Nuisance; Strict Liability; Products Liability

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May constitute a private nuisance when it interferes w/another’s current possessory or beneficial interest in use or quiet enjoyment of land
Complainant seeks to protect his own, current interest in undisturbed enjoyment of or benefit from prop
P need not own prop – but need only be lawful occupant or holder of one or more other use rights

Actor’s conduct may incur liability both public and private nuisance

Essential element of actionable nuisance is persons having suffered harm or are threatened w/injuries that they ought not have to bear
Threaten to cause incalculable damage to general public

Nuisance and Trespass Distinguished

Claim in trespass
- Seeks damages for physical intrusion onto prop (pollution or contamination of P’s prop by a substance, article, or object) – where intrusion is permanent or if not at least serious or persistent – suit in trespass
  - Interference w/P’s current possessory interest in prop
Claims of Nuisance
- D’s conduct creates conditions of noise, lights, odor or vibration that interferes w/P’s quiet enjoyment of property
- Vexing and an interference w/P’s enjoyment or exploitation of prop are not generally considered to dispossess P of all or part of current possessory interest thus considered private nuisances
Nuisance and Trespass distinguished on basis of the duration of the interference
- Fleeting or temporary interference w/P’s right to enjoy prop might be categorized as nuisance while invasion of prop if chronic could be trespass
Distinction between “continuing” and “permanent”
- Continuing could be abated at any time like smokestack
- Permanent is an interference or intrusion that has no ready means of elimination like mercury contamination of a marshland
- Primary significance between the two
  - where nuisance or trespass is permanent, P must bring cause of action and must seek all damages in one suit
  - Where nuisance or trespass is continuing the continuing nature of the wrong permits P to bring successive actions as damages accrue until abatement takes place
- “Permanent” referred to as indefinite” and court held permanent damages should be recoverable when a nuisance results in contamination of prop for indefinite period of time

Private Nuisance

(1) Elements

(a) Unreasonable Interference

An unreasonable interference with the use or enjoyment of the owner or possessor’s prop interest
Unreasonable intrusion on land of prop owner – very loud music, toxic contamination, etc. will constitute nuisance if unreasonably interferes w/occupant’s capacity to use or quietly enjoy prop
Distinction between use and enjoyment – prevent use or interfere w/enjoyment
At common law - "smoke, offensive odors, noise or vibration" that "materially interfere" with possessor's "ordinary comfort" may constitute a nuisance

(b) Current Possessory Interest

Private nuisance claim can only be brought by one w/a current possessory or beneficial interest in property
A possessory interest in land exists in a person who has physical relation to land which gives certain degree of physical control over the land and intent to exercise control to exclude other members of society in general from occupation of the land

(c) Intentional or Unintentional Conduct

Restatement Section 822 - establishes liability in private nuisance for:
- An invasion of another’s interest in private use and enjoyment of land where invasion is:
  - (1) Intentional and unreasonable; or
  - (2) Unintentional and otherwise actionable under rules controlling liability for negligent or reckless conduct or abnormally dangerous conditions or activities
Restatement Section 825 provides:
- An invasion is "intentional" if the actor:
  - (a) Acts for purpose of causing it or
  - (b) Knows it is resulting or substantially certain to result from it
- For conduct to be intentional D does not have to act for purpose of causing invasion or harm but knows it is substantially certain to result
Liability in nuisance is predicated upon unreasonable injury rather than on unreasonable conduct
- Claim of intentional private nuisance does not req evidence that D acted w/o due care under the circumstances

(2) Nature of the Interest Interfered With

Particular use and sensitivities of persons using prop are important factors in evaluating if Ds conduct constitutes an unreasonable interference that rises to the level of a nuisance
- Ex. sulphurous smell on the p remises of a nursery school playground
- Factors – type of neighborhood, proximity to structure, frequency of use, and nature of resulting harm
A landowner who has contaminated a prop and then sold it to another may remain liable “for continuation of the nuisance” after transfer
Interference must be real and substantial

