Torts Outline Daniel Ricks

Modern Strict Liability

1. 
   Overview:
   
   1. 
      Negligence is the dominant approach to accidental non-intentional harms
      
   2. 
      But there are still pockets or subcategories of SL within NEG regime
      
      1. 
         Trespass—even if you don’t know, SL
         
      2. 
         Conversion
         
      3. 
         Damages caused by wild animals and even domesticated animals with known capacity
         
      4. 
         Rylands/Blackburn true rule (something unnatural escapes) has been replaced in America with more expansive rule—abnormally dangerous activities.
         
   3. 
      Abnormally Dangerous:
      
      1. 
         Includes fumigation, blasting, toxic substances, drilling for oil, pollution in general
         
      2. 
         Reciprocity argument—disproportionate risk on others
         
      3. 
         Distributional argument—if everyone benefits
         
      4. 
         Fairness—activity should be able to pay its way. compare it to another technology. SL will accomplish that.
         
      5. 
         SL “tax”:
         
         1. 
            Steers choices of alternative ways
            
         2. 
            Steers location
            
         3. 
            Steers whether or not activity should be done at all
            
         4. 
            Encourages innovation to make things safer
            
   4. 
      Why not have SL across the board?
      
      1. 
         Benefits from steering might be small
         
      2. 
         Signaling might be weak
         
      3. 
         Incentives probably would be right
         
      4. 
         More Litigation—worth the cost?
         
   5. 
      Why not have technology and location stuff in NEG test of BPL?
      
      1. 
         Too many complex variable swamp jury
         
      2. 
         BPL should be done by enterprise ex ante, not by jury ex post
         
   6. 
      Principles:
      
      1. 
         Rest2. §519 (593): A person who carries on an abnormally dangerous activity is strictly liable, even if he’s super careful. SL limited to the type of harm that makes the activity dangerous.
         
      2. 
         Rest2. §520 (593): Factors in considering abnormally dangerous:
         
         1. 
            High degree of risk
            
         2. 
            Harm will be great
            
         3. 
            Inability to eliminate risk through reasonable care
            
         4. 
            Activity not common usage
            
         5. 
            Inappropriateness of activity to place where carried on
            
         6. 
            Value to the community
            
      3. 
         Rest3. §20 (595): “A defendant who carries on an abnormally dangerous activity is subject to SL for physical harm resulting from the activity. An activity is abnormally dangerous if:
         
         1. 
            The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
            
         2. 
            The activity is not a matter of common usage.”
            
      4. 
         Rest3 got rid of location and community value—location has too many issues to weigh. Activity must internalize social benefit—must pay its way.
         
   7. 
      P’s Prima Facie case:
      
      1. 
         D’s conduct in carveout category (like abnormally dangerous)
         
      2. 
         Injury
         
      3. 
         Causation—simply “but for”—easier than in NEG
         
         1. 
            Proximate cause might be a little harder
            
      4. 
         Damages
         
   8. 
      Affirmative Defenses
      
      1. 
         Contributory NEG is NOT A DEFENSE
         
         1. 
            Generally a Type I situation. Little to minimize harm done
            
      2. 
         Assumption of Risk? We’re not sure. It doesn’t get wrapped into CONT/COMP NEG since those don’t apply. If recognized, it would be a complete defense.
         
2. 
   Illustrative Cases:
   
   1. 
      Spano v. Perini (NY, 1969): Persons engaged in blasting are strictly liable for damage caused by that activity. In construction of tunnel, nearby garage was destroyed.
      
   2. 
      Indiana Belt Harbor v. American Cyanamid (7^th Cir, 1990): Shipment of chemicals is deemed NOT ultrahazardous—no SL—because the leak was caused by NEG, not inherent properties of chemical.
      
      1. 
         Imposing SL would make incentives to go around city too much.
         
   3. 
      Boomer v. Atlantic Cement (NY, 1970): Instead of shutting down factory that causes nuisance, smoke, vibration, court can give injunctive relief of D’s payment of permanent damages
      
      1. 
         Courts don’t typically grant an injunction whenever a nuisance is found. But they often will to protect non-parties—injunctions prevent difficulties in calculating money damages
         
      2. 
         Danger of injunction—inefficient—overdeterrence.
         
      3. 
         Courts are divided as to whether invisible particles are a trespass—if yes then SL
         
      4. 
         Nuisance, unlike trespass, must show impede use and enjoyment of land. Must be unreasonable.
         

Alternatives to Tort

1. 
   Overview:
   
   1. 
      Welfarist:
      
      1. 
         Underdeterrence in tort system
         
      2. 
         Liability insurance not well-adjusted
         
         1. 
            Low risk people subsidize high risk
            
      3. 
         P’s might not bring claims
         
   2. 
      Overdeterrence in MED MAL, products liability, hazardous waste?
      
   3. 
      Loss Spreading:
      
      1. 
         Empirical studies—overcompensation for small harms, undercomp for big harms
         
   4. 
      Transaction Costs:
      
      1. 
         Tort system is very expensive
         
2. 
   Comparison of Systems:
   
   1. 
      Tort System provides both $ and incentives
      
   2. 
      Workers Comp provides both $ and incentives
      
      1. 
         Gets rid of causation
         
      2. 
         No P&S
         
   3. 
      Regulation provides incentives but no $
      
   4. 
      Private First-party loss insurance--$ but no incentives
      
      1. 
         Better compensation, lower costs than tort system
         
   5. 
      Social Loss Insurance--$ but no incentives
      
      1. 
         Better in compensation and costs that private system
         
3. 
   Why Keep the Tort System?
   
   1. 
      From insurance view, there is a safety net with holes. Tort system must patch the holes.
      
   2. 
      Tort system keeps incentives for personal caretaking.
      
   3. 
      Justice based—need redress for personal injury.
      
      1. 
         But today, insurance pays, not wrongdoer.
         
      2. 
         Few individual harms today—individual fault is impractical.
         
   4. 
      Power to Account
      
      1. 
         Little guy can sue powerful
         

Directory: sites -> default -> files -> upload documents
upload documents -> Torts outline Functions of Tort Law
upload documents -> Constitutional Law (Yoshino, Fall 2009) Table of Contents
upload documents -> Arrest: (1) pc? (2) Warrant required?
upload documents -> Civil procedure outline
upload documents -> Criminal Procedure: Police Investigation
upload documents -> Regulation of Agricultural gmos in China
upload documents -> Rodriguez Con Law Outline Judicial Review and Constitutional Interpretation
upload documents -> Standing Justiciability (§ 501 Legal/beneficial owner of exclusive right? “Arising under” jx?) 46 Statute of Limitations Run? 46 Is Π an Author? 14 Is this a Work of Joint Authorship? 14 Is it a Work for Hire?
upload documents -> Fed Courts Outline: 26 Pages
upload documents -> Jurisdiction Personal Two inquiries

Download 129.36 Kb.

Share with your friends: