We impose negligence when there is a precaution we want people to take

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§ 519:

  1. One who carries on an abnormally dangerous activity is subject to liability for that harm . . . although he has exercise the utmost care

  2. Strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous

  • § 520 Abnormally dangerous activies. Factors in so defining:

    1. Existence of high degree of risk to land, chattels, others

    2. Likelihood of that harm is great

    3. Inabilty to eliminate risk through exercise of reasonable care

    4. Extent of activity in common usage

      1. Note: This can evolve over time. E.g., used to apply to aviation in the 1930s but not today

    5. Inappropriateness of activity to place it’s carried out

    6. Extent of its value to community outweighed by its dangerous activities

      1. Note: This factor was ably criticized in Koos v. Roth, 652 P.2d 1255 (Or. 1982) in which the court upheld strict liability in an action for fire damage

        1. “highly toxic materials may be necessary to the production of… products of all sorts; does liability for injury from their storage or movement depend on the utility of these products?”

      2. Note: This factor was dropped for the Third Restatement

  • §522. (Affirmative defenses.) Contributing actions of third parties, animals, forces of nature

  • §522 (Assumption of risk). Plaintiff’s assumption of risk from an abnormally dangerous activity bars recovery

  • §523. Assumption of risk is an affirmative defense if P knowingly subjected himself ot the risk

  • §524A. No strict liability for harm caused to abnormally sensitive P (impt for nuisance)

  • Spano v. Perini Corp., 250 N.E.2d 31 (N.Y. 1969). Over-ruled Booth. Imposed strict liability on hazardous activity

    1. Overturned Losee v. Buchanan, 51 N.Y. 483. Plaintiff sued for damages that resulted when defendant’s boiler, operated with due care, exploded and was projected into her premises. Court held for the defendant on the basis of

      1. Living in civilized society provides benefits

      2. Society requires industry

    2. Facts

      1. Window’s in P’s automobile shop were destroyed when D engaged in demolition blasting 125 ft. away. D was using 194 sticks of dynamite to do this.

      2. “In our view, the time has come for this court to make that ‘dannouncement’ and declare that one who engages in blasting must assume responsibility, and be liable without fault, for any injury he causes to neighboring property.”

    3. But see Masden v. East Jordan Irrigation Co. 125 p.2D 794 (Utah 1942). P owned mink farm 100 yards from blasting. The blasts caused the mother mink to kill their kittens. Court held that blasting was governed by strict liability, but damages were to remote (based on distinguishing the case from Scott v. Shepard)

      1. This is an important case to be able to reconcile with the general rule for strict liability as regards ultrahazardous activity.

      2. This is a highly unusual situation. We expect the rules of liability to break down in such situations

      3. There is no reason the blaster should have known that the minks have this propensity. He is not the person best able to initiate the bargain. The rancher is the best person to initiate the bargain.

        1. Strict liability is basically imposed to force bargains (in a Coase Theorem way) by the parties to get to desired outcomes

        2. It makes no sense to use liability force people into bargains when they had to no reason to know a bargain should have been made in the first place

    4. But see Yukon Equipment v. Fireman’s Fund Insurance Co., 585 P.2d 1206 (Alaska 1978). Defendants, who stored explosives, strictly liable for explosives set off by thieves to cover their escape to conceal theft.

      1. Note the difference between human agency and the reaction of animals in Masden.

  • Harbor Belt R.R. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990) (Posner, J.)

    1. Levmore: Posner addresses the reason for strict liability: We impose strict liability when the cost of a non-negligent accident is so severe that we have to impose these costs no matter what.

      1. Whereas, in Harbor Belt, any possible alternative creates higher, immeasurable costs, so it makes no sense to impose strict liability in this case (and not strict liability on the alternative delivery methods that the D could have used)

      2. That is, encouraging the D to adopt an alternative route around Chicago/populated areas isn’t really going to mitigate any risk and actually might result in more risks

        1. Strict liability takes into account the risk of non-negligent accidents (and the magnitude of harms created thereby, as well as their non-reciprocal nature e.g., Spano)

        2. E.g., we use strict liability to encourage people to engage in alternative, less-risky (both in probability and magnitude) behavior

    2. Facts. D loaded a 20,000 lbs of a highly toxic, flammable chemical onto a rail car leased by D. Chemical was shipped to P’s shipping yard (a switching station) on the outskirts of Chicago, where it sprang a leak

