Title SlideTitle Slide

DEFENSES TO DEFENSES TO INTENTIONAL TORTS AND INTENTIONAL TORTS AND

STRICT LIABILITYSTRICT LIABILITY

TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAM

A local driving ordinance requires that A local driving ordinance requires that drivers and passengers always wear seat drivers and passengers always wear seat belts while in a moving vehicle. While belts while in a moving vehicle. While slowing to stop for a red light, Iago (not slowing to stop for a red light, Iago (not wearing a seat belt) notices the police wearing a seat belt) notices the police officer officer next to him. The officer issues next to him. The officer issues a citation, despite Iago’s explanation that a citation, despite Iago’s explanation that he was only in the car for a minute to go he was only in the car for a minute to go get aspirin for his sick mother. Is Iago get aspirin for his sick mother. Is Iago liable?liable?

While delivering the load of dirt to the While delivering the load of dirt to the Zamboni’s front yard, Big John carefully – oh Zamboni’s front yard, Big John carefully – oh so carefully – backed his employer’s dump so carefully – backed his employer’s dump truck up their driveway towards the garage. truck up their driveway towards the garage. “Yeah, I’m the coolest truck driver around,” “Yeah, I’m the coolest truck driver around,” thought Big John. After all, he’d been doing thought Big John. After all, he’d been doing so for years, and had seen the appreciative so for years, and had seen the appreciative eyes of the lovely ladies watching him. Lifting eyes of the lovely ladies watching him. Lifting the lever that released the load of dirt, and the lever that released the load of dirt, and slowly pulling forward, Big John was pleased slowly pulling forward, Big John was pleased to see the girls smiling and laughing. to see the girls smiling and laughing. Unfortunately, the reason for the extra Unfortunately, the reason for the extra attention was that Big John had backed up too attention was that Big John had backed up too far and dumped the dirt straight through the far and dumped the dirt straight through the garage door, tearing it off it’s hinges. garage door, tearing it off it’s hinges.

Negligence? Recovery from whom?Negligence? Recovery from whom?

Negligence is the failure to exercise reasonable care. Negligence requires duty, breach, causation, and damages. Here, Big John owed the Zambonis a duty of reasonable care, as he was the operator of heavy machinery, entrusted to deliver dirt for their front yard. Zamboni will claim that Big John’s carelessness breached that duty when he caused the dumped dirt to destroy his garage door. Negligence also requires that the defendant caused the injury complained of-causation requires two elements be met:

Actual Cause – But for Big John’s dumping dirt into the garage door, it would not have been destroyed.

Proximate Cause – The focus on whether the Johnson’s proximately caused Isosue’s injuries rests on how foreseeable the garage door’s demise was. Here, the facts show that Big John was checking out the ladies, and not on what he was doing. Failure to pay attention while operating heavy machinery is reasonably foreseeable to cause harm, such as the door being damaged by a heavy load of dirt.

Vicarious Liability – Also, the facts show that Big John was operating as an employee. The employer may likely be held vicariously liable, as the damage was caused by their employee that was operating within the scope of his employment.

Therefore, the Zambonis may recover from Big John or the employer or both. Ultimately, Big John and his employer could be held joint and severally liable for payment of damages.

INTENTIONAL TORTSINTENTIONAL TORTS

The deliberate commission of an The deliberate commission of an injurious act to another person injurious act to another person or that person’s propertyor that person’s property

The “act” required = volitional The “act” required = volitional movementmovement

Intent may be:Intent may be: a) a) specificspecific - intend to bring about - intend to bring about

consequence, orconsequence, or b) b) generalgeneral - substantial certainty of - substantial certainty of

injuryinjury

BATTERYBATTERY

1.1. Intentional harmful or offensive contactIntentional harmful or offensive contact

2.2. To plaintiff’s personTo plaintiff’s person

3.3. CausationCausation

NOTE: NOTE: Harmfulness and offensiveness Harmfulness and offensiveness are judged by the are judged by the

reasonable reasonable person person standard.standard.

HINT:HINT: Battery is a completed assaultBattery is a completed assault

ASSAULTASSAULT

1.1. Intentional act by defendant creating a Intentional act by defendant creating a reasonable apprehension in plaintiff.reasonable apprehension in plaintiff.

