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Strict Liability:

Products Liability

Negligence assert that injured by acting carelessly so to breach a duty of

care owed to and that s act was the actual (but-for) and proximate (natural
and expected) cause of s injury.
Actor (A) is subject to lblty to other person () for negligence if:
1. has suffered an injury;
2. A owed a duty to a class of persons including to take care not to cause an
injury of kind suffered by ;
3. A breached that duty of care;
4. As breach was an axl and prx cause of s injury.
Restatement (3d) Liability for Physical and Emotional Harm, 3

A person acts negligently if the person does not exercise reasonable care
under all the circumstances. Primary factors to consider in ascertaining
whether the person's conduct lacks reasonable care are the foreseeable likelihood
that the person's conduct will result in harm, the foreseeable severity of any harm
that may ensue, and the burden of precautions to eliminate or reduce the risk of
Duties of Care
Unqualified (general) Duty is to take ordinary care to avoid causing 4cbl harm
(See Mussivand v.)
Qualified/Limited Duties
Affirmative Duties: Presumptive rule of no duty to rescue (See Osterlind v.), w/
exception of
Special Relationships: business/customer e.g. (See Baker v.), common
o Duties to Third Parties: care owed those ex-rship (See Tarasoff v.,
Rowland v.)
Voluntary Undertakings: once you start a rescue, negligent to abandon it
puts in peril: if I buy you drugs and you OD, I have to effect rescue
Statutory Reqs obligating rsbl rescue: fuck to this
Premises Liability: duty w/r/t as invitee, licensee or trespasser. (See Leffler v.)
Pure Economic Loss: No recovery w/o phys. dmg, K b/w / or special rship
(See Aikens v.)
Standards of Care

Strict Liability:
Products Liability

Ordinary Standard of Care: care a rsbly prudent person would take under the
Extraordinary Standard of Care, or, Strict Liability: negligence w/o fault.
Professional Standard of Care: care ordinarily used by a similarly situated
Industry & Professional Custom: care customary to industry generally informs
pro duty/breach
Prudent Patient Standard: what a prudent person in patients position would
want to know
Parental Liability: Parent lbl for kids conduct if negligent supervision or
Hand Test: duty/breach det. by cost/ben analysis. B>PL = no breach (See Carroll
Res Ipsa: relieves of proving d/b/c when inj psbl only bc negligent (See
Kambat v.)

Causation requires show actual and proximate cause.

Actual cause: But for s negligence, would have been injured?
Preponderance Standard: Was it more likely than not that s conduct
caused s injury?
Loss of Chance Doctrine: deprives of opportunity of avoiding harm
(See Falcon v.)
Multiple Necessary & Multiple Sufficient Causes: But for combined and
concurrent negligent acts inj. to couldnt have happened. may sue actors
jointly or severally, and recover against one or all. Test: Where concurrence
in causes charged, could accident have happened w/o cooperation?
Alternate Causation:
Burden Shifting: assume causation and make prove that they did
NOT cause harm when there are mult. Suff. Causes and PF case
satisfied (See Summers v. Tice)
Market Share Liability: s jointly hold a subst % of mkt share for
an injurious product, shift burden of proof to each to demonstrate
not rspnsble (See Sindell v.)
Proximate Cause: Was injury the natural and expected result of s conduct?
Intervening Cause: subsequent force ind. of s neg. See also f4cbl
intervening cause.
Superseding Force: subsequent force ind. Of s negligence interposing
un4cbl result

Affirmative Defenses to Negligence Claims

Affirmative Defenses to Negligence Claims
Contributory Negligence: Defunct rule (5 states still use it). Any contrib = zero

Strict Liability:
Products Liability

Comparative Fault: alleges was in some way rspnsble for inj

Pure Comparative Fault: s recovery diminishes in proportion to their fault
(e.g., 20F=80R)
o Modified Comparative Fault: no recovery if jury assigns more fault to
50+: doesnt recover anything if their actions are more than 50%
at fault
50/50: 50% or more at fault contributory negligence rises from
grave for no recovery
Express or Implied Assumption of Risk
Statute of Limitations/Repose
Immunity & Exemption from Liability
o Parental/Familial Immunity (But see privilege to discipline)
o Charitable Immunity
o Sovereign Immunity
No respondeat superior for fed/state govs, but individual officials
subject to tort lblty
FTCA (1946): statutory waiver of immunity. Limitations:
No punitive dmgs against government
Excludes intentional wrongdoings from government lblty
unless committed by an investigative or law enforcement
Federal employees have personal immunity against lblty for
torts committed w/in scope of their duties
USG lbl for employees tort w/in scope (of duty)
Apply tort law of jurisdiction where tort occurs
Special protections for govt as tort .

