1. Apr. 16, 2004 SUMMARY OF LAST CLASS BORROWED SERVANT RULE INDEPENDENT CONTRACTORS TEST: CONTROL OVER THE DETAILS DIFFERENTIATE: EMPLOYER NEGLIGENCE EXCEPTIONS: NON-DELEGABLE DUTIES 1. INHERENTLY DANGEROUS

2. Apr. 16, 2004 SUMMARY CONTINUED 2. PECULIAR RISK 3. STATUTORY DUTIES OTHER FORMS OF VICARIOUS LIABILITY: JOINT ENTERPRISE, PARTNERSHIP, CONCERT, ENTRUSTMENT, FAMILY PURPOSE (NOW STATUTE) GOING AND COMING RULE

3. Apr. 16, 2004 COMMON LAW DEVELOPMENT OF STRICT LIABILITY STRICT LIABILITY: LIABILITY WITHOUT FAULT PREVIOUS DEPARTURES FROM “FAULT” 1. YANIA 2. TRESPASS TO LAND 3. NEGLIGENT (HONEST) MISTAKE 4. VIOLATION OF STATUTE

4. Apr. 16, 2004 HISTORY OF S/L TRESPASS AND CASE EXAMPLE: LOG 1. ANONYMOUS 2. WEAVER THEN: BROWN v. KENDALL (664) SHIFT TO “FAULT” SYSTEM WHAT REMAINS OF S/L? TRESPASSING ANIMALS AND NUISANCE

5. Apr. 16, 2004 NUISANCE INTERFERENCE WITH USE AND ENJOYMENT OF LAND 1. SUBSTANTIAL INVASION 2. FAULT? 3. UNREASONABLE INVASION: BALANCE HARM AND UTILITY 4. COMING TO THE NUISANCE 5. PUBLIC NUISANCES

6. Apr. 16, 2004 RYLANDS v. FLETCHER WHY NOT: (1) NEGLIGENCE? (2) TRESPASS? FOCUS: THEORETICAL BASIS FOR S/L [BRIDGE TO PRODUCTS LIABILITY] 1. CT. OF EXCHEQUER: S/L WOULD MAKE Ds INSURERS 2. EXCHEQUER CHAMBER: MISCHIEF EXAMPLES: CATTLE/PRIVY/ALKALI

7. Apr. 16, 2004 RYLANDS (CONT.) 3. HOUSE OF LORDS: NATURAL v. NON-NATURAL USE OTHER WAYS OF EXPLAINING RYLANDS 1. ECONOMICS 2. FAVOR RESOURCE EXPLOITATION? 3. NON-RECIPROCAL RISKS APPLYING RYLANDS: THOMALEN

8. Apr. 16, 2004 MORE S/L DEVELOPMENT SULLIVAN (683): DIRECT v. INDIRECT VALID DISTINCTION? FOLLOWING RYLANDS? NO THE DOCTRINAL DILEMMA: P. 683 NOTES 3 AND 4 ACCEPT BROWN (1850) YET RETAIN RYLANDS (1868) IN SOME FASHION? “SLOUCHING TOWARD THE ABNORMAL DANGER CONCEPT” (683)

9. Apr. 16, 2004 MODERN S/L ULTRAHAZARDOUS ACTIVITIES EXNER (684) RESTATEMENT 1: (1) SERIOUS HARM THAT CANNOT BE ELIMINATED WITH DUE CARE (2) NOT A MATTER OF COMMON USAGE ABNORMALLY DANGEROUS ACTIVITIES RESTATEMENT (3 RD ) RULE (685) KEY: (1) SIGNIFICANT RISK (2)EVEN WHEN REASONABLE CARE EXERCISED (3) NOT A MATTER OF COMMON USAGE

10. Apr. 16, 2004 MODERN S/L RESTATEMENT (2 ND ) RULE:686 1. HIGH DEGREE OF RISK OF HARM 2. LIKELIHOOD HARM WILL BE GREAT 3. INABILITY TO ELIMINATE THE RISK USING REASONABLE CARE 4. EXTENT TO WHICH ACTIVITY IS NOT A MATTER OF COMMON USAGE 5. INAPPROPRIATENESS OF ACTIVITY TO PLACE 6. EXTENT TO WHICH VALUE TO COMMUNITY IS OUTWEIGHED BY DANGEROUS ATTRIBUTES

11. Apr. 16, 2004 STRICT LIABILITY BY INDIVIDUAL ACTIVITY 1. IMPOUNDMENTS HAZARDOUS/TOXIC 2. BLASTING AND EXPLOSIVES 3. NUCLEAR 4. FIRE—NO 5. HIGH-ENERGY ACTIVITIES 6. UTILITIES 7. FIREWORKS 8. POISONS