2.2. Of immediate harmful or offensive Of immediate harmful or offensive contactcontact

3.3. CausationCausation

NOTE: If defendant has the apparent NOTE: If defendant has the apparent ability to commit a battery – good ability to commit a battery – good enough. Apprehension is not enough. Apprehension is not fear/intimidation.fear/intimidation.

HINT: ASSAULT IS AN INCOMPLETE HINT: ASSAULT IS AN INCOMPLETE BATTERY.BATTERY.

FALSE FALSE IMPRISONMENTIMPRISONMENT

1.1. Act or omission by defendant that Act or omission by defendant that confines or restrains,confines or restrains,

2.2. To a bounded area To a bounded area

3.3. Intent Intent

4.4. CausationCausation

False Imprisonment False Imprisonment cont’d.cont’d.

Bounded area – Freedom of movement limited in Bounded area – Freedom of movement limited in all directions. Must have no all directions. Must have no reasonablereasonable means of means of escape escape knownknown to plaintiff. to plaintiff.– Physical barriersPhysical barriers– Physical forcePhysical force– Threats of forceThreats of force– Failure to releaseFailure to release– Invalid use of legal authorityInvalid use of legal authority

Length of time is irrelevant.Length of time is irrelevant. Future threats and moral pressure are insufficient. Future threats and moral pressure are insufficient.

Plaintiff must KNOW of or be harmed by the Plaintiff must KNOW of or be harmed by the

confinement.confinement.

INTENTIONAL INFLICTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSOF EMOTIONAL DISTRESS

Intentional act by defendant amounting Intentional act by defendant amounting to to EXTREMEEXTREME and and OUTGRAGEOUSOUTGRAGEOUS conductconduct

Intent or reckless behavior*Intent or reckless behavior* CausationCausation Damages – severe emotional distressDamages – severe emotional distress

Note: Recklessness = indifference to the Note: Recklessness = indifference to the consequences.consequences.

FRAUD AND FRAUD AND MISREPRESENTATIONMISREPRESENTATION

FRAUDFRAUD MISREPRESENTATIONMISREPRESENTATION

False statement False statement intended to intended to deceivedeceive

False statement False statement intended to deceiveintended to deceive

Knowledge of Knowledge of falsity of falsity of statementsstatements

Knowledge of falsity of Knowledge of falsity of statementsstatements

Statements Statements designed to entice designed to entice surrendering surrendering something of valuesomething of value

Innocent party suffers Innocent party suffers damagesdamages

Innocent party is Innocent party is injuredinjured

ABUSE OF PROCESSABUSE OF PROCESS(& malicious (& malicious prosecution)prosecution)

Misuse of a legal proceeding, or Misuse of a legal proceeding, or threat of such misusethreat of such misuse

Misuse to achieve unlawful Misuse to achieve unlawful objectivesobjectives

Injury to the victim as a result of Injury to the victim as a result of the misusethe misuse

NOTE: Filing mechanic’s liens, NOTE: Filing mechanic’s liens, abusing a child custody hearing…abusing a child custody hearing…

INVASION OF RIGHT TO INVASION OF RIGHT TO PRIVACYPRIVACY

(4 SUBCATEGORIES (4 SUBCATEGORIES RECOGNIZED)RECOGNIZED)

Public exploitation of another’s private Public exploitation of another’s private affairs in an unreasonably intrusive affairs in an unreasonably intrusive manner.manner.

1.1. AppropriationAppropriation2.2. Unreasonable intrusionUnreasonable intrusion3.3. Public disclosure of private factsPublic disclosure of private facts 4.4. False light in the public eyeFalse light in the public eyeNOTE: The right to privacy is a NOTE: The right to privacy is a

personal right, and not applicable to personal right, and not applicable to corporationscorporations

APPROPRIATION OF PICTURE OR APPROPRIATION OF PICTURE OR NAMENAME

Must show the unauthorized use Must show the unauthorized use of plaintiff’s picture or name for of plaintiff’s picture or name for defendant’s commercial defendant’s commercial advantage.advantage.