State/Local Govt: Exempt from lblty for govt activities, but not
proprietary activities
Duty Exemption/Public Duty Rule: Duty is owed to public at large, no duty to

Negligence Per Se
Doctrine allowing to satisfy breach element AMOL by proving that violated
statutory rule of conduct or admin. reg., relieving of burden of proving that
violated c.law ord. care std.
Negligence Per SE
Person () may establish breach as AMOL if Actor (A)s conduct

Violates a statute that is designed to protect against

The type of harm actor caused; and
is within class of persons that statute is designed to protect.

Restatement (3d) 14. Statutory Violations as Negligence Per Se

An actor is negligent if, without excuse, the actor violates a statute that is
designed to
protect against the type of accident the actors conduct causes, and if the
victim is within the class of persons the statute is designed to protect.
Martin v. Herzog (1920) (Note 393)
J. Cardozo: Instr. To consider driving w/o lights on as evid. of neg. wrong it is
Dalal v. City of New York (1999) 384
hit s car in intersection. was driving w/o license, corrective lenses
Held: unexcused violation of statutory standard of care is negligence per se
arg that driving w/o license is not negligence per se wrong: statute prescribes
manner of operation (must not operate in viol of lic restrictions). Dictates
manner/std of care.
Bayne v. Todd Shipyards Corp. (1977) 385
(1099er) falls off s loading thingy bc failed to bob. Federal regs req
shipyards to bob.
Held: Regs apply to any person doing work at shipyard, not just shipyard
employees; finds violation in this case to be NPS.
Diss: w/n viol of Admin. Regs = NPS should be AMOF not AMOL. Slippery slope
Victor v. Hedges (1999) 388
parked on sidewalk to show CD player; hit by TP van. argues is lbl for
NPS violating statute that prohibits parking on sidewalk.
Held: Violated statute was meant to protect against spec. kinds of injs., but not
this one. No NPS.
Defenses to Negligence Per Se
Restatement (3d) 14. 15. Excused Violations

Violation due to incapacity (child, disability)


Negligence Per Se

Acted rsbly to comply with statute (See Busby, 398)

o Compliance with statute not dispositive of breach
Justifiable ignorance by as to existence of facts rendering statute applicable
Excessive vagueness or ambiguity in statutory language
Compliance would involve greater risk to actor or others (See Tedla, 398)

Wrongful Death Acts &

Implied Rights of Action
Survival actions provide estate w comp for harms decedent suffered before
death, incl. medical expenses ($0 if death instant), funeral expenses, lost income
b/w inj and death, and pain/suffering.
Wrongful Death Acts
Wrongful death actions compensate survivors for losses suffered from
decedents death. Dmgs reflect econ. support survivors lost bc s conduct. Some
cts (TX) have allowed emo. distress dmgs.
Nelson v. Dolan (1989) 405: River City Ransom with more dying
Statute bars compensation for next of kin dmgs based on mental anguish (only
pecuniary dmgs)
Loss of Consortium
Claim for survivors loss of economic support/companionship/sexual intercourse

Implied Rights of Action

Inmplied Rights of Action
Statute may create right w/o specifying how rights are to be enforced. When
such rights are violated, courts are left to determine whether and how rights may
be enforced.
Tex. & Pac. Ry. Co. v. Rigsby (1916) 416 injured by RR car not bobbed as reqd
by statute
Statute exempts repairs from statutory dmgs, but not lblty from inj.
Held: implied right of action for to sue under statute
J.I. Case Co. v. Borak (1964) 418
invoked fed statute in suit alleging used false statements to solicit proxy votes
for stock sale
Held: Statute meant to protect private investors like , implied right of action
Bivens v. Six Agents of FBI (1971) 425
sued law enforcement officers for violating 4th Amendment rights in search
and seizure
Implied right of action found for claims against individual law enforcement
officers who violated 4th Am. because U.S. Constitution guarantees rights, Ps
must be able to sue to defend those rights
DISSENT: Black - this is encouragement of frivolous lawsuits. Burger - argues for
new statute

