Torts II

Trespass Def

Physical entry upon another’s land without consent. Protects the right to possess land exclusively

Trespass, Element 1

Intent to enter the property or commit the act that causes one to enter the property

Trespass, element 2

Tangible intrusion on the property in possession of another

Trespass, Element 3

No physical harm required

Recovering in trespass for air pollution, element 1

An invasion affecting an interest in the exclusive possession of plaintiff’s property

Recovering in trespass for air pollution, element 2

An intentional doing of the act that results in the invasion

Recovering in trespass for air pollution, element 3

Reasonable foreseeability that the act done could result in an invasion of plaintiff’s possessory interest

Recovering in trespass for air pollution, element 4

Actual and substantial damages to the plaintiff

Recovering in trespass for air pollution, injunctive relief

Injunctive relief may be denied if defendant has exhausted its technological opportunities to control the production of pollution

Trespass damages

Measure of damages flexible and bounded by reasonableness. Based on diminution in value OR can include reasonable restoration costs

For plaintiff to recover for trespass they must prove, 1

Plaintiff owns or has lawful right to possess real property

For plaintiff to recover for trespass they must prove, 2

Defendant physically, intentionally, and voluntarily entered the land

For plaintiff to recover for trespass they must prove, 3

Plaintiff did not consent to such entry

For plaintiff to recover for trespass they must prove, 4 (if in TX)

Trespass caused damage

Defenses to trespass

Consent

Nuisance definition

Protects the pleasure, comfort, enjoyment, and freedom from discomfort and annoyance that a person normally derives from occupancy of land

Nuisance must…

Cause harm and be unreasonable.

Private nuisance, element 1

Conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land

Private nuisance, element 2, 1

Invasion is intentional and unreasonable

Private nuisance, element 2, 2

Invasion is unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct or for abnormally dangerous conditions or activities

Private nuisance liability

Liability when it causes significant harm that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose

Factors determining gravity of harm

Extent of harm, character of harm, social value that the law attaches to the type of use or enjoyment invaded, suitability of the particular use or enjoyment invaded to the character of the liability, and the burden on the person harmed to avoid that harm

Factors to determine the utility of conduct that nuisance,1

The social value that the law attaches to the primary purpose of the conduct

Factors to determine the utility of conduct that nuisance, 2

The suitability of the conduct to the character of the locality

Factors to determine the utility of conduct that nuisance, 3

The impracticability of preventing or avoiding the invasion.

Balancing test, 1, Conduct is unreasonable when…

Gravity of harm outweighs utility of conduct

Balancing test, 2, Conduct is unreasonable when…

Conduct is useful, but harm caused by the conduct is serious and compensation for it would not jeopardize the conduct

Balancing test, 3, Conduct is unreasonable when…

The harm is severe and greater than the injured party should bear without compensation.

Public nuisance, def

Substantial and unreasonable interference with a right held in common by the general public, in use of public facilities, in health, safety, and convenience

Circumstances that may sustain an interference with public right is unreasonable, 1

Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience.

Circumstances that may sustain an interference with public right is unreasonable, 2

Whether the conduct is prescribed by statute, ordinance, or administrative regulation

Circumstances that may sustain an interference with public right is unreasonable, 3

Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has a reason to know, has a significant effect upon the public right

Recovering damages for public nuisance

One must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference

Abnormally dangerous activities def

When defendant creates or introduces a dangerous condition not commonly accepted within the local community

Strict liability

Liability without proof of fault. Neither negligence nor intent must be shown. P must still prove causation, scope, and damages

Strict liability, reason 1

Wild animals and trespassing livestock

Strict Liability, reason 2

Domestic animals that the owner knew or should have known are abnormally dangerous

Blackburn test, Abnormally dangerous

If someone brings something likely to do mischief onto their land for their own purposes, they are prima facie answerable to all the damage that occurs if the thing escapes

Cairns Test, Abnormally dangerous

Imposes strict liability when D is making a non-natural use of the property/ making use of the land in a way that is inconsistent with the area’s predominant land use

Ultrahazardous activities, strict liability

Activities that involve a risk of serious harm to the person, land, or chattels of other which cannot be eliminated by the exercise of the utmost care and is not a matter or common usage

Abnormally dangerous activities, factor 1 R 2d

Existence of a high degree or risk of some harm to the person, land, or chattels of other