Public Nuisance

(1) Generally

An unreasonable interference w/a right common to the general public
Circumstances that might give rise to D’s activity creating an unreasonable interference w/a public right include:
- (1) Whether the conduct involves a substantial interference w/public health, public safety, public peace, public comfort or public convenience,
- (2) Whether conduct is of a continuing nature or has produced a permanent/long-last effect and to actor’s knowledge has a substantial detrimental effect on the public right

(2) Proper Complainants

Who may bring suit in public nuisance? – depends whether for damages or equitable relief (injunction or abatement)
Public Nuisance Suit
- Suit for damages may be brought by public official or agency, or private individual or business that has suffered harm of different from that suffered by other members of the public
- "Special injury" rule
  - For private party showing injury "different in kind" from that suffered by the piblic generally
- Suit for equitable relief Ps may be:
  - (1) Public body or agency bring suit on behalf of public;
  - (2) Private party suffered “special injury”;
  - (3) Class representatives of a class action; or
  - (4) One w/standing to bring a citizen suit under state/federal law.
Who has standing in these public nuisance cases? – Gov can always be a P

(3) Special Injury Rule

Individual may sue another in public nuisance where he proves there is a substantial interference w/a right common to the public and has suffered special harm that is different from harm(s) burdening public at large
- Ex. P owns fishery w/contract to stock the lake that became polluted – suffered economic loss and the community at large lost right to fish and enjoy lake, etc.
If public nuisance was proved, Ps would be able to recover for
- (1) Loss in rental value of prop;
- (2) Compensation for physical injuries (usually held to be “special injuries”); and
- (3) upon showing independent personal injury, damages for emotional distress

(4) Environmental Harm

(5) Economic Loss

(6) Prospective Nuisance

A court may grant an injunction or order of abatement to stop risk of future harm where risk is substantial and harm is imminent

Cases

Sturgis v. Bridgman, 11 Ch.D. 852 (1879):
- Confectioner has been using home for his business for over 20 years. In the kitchen of the house are two large mortars used to pound meat. The physician lives across the street and he recently built a consultation room on the side of his house. The noise of the mortars caused him inconvenience.
- The smith in this case supposed might protect himself by taking sufficient cartilage to ensure what he does from any time is not an annoyance to his neighbor

Penland v. Redwood Sanitary Sewer Serv. Dist., 965 P.2d 433 (Or. Ct. App. 1998)
- Five factors
  - Location of the claimed nuisance
  - Character of the neighborhood
  - Nature of the thing complained of
  - Frequency of the intrusion
  - Effect upon the P’s enjoyment of life, health, and property
- Whether a condition constitutes a nuisance depends on its effect on “an ordinarily reasonable person, a normal person of ordinary habits and sensibilities.”
- The composting operation is a nuisance
- The odor did in fact substantially and unreasonably interfere with Ps’ use and enjoyment of their property
- It does not follow that an injunction should issue as a matter of course. The court may refuse an injunction in certain cases where the hardship caused to the D by the injunction would greatly outweigh the benefit resulting to the P. The injunction does not issue as a matter of absolute or unqualified right but is subject to the sound discretion of the court.
- The hardship to the District from the issuance of an injunction does not “greatly outweigh” the benefit to the Ps. There is no question that relocating the composting operation will be expensive.

Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (NY 1970): (D operates large cement plant near Albany.)
- Two Questions
  - Whether the court should resolve the litigation between the parties as equitably as seems possible; or
  - Whether, seeking promotion of the general public welfare, it should channel private litigation into broad public objectives
- It seems that the court resolves this case equitably because they did not grant an injunction but only temporary damages and permanent damages

Strict Liability

Strict Liability = liability without fault

a person will be held liable in damages for injury or loss even if he exercised all possible care to prevent it
a recognized subset of conduct for which, should injury or damage occur, the actor will be responsible in damages without regard to due care or fault

2 categories of strict liability

Strict liability for damage or injry caused by animals owned or possessed by D
Strict liability for abnormally dangerous activities ranging from blasting operations to aerial pesticide spraying - that pose unavoidable risk of substantial harm to others even where the actor has exercised the utmost care

Two reasons to have it:

Judge Posner says…wants the actor to consider the possibility of making accident-reducing activity changes.
Prof Fletcher says…rationale focuses on the non-reciprocal nature of the risks to which D’s conduct exposes P.

