V. STRICT LIABILITY

B. Animals

1. Wild Animals 2. Domestic Animals 3. Trespassing Animals 4. The Landlord's Liability

A. Abnormally Dangerous Activities

1. Basic Rule 2. Definition of "Abnormally Dangerous" 3. Scope of Risk

C. Defenses to Strict Liability

1. Contributory Negligence 2. Comparative Fault 3. Assumption of the Risk 4. Statutory Privilege

1. Basic Rule

A defendant engaged in an abnormally dangerous activity will be held strictly liable—without any proof of negligence—for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm.

a. Known to be dangerous

A domestic animal's owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal's dangerous propensities, and the harm results from those dangerous propensities. Otherwise, at common law, the owner of a domestic animal is liable only for negligence.

V. STRICT LIABILITY

A prima facie case for strict liability requires (i) an absolute duty to make the plaintiff's person or property safe, (ii) breach, (iii) actual and proximate causation, and (iv) damages. The three general situations in which strict liability is imposed are: i) Dangerous activities; ii) Animals; and iii) Defective or dangerous products. MNEMONIC: DAD EXAM NOTE: The "DAD" situations are the only situations in which a defendant can be liable without fault. Otherwise, strict liability is generally the wrong answer choice. A. Abnormally Dangerous Activities B. Animals C. Defenses to Strict Liability

1. Wild Animals

A wild animal is an animal that, as a species or a class, is not by custom devoted to the service of humankind in the place where it is being kept. For example, a wild elephant that has been tamed and exhibited as part of a circus remains categorized as a wild animal. Many states have passed legislation to protect those who display wild animals to the public (e.g., a public zoo), applying a negligence standard instead of strict liability. a. Dangerous propensity b. Plaintiff's fearful reaction c. Liability to trespassers

2. Definition of "Abnormally Dangerous"

Abnormally dangerous means that an activity: i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and ii) The activity is not commonly engaged in. In addition to these requirements, in evaluating whether an activity is abnormally dangerous, courts often consider the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community. EXAM NOTE: The focus is on the inherent nature of the activity, not on how careful the defendant may or may not be in conducting the activity. Common abnormally dangerous activities include mining, blasting, using explosives, fumigating, crop dusting, excavating, disposing of hazardous waste, storing gasoline in residential areas, storing toxic chemicals and gases, and storing large quantities of water and other liquids. Damage or injury caused by flying aircraft is no longer subject to strict liability, though a few states still apply the doctrine to ground damage from an airplane crash.

2. Comparative Fault

Courts are divided, and in some comparative-fault jurisdictions, the plaintiff's contributory negligence does not reduce the plaintiff's recovery under a strict-liability claim. Other jurisdictions and the Third Restatement would allow recovery to be reduced by the comparative fault of the plaintiff.

1. Contributory Negligence

In contributory-negligence jurisdictions, the plaintiff's contributory negligence is not a defense to strict liability, i.e., it does not bar recovery.

4. The Landlord's Liability

In most jurisdictions, the landlord is not liable for harms caused by animals owned by his tenants. The landlord lacks the required element of control over the animal. Some jurisdictions impose liability on the landlord based on negligence if the landlord is aware of the dangerous propensities of the dog or other animal.

c. Liability to trespassers

Licensees or invitees injured by a wild animal may recover in strict liability. A landowner is not strictly liable for injuries inflicted by his animals against a trespasser, except for injuries inflicted by a vicious watchdog. Remember, however, that a landowner may be liable on a negligence theory.

b. "Dog-bite" statutes

Many states have enacted "dog-bite" statutes that hold owners of dogs or other domestic animals designated in the statute strictly liable for damages resulting from personal injuries.

4. Statutory Privilege

Performance of an essential public service (e.g., construction of utility or sewer lines) exempts one from strict liability; however, liability may still exist under a negligence theory.

b. Plaintiff's fearful reaction

Strict liability applies to an injury caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal.

3. Scope of Risk

Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. Example: If the defendant's employee drops a heavy package of explosives, hitting the plaintiff's head and causing a concussion, the plaintiff's claim is for negligence, not strict liability. The concussion is not the type of harm (i.e., an explosion) that makes the use of explosives an abnormally dangerous activity. As in the case with negligence, the defendant's liability can be cut off by unforeseeable intervening causes. See § IV.E.3.b.2.b) Unforeseeable intervening causes, supra.

3. Trespassing Animals

The owner of any animal, wild or domestic (other than household pets), is strictly liable for any reasonably foreseeable damage caused by his animal while trespassing on the land of another. The exception for household pets (the Third Restatement specifically mentions dogs and cats) does not apply if the owner knows or has reason to know that the dog or cat is intruding on another's property in a way that has a tendency to cause substantial harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 21 (2010). The general negligence standard applies if an animal strays onto a public road and contributes to an accident there.

3. Assumption of the Risk

The plaintiff's assumption of the risk bars his recovery in a strict-liability action. This defense is also referred to as "knowing contributory negligence." With animals, if the plaintiff is aware of the dangerous propensity of an animal and taunts the animal, he may be prohibited from recovering under the doctrine of assumption of the risk.

a. Dangerous propensity

The possessor of a wild animal is strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know.

2. Domestic Animals

a. Known to be dangerous b. "Dog-bite" statutes