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TORTS

5. STRICT LIABILITY To show prima facie cause of strict liability; (a) absolute duty,
(b) breach of duty, (c) actual and proixmate cause, and (d)
damage.
The owner is liable for the damage done by wild animals (lion,
bear or any other never tamed animal) as long it was reasobaly
foreseeable. For the case of house holds pets, must be shown:
5.1 ANIMALS
the previous knowledge of the dangeous propensities of the
animal because like previous bite or in absence of that barking,
its bared teeth.
GHERTS V. BATTEEN (S.D. 2001)
This is a case in which plaintiff sues defendant for damages in strict liability and negligence because the
defendant's dog bit his daughter while she was in the defendant's house. Plaintiff failed to show that the
strict liabilty case was maintainable because the statute provided such liablity en cases of livestock damages
no for injuries to children; on the negligence count, the defendant failed to prove the danger of the dog and
the "lack of care" exercised by defendant in restraining the dog. The court affirmed the summary judgment
for the defendant.
PRECEDENTS
HOSSENLOOP V. CANNON (S.C. "The overwhelming of states that imposes strict liability for injuries caused
1985) by dogs have done so through legislative mandate."
CAL. CIVIL CODE 3342 Strict liability on domestic or poultry animals for damages to livestock.

An activity may be characterized as abnormally dangerous if it


envolves a substancial risk of serious harm to person or
property no matter how much care is exercised. Whether an
5.2 ABNORMALLY activity is abnormally dangerous is a question of law that the
DANGEROUS ACTIVITIES court can decide on a motion for direct verdict. Requirements:
(i) The activity must create a foreseeability risk of serious harm
even when reasonable care is exersiced, (ii) The activity is not a
matter of a common usage.
SPANO V. PERINI CORP N.Y. 1969)
This a case in where the plaintiff sues defendant for damages caused by a blasting provoked by defentant
during an excavation which wrecked the plaintiff's garage, the action was sustained for the Civil court,
reversed by appellate Term and Appellate Division on the ground that the plaintiff failed in prove the
negligence of defendant's action, moving upon the rule of "absolute liability" in damages caused by blasting
operations; The Supreme Court reverse the latter on the ground that since blasting involves a substancial
risk of harm no matter the degree of care exercised, there is no reason to permit a person who engages in
such activity to impose this risk upon nearby persons or property without responsibility.
PRECEDENTS
BOOTH V. ROME (N.Y. 1983) "Property damages from a blasting requires proof of negligence unless the
"The defendant had the right to dig the canal, the plaintiff the right to the
undisturbed possession of his property, if these rights conflict, the former
must yield to the latter, as the more important of the two since upon
grounds of public policy."
HEEG V. LICHT (N.Y. 1880)
"Negligence may be inferred from the mere fact that a blast has caused
extensive damage, even where the plaintiff is unable to show " the
method of blasting or the strenght of the chages or the character of the
SCHLANSKY V. AUGUST (N.Y. 1961) soil or rock"
INDIANA HARBOR BELT R.R. V. AMERICAN CYNAMID CO. (7th. Cir. 1990)
This is a case in where plaintiff an Island Yard owner company sues defendant a chemical manufacturer
company for the recovery of the cleaningup costs that plaintiff made because of the leaked of a highly toxic
chemical from one of the rail road car in which the defendant was transporting it upon the rule of stric
liability on defendant's abnormally dangerous activity. Defendant has summary judgment in his favor and
plaintiff appealed, the court decide not to impose strict liability on defenant's activity because the spill of the
material in question was in fact caused by negligence of the carrier; accident which could be prevented.
PRECEDENTS
RYLANDS V. FLETCHER (N.Y. 1822) Such accidents like the balloonist cannot be prevented.
STEGLER V. KUHLMAN (WASH. The consequence of the hazardous activity is to impose strict liability
1972)

"Conduct of a servant is within the scope of employment if, but


only if it is actuated, at least in part by a prupose to serve the
5.3 VICARIOUS LIABILITY
master". No Vicarious liability exisits for the actions of
independent contractors.
IRA S. BUSHEY & SONS INC. V. UNITED STATES (2nd. CIR. 1968)
This is a case in which plaintiff a drydock owner sues defendant for damages because of the negligence of his
employee a seamen who being drunk caused the plaintiff's drydock sank. The district court granted
compensation for plaintiff and defendant appealed arguing that his employee's actions were not within the
scope of his employment. The court decide that the conduct of the defendant's employee was not so
"unforeseeable" as to make it unfair to charge the Goverment with responsibility. The unfairness is to
disclaim the actions of defendant's employers. Affirmed.

PRECEDENTS
NELSON V. AMERICAN-WEST "Judge Hand found for plaintiff when a drunken boatswain ficght with
AFRICAN LINE (2nd. CIR. 1936) another man thinking he was acting in the interest of the ship."
BLUM & KALVEN, PUBLIC LAW The fact that the defendant (employer) is better able to afford damages is
PERSTECTIVES ON A PRIVATE LAW not alone sufficient to justify legal responsibility
PROBLEM (1965)
HARTFORD ACCIDENT & Expressions of human nature are incidents inseparables from working
INDEMNITY CO. V. CARDILLO (D.C. together. They involve risks of injury and these risks are inherent in the
CIR. 1940) working enviroment."
"It is all a question of expediency of a fair judgment, always keeping in
PALSGRAF V. LONG ISLAND R.R. mind the fact that we endeavor to make a rule in eache case that will be
CO (N.Y. 1928) practical and in keeping with the general understanding of mankind"

DOCTRINE OF APPARENT AUTHORITY, elements: (a) "holding


out" the plaintiff is not informed thaht the care is given by
5.4 VICARIOUS LIABILITY ON
independent contractors; (b) "justificable reliance" the plaintiff
INDEPENDENT MEDICAL
relies upon the agent to provide the services and does not
CONTRACTORS
upon a specific physician or provider. DOCTRINE OF IMPLIED
AUTHORITY,whether the alleged agent retains the right to
control the manner of doing work.
PETROVICH V. SHARE HEALTH PLAN OF ILLINOIS, INC. (III. 1999)
This is a case in which the plaintiff sues for medical malpractice for negligence in failing to diagnose her oral
cancer in a timely manner against defendant as an HMO (HEALTH MAINTENANCE ORGANIZATION), the issue
was about whether the HMO could be held liable for its independient contractors. Ther was a summary
judgment for defendant and plaintiff appealed. The court found that vicarious liability may be imposed for
the actions of independent contractors where an agency relationship is established under the doctrine of
apparent authority or the implied authority, which was proved in the case for the plaintiff, who died during
the suit; and reversed the summary judgment for a trial on both doctrines,

PRECEDENTS
GILBERT V. SYCAMORE "Vicarious liability can attach to a hospital for the medical malpractice of
MUNICIPAL HOSPITAL (III. 1993) its physicians under the apparent authority doctrine."
Doctrine of Implied Authority, two elements of control: (1) the right to
AMICUS ILLINOIS STATE MEDICAL make prospective decisions of medical necessity, and (2) the right to
SOCIETY refuse to pay for health care the HMO perceives to be inappropriate or
outside the scope of its policy.