"Strict Liability" Causes of Action 2018

Servant

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

When determining if Servant or Independent Contractor, consider:

(a) The extent of control which, by the agreement the master may exercise over the details of the work; (b) Whether or not the one employed is engaged in a distinct occupation or business; (c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the worker; (e) The skill required in the particular occupation; (f) The length of time for which the person is employed; (g) The method of payment, whether by the time or by the job; (h) Whether or not the work is a part of the regular business of the employer; (i) Whether or not the parties believe they are creating the relation of master and servant; and (j) Whether the principal is or is not in business.

Respondeat Superior - AKA

-Vicarious Liability -Master/Servant Liability -Principal/Agent Liability -Employer/Employee Liability

Scope of Employment - Respondeat Superior

1) Conduct of a servant is within the _______________ if, but only if: (a) It is of the kind he is employed to perform; (b) It occurs substantially within the authorized time and space limits; (c) It is actuated, at least in part, by a purpose to serve the master, and (d) If force is intentionally used by the servant against another, the use of force is not unexpectable by the master. 2) Conduct of a servant is not within the ___________________ if it is different in kinds from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Contributory Negligence - Abnormally Dangerous Activities

1) Except as stated in 2), the contributory negligence of the plaintiff is not a defense to the strict liability of one who carries on an abnormally dangerous activity. 2) The plaintiff's contributory negligence in knowingly and unreasonably subjecting himself to the risk of harm from the activity is a defense to the strict liability.

Plaintiff's Conduct

1) Except as stated in 2), the contributory negligence of the plaintiff is not a defense to the strict liability of the possessor of an animal. 2) The plaintiff's contributory negligence in knowingly and unreasonably subjecting himself to the risk that a wild animal or an abnormally dangerous domestic animal will do harm to his person, land or chattels, is a defense to the strict liability. 3) The plaintiff's ["genuine"] assumption of the risk of harm [knowingly and reasonably subjecting himself to the risk] from the animal is a defense to the strict liability.

Liability for Trespass by Livestock

1) Except as stated in 3) and 4) [plaintiffs who fail to erect and maintain fences required by law], a possessor of livestock intruding upon the land of another is subject to liability for the intrusion although he has exercised the utmost care to prevent them from intruding. 2) The liability stated in 1) extends to any harm to the land or to its possessor or a member of his household, or their chattels, which might reasonably be expected to result from the intrusion of livestock. 3) The liability stated in 1) does not extend to harm (a) done by animals straying onto abutting land while driven on the highway; or (b) not reasonably to be expected from the intrusion; or (c) brought about by the unexpectable operation of a force of nature, action of another animal or intentional, reckless or negligent conduct of a third person.

Elements of Respondeat Superior

1) Front-line D was "an employee" of "employer"-D, and 2) Front-line D was acting "in the scope of employment," and 3) Front-line D acted negligently (or otherwise tortiously) injuring P. (need not be decided by verdict)

Special Liability of Seller of Product for Physical Harm to User or Consumer

1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. 2) The rule stated in Subsection (1) applied although (a) the seller has exercised all possible care int he preparation and sale of his product, and (b) the user or consumer has no bought the product from or entered into any contractual relation with the seller.

Wild Animal and Domestic Animal Defined

1. A ______ animal [an animal ferae naturae]... 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 _____ animal [an animal mansuete naturae]... 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.

Liability of Possessor of Wild Animal

1. A _______ 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. 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.

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. 2. The liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.

Abnormally Dangerous Activities

1. One who carries on "an ___________________________" 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 ________________________.

Kind of Conduct within Scope of Employment

1.) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized. 2.) In determining whether or not the conduct is so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: (a) Whether or not the act is one commonly done by such servants; (b) The time, place and purpose of the act; (c) The previous relations between the master and the servant; (d) The extent to which the business of the master is apportioned between different servants; (e) Whether or not the act is outside the enterprise of the master

Repairs Which Lessor is Under a Duty to His Lessee to Make

A lessor of land who employs an independent contractor to perform a duty which the lessor owes to his lessee to maintain the leased land in reasonably safe condition, is subject to liability to the lessee, and to third persons upon the land with the consent of the lessee, for physical harm caused by the contractor; failure to exercise reasonable care to make the land reasonably safe.

Negligent Manufacturer of Chattel Dangerous Unless Carefully Made

A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied.

When Master is Liable for Torts of His Servants

A master is not subject to liability for the torts of his servants acting outside the scope of their employment unless (a) the master intended the conduct or the consequences or (b) the master was negligent or reckless or (c) the conduct violated a non-delegable duty of the master or (d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority or he was aided in accomplishing the tort by the existence of the agency relation

Harm Done by Indigenous Animal After Its Escape

A possessor of a wild animal _______ to the locality in which it is kept is not liable for ham done by it after it has gone out of his possession and returned to its natural state as a wild animal indigenous to the locality.

