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Strict liability


Independent contractors only in limited class of cases. Is this a deep ... from blasting causes vibration over mink farm that cause mink to eat their young. ... – PowerPoint PPT presentation

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Title: Strict liability

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?

What explains vicarious liability rules as a
pocket of strict liability?
  • Employee-employer
  • Corporate directors and owners
  • Independent contractors only in limited class of
  • Is this a deep pockets issue? Loss spreading
    rationale? Justice? Efficiency?

Beyond vicarious liability the traditional
pockets of strict liability
  • Fire
  • Animals
  • Rule of Rylands v. Fletcher

  • 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)

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 

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

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.

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

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

Restatement (3d) Approach to Abnormally Dangerous
  • Caveat Do not apply the Restatement Seconds
    approach to abnormally dangerous activities,
    which is
  • Complex
  • Confusing
  • At odds with modern views on comparative
  • Note First Restatement used designation
    ultrahazardous and that continues in use today.

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.

How would Spano case be decided by Restatement?
  • Usually categorical approach
  • Blasting
  • Fumigation
  • Transportation and storage of hazardous materials

Spano and older versions of abnormally dangerous
  • 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

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.

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.

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.

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

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

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."

  • 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.

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?

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

  • 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?

  • 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.