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Torts > Strict Liability and Nuissance > Flashcards

Strict Liability and Nuissance Flashcards

1
Q

elements of prima facie strict liability case (3 elements)

A
  1. nature of D’s activity imposes ABSOLUTE DUTY TO MAKE SAFE
  2. dangerous aspect was ACTUAL and PROXIMATE cause of P’s injury
  3. P suffered DAMAGE to person or property
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2
Q

An owner is strictly liable for REASONABLY FORESEEABLE damage done by ________ of his animals

A

trespass

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3
Q

Personal injury by your animal:

  1. wild animal?
  2. domestic animal?
A
  1. strict liability for wild animals

2. only strictly liable for domestic animal if you have knowledge of dangerous propensities atypical to species

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4
Q

strictly liable for personal injury by animal to trespasser?

A

No strict liability for trespasser injuries unless owner is negligent. Landowner can still be liable for INTENTIONAL TORT FOR VICIOUS WATCHDOG.

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5
Q

Two reqs for finding an activity to be abnormally dangerous:

A
  1. creates foreseeable risk of SERIOUS HARM EVEN WHEN REASONABLE CARE IS EXERCISED by all actors;
  2. the activity is NOT A MATTER OF COMMON USAGE in the community
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6
Q

what amount of reasonable care will relieve D of strict liability for abnormally dangerous activity?

A

NO AMOUNT OF REASONABLE CARE will relieve D of strict liability for abnormally dangerous activities

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7
Q

Scope of duty for animal or or abnormally dangerous activity?

A

Absolute duty to all foreseeable Ps

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8
Q

Defenses to strict liability torts: 1. contributory negligence? 2. assumption of risk? 3.comparative negligence?

A
  1. contributory negligence is no defense if P failed to Realize the danger or guard against it. It is a defense if the plaintiff knew his unreasonable conduct was the cause of the harm
  2. assumption of risk is a good defense
  3. most comparative negl states apply comp negl rules to S.L. cases
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9
Q

Is nuisance a separate tort in itself?

A

No.

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10
Q

def of nuisance?

A

invasion of private property rights or public rights by tortious conduct

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11
Q

2 types of nuissance

A

public and private

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12
Q

def of private nuissance

A

SUBSTANTIAL, UNREASONABLE INTERFERENCE w/ another individual’s USE OR ENJOYMENT of property he possesses or has a right to possess

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13
Q

key FLAG terms from nuisance definition: if interference is (1 of 2 things)

A

substantial or unreasonable

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14
Q

def of substantial interference

A

offensive, inconvenient, or annoying to average person

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15
Q

substantial interference based on P’s hypersensitivity or specialized use of property?

A

No. P held to community standard.

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16
Q

def of unreasonable interference?

A

reqs intent or negligence and P’s injury must outweigh utility of D’s conduct (BALANCING TEST)

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17
Q

diff b/t trespass to land and private nuisance?

A

trespass to land interferes w/ owner’s EXCLUSIVE POSSESSION by phys invasion;
nuisance = interference w/ USE OR ENJOYMENT

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18
Q

Public nuisance def?

A

act that unreasonably interferes with HEALTH, SAFETY, OR PROP RIGHTS OF THE COMMUNITY, e.g., using building for crime like prostitution

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19
Q

When can private party recover for public nuisance?

A

when P suffered UNIQUE DAMAGE not suffered by public at large

20
Q

3 possible remedies for nuisance?

A
  1. damages.
  2. injunction (if damages unavailable or inadequate)
  3. abatement by self-help (after notice to D and his refusal to act, can use necessary force)
21
Q

Defenses to nuisance (4)

A
  1. legislative authority (e.g., zoning ordinance)
  2. conduct of others (e.g., co-polluters)
  3. contributory negligence (only if P’s case rests on negligence)
  4. coming to nuisance (generally not a bar, except where P comes to nuisance solely to bring harassing suit)
22
Q

A defendant is NOT strictly liable for “any” harm to a foreseeable plaintiff that results from an abnormally dangerous activity. The harm must result from….

