Torts II Multiple Choice

Guthrie Hospital uses hydromegasufate, a highly explosive chemical, in several sophisticated medical applications. Because the chemical is so explosive, Guthrie stores it in a heavy gauge tank on its grounds, two hundred feet behind the hospital. One morning, the cashier at the hospital is held up at gunpoint. He alerts the police, who respond and chase the culprit out the back door. An officer fires a warning shot, which unfortunately hits the tank on a ricochet. The tank explodes, injuring Dean, who was emptying trash into a nearby dumpster. Assuming that the storage of hydromegasulfate is a strict liability activity, is Guthrie strictly liable for Dean's injury?

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What are the two other requirements in addition to the Rest 2d § 520 factors to establish an activity is abnormally dangerous?

1. Requirement of an Activity under Defendant's Control and 2. Type of Hazard Contemplated

What are the Rest. 2d § 520 factors in determining abnormally dangerous activities?

1. the degree of risk of harm to persons or property; 2. the magnitude of that harm; 3. the inevitability of some risk irrespective of precautionary measures that might be taken; 4. the ordinary (or conversely, unusual) nature of the activity in the community in which it is found; 5. how suited the activity is to the place where the defendant engaged in it; and 6. the activity's value to the community in comparison to the risk of harm created by its presence.

Which of the following would satisfy the requirement for strict liability for abnormally dangerous activities that the type of harm was contemplated: A. a property owner neighboring a site at which explosives are stored is injured by an accidental explosion by debris or by concussion B. a property owner neighboring a site at which explosives are stored has his groundwater polluted by a deluge wetting the stored explosives C. defendant's blasting operation frightened mother minks causing the minks to kill their kittens.

A. A property owner neighboring a site at which explosives are stored might have a remedy under this provision should there be an accidental explosion that damaged other landowners by debris or by concussion.

What are the defenses to strict liability for abnormally dangerous activities?

Assumption of the risk and comparative fault in reducing damages

True/False If most of the Rest. 2d § 520 factors are met strict liability will be imposed.

False. In an action alleging an abnormally dangerous activity, a plaintiff must successfully demonstrate more than the high risk posed by defendant's activity, its incongruity with the surrounding commercial or industrial environment, and its capacity for great harm. Liability will not lie unless plaintiff makes the additional showing that the risk involved cannot be eliminated through defendant's exercise of reasonable care.

True/False Under modern approach the Rylands v. Fletcher holding is limited to hazardous water collection on land that creates risk of injury to a neighbor's person or property if it escapes from its property of origin.

False. the modern doctrine has now extended far beyond the original confines to include, to list only a few, findings of strict liability for the injurious consequences of the storage of explosives, fumigation, crop dusting, the storage of flammable liquids, pile driving, and the maintenance of a hazardous waste site. The integral part of the holding maintained focuses on material escaping from one person's land and causing injury to another's.

True/False Under Rest 2d §§ 519 and 520 it is the defendant's burden to show that defendant's activity is abnormally dangerous.

False. Under Rest 2d §§ 519 and 520 it is the plaintiff's burden to show that defendant's activity is abnormally dangerous. The plaintiff must show the risk of an abnormally great harm should defendant's safety efforts fail; the virtual impossibility of defendant's elimination of the risk of harm even with the utmost care; and a resultant harm to plaintiff or plaintiff's property, caused by the very hazards the risk of which led to describing defendant's conduct as "abnormally dangerous" in the first place.

State the Rest. 3rd description of abnormally dangerous activity.

It creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and is not one of common usage.

Ronstadt Plastics Company has a major plant in a suburban area near Nashville. As part of its process for manufacturing certain plastic toys, Ronstadt keeps a large tank of pseudomonomethane on its property. Pseudomonomethane is not explosive, caustic, or flammable. It is easy to work with and essential to Ronstadt's manufacturing process. However, it has been identified as a very potent carcinogen if ingested. While one of Ronstadt's delivery trucks is arriving at the plant, it loses its brakes and careens off the road and into the tank. The tank is knocked over, and pseudomonomethane spills on the surrounding earth. The chemical migrates underground and enters the city's water supply, requiring the closing of its wells. The city sues for damages,and argues that Ronstadt is strictly liable for the damage to its water supply. How should the court rule?

