TORT LAW

STRICT LIABILITY, PRODUCT LIABILITY,

SPECIAL TORTS ACTIONS and IMMUNITIES

Paralegal Certificate Program Class 4

Tonight we are covering
• Chapter 8: Strict or Absolute Liability
• Chapter 9: Products Liability
• Chapter 10: Special Tort Actions
• Chapter 11: Tort Immunities
• Review for Final Exam
Distinction between strict liability
and other areas of tort law

TORTS

Intentional torts Negligence Strict liability

FAILURE TO
INTENT = DESIRE ADHERE TO
LIABILITY
TO BRING ABOUT STANDARD REGARDLESS
CONSEQUENCES OF CARE OF INTENT
Strict Liability
• Interchangeable term with Absolute Liability
• The tortfeasor is held responsible regardless of fault.
– Fault is Irrelevant
• So, even if the tortfeasor used every possible degree of care
to protect against injuring the victim, that would not prevent
liability.
• Limited to certain types of activities, such as abnormally
dangerous activities and defectively manufactured products.
Abnormally Dangerous Activities
• Activities that are inherently hazardous because of what is
involved. There is a high risk of harm to persons, land or
chattel and the likelihood is that the harm will be great. Even
with due care, the risk cannot be eliminated.
• Must create a great risk of seriously injuring the plaintiff or the
plaintiff’s property.
• If the tortfeasor could have eliminated the risk of harm through
the use of reasonable care then there is no strict liability.
– Example: Utility company using insulated wires. If someone hurt with
these precautions, not strict liability. Use negligence.
• Courts often apply a balancing test (comparing the dangers
created by the activity against the benefits that the community
derives from the activity).
Restatement (Second) of Torts §520
Criteria for absolute liability:
1. Abnormally dangerous activity created high risk of
substantial injury to person or property
2. Risk cannot be removed through use of reasonable care
3. Activity is not commonly undertaken (common usage
principle)
4. Activity was inappropriately undertaken in the place where
the victim was harmed
5. The hazards that the activity creates outweigh the benefits
that the activity brings to the community
Examples of Abnormally Dangerous Activities
• Crop Dusting – risk of harm in spraying pesticides on farmland
with drifts of chemicals in aerial spraying being unpredictable.
• Poisonous gases
• Disposal of hazardous waste
• Storage of flammable liquid in urban areas
Defenses to Abnormally Dangerous Activities
• Some legislatures have enacted statutes to protect certain
abnormally dangerous activities from strict liability (ie, public
utilities distributing electricity or natural gas)
• Under the statutes, the protected entities cannot be held strictly
liable but can be held liable for negligence or intentional torts.
• See Table 8-1 on pg. 275
Mass Torts
• Takes place when a large group of people are injured as a
result of a single tortious act. Example – tobacco litigation.
Large numbers of people are injured because of the same
incident. IE September 11th.
• Not the same as a class action. Class actions involve smaller
groups of people. In class actions, lawsuits are initiated by a
person harmed and others become the “class” who are
similarly situated.
Animal Owner Liability

• Distinction between wild and domestic animals.

• Strict liability for wild animals
• Owner may be held strictly liable for animals exhibiting vicious
tendencies.
• Vicious propensity rule is the basis for strict liability for
domestic animals
– If animals display vicious propensities and hurt someone
or their property, then owner is absolutely/strictly liable
– Prove vicious propensities by past vicious behavior
Defenses to Animal Absolute Liability

1. Assumption of the risk

2. Contributory or comparative negligence
3. Consent
4. Self-defense and defense of others
5. Provocation
Florida Statute on Dog Bites
• 767.13. Attack or bite by dangerous dog; penalties; confiscation; destruction

(1) If a dog that has previously been declared dangerous attacks or bites a person or a domestic
animal without provocation, the owner is guilty of a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083. In addition, the dangerous dog shall be immediately confiscated
by an animal control authority, placed in quarantine, if necessary, for the proper length of time, or
impounded and held for 10 business days after the owner is given written notification under s.
767.12, and thereafter destroyed in an expeditious and humane manner. This 10-day time period
shall allow the owner to request a hearing under s. 767.12. The owner shall be responsible for
payment of all boarding costs and other fees as may be required to humanely and safely keep the
animal during any appeal procedure.

