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3. Shift of burden of proof to plaintiff:  Still later, courts began to hold not only that the defendant in a “trespass” case was not liable if he was completely without fault, but also that the burden of proving fault should be on the plaintiff.

Example: Two dogs, owned by P and D, are fighting. D, attempting to separate them, raises his stick over his shoulder, hitting P in the eye.

Held, “ . . . if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. . . . Want of due care became part of the plaintiff’s case, and the burden of proof was on the plaintiff to establish it.” Brown v. Kendall, 60 Mass. 292 (Mass. 1850).

a. Meaning of “negligent”:  The courts came to adopt a more-or-less “moral” standard of negligence, by which the defendant would be held to have failed to use due care only if his conduct was somewhat blameworthy. See, e.g., Rest. 2d, §283C, Comment c (“[A]n automobile driver who suddenly and quite unexpectedly suffers a heart attack does not become negligent when he loses control of his car and drives it in a manner which would otherwise be unreasonable; but one who knows that he is subject to such attacks may be negligent in driving at all.”)

4. Return of strict liability:  But in recent decades, courts have made a sweeping return to the principle of strict liability, at least in many areas. Chief among these are where the defendant engages in an abnormally dangerous activity (infra, p.  332), and where he makes or sells a defective product that causes physical injury (infra, p. 358).

Example: D, a contractor building a tunnel for the City of New York, uses dynamite to set off large blasts near a garage owned by P. The garage is wrecked, and P sues. There is no evidence that D failed to use ordinary care in doing the blasting.

Held, for P. It is irrelevant that the damage to P’s property was done not by the direct impact of rocks or other materials, but by concussion or shock waves. Strict liability for all blasting damage will not block the building of towns and other progress; P is not trying to stop the tunnel, but merely to obtain compensation. A previous case allowing strict liability only where the damage is caused directly by rocks is overruled. Spano v. Perini Corp., 250 N.E.2d 31 (N.Y. 1969), infra, p. 45.

C. Combined torts:  Our analysis of liability founded on the three major types of defendant conduct (intent, negligence and strict liability) appears on pp. 7 through 421 infra. After that, a number of torts are treated which may be based upon more than one of these three types of defendant conduct. For instance, the torts of nuisance and misrepresentation may be founded on either intent, negligence or strict liability; the same is true for a manufacturer’s or retailer’s sale of a defective product.

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