It depends. Pseudomonomethane carries the potential for very widespread harm if it gets into the water supply. However, unlike volatile agents like nitroglycerine or gasoline, it has no unusual tendency to cause an accident. The example suggests that the likelihood of an accident taking place from storing pseudomonomethan is no higher than from storing molasses, water, or anything else. This argues against imposing strict liability. Nor is there any indication that the risk of damage from storing pseudomonomethan is irreducible. Careful handling will not absolutely eliminate the risk of a spill, but there are few activity from which the risk of harm can be completely eliminated. Presumably, it applies where, despite due care, there remains an unusual risk of an accident that simply cannot be eliminated. Where the risk can be substantially controlled by due care, Posner concludes, such extreme measures are not called for, and strict liablity should not be imposed. It seems likely that other courts, however, would impose strict liability even though a toxic chemical is not unusually likely to escape. In Rylands, the court spoke of a thing likely to do mischief if it escapes without suggesting that the force had to be one that is especially likely to escape. Some courts focus primarily on the extent of the threat if the chemical does escape. If the potential harm is sufficiently great, however, as in the case of a nuclear explosion, the likelihood that it will take place may be comparatively slight and yet the activity be regarded as abnormally dangerous.

Describe the purpose suggested by Judge Posner for imposing strict liability on high risk activities.

One purpose is to reduce the frequency with which actors choose to pursue these activities. By making the actor strictly liable - by denying him an excuse based on his inability to avoid accidents by being more careful - we give him an incentive, missing in the negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing or reducing the activity giving rise to the accident.

Baez Construction Company is engaged in the construction of a skyscraper in a small but growing city. A worker drops a plank from the seventh floor and injures a passing pedestrian. Is Baez strictly liable?

Probably not. The construction of high rise buildings certainly impose risks on the community, including the risk of objects falling from high places. The risk of falling objects is a common one, as is construction activity in general. Many engage in it in the community, and many are subject to it. In addition, although such activity may cause serious harm, it does not pose the extreme risk of an explosion or a dam collapse, which may injure many or wipe out an entire community. Last, most of the risks of ordinary construction work can be reduced to a minimum by precautions in the course of the work.

Describe Professor George Fletcher's non-reciprocal rationale for applying strict liability.

Strict liability addresses the asymmetry where the defendant's conduct endangers the plaintiff but the plaintiff's conduct does not endanger the defendant. One motorist to another motorist creates equal risk. Whereas a motorist driving past a blasting site on a well-traveled road, the risk imposed on the motorist is less than the motorist imposes on the blasting site. The non-reciprocal nature of the risks commends imposition of strict liability.

True/False Following reasoning consistent with proximate cause analysis, courts require plaintiffs to show that what they experienced related to the abnormal danger of the activity.

True Rest. 2d § 519(2) limits the applicability of the strict liability remedy to the kind of harm, the possibility of which makes the activity abnormally dangerous.

True/False Under Rest. 2d §§ 519-520 an activity that will create liability for abnormally dangerous activities requires an extreme hazard.

True Section 519 states: 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 utmost care to prevent the harm. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Franklin Pest Control Company is called in to fumigate an apartment house. The process calls for spraying the premises with Vikane, a toxic chemical that kills bugs. Unfortunately, Vikane is also toxic to people. Prior to spraying the building, Ciccone, an employee of Franklin carefully investigates to be sure that the chemical fumes can not spread through the party wall into the adjacent apartment building. She is assured that the party wall is an impenetrable fire wall, and her own inspection confirms this. Unfortunately, a crack, almost impossible to find, exists in the wall. The chemical fumes spread through the wall and overcome Prince in the next building. Prince sues Franklin for his injures. The company argues that it took all reasonable precautions and had no reason to suspect that the fumes could travel into Prince's building. Assume that the court concludes that fumigation is a strict liability activity, and agrees that the company's conduct was reasonable. Is Franklin liable to Prince?