(2) If a dog that has not been declared dangerous attacks and causes severe injury to or death of any
human, the dog shall be immediately confiscated by an animal control authority, placed in
quarantine, if necessary, for the proper length of time or held for 10 business days after the owner is
given written notification under s. 767.12, and thereafter destroyed in an expeditious and humane
manner. This 10-day time period shall allow the owner to request a hearing under s. 767.12. The
owner shall be responsible for payment of all boarding costs and other fees as may be required to
humanely and safely keep the animal during any appeal procedure. In addition, if the owner of the
dog had prior knowledge of the dog's dangerous propensities, yet demonstrated a reckless disregard
for such propensities under the circumstances, the owner of the dog is guilty of a misdemeanor of
the second degree, punishable as provided in s. 775.082 or s. 775.083.
Florida Statute on Dog Bites (cont)
• (3) If a dog that has previously been declared dangerous attacks and
causes severe injury to or death of any human, the owner is guilty of a
felony of the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084. In addition, the dog shall be immediately
confiscated by an animal control authority, placed in quarantine, if
necessary, for the proper length of time or held for 10 business days after
the owner is given written notification under s. 767.12, and thereafter
destroyed in an expeditious and humane manner. This 10-day time period
shall allow the owner to request a hearing under s. 767.12. The owner
shall be responsible for payment of all boarding costs and other fees as
may be required to humanely and safely keep the animal during any
appeal procedure.
(4) If the owner files a written appeal under s. 767.12 or this section, the
dog must be held and may not be destroyed while the appeal is pending.
(5) If a dog attacks or bites a person who is engaged in or attempting to
engage in a criminal activity at the time of the attack, the owner is not
guilty of any crime specified under this section.
Scope of Liability in Strict/Absolute Liability
• Proximate cause, similar to that in negligence cases, is the scope
of liability in strict/absolute liability cases
• The abnormally dangerous activity or the dangerous animal
must have proximately caused the victim’s injuries for tortfeasor
to be held strictly liable
• Elements:
1. Plaintiff’s injuries were reasonably foreseeable
2. Victim must be foreseeable plaintiff
Elements defined same as in negligence
• Note there is no duty of reasonable care in strict liability
ParalegalSpace.com
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• This website has great substantive material and sample exams
for chapter 8.
• To supplement our Chapter 8 materials, log onto
www.ParalegalSpace.com and click on the ParaStudent Log- In
tab, Substantives section.
• Review the problems and review questions on pages 283-284.
Review the responses to the questions and problems on the
paralegal student website to help you to understand the
concepts and apply the materials.
• Review the notes from the chapter.
Products Liability
• Liability arising out of the use of a defective product.
• From a public policy standpoint, businesses manufacturing
and selling defective products are in the best financial
position to bear the expenses incurred by the innocent user.
• Three different types of cause of action:
– Strict tort liability
– Breach of warranty
– Negligence
Terminology
• Warranty: a guarantee that a product or service
meets certain quality standards.
• Product manufacturer: makes the defective product
that gives rise to the lawsuit.
• Wholesalers: buy and sell goods to retailers
• Retailers: sell the products to the individual
consumers.
• Purchasers: buy the products from retailers.
Who can recover

• The purchaser of the defective product.

• The ultimate user of the product, provided it is reasonably
foreseeable that the person would have used the product.
• The ultimate user (may or may not be the purchaser) is the
plaintiff in the litigation.
• The plaintiff sues multiple defendants (manufacturer,
wholesaler, retailer: all can be liable!)
– Going for the Deep Pocket!
• No privity of contract required between the ultimate
user and seller or manufacturer or wholesaler in
strict/products liability cases
– Privity of contract: a legal relationship that exists
between parties to a contract
General Elements –pg. 295

1. Defect must render the product unreasonably dangerous to

use
2. Seller/manufacturer must be in the business of selling
products such as the flawed product
3. Product cannot be substantially changed between the time it
left the manufacturer’s or seller’s hands and the time it
reached the ultimate user
4. Defect must be the proximate cause of the ultimate user’s
injuries
5. Ultimate user must have used the product properly (the way
the product was intended to be used)
Additional Elements – pg. 295

