Section 16.35 Reasonable Care Would Have Removed the Danger

• Library: Tort Law 2016

H. (§16.35) Reasonable Care Would Have Removed the Danger

In examining the factors under Restatement (Second) of Torts § 520 (1977), the key consideration for a court is whether the risks inherent in the activity can be reduced or limited by the exercise of due care. While this is only one element to be examined under § 520, many courts find it dispositive. See:

· Marmo v. IBP, Inc., 362 F. Supp. 2d 1129, 1134 (D. Neb. 2005) ("[E]ven if this Court were to assume that the post-2001 emissions from IBP’s facility are at the levels stated by the Plaintiffs, I see nothing in the record that establishes that these levels could not be reduced, or properly and safely managed in the exercise of due care.")

· Schwartzman, Inc. v. Gen. Elec. Co., 848 F. Supp. 942, 945 (D.N.M. 1993)

It is "well-settled that an activity is not ultrahazardous if the high degree of risk of injury from the...