– Liability usually limited to Liability usually limited to advertisements or promotions of advertisements or promotions of products or services.products or services.

UNREASONABLE INTRUSIONUNREASONABLE INTRUSION

The act of prying or intruding The act of prying or intruding must be objectionable to a must be objectionable to a reasonable person. Also, the reasonable person. Also, the thing into which there is an thing into which there is an intrusion must be “private.” intrusion must be “private.”

Photographs taken in public Photographs taken in public places are not actionable.places are not actionable.

PUBLIC DISCLOSURE PUBLIC DISCLOSURE OF PRIVATE FACTSOF PRIVATE FACTS

Public disclosure of private Public disclosure of private information about plaintiff (public information about plaintiff (public matter is not sufficient)matter is not sufficient)

The disclosure must be The disclosure must be objectionable to the reasonable objectionable to the reasonable personperson

Truth is not a defense – this means Truth is not a defense – this means liability may attach even though liability may attach even though the statement is actually true.the statement is actually true.

FALSE LIGHT IN THE PUBLIC FALSE LIGHT IN THE PUBLIC EYE EYE

““False light” exists where one False light” exists where one attributes to plaintiff views he does attributes to plaintiff views he does not hold or actions he did not take. not hold or actions he did not take. The false light must be something The false light must be something objectionable to a reasonable objectionable to a reasonable person under the circumstances. person under the circumstances.

For liability – there must be For liability – there must be publication.publication.

DEFAMATIONDEFAMATIONLIBEL and SLANDERLIBEL and SLANDER

Defamation = Verbal communication Defamation = Verbal communication of a false and disparaging statement of a false and disparaging statement to a third party.to a third party.

Libel = Written defamation.Libel = Written defamation.

1.1. Written or verbal statementWritten or verbal statement2.2. False and defamatory (hint – defenses…)False and defamatory (hint – defenses…)3.3. Communication to third partyCommunication to third party4.4. Harm to victim’s reputation in the Harm to victim’s reputation in the

communitycommunity

DEFAMATION DEFAMATION CONTINUEDCONTINUED If the defamation involves a If the defamation involves a

MATTER OF PUBLIC CONCERN, MATTER OF PUBLIC CONCERN, the Constitution requires the the Constitution requires the plaintiff to prove two additional plaintiff to prove two additional elements:elements:– Falsity of the defamatory language, Falsity of the defamatory language,

andand– Fault on the part of the defendant.Fault on the part of the defendant.

Reputation in the Reputation in the community?community?

1.1. Can be comprised of “one” Can be comprised of “one” other person.other person.

2.2. Can be comprised of a Can be comprised of a handful of close handful of close associates.associates.

3.3. Or can be the nation.Or can be the nation.

What about public What about public figures?figures?

Movie stars, high-level government Movie stars, high-level government employees, television celebrities.employees, television celebrities.

These individuals must prove These individuals must prove actual actual malice – malice – high standard of proof high standard of proof required.required.

Actual malice Actual malice = Knowledge that the = Knowledge that the statement was false, or a reckless statement was false, or a reckless disregard as to the falsity of disregard as to the falsity of statement.statement.

SLANDER PER SESLANDER PER SE

Per se = automatic or presumed.Per se = automatic or presumed.

Some words or statements are by Some words or statements are by themselves defamatory and no injury themselves defamatory and no injury or damage are required.or damage are required.

1.1. Imply criminal conductImply criminal conduct

2.2. Harmful to a businessHarmful to a business

3.3. Loathsome and Loathsome and communicable communicable diseases.diseases.

TRUTH IS A DEFENSE TO DEFAMATION

TRUTH IS AN ABSOLUTE DEFENSE TO DEFAMATION

TRUTH DOES NOT MEAN LITERAL TRUTH IN EVERY

DETAIL

TRUTH = SUBSTANTIAL TRUTH

… WHATEVER THAT MEANS …

PRIVELEGE AS A DEFENSE TO DEFAMATION

PRIVILEGE = LEGAL PROTECTION FOR STATEMENT

MADE

EXAMPLES OF PRIVILEGE:

