Strict Liability

Question 1

What does Strict Liability mean?

Answer 1

Liability without fault

Question 2

Restatement (Second) of Torts § 519

Answer 2

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Question 3

Restatement (Second) of Torts § 520

Answer 3

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;
(Especially Important Factor)

(d) extent to which the activity is not a matter of common usage;
(common usage if carried on by the great mass of mankind or many in the community;
examples of common usages: driving a car, transmission of electricity & natural gas.)

(e) inappropriateness of the activity to the place where it is carried on; and
(allows a ∆ to relocate an abnormally dangerous activity and not be liable (e.g., blast TNT in Antarctica);
WA held that under §520, a nuclear weapons plant would be abnormally dangerous even though there is no appropriate place to carry on such an activity.)

(f) extent to which its value to the community is outweighed by its dangerous attributes.
(enterprise that the community is dependent on.)

Question 4

What are some of the considerations of §520 ?

Answer 4

While all of the factors of §520 are important and should be considered, ordinarily the presence of more than one factor, but not all of them, will be necessary to declare the activity ultra-hazardous as a matter of law so as to hold the actor strictly liable.

The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care.

Question 5

What case set the precedent for modern Strict Liabilty?

Answer 5

Rylands v. Fletcher
In the Exchequer, 3 H. & C. 774, 159 Eng.Rep. 737, 1865.
In the Exchequer Chamber, L.R. 1 Ex. 265, 1866.

Question 6

What are the facts of Rylands v. Fletcher?

Answer 6

• Fletcher (D) wanted to build a water reservoir.
• Rylands (P) owned a coal mine composed of two parts, the old part and the new part.
• The new part, which Rylands (P) worked on a regular basis, was not underneath the land where Fletcher (D) was to build his water reservoir. However, the old part was underneath this area.
• When Fletcher (D) decided to build his reservoir on this area, he was without fault.
• When the contractors and engineers were excavating the bed for the reservoir, they found certain shafts relating to Rylands’ (P) old mine, but they negligently disregarded these shafts, although no fault was attributable to Fletcher (D).
• Soon after the reservoir was constructed, it burst downward and flooded Rylands’ (P) mine.

Question 7

Rylands v. Fletcher Issue?

Answer 7

Is a ∆ who carries out an abnormally dangerous activity absolutely liable or only liable for negligence?

Question 8

What is the Rule of Rylands?

Answer 8

The person who for his own purposes brings on his lands and collects and keeps there any thing 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.

Question 9

What does “natural” mean in the context of Strict Liability (Rylands v. Fletcher)?

Answer 9

Natural means in the sense that it reflects an ordinary use;

What the thing is typically used for;

The place and manner in which it is maintained;

The surrounding characteristics;

example: water in house pipes is a natural use.

The unnatural material that is brought upon π’s land must escape for the ∆ to be liable.

Question 10

Is a steam roller being driven on a street a natural use?

Answer 10

No.

Question 11

Facts of:

Miller v. Civil Constructors. Inc.
Illinois Court of Appeal, 1995.
272 Ill.App.3d 263, 209 Ill.Dec. 311, 651 N.E.2d 239.

Answer 11

• Miller (π) sued Civil Constructors, Inc. (∆) after he was struck by a stray bullet that ricocheted during firearm practice in the defendant’s gravel pit.
• Miller’s (π) complaint alleged strict liability in that his injuries arose from an ultra-hazardous activity for which the defendant was liable because of its control over the gravel pit or its discharge of the firearms.
• The county circuit court dismissed Miller’s (π) strict liability counts.
• The Court of Appeal affirmed.

Question 12

Miller v. Civil Constructors. Inc. – Issue?

Answer 12

Is the use of firearms an abnormally dangerous activity, triggering strict liability?

Question 13

Miller v. Civil Constructors. Inc. – Rule?

