitation, express or implied, of the owner.

 Fencing in
 English Common-law rule: livestock owner must “fence in” livestock to avoid liability for damage to crops
 Fencing out

“Western” rule: farmers can recover only if land was protected by sufficient fence

However well adapted the rule of the common law may be to a densely populated country like England, it is surely but ill adapted to a new country like ours. If this common law rule prevails now, it must have prevailed from the time of the earliest settlements in the State, and can it be supposed that when the early settlers of this country located upon the borders of our extensive prairies, that they brought with them and adopted as applicable to their condition a rule of law, requiring each one to fence up his cattle; that they designed the millions of fertile acres stretched out before them to go ungrazed, except as each purchaser from government was able to inclose his part with a fence?

This State is unlike any of the eastern States in their early settlement, because, from the scarcity of timber, it must be many years yet before our extensive prairies can be fenced, and their luxuriant growth sufficient for thousands of cattle must be suffered to rot and decay where it grows, unless the settlers upon their borders are permitted to turn their cattle upon them. . . Perhaps there is no principle of the common law so inapplicable to the condition of our country and people as the one which is sought to be enforced now for the first time since the settlement of the
State. It has been the custom in Illinois so long, that the memory of man runneth not to the contrary, for the owners of stock to suffer them to run at large.

Except as provided by this chapter for an area in which a local option stock law has been adopted, each gardener or farmer shall make a sufficient fence around cleared land in cultivation that is at least five feet high and will prevent hogs from passing through.

 Restatement 2d § 507
A wild animal as that term is used in this
Restatement is an animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept.
 Restatement 3d § 22 (T.D.)
A wild animal is an animal that belongs to a category which has not been generally domesticated and which is likely, unless restrained, to cause personal injury.

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As a rule wild animals are dangerous unless effectively controlled and whatever value they have is not affected by their being kept under close and effective control. However, if a particular class of animal, bird or insect has been customarily recognized as devoted to the service of mankind, the fact that it is incapable of effective control does not affect its classification as a domestic animal.
Thus, bees are not wild animals although it is impossible to confine them to the land on which their hives are situated.

Restatement 3d § 22, Reporter’s Note (T.D. no. 1)
 Moreover, the traditional position that bees are domesticated is questionable, since huge numbers of bees live and breed on their own, and since bees are easily capable of inflicting personal injuries, which can indeed on occasion prove fatal. In light of the absence of modern cases considering the traditional view that bees are not wild animals, and in light of the substantial arguments that favor classifying bees as wild, the status of bees is left open in this Restatement.

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Facts
Why not negligence?
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Why not trespass?
“The true rule of law”
Analogous cases

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Did the House of Lords affirm the Exchequer
Chamber?
What’s the difference between the two opinions?

Turner v. Big Lake Oil Co.,
96 S.W.2d 221 (Tex. 1936)
 [W]e decline to follow and apply in this case the rule of absolute liability laid down in
Rylands v. Fletcher , because:
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(a) The rule has been generally repudiated by this court;
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(b) the basis of the rule drawn from its application in England in cases of fire, damage by livestock, and injuries to an innocent bystander have been repudiated by us;

Turner v. Big Lake Oil Co.,
96 S.W.2d 221 (Tex. 1936)

(c) the conditions which obtain here are so different from those of England that the rule should not be applied here;
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(d) and because the rule of negligence, instead of absolute liability, while not obtaining universally in the United States, is of such general application as to constitute . . . the ‘American Rule,’ in effect the common-law rule as applied in America, which is the common law which we follow rather than that declared by the English courts.

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(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

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.

 Facts
 Trial court error
 Strict liability: analogizing from Rylands
 Restatement factors

Ultrahazardous/Abnormally Dangerous:
Blasting?

Ultrahazardous/Abnormally Dangerous:
Fireworks?

Ultrahazardous/Abnormally Dangerous:
Hazardous Waste Sites?

Ultrahazardous/Abnormally Dangerous:
Power Lines?

Ultrahazardous/Abnormally Dangerous:
Propane?

Ultrahazardous/Abnormally Dangerous:
Handguns?