STATEMENTS IN COURT PROCEEDINGS

STATEMENTS MADE BY MEMBERS OF CONGRESS ON FLOOR OF CONGRESS

STATEMENTS/REPORTS MADE IN GOOD FAITH AS REQUIRED BY JOB IN CONNECTION WITH LEGITIMATE REVIEW OR INVESTIGATION

REPORTS OF CHILD ABUSE OR NEGLECT, MADE IN GOOD FAITH

PRIVILEGE IS AN ABSOLUTE DEFENSE TO DEFAMATION

CONSENT IS A DEFENSE TO FALSE IMPRISONMENT

CONSENT = AWARENESS AND ACCEPTANCE OF CONFINEMENT

EXAMPLE OF CONSENT

A SHOPPER AGREES TO STAY FOR SHOPKEEPER QUESTIONING

Injuries to propertyInjuries to property

Trespass to landTrespass to land Trespass to chattelTrespass to chattel ConversionConversion

Trespass to landTrespass to land

Required elements:Required elements:

1.1. Physical invasion of plaintiff’s real Physical invasion of plaintiff’s real property.property.

2.2. Intentional actIntentional act

3.3. Causation Causation

Trespass to land Trespass to land cont’d.cont’d. Real property includes the surface, Real property includes the surface,

airspace, or subterranean space for a airspace, or subterranean space for a reasonable distance.reasonable distance.

Defendant only needs to have intended Defendant only needs to have intended to enter on that piece of land – doesn’t to enter on that piece of land – doesn’t need to know who owned it.need to know who owned it.

Invasion may be made by a person or Invasion may be made by a person or object (such as a baseball.) Intangible object (such as a baseball.) Intangible invasion may lead to a nuisance action – invasion may lead to a nuisance action – later class.later class.

Trespass to Trespass to chattelchattel

Required elements:Required elements:

1.1. An act that interferes with An act that interferes with plaintiff’s right of possession in plaintiff’s right of possession in the chattelthe chattel

2.2. IntentIntent

3.3. CausationCausation

4.4. DamagesDamages

Trespass to chattel Trespass to chattel cont’d.cont’d.

Two types of interference:Two types of interference:– Intermeddling (direct damage)Intermeddling (direct damage)– DispossessionDispossession

DamagesDamages– Actual damages – not necessarily to Actual damages – not necessarily to

the chattel, but at least to the the chattel, but at least to the possessory right – are required.possessory right – are required.

CONVERSIONCONVERSION

Required elements:Required elements:– Act that interferes with plaintiff’s Act that interferes with plaintiff’s

right of possessionright of possession– The interference is so serious that it The interference is so serious that it

warrants requiring defendant to pay warrants requiring defendant to pay the chattel’s full valuethe chattel’s full value

– Intent, andIntent, and– CausationCausation

Conversion Conversion continuedcontinued

Acts of conversion – include wrongful Acts of conversion – include wrongful acquisition (theft), wrongful transfer, acquisition (theft), wrongful transfer, wrongful detention, and substantially wrongful detention, and substantially changing, damaging, or misusing a chattel.changing, damaging, or misusing a chattel.

Seriousness of Interference – The longer the Seriousness of Interference – The longer the withholding period and extensive use, the withholding period and extensive use, the more likely it is a conversion. Lesser more likely it is a conversion. Lesser interference = trespass to chattels.interference = trespass to chattels.

Only tangible personal property qualifies.Only tangible personal property qualifies. Plaintiff can ask for $$$ or recovery of Plaintiff can ask for $$$ or recovery of

chattel.chattel.

Review of the practice Review of the practice written examswritten exams

DEFENSES TO DEFENSES TO INTENTIONAL TORTSINTENTIONAL TORTS

THESE ONLY COME INTO THESE ONLY COME INTO PLAY WHEN THERE HAS PLAY WHEN THERE HAS BEEN A TORT COMMITTED.BEEN A TORT COMMITTED.

DO NOT FALL INTO THE DO NOT FALL INTO THE TRAP OF ARGUING TRAP OF ARGUING DEFENSES PRIOR TO DEFENSES PRIOR TO ESTABLISHING THE ESTABLISHING THE OCCURRENCE OF A BONA OCCURRENCE OF A BONA FIDE TORTFIDE TORT

SELF-DEFENSESELF-DEFENSE

Use of reasonable forceUse of reasonable force That counters attacking or That counters attacking or

offensive forceoffensive force Necessary to prevent bodily Necessary to prevent bodily

injury, offensive contact, or injury, offensive contact, or confinement.confinement.

