Torts Class Notes 12/1/03


Strict liability


If we had more classes, the next topic we’d do would be products liability.  If you’re interested in strict liability, you can take Advanced Torts.  Basically, the strict liability regime operates in a limited way in Torts, but there are certain categories in which strict liability has been viewed as appropriate.  Strict liability doesn’t achieve greater compliance or more reasonable behavior from defendants.  You’ll always get the same behavior from the defendants, but it forces the defendants to weigh whether they should engage in that activity in that place at all.  You force them to try to figure out whether they should do that activity in that place at all.


With strict liability for animals, the whole notion of treating domestic animals differently than wild animals forces the owner to consider whether it is reasonable or smart to keep wild animals at all.


Is this just negligence in disguise?  We have an activity with low value relative to the risk it creates and the harm caused if that risk came to fruition.  Keeping a dangerous domestic animal is not a valuable activity to society, while it is has a high risk of a great harm.  That’s why we’ll just shorthand it in some sense and make it an activity for which we impose strict liability.


Rylands v. Fletcher


This is the origin of the “ultrahazardous activities” rule.  A guy built a water reservoir that ended up flooding his neighbor’s coal mine.  Prior to building the reservoir, what did he do?  Did he do anything in preparation?  They’re building a reservoir and fail to notify the defendant that there’s a problem.  They continue to dig the reservoir.  Water leaked slowly into the mine and eventually flooded the mine.  Why does it matter that water seeped into the mine rather than rushing into the mine?  Was this direct harm?


Who else could be sued?  Could you have sued the engineers?  Maybe the Earl of Wilton, who owned both properties?


Blackburn says that there is liability for anything brought on land that is likely to do mischief if it escapes.


What does non-natural use mean?  It doesn’t mean artificial versus natural.  What does it mean?  It means something you don’t use the property for.  It means some unusual use of the land that society doesn’t find valuable.  Non-natural means “it shouldn’t be happening here”.  It’s a hard activity to do safely.


Was this rule adopted in the United States?  What do we know about water in England?  It rains a lot!  It’s not terribly useful to build reservoirs in England, whereas it’s more important here.  In England, they thought coal mining was a lot more useful than digging reservoirs.


Bridges v. The Kentucky Stone Co., Inc.


Webb stole dynamite from the company and used it to blow up Bridges’s house.  The trial court gave the company summary judgment because they felt that the company’s storage of the dynamite wasn’t a proximate cause of the act.  Ultimately, the Supreme Court of Indiana reinstates the summary judgment in favor of the company.  The Supreme Court found that there were a lot of intervening causes that blocked the company’s liability.


But is storing dynamite so dangerous that the company should be per se liable?  The court says we have to judge on a case-by-case basis.  Does this case look like a strict liability case?  What would the rule be in Indiana after this case?  The court says they will look for negligent behavior.  Use of dynamite is always an ultrahazardous activity.


Abnormally dangerous activity


Some factors that go towards labeling activities abnormally dangerous:


·        There is a high degree of risk of harm.

·        There is a high likelihood that the resulting harm will be great.

·        It’s impossible to eliminate the risk by using due care.


Some factors that go towards determining strict liability:


·        Was it common, customary, or appropriate to engage in this activity at this location?

·        Was the value of the activity to the community outweighed by its dangerousness?


Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.


American Cyanamid hired a transporter to ship a dangerous chemical through Chicago.  Due to the transporter’s negligence, the chemical leaks.  The question is whether American Cyanamid should be held strictly liable.


What’s the difference between this case and the ballooning case mentioned in the opinion?  In the ballooning case, the question was of the balloonist’s activity.


Posner suggests that the appropriate activity for the railroad yard is switching train cars, but that it’s not appropriate to live there.


Could the courts just say that shipping chemicals through a populated area is negligent?  It would probably result in less shipping of that kind of liquid.  These factors are characterized as a version of cost-benefit analysis.


What if somebody gets hurt during a city fireworks display?  The fireworks are ultrahazardous.  However, only a few people can be responsible enough to shoot them off.  It’s not a common activity.  Is it appropriate where it’s carried out?  Where do most cities shoot off fireworks?  Is it far enough away from people?  Most big cities will shoot fireworks over water.  If this city failed to do that, it might be an issue.  This is a tough case, but it’s likely that the city will be liable because it’s a very dangerous activity.  The city has a better chance of avoiding liability if the fireworks are fired off over water.


When you think about strict liability, think about what the risks are that are anticipated.  The result must be within the risk anticipated.  It’s sort of a foreseeability thing.


Strict liability in torts is rather limited.  There are certain activities that will require a factor analysis.


Vicarious liability


Sometimes one person can be held responsible for the activity of another.  Sometimes people are concerted tortfeasors.  Sometimes A creates a risk that B will negligently cause an injury.


Respondeat superior


This has to do with the employer-employee relationship.  If you’re not within the scope of your employment, you can’t be held responsible for your acts.


Why vicarious liability?  What are some reasons it might be a good idea?  We want someone’s pocket to pick.  There’s a “deep pocket” rationale: employees don’t have a lot of money, but employers do.  Cole doesn’t like this rationale.  It doesn’t seem fair to go after an entity which didn’t do anything wrong in itself.  Also, the employer is benefiting from the activities of the employee.  Therefore, it is argued, the employer should bear some responsibility for the employee’s actions. The employer can buy insurance and spread the cost by raising prices.  The employer also has control of the employee.  These are some rationales for imposing vicarious liability on the employer.


Lundberg v. State


The biggest issue is scope of employment.  Sandilands is an employee of the state of New York.  He stays near his job site and goes home to Buffalo on the weekends.  When you go to and from work, generally, the employer is not responsible.  Part of the reason is the risk of excessive liability.  There is an exception, however, which is that if your car is part of your job, you are in the scope of your employee after you leave your last appointment and before you arrive home.


Coming and going


So normally, there is no liability for traveling to and from work.  However, there are exceptions where such travel is within the scope of employment: when they have to go a long distance or when the travel has a dual purpose (like when you stop to eat lunch in a postal vehicle).  If you can come up with a reason that the travel benefits the employer, it is easier to avoid the coming and going rule.


Fruit v. Schreiner


A life insurance salesman drives to a bar looking for out-of-state colleagues.  Was he on a frolic or was he doing something related to the business?


Conference cases are very difficult: it’s hard to figure out what’s social and what’s within the scope of employment.


This court seems to be on a rampage for compensating the plaintiff and they’re willing to look to any doctrine that will let them do that.


When does drinking on the job go beyond the scope of employment?  These cases tend to acknowledge that social drinking is a part of business.


What about smoking and falling asleep at a motel and burning down the motel?  Is that within the scope of employment?


Think about it as a continuum.


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