      1. Local area had to be evacuated

      2. P was billed almost $1MM by authorities for the cleanup measures by state of IL

    3. P brought claims of negligence and strict liability on the theory that shipping such a chemical in bulk constituted an ultrahazardous activity. Hence, D should be liable to P since P bore the financial brunt of the damage

    4. Posner invoked Guille v. Swann as a “paradigmatic case for strict liability”

      1. Risk of harm was great (little control over the balloon)

      2. Magnitude of the potential harm was great (could have crashed into crowd)

      3. Such accidents could not be prevented through exercise of due care

      4. Activity not in common usage (ballooning)

      5. Occurred in densely populated area (NYC)

      6. Little value to community

      7. Note: Posner notes that the most common imposition of strict liability is for use of explosive for demolition in residential areas (e.g., Spano)

    5. Court held reversed summary judgment for P on the count of strict liability on the basis that:

      1. Chemical in question was not caused by the inherent properties of the chemical itself; leak was caused by negligence in transport

      2. This sort of negligence is not inherent to such transport, nor does it create an inevitable risk that cannot be mitigated through due care

        1. Chicago was a major transport hub for such chemicals, and this was a unique accident

      3. Strict liability was in appropriate in this case also since it was the manufacturer and not the shipper who was at issue

        1. Manufacturer is the one who can designate the route of the shipment

        2. The cost of re-routing the shipment is prohibitively expensive, and might increase the risk

    6. But see Siegler v. Kuhlman, 502 P.2d 1181 (Wash. 1972). Strict liability appropriate for gasoline transported on public highways (adopting rule of Rylands v. Fletcher) based on the idea that “gasoline is always dangerous”


    1. Distinct from trespass. Trespass involves an intrusion onto your land. Nuisance involves the actions of your neighbor on his land, that interfere with your enjoyment

    2. Private nuisance: A condition that interferes with a person's enjoyment of property; esp., a structure or other condition erected or put on nearby land, creating or continuing an invasion of the actor's land and amounting to a trespass to it. • The condition constitutes a tort for which the adversely affected person may recover damages or obtain an injunction.

      1. Distinguished from trespass

        1. Trespass → Liability without significant harm (strict liability)

        2. Private nuisance → No liability without significant harm (negligence)

      2. Vogel v. Grant-Lafayette Electric Cooperative, 548 N.W.2d 829 (Wis. 1996). Action for private nuisance lay for P whose dairy herd was impacted by stray voltage caused by D’s power lines

        1. Note: some states have adopted statutes specifically exempting PowerCo.’s from nuisance laws for stray voltage. However, the Iowa court refused to make a common law rule in the absence of a legislative enactment

    3. Reasonableness in Nuisance. Generally speaking, defendant’s invasive conduct is actionable iff it constitutes an “unreasonable” interference with the plaintiff’s use and enjoyment of her property

      1. Restatement § 826 implies a (cost)/benefit analysis.

        1. Intentional invasion of another interest in the use and enjoyment of the land is unreasonable if:

          1. Gravity of the harm outweighs the utility of actor’s conduct

          2. Harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to other would not make the continuation of the conduct not feasible

        2. Note that the offense is judged from the point of view of a reasonable tenant (normal sensitivity as opposed to the “extra sensitive” tenant)

          1. Rogers v. Elliott, 15 N.E. 768 (Mass. 1888).

            1. P brought action against a bellringer when the toll of the church bells caused him convulsions

            2. Court denied the claim on the basis that the utility of the action must be judged from the point of view of the reasonable person (as opposed to the ultrasensitive)

            3. Court also noted that there was no proof of malice (which would not come w/in legal rights)

      2. Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 362 N.E.2d 968 (N.Y. 1977). Limited use of strict liability in private nuisance in those issues in which:

        1. P, an operator of a car storage and preparation business, alleged emissions from the smokestacks of a nearby ConEd plant which damages plants

        2. Court restricted use of strict liability (as opposed to the C/B in negligence) in those instances of:

          1. Intentional and unreasonable use

          2. Negligent or reckless

          3. Actionable under normal rules governing strict liability

      3. But see Jost v. Dairyland Power Coop., 172 N.W.2d 647 (Wis. 1969). Strict liability for damages even though practice which resulted in emissions of sulphur dioxide even though its practices conformed to industry standards

        1. “It is irrelevant that defendant was conforming to industry standards of due care if its conduct created a nuisance.”