What is “reasonable What is “reasonable force” ?force” ? A neutralizing force – but don’t go too A neutralizing force – but don’t go too

farfar Once neutralized, further force may be Once neutralized, further force may be

considered assault or batteryconsidered assault or battery If faced with deadly force, can respond If faced with deadly force, can respond

with deadly forcewith deadly force In California, one may not use force In California, one may not use force

causing death or serious bodily harm causing death or serious bodily harm unless the invasion of property also unless the invasion of property also entails a serious threat of bodily harm.entails a serious threat of bodily harm.

DEFENSE OF PERSONS DEFENSE OF PERSONS

Use of reasonable forceUse of reasonable force To defend or protect third party To defend or protect third party

from from injuryinjury When third party is threatened by When third party is threatened by

attacking forceattacking force

Another word from our Another word from our sponsor…sponsor…

Upon hearing a scream from the back Upon hearing a scream from the back of the bus, Peter Parker turned of the bus, Peter Parker turned around to see Serious Black around to see Serious Black hovering over and about to punch hovering over and about to punch Tiny Tim. Peter quickly shot his Tiny Tim. Peter quickly shot his “power-web” towards Serious, “power-web” towards Serious, seriously injuring Serious’ nose seriously injuring Serious’ nose before Serious could rough Tim up. before Serious could rough Tim up. Serious sues Parker.Serious sues Parker.

1.1. What claims does Serious have What claims does Serious have against Parker?against Parker?

2.2. What defenses might Parker have? What defenses might Parker have?

Serious may allege claims for:

Battery is the unwelcome physical touching by another. Here, Serious did not invite Peter to shoot him with some weird web goop that injured his nose. Such an act is considered an unwelcome physical touching.

DEFENSES:

However, Peter can successfully defend himself against the claim of battery, as Peter can assert the “defense of persons” allowed him to commit battery. Defense of persons requires 3 elements be met: 1-the use of reasonable force, 2) he was defending another under the threat of injury, and 3) another was under the threat of an attacking force.

Here, Peter turned after hearing a piercing shriek, and witness Serious Black seriously threatening Tiny Tim with a punch. Peter only used a little bit of web to neutralize the physical threat to Tiny Tim (Serious was hovering and about to punch).

Defense of PropertyDefense of Property

Defendant’s use of reasonable Defendant’s use of reasonable forceforce

To protect their property (or To protect their property (or another’s)another’s)

When another person attempts to When another person attempts to injure or wrongfully take injure or wrongfully take possession of property.possession of property.

What is reasonable What is reasonable force?force? Reasonable person standard Reasonable person standard

given the circumstances.given the circumstances. Ejectment – Use of reasonable Ejectment – Use of reasonable

force to repel a trespasser. force to repel a trespasser. – Reach back in and grab car jacker Reach back in and grab car jacker

and toss them to the street.and toss them to the street.

Rightful possessionRightful possession

Chattel owner’s use of reasonable Chattel owner’s use of reasonable forceforce

To retake possessionTo retake possession Of which owner was wrongfully Of which owner was wrongfully

dispossessed or denied possessiondispossessed or denied possession Efforts MUST be made promptlyEfforts MUST be made promptly

– Hot pursuitHot pursuit– You can enter onto the dispossessor’s You can enter onto the dispossessor’s

property to regain your chattelproperty to regain your chattel

- Consent - - Consent - (Informed, Express, and (Informed, Express, and

Implied)Implied)

Victim’s voluntary acceptance of Victim’s voluntary acceptance of intentionally tortious actintentionally tortious act

Full knowledge or understanding Full knowledge or understanding of consequences.of consequences.

Informed ConsentInformed Consent

Victim must willingly and knowingly Victim must willingly and knowingly agree to tortfeasor’s conductagree to tortfeasor’s conduct– I agree that you can see how tough I am I agree that you can see how tough I am

by hitting me over the head with this piece by hitting me over the head with this piece of wood.of wood.

