Common Law Strict Liability

Question 1

Historical Strict Liability for Trespassory Torts and the Advent of Fault Theory

Weaver v. Ward 1616

Answer 1

Tortfeasors are completely liable for the harm they cause no matter if it was intentional or negligent. Men were practicing war exercises and defendant negligently shot plaintiff’s foot.

Question 2

Historical Strict Liability for Trespassory Torts and the Advent of Fault Theory

Brown v. Kendall 1850

Answer 2

Plaintiffs must provide proof of negligence to recover from unintended harms. A man was using a stick to separate two dogs. He raised stick over his head and negligently hit Plaintiff, who was behind him.

Question 3

Trespassing Animals

Answer 3

Owners of livestock or other animals, except cats and dogs, that intrude on another’s land are strictly liable for the physical harm caused by the intrusion. Restatement (Third)

Exception – If cattle are being driven down a highway and some strayed from the highway, there is no strict liability for their trespass

Statutes – Many states, especially those in which open grazing is possible, have enacted statutes giving counties and districts the power to create their own rules

Question 4

Abnormally Dangerous Animals

Abnormally Dangerous Tendencies

Answer 4

Owners of animals that are abnormally dangerous are strictly liable for the harm they cause if and only if the owner knows or should know the animals have abnormally dangerous tendencies, and they are liable only when the harm results from the abnormally dangerous tendency.

Question 5

Abnormally Dangerous Animals

Rejecting Strict Liability for Domestic Animals

Answer 5

Some states reject the idea of strict liability for domestic animals and require a showing of negligence for plaintiffs to recover.

Question 6

Abnormally Dangerous Animals

Additional Liabilities for Dogs

Answer 6

Statutes and ordinances often impose additional liabilities on dog owners, through leash laws and the like.

Question 7

Abnormally Dangerous Animals

Wild Animals

Answer 7

Strict liability is usually imposed for injuries connected with the wild characteristics of the animal, so the owner will be held liable no matter what reasonable measures he took. This includes lions, tigers and bears that people exhibit.

Question 8

Impoundments

Rylands v. Fletcher 1868

Answer 8

If a person lawfully brings something dangerous on her property or alters the land in a way that damages someone else’s property, that person can be strictly liable for the harm even if she wasn’t negligent. Defendant built a reservoir on his property, not knowing it was built over old, abandoned coal shafts. The water flooded neighboring coal mines and damaged them.

Question 9

Variations on Fletcher

Answer 9

Courts wouldn’t normally impose strict liability of the exact fact pattern in Fletcher now, but they would when

A noxious substance suddenly escapes from a defendant.

Toxic liquid percolates through the land and contaminates a well or causes some other harm.

Question 10

Elements of Nuisance

Answer 10

Substantial interference of the owner’s use and enjoyment of his land

The invasion must be unreasonable for the plaintiff to put up with the invasion without compensation given the time, place and expectation of the locale.

Question 11

Tests for Nuisance

Answer 11

An invasion is a nuisance if the gravity of the harm it causes outweighs the utility of the defendant’s conduct.

If the defendant can compensate all who are affected by it and still stay in business, the compensation should be made.

Question 12

Coming to a Nuisance

Answer 12

If the natural spread of a city brings it to a smelly feed lot, the feed lot may become a nuisance even though it wasn’t when the land was primarily for farming

A plaintiff who moves near a nuisance cannot complain about it, although if a plaintiff knew he was moving near s nuisance, he might have been compensated for it

Question 13

Public Nuisance

Answer 13

A nuisance substantially interferes with public health, safety or convenience it is a public nuisance. If a person has damages of a different kind than the public, he normally can recover damages for it.

Question 14

Abnormally Dangerous Activities

Dyer v. Maine Drilling and Blasting Inc. 2010

Answer 14

A defendant is strictly liable for the inherently dangerous activities that cause injury to persons or damage to property. Plaintiffs’ home was damaged when defendant started blasting nearby.

Question 15

Factors to Decide Whether an Activity is Abnormally Dangerous

Restatement (Second)

Answer 15

• The existence of a high degree of risk of some harm to the person, land or chattels of others;
• The likelihood that the harm that results from it will be great;
• An inability to eliminate the risk by the exercise of reasonable care;
• The extent to which the activity is not a matter of common usage;
• The inappropriateness of the activity to the place where it is carried out; and
• The extent to which its value to the community is outweighed by its dangerous attributes.

Question 16

Factors to Decide Whether an Activity is Abnormally Dangerous

Restatement (Third)

Answer 16

• The activity must create a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and
• The activity is not of common usage.

Question 17

Avoidable Risk and Inherently Dangerous Activities

Answer 17

An activity is not inherently dangerous if potential victims can avoid commonly succeed in avoiding injury.

Question 18

Plaintiff Involvement and Inherently Dangerous Activities

Answer 18

If the plaintiff is involved with the abnormally dangerous activity, most courts will not hold the defendant strictly liable.

Question 19

Scope of Liability for Inherently Dangerous Activities

Answer 19

Defendants are strictly liable for only the possible harms that make the harms inherently dangerous.

Question 20

Other Abnormally Dangerous Activities

Answer 20

• Testing of rockets
• Fireworks – Some courts consider the number of people who conduct professional displays and others consider the number of people who watch them. Those that consider the former say it is an uncommon activity and impose strict liability, and those that consider the latter say it is a common activity and reject strict liability
• Poisons, like pest control and fumigation
• Hazardous Wastes

Question 21

Contributory Negligence and Strict Liability

Answer 21

Traditionally, contributory is negligence is not a defense since strict liability is not based on fault so the plaintiff’s fault doesn’t matter.

Question 22

Comparative Responsibility and Strict Liability

Answer 22

Juries should assign percentages of responsibility even when one party is strictly liable and the other is negligent.