Intentional Torts: Battery

Actor (A) is subject to lblty to other person () for battery if:
A acts;
Intending to cause a contact with ;
o Intent is to touch; not necessarily to harm (though this may be true; see
dual intent)
o Usually means body but anything in yr bubble may be in play (see Fisher
v.) (extended personalty)
The contact with that A intends is of a harmful/offensive type; and
o Objective std: contact must violate prevailing social standards of
acceptable touching
As act causes to suffer a contact that is harmful or offensive.
Restatment (2d) 18. Battery: Offensive Contact
An actor is subject to liability to another for battery if he acts intending to
cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and an offensive contact
with the person of the other directly or indirectly results.
Cecarelli v. Maher (1943) 604 (Opie Taylor) steals s chicas; s initiate a
vicious kicking process
Paul v. Holbrook (1997) 605 shouldnt have been dressed like that. Women are
Vosburg v. Putney (1891) 614 (big bully a) kicks in his wonky leg, which, uh,
falls off.
Battery only requires intent to kick, not intent to kick leg off (eggshell
plaintiff case)
Cole v. Hibberd (1994) 617 AFHV Winner, 1994. kicks in the culo
: kick was negligence so longer SoL. : I battered in the culo so shorter SoL
Held: because kick was intentional, it was battery (notwithstanding that it was
Diss: intent AMOF, not AMOL
Wagner v. State (2005) 623 attacked by mental patient at K-Mart (my literal
: attack was negligence on part of state. Patient cant batter: mentally incapable
of intent
: It was battery and we dont waive immunity for that
Held: Bc patient intended to touch (nvm intent to harm), axns were battery so
Garratt v. Daily (1955) AFHV Winner, 1955. Kid pulls chair out from under old
Held: Knowledge to a near certainty that laffs would ensue establishes s
intent so battery.

Intentional Torts: Assault

Assault alleges that has acted intentionally to cause another to reasonably
apprehend imminent harmful or offensive contact. Protects right to be free from
certain threats. Words alone do not necessarily suffice to est. cause, though this
is context-dependent. In determining w/n assault, imminence is key; size
differential, rship b/w and A, tone, etc.
Actor (A) is subject to lblty to other person () for assault if:

A acts;
Intending to cause apprehension of an imminent harmful or offensive
contact with ; and
As act causes rsbly to apprehend such a contact.

Restatement (2d) Torts 21. Assault

An actor is subject to liability to another for assault if a) he acts intending to
cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and b) the other is
thereby put in such imminent apprehension.
Beach v. Hancock (1853) 639
Prima facie case satisfied when pointed a gun at
Brooker v. Silverthorne (1919) 640
Apprehension of non-imminent harmful or offensive contact not assault
Vetter v. Morgan (1995) 643
Held: whether s actions constituted an assault was a question for jury
Whether apprehended offensive contact AMOF
Transferred Intent
Injury inflicted doesnt have to be injury intended to be axnbl
Same vic; diff. tort: intent is to scare but shoots instead = lbl
Same tort, diff. vic: intended to shoot A, shoots B instead = lbl
Diff. tort, diff. vic: intends to scare A, shoots B instead = lbl
In re White (1982) 648
Held: When intentionally acts toward third party but injures , intent is xferred

Intentional Torts:
False Imprisonment
Actor (A) is subject to lblty to other person () for false imprisonment if:
False Imprisonment
A acts;
Intending to confine ;
As act causes to be confined; and
Area of confinement must be sufficiently small.
If exit available but risks physical harm in exiting, confined.
If exit available but fears A will seek to prevent her from exiting,
is aware of her confinement.
Restatement (2d) of Torts 35 False Imprisonment
An actor is subject to liability to another for false imprisonment if a) he acts
intending to confine the other or a third person within boundaries fixed by the
actor, and b) his act directly or indirectly results in such a confinement of the
other, and c) other is conscious of the confinement or is harmed by it. An act
which is not done with the intention stated in Subsection (1)(a) does not make
the actor liable to the other for a merely transitory or otherwise harmless
confinement, although the act involves an unreasonable risk of imposing it and
therefore would be negligent or reckless if the risk threatened bodily harm.
Fojtik v. Charter Med. Corp. (1999) 677: Yall are brutalizing
Held: did not satisfy PF case; signed a waiver, was free to leave and was
permitted to take passes.