Ability to consent depends upon Ability to consent depends upon mental capacity to agreemental capacity to agree– Lack of consent if incapacitatedLack of consent if incapacitated

Drunk, mentally retarded, under the influence of Drunk, mentally retarded, under the influence of ….….

Other examples…Other examples…

Consent to having surgeryConsent to having surgery– Consent to a batteryConsent to a battery

Express or Implied Express or Implied ConsentConsent Consent may be expressed or Consent may be expressed or

impliedimplied– Classic example is emergency Classic example is emergency

medical treatmentmedical treatment– Other examples – written document Other examples – written document

and release…field trip permission and release…field trip permission forms.forms.

– Example of recent trip to ocean…Example of recent trip to ocean…

The Defense of The Defense of MistakeMistake

Good faith belief that action were Good faith belief that action were justifiedjustified– Reasonable person standardReasonable person standard

With belief based upon incorrect With belief based upon incorrect informationinformation

Conduct otherwise would be Conduct otherwise would be considered tortious – but for erroneous considered tortious – but for erroneous belief.belief.– So, must have a tort…So, must have a tort…

THE DEFENSE OF THE DEFENSE OF PRIVILEGEPRIVILEGE

Legal justification to engage in Legal justification to engage in otherwise tortious behavior to otherwise tortious behavior to accomplish a societal goal.accomplish a societal goal.– Committing trespass to save a Committing trespass to save a

drowning victim.drowning victim.– Breaking an illegally parked car’s Breaking an illegally parked car’s

windows to feed a fire hose to windows to feed a fire hose to hydrant.hydrant.

The Privilege Balancing The Privilege Balancing TestTest

Do actor’s motives for engaging Do actor’s motives for engaging in intentional tort outweigh injury in intentional tort outweigh injury to victim or their property?to victim or their property?

Was actor justified in committing Was actor justified in committing intentional tort to accomplish intentional tort to accomplish their socially desirable goal, or their socially desirable goal, or could a less damaging action could a less damaging action have been taken?have been taken?

The Defense of The Defense of NecessityNecessity Defendant commits intentional Defendant commits intentional

torttort To avert more serious harmTo avert more serious harm Caused by force other than Caused by force other than

defendantdefendant And defendant’s action were And defendant’s action were

reasonably necessary to avert reasonably necessary to avert greater threat.greater threat.

What is the difference What is the difference between the Defense of between the Defense of NECESSITY and NECESSITY and PRIVILEGE?PRIVILEGE?

Necessity is a defense ONLY Necessity is a defense ONLY to to property tortsproperty torts..

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Public Officer’s Public Officer’s ImmunitiesImmunities

For service of processFor service of process Arrest by warrantArrest by warrant Execution of court ordersExecution of court orders

STRICT LIABILITY = STRICT LIABILITY = LIABILITY ‘WITHOUT LIABILITY ‘WITHOUT FAULT’ OR WITHOUT FAULT’ OR WITHOUT

NEGLIGENCENEGLIGENCE

STRICT LIABILITY

DEFECTIVE PRODUCTS DEFECTIVE PRODUCTS (UNREASONABLY DANGEROUS) (UNREASONABLY DANGEROUS)

STRICT LIABILITY STRICT LIABILITY GENERALLY APPLIES AND GENERALLY APPLIES AND

IS LIMITED TO:IS LIMITED TO:

ULTRAHAZARDOUS or ABNORMALLY ULTRAHAZARDOUS or ABNORMALLY DANGEROUS ACTIVITIESDANGEROUS ACTIVITIES

Ultrahazardous Activities:Ultrahazardous Activities:

Handling, storing, transporting, or Handling, storing, transporting, or using explosives. Cal. Health & Safety using explosives. Cal. Health & Safety Code § 12005.5. Code § 12005.5.

Causing or permitting any hazardous Causing or permitting any hazardous substance to be discharged in or on substance to be discharged in or on any of the waters of the state where it any of the waters of the state where it creates a condition of pollution or creates a condition of pollution or nuisance. Cal. Water Code § nuisance. Cal. Water Code § 13350(b). 13350(b).

