Chapter Seven: Strict Liability A. Doctrinal Development

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Chapter Seven Strict Liability A. Doctrinal
Development
The questions 1) What does it mean to say
someone is strictly liable? How does it differ
from fault based liability? 2) How do you
decide, doctrinally, that strict liability will
be imposed? What activities are subject to
strict liability? 3) Why, as a matter of policy,
are we imposing strict liability on some
activities and not others?
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Chapter Seven Strict Liability A. Doctrinal
Development
The problem Plaintiff farms organically.
Defendant, who owns the neighboring farm, does
not. When Defendants crops become infested by a
beetle, he hires Crop Duster to spray a
pesticide. Residue of the pesticide turns up on
Plaintiffs vegetables, which he then cannot sell
as organic. Because produce contracts are
entered before the crops are grown, Plaintiff
cannot find a market for his vegetables and is
forced to sell them at a loss.
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Chapter Seven Strict LiabilityA. Doctrinal
Development Sullivan v. Dunham

Subject to negligence-based liability
only Boiler explosion
Subject to strict liability Blasting
Why are the activities in the two categories
being treated differently?
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Chapter Seven Strict LiabilityA. Doctrinal
Development Sullivan v. Dunham

Subject to negligence-based liability
only Boiler explosion
Subject to strict liability Blasting

• Boiler accidentally exploded blast was an
  intentional explosion
• Blasting is a very dangerous activity

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Chapter Seven Strict Liability A. Doctrinal
Development
Restatement Second of Torts, 520 a) existence
of a high degree of risk b) likelihood of great
harm c) inability to eliminate the risk by the
exercise of reasonable care d) not a matter of
common usage e) inappropriateness of activity to
place carried on f) extent to which activitys
value to the community is outweighed by its
dangerous attributes.
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Chapter Seven Strict Liability A. Doctrinal
Development

524A Plaintiff's Abnormally Sensitive Activity
There is no strict liability for harm
caused by an abnormally dangerous activity if the
harm would not have resulted but for the
abnormally sensitive character of the plaintiff's
activity.
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What is Professor Rabins point?
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What is Professor Rabins Point
From Rylands v. Fletcher

• Traffic on the highways . . . Cannot be
  conducted without exposing others to some risk .
  . . That being so, those who go on the highway or
  have their property adjacent to it . . .. Do so
  subject to taking upon themselves the risk from
  that inevitable danger.

• There is no ground for saying that the plaintiff
  here took upon himself any risk arising from the
  uses to which the defendants should choose to
  apply their land. He neither knew what those
  might be . . . Nor could he in any way control
  the defendants use of the land.

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What is Professor Rabins point?

The safety of property generally is superior in
right to a particular use of a single piece of
property by its owner.
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What is Professor Rabins point?

Subject to negligence-based liability
only Boiler explosion By becoming a member of
a civilized state, I . . . give up many of my
natural rights. The general rule that I must
use my real estate as not to injure my neighbor,
is modified by the exigencies of the social
state.
Subject to strict liability Blasting The maxim
of sic utere tuo applies to protect person and
property from direct physical violence, which
although accidental, has the same effect as if it
were intentional.
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What are the goals of tort law?
From class 2 Corrective Justice / moral
goals Settling normative, contested social
issues Promote economic efficiency Encouraging
productive activity Increasing safety Deterring
unsafe conduct Deterrence through imposing
costs Shifting and spreading costs Compensating
victims Fairness
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What justifies Strict Liability?

• From Professor King
• Loss spreading
• Loss avoidance
• Loss allocation
• Efficiency
• Fairness
• Autonomy

From class 2 Corrective Justice / moral
goals Settling normative, contested social
issues Promote economic efficiency Encouraging
productive activity Increasing safety Deterring
unsafe conduct Deterrence through imposing
costs Shifting and spreading costs Compensating
victims Fairness
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What justifies strict liability?
Posner, at p. 512 By making an actor strictly
liable, we give him an incentive, missing in a
negligence regime, to experiment with methods of
preventing accidents that involve not greater
exertions of care, assumed to be futile, but
instead relocating, changing, or reducing
(perhaps to the vanishing point) the activity
giving rise to the accident.
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Assignment

Thursday 558-581 Friday 581-592, 597-605