• 6. The ultimate user must have been forseeable (forseeable

plaintiffs theory)
• 7. The seller or manufacturer must have been responsible for
the condition in which the product was maintained
• 8. In a few states, a sale of the product must have occurred
between anyone involved in the chain (manufacturer,
wholesaler, retailer, customer).
Also see Restatement (Second) of Torts §402 – pg. 296 (similar
elements, but fewer)
See Chart on pg. 306
Florida Statutory Definition –
Product Liability F.S.A. § 627.942
•
(7) "Product liability" means liability for damages because of
any personal injury, death, emotional harm, consequential
economic damage, or property damage, including damages
resulting from the loss of use of property, arising out of the
manufacture, design, importation, distribution, packaging,
labeling, lease, or sale of a product, but does not include the
liability of any person for those damages if the product
involved was in the possession of such a person when the
incident giving rise to the claim occurred.
Defenses discussed in the text
• Assumption of the risk – usually a defense
– Discovering a defect but disregarding it and using the
product
– Failing to properly maintain the product
– Failing to follow instructions or heed warnings for safe
product use
• Contributory and Comparative Negligence – Not a defense
• Misuse of Product – can be a defense
– Example: Removal of safety devices (child proof on cigarette
lighters)
Government Rules Defense F.S.A. § 768.1256
(1) In a product liability action brought against a manufacturer or seller for harm allegedly caused by a
product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and
the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to
the initial purchaser or user, the aspect of the product that allegedly caused the harm:
(a) Complied with federal or state codes, statutes, rules, regulations, or standards relevant to the event
causing the death or injury;
(b) The codes, statutes, rules, regulations, or standards are designed to prevent the type of harm that
allegedly occurred; and
(c) Compliance with the codes, statutes, rules, regulations, or standards is required as a condition for selling
or distributing the product.
(2) In a product liability action as described in subsection (1), there is a rebuttable presumption that the
product is defective or unreasonably dangerous and the manufacturer or seller is liable if the manufacturer
or seller did not comply with the federal or state codes, statutes, rules, regulations, or standards which:
(a) Were relevant to the event causing the death or injury;
(b) Are designed to prevent the type of harm that allegedly occurred; and
(c) Require compliance as a condition for selling or distributing the product.
(3) This section does not apply to an action brought for harm allegedly caused by a drug that is ordered off
the market or seized by the Federal Food and Drug Administration.
Bad Faith
• Defined as: Dishonesty or other failure to deal fairly with
another person
• Most common example: Insurance companies failing to
negotiate in good faith on behalf on an insured person and
promptly settle a case in which liability is clear
ParalegalSpace.com
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• This website has great substantive material and sample exams
for chapter 9.
• To supplement our Chapter 9 materials, log onto
www.paralegalspace.com para-student log in tab, substantive
section.
• Review the problems and review questions on pages 316-318.
Review the responses to the questions and problems on the
para-student website to help you to understand the concepts
and apply the materials.
• Review the notes from the chapter.
Special Tort Actions

• Nuisances
– Private nuisances
– Coming to the nuisance defense
– Public nuisances
– Nuisances per se
– Nuisance remedies (abatement, damages, injunctions)

• Wrongful Death (768.16 – 768.26 Wrongful Death Act in

Florida)
Nuisance

• A nuisance is an unreasonable or unlawful use of one’s real

property that injures another person or interferes with
another person’s use of his or her real property.

• The two types of nuisances are public and private.