Intentional Infliction of
Emotional Distress (IIED)

Intentional Infliction of Emotional Distress (IIED)

Actor (A) is subject to lblty to other person () for IIED if:

acts intentionally or recklessly;

s conduct is extreme or outrageous (exceeding all bounds of decency)
suffers severe distress as a result; and
is within Zone of Danger created by s conduct; or has a special
relationship with in which negligent conduct especially likely to cause
serious emotional harm

Restatement (3d) 46, Intentional (or Reckless) Infliction of Emotional

An actor who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional harm to another is subject to liability for that emotional
harm and, if the emotional harm causes bodily harm, also for the bodily harm.
Dickens v. Puryear (1981) 699 s daughter shouldnt have been dressed like that
Held: s claims for everything except IIED time-barred. Death threat conditional;
Bc not imminent, not assault, but injuries do fit bill for IIED. So, could be lbl for
IIED gap-filler for torts not covered by other claims
Littlefield v. McGuffey (1992) 705 files FHA claim for housing discrimination,
Held: s conduct extreme/outrageous; also discriminatory.
Punitive/compensatory dmgs.
Hunt v. State (2013) 711 threatens 10yo to coerce confession from TP;
goes bitch on him
Held: Qualified immunity for state actors who viol clearly established right (here,
4th Am.)
Threatening by LEO suff to claim IIED, though recklessness rather than
Wilson v. Monarch (1991) 728 Beautifully orchestrated campaign of harassment
drives insane
Held: s conduct part of systematic, intentional campaign to humiliate by
turning former VP into worlds highest paid janitor. Outrageous. No place in
civilized society for this.
Stockett v. Tolin (1992) shouldnt have been dressed like that
Held: is gross; also, liable as an employer for violations of sexual harassment
and IIED
Bystander IIED
lbl to bystander for IIED

Intentional Infliction of
Emotional Distress (IIED)

bystander perceives the event contemporaneously, and

bystander is close family member of TP suffering the bodily injury

Note: YMMV wrt close family member. Distant blood relations (aunts, e.g.)
generally may not recover but stepparents/adopted sibs can. Sufficiently close
friendships may recover in some cases. Same-sex/domestic partners, live-in
partners may/may not depending on jurisdiction.
Restat. (3d) 48 Negligent Infliction/Emotional Harm Resulting from Bodily
Harm to TP
An actor who negligently causes sudden serious bodily injury to a third person is
subject to liability for serious emotional harm caused thereby to a person who a)
perceives event contemporaneously, and b) is a close family member of the person
suffering the bodily injury.

Negligent Infliction of
Emotional Distress (NIED)

Negligent Infliction of Emotional Distress (NIED)

NIED claims asserts that failed to be sufficiently vigilant of s emotional
wellbeing, allowing to recover for emotional pain and suffering resultant to s
Actor (A) is subject to lblty to other person () for NIED if:

has suffered severe emotional distress;

A owed a duty to to be vigilant of s emotional well-being;
A breached that duty of care;
As breach was an axl and prx cause of s injury.