Causing or permitting oil to be Causing or permitting oil to be discharged. Cal. Gov. Code § discharged. Cal. Gov. Code § 8670.67.5. 8670.67.5.

Restatement (Second) of Torts § Restatement (Second) of Torts § 520520

In determining whether an activity is In determining whether an activity is abnormally dangerous so as to give rise to abnormally dangerous so as to give rise to strict liability, a court will consider the (a) strict liability, a court will consider the (a) existence of a high degree of risk of some existence of a high degree of risk of some harm to the person, land or chattels of harm to the person, land or chattels of others; (b) likelihood that the harm that others; (b) likelihood that the harm that results from it will be great; (c) inability to results from it will be great; (c) inability to eliminate the risk by the exercise of eliminate the risk by the exercise of reasonable care; (d) extent to which the reasonable care; (d) extent to which the activity is not a matter of common usage; activity is not a matter of common usage; (e) inappropriateness of the activity to the (e) inappropriateness of the activity to the place where it is carried on; and (f) extent place where it is carried on; and (f) extent to which its value to the community is to which its value to the community is outweighed by its dangerous attributes.outweighed by its dangerous attributes.

STRICT LIABILITY FOR STRICT LIABILITY FOR OWNERSHIP OF OWNERSHIP OF

ANIMALSANIMALSEXAMPLES :EXAMPLES :

DOGS;DOGS;

WILD ANIMALSWILD ANIMALS

LIVESTOCKLIVESTOCK

California Civil Code California Civil Code section 3342 section 3342 imposes strict liabilityimposes strict liability on the on the owner of a dog when the dog owner of a dog when the dog bites a person. bites a person.

In California, a dog does not get In California, a dog does not get "one free bite.""one free bite."

3342. (a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.

(b) – (d) exceptions for police, etc.

CALIFORNIA’S DOG-BITE STATUTE

Wild Animal Owners’ Wild Animal Owners’ LiabilityLiability

Ferae naturaeFerae naturae – “wild nature” – “wild nature” Absolute liability for all injuries Absolute liability for all injuries

caused by their wild animals.caused by their wild animals. Person controlling wild animal Person controlling wild animal

(control or dominion) becomes (control or dominion) becomes legal owner.legal owner.

If an escapes happens, then loss of If an escapes happens, then loss of ownership until you recapture.ownership until you recapture.

Defenses to animal Defenses to animal liabilityliability

Assumption of riskAssumption of risk Contributory negligence – incitingContributory negligence – inciting Comparative negligenceComparative negligence Consent – trainers of animalsConsent – trainers of animals Self-defense or defense of othersSelf-defense or defense of others

Scope of animal Scope of animal liabilityliability

PROXIMATE CAUSE RULES THE PROXIMATE CAUSE RULES THE DAY!DAY!

1.1. Plaintiff’s injuries must have Plaintiff’s injuries must have been a reasonably foreseeable been a reasonably foreseeable consequence of defendant’s consequence of defendant’s actions.actions.

2.2. Victim must have been a Victim must have been a foreseeable plaintiff.foreseeable plaintiff.

A final word from our A final word from our sponsor…sponsor… Little Red just hated her neighbor’s dog. It was Little Red just hated her neighbor’s dog. It was

always barking at her as she walked in front of her always barking at her as she walked in front of her neighbor’s front fence. Today though, the dogs neighbor’s front fence. Today though, the dogs yammering on was just too much. She was going yammering on was just too much. She was going to teach it a lesson. Looking carefully to make to teach it a lesson. Looking carefully to make sure no one was looking, she jumped over the sure no one was looking, she jumped over the fence and threw a rock at the dog. Her aim was fence and threw a rock at the dog. Her aim was true, and she was glad when she heard the dog true, and she was glad when she heard the dog yelp in pain. Unfortunately, the dog quickly raced yelp in pain. Unfortunately, the dog quickly raced after Little Red and bit her in the backside, after Little Red and bit her in the backside, causing damages. causing damages.

Little Red wants to sue the dog under California’s Little Red wants to sue the dog under California’s dog bite statute. Please advise.dog bite statute. Please advise.

What defenses could the dog’s owner assert?What defenses could the dog’s owner assert?