Private nuisance
• Occurs when someone uses his or her land in such a way as to
unreasonably and substantially interfere with another person’s
use and enjoyment of his/her land.
– The tortfeasor here is the land user whose activities are
offending others
• Unreasonable and substantially – define these words in terms
of offensiveness
– Offensiveness is determined by applying the reasonable
person standard
– Would a reasonable person with ordinary sensibilities find
the tortfeasor’s land use unreasonably offensive?
• Use and Enjoyment: Terms of art in nuisance law, meaning the
two are always used together
– The nuisance activity ruins the pleasure neighbors gain
from using their real estate.
Examples of private nuisances
Physical effects on land:
– Ground vibration
– Pollution of water on soil
– Crop destruction
– Flooding
– Excessive clutter
– Unwanted excavation
Examples of private nuisances (cont)
• Health hazards or offending sensibilities
– Noxious odors
– Smoke and dust
– Excessive noise and temperatures
– Toxic tort nuisances (disposal and transportation
of hazardous waste or toxic chemicals)
– Incessant telephone calls
• Unwanted association with neighboring uses
(ie strip club build adjacent to your property)
Florida example

• 479.105. Signs erected or maintained without required

permit; removal
(1) Any sign which is located adjacent to the right-of-way of
any highway on the State Highway System outside an
incorporated area or adjacent to the right-of-way on any
portion of the interstate or federal-aid primary highway
system, which sign was erected, operated, or maintained
without the permit required by s. 479.07(1) having been
issued by the department, is declared to be a public nuisance
and a private nuisance and shall be removed as provided in
this section.
“Coming to the Nuisance” defense

• The plaintiff owns or uses the land where the

alleged nuisance was already taking place
when the plaintiff purchased or commenced
using the land.
• Similar to assumption of the risk, meaning the
Plaintiff knew or should have known that the
preexisting activity would offend him or her.
Public Nuisance
• A land use that injures the public at large rather than just a
single individual.
Elements:
• (1) Tortfeasor’s activity (2) that unreasonably and substantially
interferes with (3) the public’s use and enjoyment of legal
rights common to the public.
• IE right to peaceably assemble in public places, right to use
public streets and sidewalks without being subjected to
offensive activities.
• Many lawsuits are filed by municipal government bodies or
prosecuting attorneys under the state’s police powers
(authority to file lawsuits to protect the public’s health,
welfare, safety or morals).
Examples of Public Nuisances

• Almost all public nuisances are defined by statute or

ordinance (which means the legislature deemed such activity
offensive, unhealthy or immoral).

• Gambling, prostitution, failing to comply with health code

provisions, unrestrained or vicious animals.

• Coming to the nuisance is not a defense to public nuisances.

Mixed Nuisances and Nuisances Per Se
• Mixed nuisance = some nuisances can be both private and public.
The greater the number adversely affected, the more likely it will
be deemed a public, as well as a private, nuisance.

• Courts often consider violating public nuisance

statutes/ordinances to be deemed nuisances per se (same
analysis as negligence per se applied to nuisances). Violation of
the statute equates to automatic liability.
Remedies for Nuisances
Monetary damages:
Compensate the plaintiff for the injuries produced by the
nuisance while not causing the respondent to lose his/her
business (balance)
Equitable Remedies (these do not involve money damages)
2 most common types:
• 1. Abatement: most common. Respondent is ordered to cease
(abate) the nuisance activity. Abatement is often permanent.
• 2. Injunctions: the method for enforcement of an abatement (the
actual court order that orders the respondent to cease and desist)
– Temporary (cease until court hearing, usually up to 10 days)
– Permanent (usually after trial; failure to obey - contempt)
Survival and Wrongful Death Statutes
• Survival statutes allow lawsuits to be brought by a relative for
a person who has just died – the lawsuit is based upon the
cause of action the deceased person would have had. (under
common law this could not happen – the claim would die with
the deceased).

• Wrongful death statutes allow lawsuits to be brought by the

dependants of a deceased person against the person who
caused the death. Damages awarded to compensate the
dependants for their loss if the death was the result of
negligence of willfulness.
– Requires a deceased person for this suit to be brought
Damages and Defenses –
Wrongful Death
• Damages typically include loss of lifetime earnings and loss of
consortium.
• Loss of lifetime earnings = the earnings that would have been
produced in the deceased had not been killed by the
tortfeasor.
• Loss of consortium = loss of love and companionship
(economic and intangible)
• Defenses: All defenses available for the tort alleged to have
been committed are available (ie, contributory or comparative
fault, assumption of the risk, etc. )
Wrongful Birth/Wrongful Life
• Wrongful Birth: lawsuits for the wrongful birth of a child
having serious defects or other congenital problems that
results from a doctor’s failure to provide proper information
(to advise, to diagnose, or to test properly).
– Usually deal with surprised parents who were uninformed
of a genetic problem. Can be medical malpractice as well.
– More than just birth defects
– Damages: Emotional distress, cost of prenatal care and
expense associated with child’s impairment.
• Wrongful Life: New to tort law – brought by or on behalf of
unwanted child who is impaired.
– The child is seeking damages here against physician for
difference in value of impaired life versus unimpaired life.
ParalegalSpace.com

