Strict Liability

Question 1

Strict liability, generally

Answer 1

DAD (Dangerous activities, Animals, and Defective/dangerous products)

Elements

1. Absolute duty to make P’s person or property safe
2. Breach
3. Actual & proximate causation
4. Damages

Abnormally Dangerous Activities

1. Not commonly engaged in; inherent, foreseeable, and highly significant risk of harm (look to gravity of harm, inappropriateness of place, limited value of activity)
2. S/L limited to harm expected from activity

Animals
1. Wild animals—not by custom devoted to the service of humankind where it is being kept
• Owner is S/L for harm done by wild animal despite owner’s precautions to prevent harm, as long as harm arises from dangerous propensity characteristic of animal or about which owner has reason to know
• Owner S/L for reasonably foreseeable damage caused by trespassing animal
• Owner S/L for injuries caused by P’s fearful reaction to unrestrained wild animal
• Owner not S/L to undiscovered trespasser except for injuries by vicious watchdog
2. Domestic animals
• Owner S/L for injuries if knows or has reason to know of dangerous propensities and harm results
• Owner S/L for reasonably foreseeable damage caused by trespassing household pets if owner knows or has reason to know that the pet is intruding on another’s property in a way that has a tendency to cause substantial harm; general negligence standard applies if pet strays onto a public road and contributes to an accident there

Question 2

Defenses to strict liability

Answer 2

1. Contributory negligence not a defense in contributory negligence jurisdictions—does not bar recovery
2. Contributory negligence may reduce P’s recovery in most comparative fault jurisdictions under a S/L claim (Third Restatement approach); courts divided, some do not allow reduction
3. Assumption of Risk/”Knowing contributory negligence”—bars recovery
4. Statutory privilege—no S/L for D performing essential public services