question about abnormally dangerous activities, SL, and NDDS

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beta
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question about abnormally dangerous activities, SL, and NDDS

Postby beta » Mon Nov 26, 2012 2:42 pm

Who is liable for what in the following scenarios?

1)a private school hires an independent piling contracting company to build a stadium.

1a) the piling company is not negligent in their activity (they notify everyone for 6 miles out that they will be piling, they use extreme caution in their activity) but the piling interferes with an underground water line and the waterline busts and injures sally.

who is responsible for sally's injuries? the private school because piling is abnormally dangerous and thus non-delegable? if so is the private school vicariously liable or strictly liable?

1b) same situation as above but the piling company WAS negligent--then is the piling company liable for negligence and the private school vicariously liable?

when is the employer (e.g. here private school) strictly liable vs. vicariously liable and when is the contracting company ever liable if they are not negligent but the piling injures people?

2) or what if a hospital contracts with a chemical company to deliver chemicals. if the chemical company is negligent while delivery to the hospital and causes an explosion--who's liable and what kind of liability (strict/vicarious/negligence)? the hospital or the chemical company? when does this become a non-delegable duty situation?

confused.
please help!
thanks in advance!

z0rk
Posts: 328
Joined: Sun Jun 29, 2008 8:11 pm

Re: question about abnormally dangerous activities, SL, and NDDS

Postby z0rk » Mon Nov 26, 2012 11:58 pm

beta wrote:Who is liable for what in the following scenarios?

1)a private school hires an independent piling contracting company to build a stadium.

1a) the piling company is not negligent in their activity (they notify everyone for 6 miles out that they will be piling, they use extreme caution in their activity) but the piling interferes with an underground water line and the waterline busts and injures sally.

who is responsible for sally's injuries? the private school because piling is abnormally dangerous and thus non-delegable? if so is the private school vicariously liable or strictly liable?

1b) same situation as above but the piling company WAS negligent--then is the piling company liable for negligence and the private school vicariously liable?

when is the employer (e.g. here private school) strictly liable vs. vicariously liable and when is the contracting company ever liable if they are not negligent but the piling injures people?

2) or what if a hospital contracts with a chemical company to deliver chemicals. if the chemical company is negligent while delivery to the hospital and causes an explosion--who's liable and what kind of liability (strict/vicarious/negligence)? the hospital or the chemical company? when does this become a non-delegable duty situation?

confused.
please help!
thanks in advance!


For Number 1:
This one has me puzzled too, and it is a good question. Normally strict liability is found for the party in control of the abnormally dangerous activity, but as you point out an abnormally dangerous activities (or ultrahazardous depending on what restatement interpretation your jurisdiction applies) cannot be delegated. Non-delegable acts do not come up very often, and I didn't find an answer quickly browsing through the cases and comments of to R. 2d. § 520. My initial impression is that liability would flow to the school. You stated in your example that the school is a private, not public, institution (which is a key distinction). SL cannot be imposed if "the activity is carried on in pursuance of a public duty imposed upon the actor as a public officer or employee or as a common carrier." See R 2d. § 521. I would say, based upon this interpretation, that the liability would flow to the school because 1.) not a compulsory process as a public officer, employee, or common carrier, 2.) the creation of the stadium was done at the direction of the school and the activity is nondelegable. I suggest asking your prof and posting the answer back here.

For Number 1b:
I am guessing that for the purposes of this scenario you are determining that pile driving is NOT an abnormally dangerous activity for which a party may be held strictly liable? In such a case, if you can show that the pile driving company was negligent in breaching a duty of care that actually and proximately caused a foreseeable injury then the liability would flow to the pile driving company. In order to hold the school liable under the doctrine of respondeat superior you must find an employer/employee relationship. I don't believe a contractor relationship would fall under this circumstance.

For Number 2:
This may confuse things more, but I don't foresee the hospital being liable in the scenario that you discussed. First of all, I would direct you to look to Posner's opinion in Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990). In that case Posner rejected a strict liability analysis, holding that Learned Hand's risk utility analysis was enough to deter an actor from taking excessive risk. This marks a paradigmatic shift from the first restatement interpretation of "Ultrahazardous" to "abnormally dangerous", the latter standard being much more difficult to successfully plead. In that case the shipper of the harmful agent would liable for failing to exercise due care that actually and proximately caused harm that was foreseeable. Now, if the hospital were to have caused harm by using that agent when it was in its direct control you might find a different standard applied.

I hope this helps, and if anyone here is reading this and thinking "Damn, z0rk got it wrong" please correct me! I have my torts final in two weeks, any help would be appreciated.

MonsterTRM
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Joined: Mon Nov 19, 2012 11:48 pm

Re: question about abnormally dangerous activities, SL, and NDDS

Postby MonsterTRM » Tue Nov 27, 2012 12:06 am

For 1(a) - if you construe the doctrine of Res Ipsa Loquitur broadly, that might fit.

