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Flashcards in Torts II Deck (12):

NOTE: There are two types of nuisances--private nuisance & public nuisance--though the difference between them is often a matter of degree.

A private nuisance is one that causes inconvenience or damage to private persons (e.g., a neighbor or a small group of neighbors)

A public nuisance is one which affects a greater number of people: the community as a whole or the public at large (e.g. air pollution)


What is the main practical consequence of the distinction between "public nuisances" and "private nuisances"

In general, an action for Public Nuisance must be brought by the government (not a private party) on behalf of the public as a whole.

Exception: A private person may bring a claim for Public Nuisance if he can prove special or particularized damages


A nuisance is an activity or condition on one's land that interferes with this right of quiet enjoyment, and "nuisance" is used in 2 ways:

Nuisance refers to an activity or condition on one’s land that is harmful or annoying to one’s neighbors.

Nuisance also refers to the actual harm caused by the harm-producing activity or condition on one’s land.


In nuisance cases, there are four possible solutions or remedies, four possible outcomes

No remedy (or a "reverse injunction")
The court allows defendant to continue harming plaintiff (an thus "enjoins" plaintiff from bringing a nuisance action against defendant)

REMEDY #2: Injunction
The court issues an injunction against the defendant, ordering the defendant to cease harming the plaintiff

REMEDY #3: Damages (or the "Conditional Injunction")
The court issues and an injunction against the defendant but conditions the injunction upon payment of damages. In other words, the defendant may continue to harm the plaintiff as long as the defendant pays damages to the plaintiff

REMEDY # 4: "Reverse Damages" (or the "Purchased Injunction")
RD: The court enjoins the defendant from harming the plaintiff but orders the plaintiff to pay damages to the defendant


Two requirments for vicarious liability:

(1) employee acted negligently, and (2) employee's negligent act was within the scope of employment


General Rule for Vicarious Liability

GENERAL RULE: An employer is liable for the negligent acts of his employees when those acts are committed within “the scope of employment”



Vicarious Liability and Respondeat Superior are the same thing (like a "Royale with Cheese" and a "Quarter-Pounder")


Modern Strict Liability is based on two factors:

Two factors: (1) how dangerous is the activity that produced the harm; (2) how commonplace is the activity in the area in which it occurred
Factor #1: the more dangerous an activity is (i.e., the higher "P" is), the more likely courts will apply strict liability
Factor #2: the less commonplace an activity is in the area in which it occurred, the more likely courts will apply strict liability


There are three possible solutions to the problem of cattle trespass:

1. Strict liability ("fence-in" rule); 2. Negligence standard (did the parties act reasonably?); and 3. No liability ("fence-out" rule)


The cattle belonging to the rancher may trespass into the farmer's land & destroy his crops. Which party should be liable for this damage?

Coase says that this problem is "reciprocal in nature" because both the rancher & the farmer could alter their behavior to solve the problem



when the products foreseeable risk of harm could have been reduced or avoided by the provision of a reasonable warning,


Obvious warnings ?

iii. No duty exists to warn of dangers that are obvious or should be obvious