• This website has great substantive study support material and

sample exams for chapter 10.

• To supplement our Chapter 10 materials, log onto

ParalegalSpace.com, ParaStudent log in area, substantive tab.

• Review the problems and review questions on pages 352-354.

Review the responses to the questions and problems on the
paralegal student website to help you to understand the
concepts and apply the materials.

• Review the notes from the chapter.

Chapter 11
Tort Immunities
• Tort immunities are absolute defenses against a
plaintiff’s tort claims
– It’s the reverse of absolute liability

• Types of Immunities:
– Sovereign (governmental) immunity
– Public officials’ immunity
– Young children’s immunity
– Family immunity
– Workers’ compensation
Sovereign (Governmental) Immunity
• Defined: The government’s freedom from being sued. In many
cases, the US government has waived immunity by statute
(Federal Tort Claims Act).
• History: The king can do no wrong and English Common law
adopted by the US
• What are governmental functions?
– An action performed for the general public good by a governmental
agency, or by a private organization closely tied to the government.
They perform public protection activities such as fire, police, or
ambulance services.
• Most states governmental immunity is abolished as an absolute
defense. No tort immunity remains completely unchanged since
English Common Law.
Public Officers

• Who is protected?
– Legislators and judges have absolute immunity from tort
liability for acts in their official capacity
– Executive branch does not

• Rationale for Immunity

– To ensure legislators and judges can pursue their public
duties without fear of tort liability
Children of Tender Years
• Tender years defined: Minors; usually those under age of 7
– Minor: A person who is under the age of full legal rights and duties
• More of a qualified immunity from certain torts to children of a
very young age.
• Absolute Immunity for Intentional Torts
– Because young children mentally and emotionally incapable of intent
to commit tort
• Immunity for Negligence
– Most courts – no absolute immunity for negligence
– Age is merely a factor
– Usually extremely young (3 or 4) incapable of negligence
Spousal/Family Immunity
• Spousal Immunity: Common law rule that makes one spouse
immune from suit by the other spouse
– Abolished to some degree by majority of states or some
states have only abolished the immunity from suit for
specific kinds of torts.

• Family Immunity: Common law, suits between parents and

children were prevented.
– Note, only applies to parent/child….not between other
relatives such as brother/sister.
Workers’ Compensation