Restatement (3d) 47 Negligent Conduct Directly Inflicting Emotional

Harm on Another
An actor whose negligent conduct causes serious emotional harm to another is
subject to liability to the other if the conduct: a) places the other in danger of
immediate bodily harm and the emotional harm results from the danger; or b)
occurs in the course of specified categories of activities, undertakings, or
relationships in which negligent conduct is especially likely to cause serious
emotional harm.
Wyman v. Leavitt (1880) 748 runs out of laudanum; begins to suffer hysteria
from s explosions
Held: Mental suffering unattended by physical injury insufficient to sustain a tort
Robb v. Pennsylvania R.R. Co. (1965) 749 was out runnin the roads; almost hit
by s train
Held: Impact Rule arbitrary. Bc was in zone of physical danger, can sue for
distress from anticipation of injury. Kinda like assault in intentional torts: holds lbl
s who come close enough.
Consolidated Rail Corv. Gottshall (1994) 753 Employee Appreciation Day, GWARstyle
Held: Recovery for emotional injury limited to those who witnessed event
Gottshall claim AMOF for jury wrt ZoD (remand); Carlisle claim not w/in ZoD
AMOL (dissed)
Majority opinion designed to limit endless lblty
Special Relationships and Undertakings to Be Vigilant
has a special relationship with in which negligent conduct especially likely
to cause serious emotional harm, See Restatement (3d) 47(b):

Negligent Infliction of
Emotional Distress (NIED)

An actor whose negligent conduct causes serious emotional harm to another is

subject to liability to the other if the conductoccurs in the course of specified
categories of activities, undertakings, or relationships in which negligent conduct
is especially likely to cause serious emotional harm.

Beul v. ASSE Intl Inc. (2000) 769 shouldnt have been dressed like that
Held: had affirmative duty to protect exchange students from emotional harm
Jury instructions included statutory rape law and comparative fault; jury found
41 percent lbl (!)
Because in loco parentis, they owed a duty to exercise kind of care that any
parent would to protect child from sexual pitfalls. So, owed a duty to look out
for her emotional well-being and breached that duty by failing to protect her from
4cbl harm (didnt check in frequently etc.)
Bystander NIED
may be liable to certain persons who witness another being injured or killed by
s carelessness.
is lbl to third party bystander for NIED if
is closely related to the victim;
is present at scene of event and aware that injury is being caused to victim;
suffers emotional distress more severe than a disinterested witness would
Restatement (3d): Liability for Physical and Emotional Harm, 48
Negligent Infliction of Emotional Harm Resulting from Bodily Harm to a
Third Person
An actor who negligently causes sudden serious bodily injury to a third person is
subject to liability for serious emotional harm caused thereby to a person who: a)
perceives the event contemporaneously, and b) is a close family member of the
person suffering the bodily injury.
Waube v. Warrington (1935) 778 Mom watches daughter get hit by car. Sad
s duty was to drive in safe/rsbl fashion; no duty to avoid emotional distress to
Dillon v. Legg (1968) 781 Mom watches daughter almost get hit by car. Less sad
Held: Even though mom not in ZOD, she may recover bc she witnessed death of
Thing v. La Chusa (1989) 788 Mother who does not witness injury to child cannot
collect for NIED

Negligent Infliction of
Emotional Distress (NIED)

Held: Subsequent emotional distress caused by learning of injury outside scope

of duty
Diss: Emotional distress from learning of a childs injury as significant as
witnessing it
Public Policy-Based Limiting Tests
Impact Test: no recovery for pure emotional distress (distress not parasitic
upon a physical injury). Fright sufficient to cause physical symptoms may
support. Defunct; used in only 5 states.

Special Relationship: AKA, Undertakings to Be Vigilant of Anothers Emotional

Well-Being. When a contract relationship is deemed to support tort duties of care,
a may be able to recover on a claim for NIED. E.g., funeral home workers,
various caretakers.

Defenses: Intentional Torts

Affirmative Defenses
Defenses to Intentional Tort Claims
Express or Implied Consent: assumes risks of harm that falls within Scope of
Express Consent: expresses consent usually through waiver/document
Harm must be within Scope of Consent: e.g., doctor can only operate on
part of body consented, unless there is a medical emergency
Implied Consent: from s perspective, was s consent rsbly and
genuinely perceived?
Implied-in-fact: conduct makes an objective manifestation that rsbly
interprets as consent, regardless of s subj intent
Implied-in-law: consent is implied in law if
is unable to consent;
Rsbl person would consent in circumstances; and
No indication that would not consent if able to
Consent ineffective when:
obtained through fraud, duress or coercion
didnt have capacity to consent
act exceeded scope of consent;
(in some jurisdictions) consent was to a criminal act
Battery rejects s defense of consent that he committed battery for s best
Self-Defense: must axly/rsbly perceive risk of imminent danger of harm or
Proportionality: Force used in defense must be rsbl wrt risk
Conditional threats (run them jewels or Ill gat you)
Non-deadly, proportional force always ok.
Deadly force ok unless you can meet condition; if you rsbly
believe meeting condition will ensure safety, deadly force not
Provoker cannot claim self-defense
Unless victim becomes aggressor and/or initial provoker tries to
Defense of TP: ok if
A rsbly believes TP has right to self-defense and
Intervention necessary for TPs safety
Defense/Recapture of Property: Use of rsbl force allowed if
Proportional: Cannot shoot dead someone who tries to punch you
Unless intruder is in home; deadly force allowed