Abnormally dangerous activities, factor 2 R 2d

Likelihood that the harm that results from it will be great

Abnormally dangerous activities, factor 3 R 2d

Inability to eliminate the risk by the exercise of reasonable care

Abnormally dangerous activities, factor 4 R 2d

Extent to which the activity is not a matter of common usage

common usage

customarily carried on by the great mass of mankind or by many people in the community

Abnormally dangerous activities, factor 5 2d

Inappropriateness of the activity to the place where it is carried out

Abnormally dangerous activities, factor 6 2d

Extent to which its value to the community is outweighed by its dangerous attributes

Abnormally dangerous activities, factor 3 R 2d

Utility/ Value vs. Risk - Extent to which its value to the community is outweighed by its dangerous attributes

Abnormally dangerous activities, factor 1 R 3d

Activity create a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors

Abnormally dangerous activities, factor 2 R 3d

Activity is not one of common usage.

Sequence of events theory

It is okay to impose liability on D when sequence of events between D’s conduct and P’s injury occurs without the intervention of some unexpected, independent cause

Abnormally dangerous activities balancing test

Defendant will be liable when D damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained.

Strict liability is justified when…

The risk created is so unusual because of its magnitude or because of the circumstances surrounding it, even if it is all carried on with reasonable care

Elements of a strict liability claim for abnormally dangerous activity

Activity is abnormally dangerous, actual causation, scope of liability, damages

Defenses for abnormally dangerous activities

Contributory negligence, assumption of risk, comparative fault

Escola- Strict liability for manufacturing defects that cause injury to humans

Absolute liability for manufacturers for all articles put on market, even when not negligent.

Product liability - 2d Rest.

One who sells any product in a defective condition unreasonably dangerous to the user or his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if the seller engages in the business of selling such a product and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Any seller

manufacturer, wholesaler, retail dealers, or store or restaurant operators

unreasonable danger

Dangerous to an extend beyond what an ordinary consumer who purchases an item would expect

In strict products liability….

liability applies even if the seller has exercised all possible care in the preparation and sale of the product and the user or consumer has not bought the product from or entered a contract with the seller

Strict products liability 3d rst

Only for manufacturing defect cases and when product design is dangerously unfit to perform its own intended purpose. For other defects, apply negligence principles.

Types of product defects

manufacturing defects, design defects, warning or instruction deficiency

Manufacturing defect, def

Product fails to meet its own standards. Departs from design specifications/ standards and departure prevents it from performing safely

Manufacturing defect test

Compare product to manufacturer’s specifications and ask whether the difference makes the product less safe. 2d RST: prove the product failed to perform safely in its ordinary use

manufacturing defect, timing

Plaintiff must prove that the product defect existed at time of sale or distribution.

Manufacturing defect, consumer use

Product must only be used normally and not subjected to stress beyond what is expected

Manufacturing defect, misuse

Customer misuse is a defense to products liability. Invited misuse is not misuse

manufacturing defect, circumstantial evidence

accident can be evidence of liability if it would not have occurred but for a defect in product and if it is reasonably plain that defect was not introduced after the product was sold

manufacturing defect, circumstantial evidence, 3rd rst

It can be inferred that plaintiff’s harm was cause by product defect if incident was of a kind that ordinarily occurs as a result of product defect and was not solely the result of causes other than the product defect existing at the time of sale or distribution

manufacturing defects, NONcircumstantial evidence

Showing that product failed to conform to manufacturer’s design

manufacturing defect, seller liability

Seller is responsible for the consequences of selling a defective product, even if defects were introduced without slightest fault of their own for failing to discover during production

manufacturing defect, who is liable

Plaintiff can pin all liability on one solvent seller of the product from any point in distribution. Joint and several liability

Design defects, def

defect in design that causes safety hazards and could reasonably have been eliminated. Present in all product units and is unreasonably dangerous.

Unreasonably dangerous

Dangerous beyond ordinary expectations. Condition must not be contemplated by the ultimate consumer

Foreseeable risk of harm rst 3d, factor 1

Product has design defect when foreseeable risk of harm posed by product could have been reduced or avoided by adopting a reasonable alternative design somewhere in the chain of distribution

Foreseeable risk of harm, rst 3d, Factor 2

Omission of the alternate design makes the project not reasonably safe.

Ordinary use, 2d RST

Product is designed defectively when P demonstrated that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. No expert needed

Consumer expectations test, basics

Would a reasonable ordinary consumer expect the product to be this dangerous?

Establishing expectation, marketing

Commercial advertising establishes expectations of consumers regarding safety and foreseeable uses

Other ways to establish expectations (not marketing)

product’s shape, style, design, packaging, relevant trade or service marks, typical uses