Negligence vs. Strict Liability

Duty –vs. X (SL Qualifier - wild animals)
Standard of care – vs. X (SL Qualifier)
Breach – vs. X (SL Qualifier)
Cause-in-fact (actual cause) - yes
Proximate cause - yes
Damages – yes
- Intent not needed in either SL or negligence

Defenses

Assumed the risk or comparative fault
In SL, you cannot have comparative fault, but there is still a defense
- The person who harbors the wild animal may have a defense—all depends on the incident and the jurisdiction

(1) Animals (owned or possessed by D)

Livestock:
- Possessor of trespassing livestock liable unless:
  - The harm is not a foreseeable one
  - The trespass by animals being “driven”/herded along the highway is confined to abutting land
  - State common law or statute requires the complaining landowner to have erected a fence
- Dogs & cats are exempt (b/c they are “difficult to restrain & are unlikely to do any substantial harm by their intrusion”)
- A separate provision is made for animals that demonstrate a dangerous propensity not characteristic for the species (ie, horse that developed a habit of attacking persons whom wander into a pasture)
Domestic Animals = “customarily recognized as devoted to the svc of mankind”
- Liable only where the possessor knew or should have known of the animal’s vicious disposition “and no measure of care in its keeping will excuse him”
- In many Jurisdiction’s, dog bite statutes supersedes the CL & creates the exclusive remedy for dog bite victims
Wild Animals:
- Possessor is liable even though the utmost care was exercised
- The keeper of a wild animal “is req’d to know the dangerous properties normal to the class to which it belongs”
- Some Jurisdiction’s, have manifest a reluctance to extend Strict Liability this far unless directed to do so by the Legislature & opt instead for a negligence std
Defenses
- P's contributory negligence should not bar a claim in some jurisdictions
- However - P’s assumption of risk is a defense (minority)
- Comparative fault in some Jurisdiction’s (minority)

Restatement of Torts § 515
- A P is not barred from recovery by his failure to exercise reasonable care to observe the propinquity of a wild animal or an abnormally dangerous domestic animal or to avoid harm to his person, land, or chattels threatened by it
- A P is barred from recovery by intentionally and unreasonably subjecting himself to the risk that a wild animal or abnormally dangerous domestic animal will do harm to his person, land, or chattels

Issacs v. Monkeytown, U.S.A.

Dad lifted P up to feed monkeys and was injured in the arm because he was lifted too high
strict liability not used in this 1st impression case, instead negligence std at trial
appellate ct reversed & held majority rule of strict liability std for wild animals
2 views
- Strict or absolute liability doctrine under which negligence or fault on the part of the owner or keeper of an animal Ferae naturae is irrelevant
- Minority view that liability should depend upon negligence, i.e., a breach of the duty of care reasonably called for taking into account the nature and specie of animal involved

(2) Ultrahazardous activities (abnormally dangerous)

Abnormally dangerous = The activity creates a foreseeable & highly significant risk of physical harm even when reasonable care is exercised by all actors; and the activity is not one of common usage

Danger unavoidable even with the exercise of due care
- Requirement of an activity under D’s control
- Type of hazard contemplated
  - Pose an unavoidable risk of substantial harm to others even where the actor has exercised the utmost care
  - D’s conduct must be characterized as “abnormally dangerous”
  - P can prove liability w/out having to prove D’s culpable conduct
  - P must show:
    - The risk of an abnormally great harm should D’s safety efforts fail
    - The virtual impossibility of D’s elimination of the risk of harm even with the utmost care
    - A resultant harm to P, or P’s prop, caused by the very hazards the risk ofwhich led to describing D’s conduct as “abnormally dangerous” in the 1st instance
no intent by D req’d
in many cases of explosives injuries, locational appropriateness should have no bearing & liability should be truly strict