A

from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the normally dangerous propensity of the condition or thing involved.

23
Q

Do the same comparative negligence rules apply for strict liability cases as they do for negligence cases?

A

yes. the same.

24
Q

If an undiscovered trespasser is injured by a landowner’s wild animal, landowner strictly liable?

A

No, the trespasser must prove negligence by the landowner to recover.

25
Q

Whether an activity is abnormally dangerous is or is not a question of fact for the jury to decide?

A

Is NOT! It’s a question of law.

26
Q

In a jurisdiction applying traditional contributory negligence rules in a strict liability case, is it a partial defense that the plaintiff knew of the danger and acted unreasonably?

A

No, it is a total defense that the plaintiff knew of the danger and acted unreasonably.

27
Q

In a private nuisance case, is it relevant what the plaintiff was using the property for if the plaintiff lived there 1st?

A

Yes, is relevant but not controlling evidence of the reasonableness of the use of the property.

28
Q

You own dogs and live next to a dog whistle factory testing its whistles, can you bring a private nuisance action?

A

No, because dog whistles would not be offensive or annoying or interfering to the AVERAGE person

29
Q

Domesticated animals: apply SL or negligence?

A

Negligence, UNLESS D knows of animal’s vicious or dangerous propensities – 1 free bite.

30
Q

No SL for animal attack on _________ type of P?

A

treaspasser – no SL for animal injury to trespasser. Negligence only

31
Q

Wild animals, with adequate safeguards, get negligence analysis. T/F?

A

False. Wild animal = ALWAYS SL. Safety precautions irrelevant.

32
Q

Three categories get SL treatment. Name them.

A
  1. Animals.
  2. Abnormally dangerous activity
  3. Products liability
33
Q

2 elements for SL for abnormally dangerous activity (SAFETY PRECAUTIONS DON’T RELIEVE LIABILITY)

A
  1. activity can’t be made reasonably safe even w/ reasonable care
  2. not matter of common usage in community (blasting, toxic, nuclear)
34
Q

four elements to SL for products liability

A
  1. D is a merchant OR LESSOR routinely dealing in goods of this type
  2. Product defective (design, manufacture, bad warning)
  3. Product not altered since leaving D’s hands (presumed if product moved in ordinary channels - D’s burden to disprove)
  4. Foreseeable use of product by D
35
Q
  1. SL for products liability reqs privity of K? 2. who can injured P sue?
A
  1. privity not required

2. any part in the distribution chain - manufacturer, retailer, etc.

36
Q

SL for manufacturing defect requires _____ for product liability

A

Manufacturing defect - departs from intended design and is more dangerous than consumers expected

37
Q

SL for design defect requires ____ for product liability

A

Design defect - hypo alt design that meets 3 part test: 1. safer than current; 2. cost effective; 3. practical (can’t make product hard to use/sell).
Failure to conform to govt regulation = design defect

38
Q

SL for information defect for product liability

A

Information defect - residual risks that can’t be designed away, product is DEFECTIVE UNLESS THERE ARE ADEQUATE WARNINGS

39
Q

does warning insulate product from SL if there is design defect?

A

no, can’t insulate against design defect. e.g., flamable kids PJs with warning won’t prevent SL for defective design.

40
Q

For purposes of foreseeability of product usage by D to determine product SL, must the usage be proper?

A

No. E.g., standing on chair to get light bulb, chair breaks –> still FORESEEABLE.

41
Q

Will COMPLETELY IMPROPER use of product negate foreseeability of usage for product SL?

A

yes, e.g., if you cut your hair with a lawn mower

42
Q

affirmative defenses to SL torts?

A

Comparative responsibility by P. Any P misconduct, foolishness = % blame to P.

43
Q

def of nuisance:

A

interference w/ use of land to unreasonable degree

44
Q

is intent relevant to nuisance?

A

no

45
Q

what does court do with nuisance?

A

balance the interests of P and D

46
Q

Hard to write good nuisance question. Correct answer will say something that restates law, e.g.,

A

P will win if interference w/ his enjoyment is unreasonable in degree

Torts (7 decks)

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