• If employee injured or killed as result of incident occurring

during course and scope of employment

• Regardless of employer fault

• This is sole remedy – cannot later sue employer

• Recovery amount set by statute

Final Review
• Recall difference between Intentional Torts v. Negligence or
Strict Liability: The chart
– Intentional torts only require Intent
– Strict Liability does not regard fault
– Negligence uses reasonable person standard
• Negligence cases:
– Scope of duty refers to foreseeability of injury
• Damages available in Intentional Tort, Negligence, and Strict
Liability cases:
– Review the types of damages available and be familiar
with their definitions and when they are recoverable
Final Review
Chapter 1: Introduction to Torts
– Know definitions of negligence, intentional torts, and strict liability
– Know the unique elements of each tort
– Understand the overview of a civil case (complaint, answer, discovery,
etc.) – and which party files what document.
– Understand each parties burdens of proof (throughout all the chapters)
• Example: Defendant has burden of proof to prove affirmative
defenses raised in his/her answer to the plaintiff’s complaint
– Review the different types of alternative dispute resolutions and what
their purposes are
Chapter 12 : Paralegal Ethics
– Know liability of attorneys and paralegals
– Know what is ethical conduct for attorneys and paralegals
– Know when paralegals are permitted to represent parties
– Know what duties paralegals are permitted to perform
Chapter 13: Tort Investigations
– Understand the paralegals role in investigations
– Study the different methods available to paralegals to
discover information (discovery tools, police reports,
internet, employment records, medical, public, etc.)
– Understand the different types of cases you will be
investigating (auto, med mal, etc.)
Chapter 5: Intentional Torts – to person
– Know the elements to an intentional tort (act, intent, injurious
behavior) and what each element means.
– Study and know the elements and definitions to each type of
intentional tort and what is needed to prove each
• (assault, battery, false imprisonment, intentional infliction of
emotional distress, fraud, misrepresentation, etc….all discussed
in chapter)
• Be aware of what is required to prove each intentional tort
– Example: Intent required for battery is not intent to harm,
just intent to touch in offensive or injurious manner.
– Study transferred intent
• Know which torts it applies to
– Know malicious prosecution v. abuse of process
– Understand the elements and differences between the 4 types of
invasion of privacy
Chapter 5 con’t:
– Defamation: Know slander v. libel
Chapter 6: Intentional Torts – to property
– Be sure to know what Intentional torts are to the person v.
property
– Same as Chapter 5 – know the elements and definitions of the
intentional torts to property
Chapter 7: Defenses to Intentional Torts
– Know the types of defenses to intentional torts to the person and
property
– Understand the type of force you can use in defending intentional
torts to person v. property
– Know the elements of the defenses and what is needed to prove
them
– Review Statute of Limitations and Workers’ Compensation
Chapter 2: Negligence
Chapter 3: Special Negligence Action
– Very important topic
– Know the elements and what each element means,
and how it is proven
– Understand and define the scope of duty, foreseeability,
reasonable person standard, both types of causation
(factual/actual and proximate/legal cause), breach and damages.
– Recall “taking the victim as you find him”
– Study res ipsa loquitur
– Damages:
• Know the different types, define them, alternate names, and
when they are awarded
• IE: Compensatory (general, special, economic, noneconomic);
Nominal, Punitive, etc.
– Review Negligence Per se
Know the difference between invitee, licensee, and
trespasser and the duties of reasonable care owed to each
• Order: Highest duty to Invitees, then licensees, then trespassers
• Know what each duty specifically is to each
Vicarious Liability
– Employer/employee or principal/agent
– Respondeat Superior
• Liability within the scope of employment
• Coming and going rule
• Frolic and Detour
Review Negligent infliction of emotional distress
– Impact Rule
– Physical Manifestations Rule
– Zone of Danger
– Family Relationship Rule
Chapter 4: Defenses to Negligence
– Used by defendant against plaintiff
– Understand the difference between contributory negligence and the
two approaches to comparative negligence.
• Understand how the percentages of negligence and recovery of
damages work for each.
– Contributory: no recovery even if defendant 99% at fault and
plaintiff only 1%
– Example: Pure comparative approach: the plaintiff can recover
even if the plaintiff was 99% at fault (can sue the respondent for
1% fault).
– 50/50 fault (comparative): the plaintiff can recover if the
plaintiff was up to (but not more than) 50% at fault.
– Study assumption of risk and know the difference between implied and
express assumption of the risk; also review statute of limitations
– Review last clear chance – applies(d) in contributory negligent states
Chapters: 8 - 11 General Review
– Know when you will be held strictly liable and exceptions
– Understand what an ultra-hazardous activity is
– Understand when privity of contract is and is not required between parties
– Understand who can be sued in a strict liability case
– Understand the “coming to the nuisance” doctrine
– Understand wrongful birth, wrongful life, and wrongful death cases
– Review Chapter 11 on the different tort immunities; specifically spousal
immunity, tender years immunity and governmental immunity
– Recall what “going for the deep pocket” means
– Review what can make a product unreasonably defective
• Such as faulty design, error in manufacturing, improper maintenance,
failure to warn
– Know Animal Owners’ Liability and Vicious Propensity Rule
• Domitae naturae – means domestic nature –
means you tame, domestic animals
• Ferae Naturae – means wild nature – means your wild animals