Answer 13

One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

The doctrine of strict or absolute liability is ordinarily reserved for abnormally dangerous activities for which no degree of care can truly provide safety. There is a clear distinction between requiring a defendant to exercise a high degree of care when involved in a potentially dangerous activity and requiring a defendant to insure absolutely the safety of others when engaging in ultrahazardous activity.

Question 14

How does the court analyze the firing of guns in the Miller case?

Answer 14

☐ The use of guns or firearms, even though frequently classified as dangerous or even highly dangerous, is not the type of activity that must be deemed abnormally dangerous when §520 is taken into consideration.

• ☐ First, the risk of harm to persons or property, even though great, can be virtually eliminated by the exercise of reasonable or even “utmost” care under the circumstances.
• ☐ Second, the use of firearms is a matter of common usage and the harm posed comes from their misuse rather than from their inherent nature alone.
• ☐ Third, the activity in this case was carried on at a firing range in a quarry.
• ☐ Finally, the target practice is of some social utility to the community; this weighs against declaring it ultrahazardous where the activity was alleged to have been performed by law enforcement officers apparently to improve their skills in the handling of weapons.
• ☐ The court held that the use of firearms is not an ultra-hazardous activity.

Question 15

Who decides if an activity is abnormally dangerous?

Answer 15

The court decides strict liability as a matter of law.

Question 16

Facts of:

Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.
United States Court of Appeals, Seventh Circuit, 1990.
916 F.2d 1174.

Answer 16

• ☐ American Cyanamid (D) loaded a railway car with Acrylonitrile, a toxic chemical, to ship to its New Jersey plant.
• ☐ The car stopped at Indiana Harbor’s (P) railroad yard for purposes of switching to another train.
• ☐ While parked in Indiana Harbor’s (P) yard, the car began to leak, and 4,000 of the 20,000 gallons spilled.
• ☐ Concerned that there was contamination of the soil, the Illinois Department of Environmental Protection ordered Indiana Harbor (P) to take decontamination measures costing $981,022.75.
• ☐ Indiana Harbor (P) is sung American Cyanamid (D) for this amount.
• ☐ The trial court judge found that strict liability applied and granted summary judgment in favor of π on that count.
• ☐ Trial court was reversed on appeal.

Question 17

Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. – Issue?

Answer 17

Is the manufacture and shipping (as opposed to carrying) of toxic chemicals an abnormally dangerous activity?

Question 18

Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. – Rule?

Answer 18

Case that §520 is based upon.

Question 19

Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. – Reasoning?

Answer 19

• ☐ By making the actor strictly liable – by denying him in other words an excuse based on his inability to avoid accidents by being more careful – 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.
• ☐ Accidents that are due to a lack of care can be prevented by taking care; and when a lack of care can be shown in court, such accidents are adequately deterred by the threat of liability for negligence.
• ☐ It is easy to see how the accident in this case might have been prevented at reasonable cost by greater care on the part of those who handled the tank car of acrylonitrile. It is difficult to see how it might have been prevented at reasonable cost by a change in the activity of transporting the chemical. This is therefore not an apt case for strict liability.

Question 20

What are some examples of abnormally dangerous activities?

Answer 20

• ☐ Blasting;
• ☐ transportation and storage of toxic chemicals and inflammable liquids;
• ☐ pile driving;
• ☐ crop dusting;
• ☐ fumigation with toxic gases;
• ☐ testing of rockets;
• ☐ fireworks displays;
• ☐ operation of a plutonium production facility;
• ☐ operation of hazardous waste disposal sites;
• ☐ operation of oil wells;
• ☐ and storage of large quantities of water and other liquids.

Question 21

Are aviation companies strictly liable for airplane crashes?

Answer 21

In early stages of commercial aviation, airlines were held strictly liable for ground damage resulting from a crash.


This view is no longer justified in light of the safety record of air travel if the basis is an ultra-hazardous or abnormally dangerous activity and a number of courts have retreated to a negligence standard.

Question 22

What are some of the policy reasons for imposing Strict Liability?