Defenses: Intentional Torts

No duty to retreat in home (castle doctrine)

Threat is conditional: e.g., give me your money and I wont hurt you
Deadly force okay w rsbl belief that meeting condition wont
assure safety
Capture of property momentary: once they peaceably have your
shit, your privilege is gone
No privilege for mistaken recapture

Immunity and Privilege:

Arrest and Detention
Police allowed to briefly detain w/o PC to investigate axl/psbl criminal
Private citizens privileged to arrest if
Srs crime has been committed and
Citizen has obj. rsbl grounds (PC) to suspect that arrestee
committed crime; and
Arrest is affected in good faith (w/o malice, harassment,
extortion, etc)
Citizen perceives detainee is or is about to commit a breach/peace
Mistaken arrest not privileged: if Citizen wrong, lblty
Shopkeepers Privilege: Merchants immune from tort lblty for FI
claims where
Merchant has rsbl belief that is or has stolen;
Later findings of innocence do not reinstate lblty
Manner and length of detention rsbl and dur suff to allow rsbl
Privilege lost w/ use of excessive force
Privilege to discipline: Pop, or Daddy, immune from suit for tortious
spankings, etc.
But not from claims by minors subjected to cruel/outrageous treatment
But not from claims by those who reach age of majority at time of tort
Those in charge of kids have rights extended to them; in loco parentis
Public figures generally barred from IIED claims on 1st Am. grounds (See

Property Torts
Property Torts

Trespass to Land

committed a voluntary act;

That physically invaded s exclusive possessory interest in real property w/o
s consent;
That intended invasion;
That had immediate right to possession of land


Private Necessity (incomplete defense)
Public Necessity (complete defense)
Express or Implied consent, w/in scope

Nominal ($1 I hear ya, now fuck off)
Parasitic Damages PI dmgs resultant from trespass, prx and axl
Punitive (punish/deter WWR)

Trespass to Chattel

took voluntary act that interfered with s right of possession in chattel

intended to perform act that brought about this interference
That either possessed chattel or had immediate right to possess it
If act is merely an intermeddling, must show axl dmgs if act is
dispossession axl dmgs dont have to be proven; mere taking of possession is
considered suff dmg



Property Torts

substantially interfered with s right of possession in personal property, in a

sufficiently serious fashion as to justify ordering to pay propertys full value
[ has to assert dominion and control over object]
intended to perform interfering act [mistake is not a defense]
was either in possession of chattel or had immediate right to possess it

Express/Implied Consent, w/in scope of consent

Strict Liability:
Ultrahazardous Activities

Strict Liability:
Ultrahazardous Activities
This doctrine imposes strict liability on those who carry out uncommon, abnormal
activities deemed to be so dangerous to the public that the risk of harm cannot be
sufficiently mitigated.
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
Restatement (Second) of Torts, 522:
One carrying on an ultrahazardous activity is liable for harm although the harm
is caused by the unexpectable a) innocent, negligent or reckless conduct of a
third person, or b) action of an animal, or c) operation of a force of nature.
Third Restatement Strict Liability Factors: An activity is abnormally
dangerous if
a) it Creates a foreseeable and highly significant risk of physical harm even when
reasonable care is exercised by all actors, and b) It is not one of common usage
Rylands v. Fletcher (825) created underground reservoir. It flooded s property,
ruining mine.
is engaged in a non-natural use of land and subject to strict lblty for dmgs to
Held: If a person intros to land anything that may cause dmg to his neighbor (50k
gallons of water, gazoline, wild animals etc) he is rspnsble for dmgs, however
careful he may have been, and whatever precautions he may have taken to
prevent dmg, for natural consequences of its escape.
Turner v. Big Lake Oil Co., 1937: in Texas, drilling below ground and flooding it
with salt water (to get oil) on property has been considered a natural use of
Klein v. Pyrodyne Corp. (827) casts magic missile at . Critical hit! takes 75
Restatement 520 analysis fireworks are an UHA so SL.
would want negligence - burden of proof would be on to prove breach; instead
it is SL.