For Res Ipsa:
1. The accident does not ordinarily occur without the D’s negligence (looks good)
2. The instrumentality was in the exclusive control of the D (FORK IN THE LAW – some jurisdictions look at this, other jurisdictions find this element too narrow)
3. Elimination of other causes (Plaintiff negated other causes, very possible for P to discuss this)
4. The explanation is more readily accessible to the P than to D (Fork in the law, again not all jurisdictions follow this)

swimmer11
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Re: question about abnormally dangerous activities, SL, and NDDS

Postby swimmer11 » Tue Nov 27, 2012 12:11 am

beta wrote:Who is liable for what in the following scenarios?

1)a private school hires an independent piling contracting company to build a stadium.

1a) the piling company is not negligent in their activity (they notify everyone for 6 miles out that they will be piling, they use extreme caution in their activity) but the piling interferes with an underground water line and the waterline busts and injures sally.

who is responsible for sally's injuries? the private school because piling is abnormally dangerous and thus non-delegable? if so is the private school vicariously liable or strictly liable?

1b) same situation as above but the piling company WAS negligent--then is the piling company liable for negligence and the private school vicariously liable?

when is the employer (e.g. here private school) strictly liable vs. vicariously liable and when is the contracting company ever liable if they are not negligent but the piling injures people?

2) or what if a hospital contracts with a chemical company to deliver chemicals. if the chemical company is negligent while delivery to the hospital and causes an explosion--who's liable and what kind of liability (strict/vicarious/negligence)? the hospital or the chemical company? when does this become a non-delegable duty situation?

confused.
please help!
thanks in advance!


1A) I do not think that would be considered strict liability. Under the Restatements you consider how dangerous the activity is and the custom of the locale. I do not think that either party would be held strictly liable. The construction of a stadium while a dangerous activity is not abnormally dangerous, that is, so dangerous that it should be said the defendant is liable no matter what. Also, building stadiums is for the good of the community and the court would not want to hold that people constructing stadiums are strictly liable for things such as the bursting of underground pipes because that might deter the construction of stadiums, or increase the costs, etc.

However, I do think the stadium would be found to be negligent. I think court's take into consideration if a defendant could be found negligent before imposing strict liability which is another factor against imposing strict liability.


I do not think the private school can be held vicariously liable.

1B) The construction company is not an employee of the private school they are independent contractors. The only exceptions to this rule is if it was a non-delegable duty, the contracting company had the apparent authority of the company that hired them, inherently dangerous activity, or it was illegal activities. I do not think that the contracting company would fall within any of those exceptions, maybe inherently dangerous activity but even that I think is a stretch.

NotMyRealName09
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Joined: Mon Nov 09, 2009 5:50 pm

Re: question about abnormally dangerous activities, SL, and NDDS

Postby NotMyRealName09 » Tue Nov 27, 2012 2:22 am

Trying this just off the cuff -

Strict liability and vicarious liability are not related. Strict liability answers the question of whether ANYONE should pay for the damages. Vicarious liability answers the question of WHO pays. You don't get to vicarious liability before you find someone at fault.

1)a. We're told no negligence, so we ask, is the activity abnormally dangerous such that strict liability attaches? Plenty to discuss, but probably not. But you run the analsis for all possibilities. If contractor is strictly liable, person that hired them is vicariously liable because you cannot delegate abnormally dangerous activities to avoid liability.

Question also says contractor is independent. If strict liability applies, school is liable even though contractor was not an employee. If strict liability does not apply, school not liable for the torts of their independent contractor.

1)b. Since we're told the contractor is independent, no vicarious liability if contractor was negligent, because employers only vicariously liable for torts of employees within their control (unless the activity was non-delegable, meaning abnormally dangerous).

2) First, ask, negligence? Duty (yes), breech (yes), causation (yes) and damages (yes)? Shipper is thus liable for negligence. Here you can move to vicarious liability - no need for strict liability analysis if negligence occured, but for extra points, ask, strict liability? Shipping chemicals abnormally dangerous? Probably not - chemicals get shipped all the time over the road, even dangerous ones. But you can argue both sides.

Next, run your test for independent contractor (usually question of control or right to control). Here probably no control - the hospital probably could not control the actions of the shipping company - shipping company decides what to pay driver, what vehicle to use, what route will be followed, etc., while hospital only said "send me X chemical to arrive by a certain time." Again, argue both sides.

Because the shipper was probably not an employee, no vicarious liability putting the school on the hook.

These are good questions because they are such close calls, it doesn't matter what you state as your conclusion. Just SHOW YOUR WORK. Each issue can be argued from two sides, and THAT is what is important, more important that any conclusion.




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