Indiana Harbor Belt RR v.
American Cyanamid
 What are the respective roles of American
Cyanamid, Missouri Pacific, and Indiana
Harbor Belt?
 Trial court result
 How does an 1822 case illustrate a 1977
Restatement provision?
 Does strict liability apply to these facts?
 What was the cause of the accident?

Restatement 2d Torts§ 524A.
Plaintiff's Abnormally Sensitive Activity
 There is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the plaintiff's activity.

Restatement 2d Torts§ 524A, illus. 2.
 A, constructing a building, operates piledriving machinery that causes excessive vibration, abnormally dangerous to buildings in the vicinity. B, in an adjoining building, is conducting scientific experiments with extremely delicate instruments. Although the vibration causes no other harm to B or to the building, it ruins the instruments and prevents the experiments. A is not liable to B unless he is found to be negligent in his operation.

Exner v. Sherman Power Const. Co.,
54 F.2d 510 (2d Cir. 1931)
Dynamite is of the class of elements which one who stores or uses in such a locality, or under such circumstances as to cause likelihood of risk to others, stores or uses at his peril. He is an insurer, and is absolutely liable if damage results to third persons . . . . We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences.

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(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous .


The rule of strict liability stated in Subsection (1) applies only to harm that is within the scope of the abnormal risk that is the basis of the liability.
One who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on.

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For example, the thing that makes the storage of dynamite in a city abnormally dangerous is the risk of harm to those in the vicinity if it should explode. If an explosion occurs and does harm to persons, land or chattels in the vicinity, the rule stated in Subsection (1) applies. If, however, there is no explosion and for some unexpected reason a part of the wall of the magazine in which the dynamite is stored falls upon a pedestrian on the highway upon which the magazine abuts, the rule stated in Subsection (1) has no application. In this case the liability, if any, will be dependent upon proof of negligence in the construction or maintenance of the wall.

 So also, the transportation of dynamite or other high explosives by truck through the streets of a city is abnormally dangerous for the same reason as that which makes the storage of the explosives abnormally dangerous. If the dynamite explodes in the course of the transportation, a private person transporting it is subject to liability under the rule stated in Subsection
(1), although he has exercised the utmost care. On the other hand, if the vehicle containing the explosives runs over a pedestrian, he cannot recover unless the vehicle was driven negligently.

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ECL & PCE & CWC
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Issue presented
Foreseeability and
Rylands
Has the rule in Rylands been abolished?

 The significance of strict liability
 Animals and strict liability
 Abnormally dangerous activities

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Wild animals
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Domestic animals without a known dangerous propensity
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Domestic animals with known abnormally dangerous propensity
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Domestic animals with normal dangerous propensity

Defining Animals as Wild or Domestic
 Defining animals
 Defining wild animals

Restatement 2d (not by custom in service to mankind)
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Restatement 3d (not generally domesticated and likely to cause personal injury unless restrained)
Harm must be from dangerous propensity
 Defining domestic animals
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By custom in service to mankind
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If abnormally dangerous, then harm must be from the abnormally dangerous propensity

 Domestic: Cats and dogs
 Wild: Lions, tigers, bears
 Bees
 Monkeys

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“Dog bite” statutes may be different from common-law rules and may impose strict liability regardless of the circumstances
 Fencing laws and trespassing animals
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Development of fencing law
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Fencing in and fencing out
Common-law adaptation
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Formal law and informal norms

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“Non-natural uses,” confinement, and escape
 Defenses
 Reception of doctrine in United States
 Cambridge Water Works and foreseeability

Abnormally Dangerous Activities and the Restatement
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Strict liability for abnormally dangerous activities even though defendant exercises “utmost care”
Restatement “factors”
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High degree of risk of harm
Likelihood that harm will be great
Risk can’t be eliminated by exercise of reasonable care
Whether activity is one of common usage
Locational appropriateness
Weighing social utility v. dangerous attributes

Abnormally Dangerous Activities and the Restatement
 Analyzing different activities

Blasting, fireworks, hazardous waste sites
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Power lines, propane, handguns

Underground storage tanks
 Importance of the eliminating risk factor
 Harm that results must be from what made activity abnormally dangerous