Liability to Trespassers

A possessor of land is not subject to strict liability to one who intentionally or negligently trespasses upon the land, for harm done to him by a wild animal or an abnormally dangerous domestic animal that the possessor keeps on the land, even though the trespasser has no reason to know that the animal is kept there.

Work on Buildings and Other Structures on Land

A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he has retained the work in his own hands to others on or outside of the land for physical harm cause to them by the unsafe condition of the structure (a) while the possessor has retained possession of the land during the progress of the work, or (b) after he has resumed possession of the land upon its completion.

Manufacturing Defect

A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

Defective because of inadequate instructions or warnings

A product is defective because of inadequate instructions or warnings when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial supply chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Defective in Design

A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe:

Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.

Intentional Invasion - Nuisance

An _________ of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor (a) Acts for the purpose of causing it, or (b) Knows that it is resulting or is substantially certain to result from his conduct.

Criminal or Tortious Acts - Acts within Scope of Employment

An act may be within the scope of employment although consciously criminal or tortious.

Forbidden Acts - Acts within Scope of Employment

An act, although forbidden, or done in a forbidden manner, may be within the scope of employment.

Gravity vs. Utility: Conduct Unsuited to Locality - Nuisance

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if that harm is significant, and (a) The particular use or enjoyment interfered with is well suited to the character of the locality, and (b) The actor's conduct is unsuited to the character of that locality.

Gravity vs. Utility: Conduct Malicious or Indecent - Nuisance

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm is significant and the actor's conduct is (a) For the sole purpose of causing harm to the other; or (b) Contrary to common standards of decency.

Unreasonableness of Intentional Invasion - Nuisance

An invasion of another's interest in the use and enjoyment of land is ________ if (a) The gravity of the harm outweighs the utility of the actor's conduct, or (b) The harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible ("financial feasibility").

Negligence Collateral to Risk of Doing the Work

Except as stated in . . ., and employer of an independent contractor, unless he is himself negligent, is not liable for physical harm cause by any negligence of the contractor if (a) the contractor's negligence consists solely in the improper manner in which he does the work, and (b) it creates a risk of such harm which is not inherent in or normal to the work, and (c) the employer had no reason to contemplate the contractor's negligence when the contract was made.

Liability for Harm Done by Domestic Animals that are NOT Abnormally Dangerous

Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be _________, is subject to liability for harm done by the animal if, but only if, (a) he intentionally causes the animal to do the harm, or (b) he is negligent by failing to prevent the harm.

Gravity of Harm - Nuisance

In determining the ____________ from an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important: (a) the extent of the harm involved; (b) the character of the harm involved; (c) the social value that the law attaches to the type of use or enjoyment invaded; (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and (e) the burden on the person harmed of avoiding the harm.

Utility of Conduct - Factors Involved - Nuisance

In determining the _____________ that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important: (a) The social value that the law attaches to the primary purpose of the conduct; (b) The suitability of the conduct to the character of the locality; and (c) The impracticability of preventing or avoiding the harm.

Contributing Actions of Third Persons, Animals and Forces of Nature

One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm although it 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

Liability of Commercial Seller or Distributor for Harm Caused by Defective Products

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.

Nuisance

One is subject to liability for a private ________ if, but only if, his conduct is a legal cause of an invasion of another's [legally protected but non-exclusive] interest in the private use and enjoyment of land, and the invasion is either a) Intentional and unreasonable, or b) Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Precautions Required by Statute or Regulation

One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of other is subject to liability to the other for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions

Making or Repairing of Instrumentalities Used in Highly Dangerous Activities

One who carries on activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully constructed or maintained, and who employs an independent contractor to construct or maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in constructing or maintaining such instrumentalities as though the employer had himself done the work of construction or maintenance.

Work Done in Public Place

One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of member of the public, is subject to liability for physical harm caused to member of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use.

Animals Kept in Pursuance of a Public Duty

The Rules as to strict liability for dangerous animals do not apply when the possession of the animal is in pursuance of a duty imposed upon the possessor as a public officer or employee [the "zoo exception"] or as a common carrier.

Failure to Act - Acts within Scope of Employment

The failure of a servant to act may be conduct within the scope of employment.

Determining Whether an Activities 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.

Assumption of Risk - Abnormally Dangerous Activities

The plaintiff's ["genuine"] assumption of risk [voluntarily, knowingly and reasonably encountering the risk] of harm from an abnormally dangerous activity bars his recovery for the harm.

Effect of Contributing Actions of Third Persons, Animals and Forces of Nature

The possessor of a wild animal or an abnormally dangerous domestic animal is subject to strict liability for the resulting harm, although it would not have occurred but for the unexpectable (a) innocent, negligent or reckless conduct of a third person, or (b) action of another animal, or (c) operation of a force of nature.

Plaintiff's Abnormally Sensitive Activity - Abnormally Dangerous Activities

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.