    4. Nuisance generally.

      1. In certain instances, an action for nuisance lies even without the affirmative act on the part of the defendant:

        1. Puritan Holding Co. v. Holloschitz, 372 N.Y.S.2d 500 (N.Y. Sup. Ct. 1975) D liable in nuisance when she abandoned and left in disrepair a building owned in a renewal area. Court noted conduct violated the local administrative ordinance requiring vacant buildings to be guarded/sealed

      2. Action in Trespass or nontrespassory nuisance?

        1. Martin v. Reynolds Metals Co., 342 P.2d 790 (Or. 1959). D had released quantities of flouoride gas that became airborne, and rendered adjancent land unfit for cattle grazing.

          1. Court held that action amounted to trespass and this was a substantive issue (since the defenses available in trespass generally are not available in nuisance)

        2. But see Adkins v. Thomas Solvent Co., 487 N.W.2d 715 (Mich. 1992). Nontrespassory invasion was strictly necessary for underlying nuisance action to go forward

          1. 22 Ps sought recovery for depreciation to property values attributable to unfounded belief that D had leaked toxic waste

          2. Court noted that they refused to allow “wholly unfounded fears of third parties regarding the conduct of a lawful business” to “satisfy the requirements for a legally cognizable injury as long as property values decline.”

          3. Consisent with the court’s focus on the deed (the unreasonableness of the defendant’s conduct to P) as opposed to the doing (unreasonableness of D’s conduct per se). Markesinis, B.S. & Deakin, S.F. Trot Law 419 (3d Ed. 1994)

        3. Golen v. The Union Corp., 718 A.2d 298 (Pa. Super. 1998). Nuisance action could not lie for P who could not sell his property when D owned contaminated property nearby

    5. Noninvasive nuisance.

      1. If the harm alleged is reciprocal, the court can adopt a “live and let live” policy regarding noninvasive nuisance.

        1. Bamford v. Turnley, 122 Eng. Rep. 27 (ex. 1862) (Bramwell, B.). Court denied an action in nuisance is noninvasive and consistent with the “ordinary use” of such land by both P and D

          1. These interferences are reciprocal

          2. Hence, better to let sleeping dogs lie (ratherthan actions in tort) or let the parties negotiate their way around the issue (Coase)

      2. Fontainebleau Hotel Corp v. Forty-Five Twenty Five, Inc. Court soundly rejected the doctrine of ancient lights as applied to the case at hand.

          1. Court held that If a structure serves a “useful and beneficial purpose” it gives no cause of action even if it restricts access to light and air of another

              1. Light and air is not a right, therefore it does not fall under the doctrine of Sic utere tuo ut alienum non leadas

              2. “There being., then, no legal right to the free flow of light and air from the adjoining land, it is universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo… even though it causes injury to another buy cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state”

                1. Court in fact noted that the doctrine of ancient lights (and the prescriptive easement of light and air) is generally rejected in the U.S.

          2. Levmore: Typically speaking, when you have a bad enough injunction against the company, the company will lobby to get the law changed. (moving it from the legal arena to the political arena). RPD: Notice how this was treated in Fountainebleau.

            1. Rather than this being a collective action problem that was statutorily restricted (by the company) it was simply one company trying to fuck over another company

            2. We will tolerate it if, say, O’Hare (a $50BN business) lobbies to get a law changed in order to stay open

              1. We will not tolerate it if one business wants to get the law changed just to prevent another business from building a similar structure

              2. Eden Roc had the chance to let their lobbyists go to work

            3. Eden Roc should have waited until after they were denied relief to go to the legislature (but even then, they probably wouldn’t have been successful since they are not equivalent to an operation like, say, O’Hare)

      3. But see, Prah v. Maretti

      4. Note: General rule on spite fences (in absence of statute) is that they will not be allowed if they do not show some useful purpse, rooted in the idea that a purely malicious act is assumed to have zero utility for the purposes of a C/B analysis in nuisance. Sudowner; Flaherty v. Moran, 45 N.W. 381 (Mich. 1890).

      5. Ensign v. Walls, it is no defense to show that the plaintiff came to the nuisance

        1. D had operated a dog breeding site for many years. It was smelly, noxious, and noisy

        2. P moved into the neighborhood and eventually brought suit for nuisance

        3. Levmore: Interestingly, the very thing that makes the pre-existing factory/dog farm a danger/nuisance is essentially the thing that drives up its value.

          1. So, in a sense you’re encouraging the factory to continue operating/creating the nuisance

          2. You also have a collective action problem getting all the homeowners to buy out the pig farm (in terms of applying Calabresi Rule 4)

          3. So what Rule do you pick? RPD: Why don’t you bring a class action suit? Levmore: This isn’t a restitution claim, you’re trying to shut down the factory.