Six factors in determining if an activity is “abnormally dangerous”
- Existence of a high degree of risk of some harm to the person, land, or chattels of others
- Likelihood that the harm that results from it will be great
- Inability to eliminate the risk by the exercise of reasonable care
- Extent to which the activity is not a matter of common usage
- Inappropriateness of the activity in the place where it is carried on, and
- Extend to which its value to the community is outweighed by its dangerous attributes

Defenses
- Only the Ps assumption of the risk is a Defense to a SL action based on an abnormally dangerous activity

Rylands v. Fletcher : Reservoir built on the mine case in England

American courts adopted to form this non-negligence doctrine of Strict Liability
the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.
If by the operation of nature, that accumulation of water had passed off into the land of the P, the P could not have complained that that result had taken place.
Rule: The D will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings

Klein v. Pyrodene Corp. (1991): Fireworks case where P was injured. Court held strictly liable; products liability claim was dismissed.

Detonating fireworks displays constitutes an abnormally dangerous activity warranting strict liability. Public policy also supports this conclusion. Furthermore, RCW 70.77.285 mandates the payment of all damages caused by fireworks displays, regardless of whether those damages were due to the pyrotechnicians’ negligence. This establishes the standard of strict liability for pyrotechnicians.

Products Liability

Definiton - refers broadly to the decisional and statutory law permitting money damages from manufacturers and sellers of defective products that injure persons or property

4 Principal Doctrines Underlining PL Suits

(1) negligence

(2) breach of one or more warranties

(3) liability w/o fault – strict products liability

(4) misrepresentation

Prima Facie Case - Elements to prove in PL suit

D is subject to liability to P in products liability if:
- P has suffered an injury;
- D sold a product;
- D is a commercial seller of such products;
- At the time it was sold by D, the product was in a defective condition; and
- The defect functioned as an actual and proximate cause of P’s injury.

Comparing PL elements to negligence

Injury and causation elements (1) and (3) are parallel to negligence
Duty and breach elements are absent – in their place there are 3 new elements in PL
- (2) sale of product, (3) by a seller, (4) in a defective condition

Defining Terms Injury

Whether the owner of a product can invoke products liability law to cover for a defect that causes damage to, or the destruction of, the product itself.
- General Rule: The owner cannot and is instead left to the protections he was able to obtain in the contract of sale via express or implied warranties. “Economic Loss Rule”
Tangible property damage caused by a product defect to property other than the product itself is ordinarily actionable in products liability.

Product

Services even when provided commercially are not products.
As an item comes more closely to taking the form of real property, it is unlikely to qualify as a product.
Human body parts, tissues, blood products, and cells are usually not considered products.
Live animals sold as pets or livestock are frequently not considered products.
Textual material, such as encyclopedias, guides, or books, are generally not considered products.
Intangibles, such as electricity and x-rays, reside at the margin.
Used products are not normally subject to strict products liability.
Some jurisdictions deem a type of item to be a “product” but nevertheless have made a deliberate decision to exempt the product from the reach of product liability laws (i.e. prescription drugs and vaccines)

Seller

Retailers
Manufacturers
Distributers
- Some jurisdictions require only that the P be w/in a class of persons foreseeabiliy put at risk by the defective product.
- A person or entity who sells a product does not qualify as a seller unless she is in the business of selling or marketing such products.
- Courts will look at the underlying reality of the transaction, and ask whether the D has placed the product in the stream of commerce.
- If the courts deem the D to be engaged primarily in a service, rather than a sale, they will not treat the D as a seller of the product
- The seller and manufacturer of the component part will be liable. However, the component manufacturer may be able to demonstrate that there was nothing intrinsically defective in its product and that the problem was simply that the larger product did not function optimally with that component.