Yes, under strict liability. Prince may recover by showing that his injury was caused by the defendant's conduct of the activity, no matter how carefully it was done. Franklin is liable, since its use of the toxic chemical caused his injuries. The basis of strict liability is not fault, but the choice to engage in the activity in the first place. Because of the nature of that activity, courts place the damages flowing from that choice on the actor, rather than those who suffer injury, even blameless injury, from it.

Can strict liability be imposed on an abnormally dangerous activity even when a third party causes the resulting harm?

Yes. the actor engaged in the activity as well as the third party will be held liable.

Franklin Company's tank truck delivers Vikane to an apartment building for use in the fumigation. The driver carefully backs up to the building dock, checking his mirrors and beeping as he goes. Unfortunately, Jackson, a child, runs impulsively behind the truck and it hit. Jackson sues Franklin Co. for his injures. At trial, Judge Fudd instructs the jury as follows: I instruct you that the process of fumigation with Vikane is a strict liability activity. If you find that the plaintiff's injury took place in the course of the defendant's fumigation activities, then the defendant may be found liable without proof of negligence. a. By instructing the jury that strict liability applies to the activity of fumigation, Judge Fudd has decided that question as a matter of law. Was that proper? b. Who will object to Fudd's instruction, and why is it improper?

a. Judge Fudd as quite properly decided the applicable liability standard as a matter of law. The decision to impose strict liability is a policy decision as to the nature of the duty owed in the conduct of the activity. This is a question of law for the court, just as the existence of a duty of care is an issue of law in a negligence case. b. Franklin, the defendant, will object to the instruction, because it suggests that it is strictly liable for any injury that takes place in the course of fumigation. It makes sense to confine strict liability to the types of risks that make the activity abnormally dangerous. Although Jackson was injured while Franklin was in the general course of its fumigation activities, he was not injured by the peculiar risk that makes fumigation abnormally dangerous. His injury arose from related, ordinary activity incident to fumigation. Fumigation is not a strict liability activity because of the risk of truck accidents, but rather due to the risk of Vikane poisoning, which has nothing to do with this case.

Neville is driving a Petrosur Oil Company tank truck containing gasoline on Interstate 591 when Dean, driving a pickup truck, cuts in front of him. Neville swerves to the right to avoid a collision and tips over. The tank car ruptures, and the gasoline explodes and injures Hendrix, who was driving in the opposite roadway. Hendrix sues Petrosur for damages, and claims that Petrosur is strictly liable for his injures. a. Would strict liability apply under the holding of Rylands v. Fletcher? b. Under both the Second and Third Restatements, it is relevant whether the activity is a matter of common usage. Is transportation of gasoline a matter of common usage? c. Would strict liability apply under the Second Restatement?

a. Petrosur would not be liable under Rylands, since the accident did not arise from conduct of an activity on the defendant's proeprty that caused injury on surrounding property. b. It depends. This phrase may refer not to how visible the activity is, but to the number of people who engage in the activity. It is a highly specialized activity performed by a relatively small number of entities. Similarly, tens of thousands of buildings may be fumigated every year; in this sense fumigation is common. But it is still a specialized activity carried on by a small number of experts in the field, rather than an every day activity that ordinary people undertake. In this sense it imposes an unusual, nonreciprocal risk and may be found not a matter of common usage. However, the fact that only specialists engage in an activity is not dispositive. Activities that widely benefit communities may be deemed common. Given this nonobvious conception of common usage, some courts would doubtless conclude that transportation of gasoline is a matter of common usage. c. It depends. Under the Second Restatement, the court would have to balance the six factors in § 520, and different courts might draw the balance differently. Gasoline hauling is likely to satisfy the first three factors. The last two factors in § 520 do not support strict liability. Gasoline hauling is appropriate to an interstate highway, which is probably the safest place to haul it. And, availability of gasoline is obviously of great value to the community.