House of Lords – agree there should be SL. Theory – “non-natural use”; different principle than mischief rule. Natural vs. Non- Natural Use: if non-natural use & escape occurs & injury results = SL; non-reciprocal risks: risk flowing one-way; posing no danger; if reciprocal, then could be negligent. Economic reasoning: favoring existing user over new user; 1st party made investment in the area & that shouldn’t be jeopardized by a subsequent party that enters & puts the 1st investment at risk Thomalen v. Marriott Corp: π gets injured through non-natural use on property; Court – non-natural use was brought on property, but did not escape & injure someone off the property; someone on the property was injured; NO SL; Rylands is like property rights; dealing w/ 2 different land uses in an area & 1 injures the other Slouching Toward the Abnormal Danger Conception Sullivan: direct vs. indirect injury - A girl is on a public highway (off property) & is hit and killed by a tree stump; ∆ is blasting stumps on his property (non-natural); SL because it was a “direct” hit; indirect if due to noise/earthquake, then no recovery. ultrahazardous activities – blasting case where π was shaken out of bed (indirect injury); Court – there should be SL; engaging in “perilous activity” Perilous Activity = Inherently Dangerous; idea of perilous activity can change over time; if engaging in something that has a high risk to others, held strictly liable Restatement of Torts – SL Serious harm that can’t be eliminated w/ due care Not a matter of common usage Restatement (Third) of Torts – liability w/o proof of negligence if: ∆’s activity creates a reasonably foreseeable & highly significant risk of physical harm Even where reasonable care is exercised by all actors The activity is not one of common - If it’s in common usage, not that risky - Basic Theme of SL Today: extreme risk even when using reasonable care SL by Individual Activity Impoundments: (1) sudden escape; (2) percolate through soil & contaminate well; Hazardous/toxic = SL Blasting & explosives = SL Nuclear accidents = SL (by statute) High-Energy Activities = SL
Normal utilities ≠ SL Fireworks – probably no SL Poisons = SL Facie Case for SL Duty: Not an ∆ is acting affirmatively Strict Liability: Is ∆ strictly liable for injuries caused by this activity? - Apply Restatements & cases Actual Cause – “but for” test Proximate Cause – see below Damage Proximate & SL Wild Animal Rule: injuries had to be connected w/ the wild/dangerous characteristics of the animal Restatement (Second) of Torts: SL for harms, “the possibility of which makes the activity abnormally dangerous” Restatement (Third) of Torts: SL is limited to those harms that result from the risks justifying SL Intentional Intervening Cause HYPO – The & the dynamite truck: guy shoots dynamite truck & it explodes; people sue trucking co; Held – no SL; intentional intervening cause HYPO – The stolen dynamite & subsequent thieves stole dynamite and set it off 200 miles away; stone co. sued => outside class of persons because those injured were 200 miles from where the dynamite was stored; no SL HYPO – The 173-mile percolation: hazardous seeps into ground & contaminates well 173 miles away => no SL Defenses to Strict Liability Defenses at C/L Contributory negligence: NO; can’t mix & ∆s SL & π’s negligence Comparative Fault: NO fault w/ SL => how can fault be assigned to a party not at fault (due to SL) Assumption of Risk: Yes Defenses in a Comparative Fault jurisdiction “Comparative Responsibility” Restatement §24: No SL “if the person suffers physical or emotional harm as a result of making contact w/ or coming into proximity to the ∆’s animal or abnormally dangerous activity for
is NOT a product** Course Breakdown: (1) Intentional Torts; (2) Negligence; (3) Strict Liability; (4) Products Liability; (5) Economic & Dignitary Torts ECONOMIC & DIGNITARY TORTS - Focus is not on physical harm to person or property - Defamation, Privacy Malicious Prosecution, Misrepresentation/Fraud Common Law Defamation - Defamation changes w/ society Cassidy: π’s burden is very easy; defamation was a SL cause of action; publisher did not have to act intentionally or maliciously; π wasn’t mentioned in article but could bring suit as a 3rd party; Prima Facie Case: (1) defamatory communication (published to a 3rd party); (2) false; (3) concerning another (of & concerning the π); no need to prove damages, damages were presumed Defamatory material: hatred, ridicule, contempt or lower esteem among sub segment of community No need for π to statements were false Libel – written/visual in some form; don’t have to prove special damages Slander – oral; special damages must be shown unless (1) serious crimes; (2) loathsome diseases; (3) serious sexual misconduct; (4) against their trade/profession Stanton: photo w/ small type disclaimer that the photo was unrelated to article about teenage sex; disclaimer not sufficient; defamatory: “reasonable tendency to injure her reputation”; no connection b/t article & photo needed; disclaimer could be ignored by reasonable reader Look at link b/t defamatory statement & π Inducement: extraneous fact Innuendo: what’s inferred from the statement & inducement Need both w/ statement for defamation Proving the truth of the statement is a complete defense; burden is on the ∆ to prove truth; statement is assumed false Statutory Privileges or Immunities (pg. 895) Judge-Made Privileges (pg. 894-895): Official Privileges Litigation Privilege: judges, lawyers, witnesses Legislature Privilege: applies to federal legislators Executive Privilege: destroyed w/ actual malice Privilege to communicate in one’s own interest, the interest of 3rd persons, or in common interest of publisher & recipient