Design Defect - 2 tests

(1) Consumer expectations test: a product is defective in design if aspects of its design render it more dangerous than an ordinary consumer would expect it to be

The concept of a flaw or a defect can be given content by comparing the actual product to a prototype in the mind of the ordinary consumer

(2) Risk-utility test: a product is defectively designed if the risks of its design outweigh its utility

Whether the utility of the design- better visibility, easier maneuverability, etc.- outweighs the heightened risk of bodily harm the design poses as compared to cars with more substantial front ends.

Nature of Product Defects

(1) Manufacturing Defect (mismanufacture):

The product diverges from the manufacturer’s own specifications for the product

(2) Design Defect (defective design for safe use):

There is a flaw in the pan or specifications for a whole line of products. The flaw may be small or technical, or may go to the essence of the product.

(3) Failure to Warn or Instruct (failure to give adequate warnings or instructions for safe use):

When safety requires that the product be sold with a warning, but the product is sold without the warning

Prescription Drugs

A Plaintiff-friendly approach:
- A P alleging injuries caused by use of a prescription drug
- Sold by the seller with adequate warnings of health risks
  - That are posed by the drug’s use, and
  - Of which the seller knew or should have known at the time of the sale,
- May not invoke either the consumer expectations test or the risk-utility test

Cases

Products Liability; Manufacturer and Seller Liability

Escola v. Coca Cola: coke bottle broke in hand

Majority applied Res Ipsa Loquitor
- Under the general rules, it must appear that bottles of carbonated liquid are not ordinarily be defective w/o negligence by the bottling company.
- All the requirements necessary to entitle P to rely on RIL to supply an inference of negligence are present.
Concurrence – Traynor
- A manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.
Just call it strict liability for defective products; that’s what it is; don’t contort the other doctrines b/c it’s too confusing

Greenman v. Yuba Power Products: wood hit him in head

Civil Code § 1768: In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.
Even if P did not give timely notice of breach of warranty to the manufacturer, his cause of action based on the representations contained in the brochure was not barred.
Manufacturer is strictly liable if P proves that the Shopsmith caused his injury.
Traynor's decision - jury should conclude that the manufacturer negligently put the machine together because of the screws used
- Also, manufacturers should be held strictly liable

Cronin v. J.E.B. Olson Corp.

P was driving a delivery truck and was passing a pick-up, the impact caused the safety clasps to break causing the baked goods trays to hit and injure P
Although the seller should not be responsible for all injuries involving the use of its products, it should be liable for all injuries proximately caused by any of its products which are adjudged “defective.”
Whether the injured P seeking recovery upon the theory of strict liability in tort must establish, among other facts, not only that the product contained defects which proximately caused his injuries but also that such defect condition made the product unreasonably dangerous to the user or consumer.
- No, he need not do so.
Restatement § 402A (CB 832)

Defects

Gower v. Savage Arms: gun went off

claimed various defects
- warning defect - he didn't get the booklet with the gun (manufacturer did supply one when it left factory)
  - supplier has duty to warn and pass along the safety booklet when someone buys a gun
- unloading defect
  - since P was not unloading on discharge, then his claim is insufficient
- detent defect
  - If you have a knob that you turn, you feel the sensation that drops or clicks into a certain place, this is a detent defect if it doesn't set into a certain place

Cepeda v. Cumberland Eng’g Co.: Design defect

Distinction between ordinary manufacturing defects and defects of design
Consider whether a balanced consideration of the following factors did not preclude liability as a matter of law
- The usefulness and desirability of the product – its utility to the user and to the public as a whole
- The safety aspects of the product – the likelihood that it will cause injury, and the probable seriousness of the injury
- The availability of a substitute product which would meet the same need and not be as unsafe
- The manufacturer’s ability to eliminate the unsafe character of the product w/o impairing its usefulness or making it too expensive to maintain its utility
- The user’s ability to avoid danger by the exercise of care in the use of the product
- The user’s anticipated awareness of the dangers inherent in the product and their avoidability, b/c of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions
- The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance

Prescription Drugs

Sindell v. Abbott Drugs: mother took drug when pregnant, caused problems

General Rule: The imposition of liability depends upon a showing by the P that his or her injuries were caused by the act of the D or by an instrumentality under the D’s control.
- There are exceptions to this rule
  - Summers v. Tice theory: places the burden of proof of causation upon tortious Ds in certain circumstances
  - Ds acted in concert to cause injury to P
  - theory of enterprise liability or industry-wide liability
Court concludes that these doctrines may not be applied to hold Ds liable under the allegations of this complain, but it proposed and adopts a 4th basis grounded upon an extension of Summers.
Under the court’s rule, each manufacturer’s liability for an injury would be approximately equivalent to the damages caused by the DES it manufactured.

Freeman v. Hoffman La-Roche: P seeks damages for injuries she sustained following her use of the drug Accutane for chronic acne

Failure to Warn or Instruct

Anderson v. Owens-Corning Fiberglas Corp

P inhaled asbestos when he was around a ship yard; P was injured by exposure and claims negligence, breach of warranty, strict liability, and punitive damages
Exclusion of state-of-the-art evidence, when the basis of liability is a failure to warn, would make a manufacturer the virtual insurer of its product’s safe use, a result that is not consonant with established principles underlying strict liability.
The manufacturer is liable if it failed to give warning of dangers that were known to the scientific community at the time of manufacture or distribution
A defendant in a strict products liability action based upon alleged failure to warn of a risk of harm may present evidence of the state of the art

Proving Actual Causation in Failure to Warn

Motus v. Pfizer, Inc.: bad opinion, Zoloft suicide case

California follows the learned intermediary doctrine which states that in the case of prescription drugs, the duty to warn “runs to the physician, not to the patient.”
- A manufacturer discharges its duty to warn if it provides adequate warnings to the physician about any known or reasonably known dangerous side effects, regardless of whether the warning reaches patient
an overpromotion theory is one way that a P in a failure-to-warn case can overcome the manufacturer’s argument either
- that it provided adequate warnings OR
- that the doctor’s decision to prescribe a drug despite his awareness of its dangers was an intervening cause sufficient to vitiate the manufacturer’s liability

Worker's Compensation

Not torts, a statutory scheme that is an alternative to torts
History: employees had a hard time suing their employers when there was injuries in the work place
Workers are more likley to get compensation from workmen's comp because you don't have to prove negligence
- But workers cannot get punitive damages and their recovery is more limited then what it would be for damages under torts
Various circumstances can bar your recovery for worker's comp, depending on jurisdiction but the following are things that are looked at
- Horseplay
- Recreational activities such as an employer sponsor softball game
- Commuting to and from work
- Personal activities on business trips

3 kinds of risks

Occupational - Always rises out of employment and will be covered; directly related to job at hand
Personal - never rises out of employment and will never be recovered
Neutral - gray area, sometimes accidents are covered and sometimes they are not (depends on type of risk) from least to most likely to be compensated
- Proximate cause - foreseeability
- Peculiar risk - risk has to be peculiar to the employment
- Increased risk - so long as the kind of injury you suffered is one where your job puts you in increased risk then you are covered
- Actual risk - as long as the risk is one that actually accompanies employoment and will be compensated
- Positional risk - if an injury would not have occurred but for a fact you were in a certain place because of your job, then it's covered

Difference between worker's comp and torts

Causation: for worker's comp, causation is replaced with the concept arising out of the course of employment
Benefits: instead of being based upon how much P has suffered or lost, it's based around the idea of P's lost earning capacity

4 elements you must prove for worker's comp

Must be a personal injury
That results from an accident
That occurs during the course of employment
And arises out of employment

Benefits from workman's comp

medical care paid for
disability - temporary partial/total, permanent partial/total, death
precludes tort suits - intentional wrongs, fraudulent concealment, dual capacity, 3rd party D's or P's

Nuisance; Strict Liability; Products Liability

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