Answer 22

• ☐ Strict liability is “founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur.”
• ☐ The ∆’s enterprise, in other words, is required to pay its way by compensating for the harm it causes because of its special, abnormal and dangerous character.
• ☐ The liability “is applicable to an activity that is carried on with all reasonable care, and that is of such utility that the risk involved in it cannot be regarded as so great or so unreasonable as to make it negligence merely to carry it on.”
• ☐ In other words, this liability is analogous to negligence per se, but it is not called negligence because a court makes a judgment that value to the community is sufficiently great that the mere participation in the activity is not to be stigmatized as wrongdoing in the negligence sense. The activity is simply required to pay its own way, without that stigma, but it does pay with full tort damages, including pain and suffering damages when personal injury is involved.

Question 23

How should Strict Liability be plead?

Answer 23

It is often best to plead negligence as well, either based on different behavior or in the alternative to Strict Liability.

Question 24

Does proximate cause limit Strict Liability?

Answer 24

Much like the Wagon Mound case, the question asked is the injury on the list of possible natural consequences of the negligence? (i.e., the proximate cause). 
If the answer is no, then the limitation is proper.

Question 25

Foster v. Preston Mill Co.

Answer 25

Facts: A blast vibration causes a mink to kill its kittens, and πbrought an action in Strict Liability?



Issue: Is the risk that any unusual vibration or noise may cause wild animals, which are being raised for commercial purposes, to kill their young, one of the things which make the activity of blasting abnormally dangerous?



Rule: The ∆’s duty to insure safety extends only to certain consequences.

Question 26

∆ parades his circus elephant through the streets of a city. π’s skittish horse, seeing it in the distance, takes fright and runs away, and π is injured. Is there Strict Liability?

Answer 26

No liability because injury did not result from savage and ferocious nature of wild animal but from reaction of horse to large moving object.

Question 27

Golden v. Amory

Answer 27

Facts: ∆’s hydroelectric plant overflowed and damaged real estate as the result of a hurricane.



Rule: Strict liability does not apply where the injury results from “vis major, the act of God,” of which the ∆ has no control.

Question 28

Can the acts of third parties result in Strict Liability for a ∆?

Answer 28

The act of a third party over which the ∆ has no control cannot give rise to liability even though ∆’s activity is subject to strict liability.

example: alleged murderer, pursued by police, took refuge in ∆’s powder magazine and committed suicide by blowing it up.

Question 29

Sandy v. Bushey

Answer 29

Facts: π’s horses were in a neighbor’s pasture, along with ∆’s horse. While feeding his horse, ∆’s horse kicked and seriously injured him.



Rule: The fact must be established that the injury is attributable, not to the keeping of the animal, but to the injured party’s unnecessarily and voluntarily putting himself in a way to be hurt knowing the probable consequences of his act, so that he may fairly be deemed to have brought the injury upon himself.



The Rule of Liability of Keepers of Domestic Animals: By the common law the owners or keepers of domestic animals are not answerable to injuries done by them in a place where they have a right to be, unless the animals in fact, and to the owners’ knowledge, are vicious. If however, a person keeps a vicious or dangerous animal which he knows is accustomed to attack and injure mankind, he assumes the obligation of an insurer against injury by such animal, and no measure of care in its keeping will excuse him.

Question 30

∆ keeps a bear in a cage at a circus. π crawls under the rope in front of cage and goes within six inches of the bars. The bear slaps him through the bars and puts out his eye. Is ∆ strictly liable?

Answer 30

No; π brought calamity upon himself. π voluntarily approached obvious danger.

Question 31

Is contributory negligence a defense to Strict Liability?

Answer 31

No. (Majority Rule)

Question 32

Is assumption of risk a defense to Strict Liability?

Answer 32

Yes, according to the Sandy case, however, it is a minority rule.

Question 33

May a ∆ use comparative fault rules in a Strict Liability defense?

Answer 33

Most states have adopted comparative negligence rules, reducing a π’s damages by the π’s percentage of negligence.