Strict Liability:
Ultrahazardous Activities

wrt SL, only has to show engaged in ultrahazardous activity and it was axl/prx
Defenses: Comparative Fault (assumption of risk)

Continuing and unreasonable interference with use and enjoyment of property
that occurs even absent invasion necessary for trespass (usually a factual dispute
about interference)
Public Nuisance
Public nuisance when it interferes with public health, safety or welfare
Public: species of catch-all criminal offense interference with community rights
Sometimes individual can bring claim if they were injured by nuisance in a way
that distinguishes them from general population (still bring private)
Private Nuisance
Private nuisance when it interferes with owners possessory or beneficial interest
in use or quiet enjoyment of land.
Defense: Consent to nuisance, but doesnt bar you from changing your mind
Limits on Strict liability:
You must be a bystander (non-participant in the dangerous activity)
Injury must come about in the right wayproximate cause is built in (ex:
Foster: minks that went crazy after explosion, not liable b/c too fortuitous)
Defenses like assumption of risk, comparative fault apply
Strict liability holds people liable for things that are not necessarily wrongs.
Can be thought of as its own kind of tort, or an application of negligence

Strict Liability:
Products Liability

Actor () is subject to (strict) lblty to person () in products lblty if

Products Liability
has suffered an injury;
Injury = physical harm; tangible property dmg. Dmg to/destruction of
defective prod not ordinarily axnbl; remedy lies in express/implied
warranty (economic loss rule).
has sold a product;
Definition excludes services and real property, per 3rd Rest. 19(b)
is a commercial seller of such products;
Includes manufacturers, retailers and distributors
Product was defective at time of sale; and
Manufacturing Defect: product diverges from mfrs specs for product
Design Defect: products design specs flawed
Failure to Warn: when safety reqs a product to be sold w/ a warning
(chemicals, medicine, liquor) but is sold without one, or is mislabeled
Defect functioned as an axl and prx cause of s injury.

Restatement (3d) 1 Lblty of Commercial Seller/Distributor for Harm via

Defective Prods.
One engaged in the business of selling or otherwise distributing products who
sells or distributes a defective product is subject to liability for harm to persons
or property caused by the defect.
Escola v. Coca Cola Bottling Co. of Fresno (1944) Exploding soda
Although instrument causing s injury was not under s exclusive control at time
of accident, did have control at time alleged negligent act took place.
Conc: Instead of deciding case on grounds of negligence, a rule of strict lblty
should be imposed on manufacturers whose products cause injury to consumers.
Greenman v. Yuba Power Prods., Inc (1963) Tim The Tool Man Taylor Gets His
Dick Mashed
Held: a manufacturer is SL in tort when an article he places on market, knowing
that it is to be used without inspection for defects, proves to have a defect that
causes injury to a human being
Gower v. Savage Arms, Inc. (2001) He shot his dick off
Strict PL does not equal absolute lblty despite several defects could not
recover bc causation
Chow v. Reckitt & Colman, Inc. (2010) He put his eye out
If utility of a product does not outweigh danger inherent in its introduction into
stream of commerce, then product is defectively designed.
Wilson Sporting Goods Co. v. Hickox (2013) He got hit in the throat with a
baseball (lol)

Strict Liability:
Products Liability

Evidence would be analyzed under consumer-expectation test, and not under riskutility test; evidence was suff under consumer-expectation test to support jury's
finding that ordinary consumer would have expected mask to perform more safely
than it did.
Genie Industries, Inc. v. Matak (2015) He fell off some sort of cherry picker?
R.isk-Utility Test: Risk from design did not outweigh utility so lift was not unrsbly
Defenses: Most negligence defenses apply

Comparative Fault (Assumption of risk, Misuse of Product of substantial and

4cbl nature)

Statutes of Repose bars suit after specified time, even if harm occurs (is
discovered) later