Strict liability

1
Strict liability

• Why do we have pockets of strict liability that
  apply to non-intentional torts, when most
  activities are covered by a negligence rule?
• Deep pockets?
• Corrective Justice arguments?
• Efficiency arguments?
• (unilateral precautions, activity level effects?

2
What explains vicarious liability rules as a
pocket of strict liability?

• Employee-employer
• Corporate directors and owners
• Independent contractors only in limited class of
  cases
• Is this a deep pockets issue? Loss spreading
  rationale? Justice? Efficiency?

3
Beyond vicarious liability the traditional
pockets of strict liability

• Fire
• Animals
• Rule of Rylands v. Fletcher

4
Fire!!!

• Traditional strict liability when one
  intentionally started a fire that spread to
  plaintiffs land (even if spreads after use of
  due care)
• Compare fire started with intent that it spread
  to plaintiffs land covered by trespass rules
• Compare negligently started fire covered by
  negligence rules (Vaughn v. Menlove)

5
Liability for injuries caused by animals

• Wild animals domestic animals
•  Damage to persons strict liability negligence
• (unless dangerous
• propensities known)
• Damage to real strict liability strict liability
• property 

6
Rules of Rylands v. Fletcher

• Case arose out of bursting of water reservoir on
  defendants land, which caused property damage to
  plaintiffs land
• Court imposed strict liability, but there is
  debate today on when strict liability applies

7
Judge Blackburn rule (intermediate court, backed
by Lord Cranworth in House of Lords)

• a person who for his own purposes brings on his
  lands and collects and keeps there anything
  likely to do mischief if it escapes, must keep it
  in at his peril, and, if he does not do so, is
  prima facie answerable for all the damage which
  is the natural consequence of its escape.

8
Lord Cairns alternative test

• Cairns strict liability for non-natural use of
  land
• What is a non-natural use?
• Artificial or unusual? E.g., collecting water
  for use with oil wells

9
Rylands status in U.S.

• Most jurisdictions adhere to the rule of
  Rylands, but it is not clear what that means
• Tendency outside the context of cases close to
  the facts of Rylands to use the modern rules for
  abnormally dangerous activities

10
Restatement (3d) Approach to Abnormally Dangerous
Activities

• Caveat Do not apply the Restatement Seconds
  approach to abnormally dangerous activities,
  which is
• Complex
• Confusing
• At odds with modern views on comparative
  responsibility
• Note First Restatement used designation
  ultrahazardous and that continues in use today.

11
How would facts of Rylands be decided under
Restatement 3rd?

• Section 20. Abnormally dangerous activities
• An actor who carries on an abnormally dangerous
  activity is subject to strict liability for
  physical harm resulting from the activity.
• An activity is abnormally dangerous if
• The activity creates a foreseeable and highly
  significant risk of physical harm even when
  reasonable care is exercised by all actors and
• The activity is not one of common usage.

12
How would Spano case be decided by Restatement?

• Usually categorical approach
• Blasting
• Fumigation
• Transportation and storage of hazardous materials

13
Spano and older versions of abnormally dangerous
activates

• Older cases differentiated between direct damage
  (concussion) and indirect damage (shaking) based
  upon the trespass and case forms of action.
• Modern view, as in Spano, rejects this
  distinction.

14
The (b)(1) requirement high risk even with
reasonable care

• What should fall into that category today? What
  should not? Note that this is a categorical
  question for the COURT.
• Note Rest. 3ds stress on cases being unilateral
  precaution cases. If plaintiffs can take
  significant steps to take care, an activity is
  less likely to be considered abnormally dangerous.

15
The (b)(2) common usage requirement

• How seriously should we take this requirement?
• Compare piloting an airplane with collecting
  chemicals at a factory for disposal.

16
Affirmative defenses

• Section 25. Comparative responsibility
• If the plaintiff has been contributorily
  negligent in failing to take reasonable
  precautions, the plaintiff's recovery in a
  strict-liability claimfor physical harm is
  reduced in accordance with the share of
  comparative responsibility assigned to plaintiff.

17
Preliminary note

• Plaintiffs conduct could also be relevant for
  determination
• Whether activity is abnormally dangerous in first
  place
• For proximate cause purposes

18
As an affirmative defense

• Comparative responsibility (change from old
  confusing rules)
• Dont be fooled by term contributory negligence
  treat as simply comparative responsibility along
  lines of Rest. 3d of apportionment, sections 3
  and 8

19
What gets compared? Comment d

• When the defendant is held liable under a theory
  of strict liability, no literal comparison of the
  fault of the two parties may be possible.
  According to Restatement Third, Torts
  Apportionment of Liability 8, Comment a, while
  "comparative responsibility" is the common legal
  term, "assigning shares of responsibility" might
  be a better term, "because it suggests that the
  factfinder, after considering the relevant
  factors, assigns shares of responsibility rather
  than compares incommensurate quantities."

20

• As Restatement Third, Torts Apportionment of
  Liability, states, factors to take into account
  in determining proportionate allocation include
  the degree of unreasonableness in the plaintiff's
  conduct and the nature of the causal connections
  between the conduct of the plaintiff, the conduct
  of the defendant, and the plaintiff's resulting
  harm. As for variations in the conduct of
  plaintiffs, the plaintiff who approaches a danger
  because the plaintiff carelessly fails to
  perceive the danger may well be assigned a lower
  percentage of responsibility by the jury than the
  plaintiff who unreasonably approaches a danger of
  which the plaintiff is fully aware.

21
What of assumption of risk?

• Under this Section particular plaintiffs whose
  recovery would have been barred under the Second
  Restatement can secure a partial, although
  generally small, recovery. However, certain cases
  that might have been covered by the
  assumption-of-risk defense in the Second
  Restatement are now subsumed under the
  scope-of-liability limitation on strict liability
  set forth in 29.
• Section 29 is a reference to proximate cause
  arguments. What does this mean?

22
Three final hypos

• 1. Madsen case noise from blasting causes
  vibration over mink farm that cause mink to eat
  their young. !

23

• Hypo 2 J is engaged in fumigating activity,
  using flammable pesticides. S passes by and
  intentionally throws a match into area, causing P
  serious personal injuries. Is J strictly liable
  to P under the Restatement?

24

• Hypo 3 Acme blasting company is called in to
  blast its way into a bank vault, which has been
  accidentally locked with people inside and little
  air left in the vault. A crowd develops and Acme
  and bank officials have them moved a reasonably
  safe distance away. Billy, a 10 year old child,
  sneaks through because he thinks it would be cool
  to watch the blast. Jane, a guard, stands in
  front of the bank to keep people away. The blast
  occurs, opening the vault but seriously injuring
  Billy and Jane. They sue Acme and the bank in
  tort. What result? Explain.