        4. But the court will want to shut down the dog farm b/c the dog farm is benefiting from the problem the dog farm is creating

          1. That’s sort of what we see in Spur: the developers only pay the relocation costs (not the actual value of the land created by this nuisance situation)

          2. This is another reason that application of Rule 4 is rare

          3. Hence, Rule 1 seems to be the most efficient solution: if the dog farm can’t afford to buy out the neighbors than it will move

    6. Boomer v. Atlantic Cement; payment of future damages sufficient remedy when balance of harms greatly favors the D

      1. Private party sought to enjoin a cement company from operating

      2. Court holds that CementCo may pay for “permanent damages to plaintiffs which would compensate them for the total economic loss to their property present and future caused by defendant’s operations”

        1. Based in part on the rule of U.S. v Causby: “Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court of Claims plainly establish that there was a diminution in value of the property and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land.”

      3. “[A] nuisance with sufficient public utility to avoid injunction has, in effect, the right to take property with compensation” (Calabresi, Property Rules, Liability Rules, and Inalienability, 8 Harv. L. Rev. 1089 (1972)).

    7. With either permanent or temporary damages, P is under a duty to mitigate damages. Belkus v. City of Brockton, 184 N.E. 812 (Mass. 1933)

      1. P’s land had flooded various times

      2. P was allowed to bring suit to recover for the osts of raising the level of his basement to prevent its being flooded.

      3. Consistent with Stratford Theater, Inc. v. Town of Startford, 101 A.2d 279 (Conn. 1953) P was allowed to recover costs of fixing the municipality’s broken sewer (which caused a flood) but not the cost of altering his own property

      4. Courts have broad discretion to issue injunctions, and can set conditions as well

    8. Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972). Court enjoined feedlot operator to move its operations when Sun City development opened up next door

      1. “It should be noted that this relief to Spur is limited to a case wherein a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief”

        1. Thus, the court’s ruling was contingent upon a population rather than merely a business concern being affected

      2. However, the feedlot owner was required to indemnify the feedlot owner for the move

    9. Calabresi on nuisance and liability: Private property can basically be viewed as entitlement protected by a property rule. This implies different rules towards the entitlement/right

      1. First: (Property Rule vested in the neighbor) No one can take entitlement w/out paying the subjective price demanded by the entitlement holder;

        1. Subjective standard (of the right holder) used to value the right

        2. We would use this Rule when we think the polluter could avoid or reduce the costs of pollution more cheaply than the neighbor (thus vest the neighbor with the entitlement)

      2. Second: (Nuisance Rule vested in the neighbor) A nuisance w/sufficient public utility confers a right to take the entitlement w/compensation (RPD: Boomer)

        1. Here, an objective standard is used to value the right and effect the transfer

        2. Remedy limited to damages (RPD: Powell v. Fall, (Bramwell, L.J.))

      3. Third: There is also the possibility that there is no entitlement – i.e., the polluter has the right to pollute (protected by property right) (property rule vested in the polluter)

        1. Here, the polluter has the right to pollute protected by a property rule (converse to Rule 1)

        2. We use this Rule when the neighbor is best positioned to reduce the cost (hence vest the polluter with the right, turning the endowment effect around)

        3. If transaction costs are very high, you would probably not Rule 3, and then you want to determine whether it would be easy for the court to determine damages (Rule 2) or if it’s better to let the parties do so (Rule 1)

      4. Fourth: Right to pollute protected by a nuisance rule (nuisance rule vested in the polluter)

        1. Neighbor may enjoin polluter from polluting, but must pay damages

        2. This does not lend itself to judicial imposition

        3. Why? Freeloader problem

        4. But see Spur Industries: the feedlot owner was enjoined from operating, but the Developer was required to indemnify the owner

          1. RPD: You would expect to see this outcome in Spur Industries. Why? No collective action problem (since the neighbor, in this case, was a commercial developer)

      5. Rule 1 and 3 are most applicable when the transactions costs are low and both parties have good information (since the parties would theoretically bargain their way to the right outcome)

        1. Similarly, when you are unsure as to the proper rule, force liability on the cheapest cost avoider (e.g., the one with the lowest transaction costs/lowest free-rider problems)

        2. E.g., there is one polluter and 10,000 farmers

          1. Tremendous collective action problem/freeriders/holdouts if you put the entitlement in PolluterCo.

          2. Much easier for PolluterCo. To conduct the transaction

          3. Should expect a nuisance right in the neighbors

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