Strict Liability

Strict Liability vs. Negligence: Incentives for Taking Care
1. Strict Liability is usually not a guarantee, make the negligence claim after just in case

Strict Liability applies to classes of cases, you must argue why this particular class should be strict liability
1. Strict liability is a question of law, judge decides if it applies
2. SL Provides incentives to adjust activity levels, but NOT to do things more carefully
  1. Four Themes that drive choices about Strict Liability:
    1. Access to information and error costs
      1. Ex. Keeping of wild animals: even though we may punish some people who are not negligent when a tiger gets out, 99/100 someone is so SL is just a short cut to negligence
      2. Ex. Hotels: 80% of hotel thefts are inside jobs and the hotel owner is really the only one who has information and control to prevent, so SL makes sense.
        
        Compare to situation of uninsulated pipe on train Here, we have access to information (saw it happen) to make the case
        
        Old English Rule for fires was SL because they burned evidence of their creation
      3. A lot of times, SL will over compensate, but it will have a smaller error rate (and when the error rate is in favor of compensation and recovery, courts will apply SL)
      4. To argue for why a certain class of cases should be strictly liable under an information and control standpoint, we must ask whether “evidencing concerning the cause of harm and how to prevent it is uniquely in the hands of the defendant”
        
        Are they the only ones in a position to prevent the particular incident and investigate them, and your not in a position to do anything different than you are already doing?
    2. Influencing activity level and Research and Development
    3. Promoting Insurance or Distribution of Losses
    4. Fairness or Reciprocity (Enterprise Theory)
  2. Most SL cases concern abnormally dangerous activities
  3. §519: Subjects those who carry out abnormally dangerous activities to be subject to SL for the kind of harm, the possibility of which makes the activity abnormally dangerous
    1. Only applies to harm that is within the scope of the abnormal risk that is the basis of the liability, SL does not apply to every possible harm that may result from carrying it on
  4. §520. Abnormally Dangerous Activities: Following Factors are to be Considered:
    1. Existence of a high degree of risk of some harm to the person, land or chattels of others
    2. Likelihood that the resulting harm will be great
    3. Inability to eliminate the risk by exercise of reasonable care (cannot be made reasonably safe)
    4. Extent to which the activity is not a matter of common usage (of the general public, not the industry)
    5. Inappropriateness of the activity to the place where it is carried on, and
    6. Extent to which its value to the community is outweighed by its dangerous attributes [probably not used]

Spano v. Perini Corp (p.626): Blasting was done pursuant to a city contract to construct a tunnel in New York. Overturned prior law that the only way to claim SL over blasting was to prove some sort of physical envasion on your land, rocks etc.
1. Court ruled “since blasting involves a substantial risk of harm no matter the degree of care excersised, we perceive no reason for every permitting a person who engages in such an activity to impose this risk pon nearby person or property without assuming responsibility therefore”
In a SL case, you must prove:
1. That SL applies
2. Causation
3. Damages
Steps in Determining if SL Applies:
1. Assumption of Risk is the only defense in SL
2. The common theme of SL is RECIPROCITY: SL should be imposed when an activity poses risks for potential victims that the victims do not also pose for others
3. Must convince the judge that SL should apply to this case
  1. Do this by citing parallel cases, a class of cases, or if of first impression, why it will have the benefits of SL
    1. All judges agree SL applies to:
      1. Cattle escaping (Rst §21) (Garcia Rejected)
      2. Keeping wild animals (Third Restatement-Normally not domesticated)
      3. Keeping dangerous pets (Rst §23)
        
        Even normal pets that have exhibited vicious tendencies such as barking, growling (Collier v. Zambito) (Rst §23)
      4. Spreading fires
      5. Injuries caused by common carriers
      6. Injuries caused by inkeepers
4. First question you ask in this instance is if the danger could have been avoided by due care?
  1. If YES, NOT a SL case probably negligence
  2. If NO, are there any benefits of strict liability over negligence?
    1. Information and Control
      1. Are D’s in the best position to make calculations and carry it out, and is there generally nothing could do to protect himself?
      2. Does the activity destroy evidence of its negligence?
    2. Do we want to encourage activity level effects against D?
      1. Or is P in the best position to make activity level changes and R&D?
        
        Keep in mind that if there are no readily available substitutes for whom SL is imposed upon- there will be no advantage to it
    3. Cost Spreading/Fairness/Enterprise Liability
      1. Does the activity produce broad social benefits but create the risk of serious, enterprise-specific harms to a few Ps?
      2. Is D in the best position to insure or otherwise broadly distribute the costs of non-negligently caused accidents?
Will both P and D benefit from knowing for sure that D will always pay?
Stone v. Bolton (p.129): Cricket ball flies out of stadium unusually and strikes a pedestrian
1. Judge Jenkins is saying that D had a duty to prevent reasonably forseeable risk
  1. Is this forseeable? Yes because it has happened before
  2. Jenkins is saying that it does matter how cheap the precaution is/the risk etc there must be NO RISK or you are liable.
Rylands v. Fletcher (p.103): **US Courts Cite as the Origin of SL
1. To D’s surprise, there was a shaft that went from his reservoir to the P’s mineshaft and flooded it.
  1. Justice Bramwell: talks about the distinction between man-made and aritifical casues. Seems to be arguing that non-natural causes are defined by:
    1. Involve some act by the D on the land (the D applied agency, he did something to the land)
    2. The plaintiff’s actions were non-reciprocal, he was just sitting there
  2. Justice Blackburn: There is a certain level of risk that we all submit ourselves to as long as the D acts reasonably.
    1. It becomes non-reciprocal only when the D’s conduct is unreasonable
  3. Court distinguishes between things like driving (everyone drives) and resovoirs (not many people have them)
  4. Other Theme: Knowledge and Control. When activities create non-reciprocal risks, D’s are a lot more likely to have info and control over those dangerous things.
2 Themes of SL:
1. Reciprocity: Some activity engaged in by both P’s and D’s. Sometimes P is the risk creator, other times he is the one harmed
2. Non Reciprocal: D is the only one acting, P is doing nothing
  1. AKA knowledge and control, those injured by the other party are not in a position to protect themselves

When Is Liability Strict, and For Whom?
1. Animals
  1. Third Restatement test for Wild Animals:
    1. Any animal that belongs to a category of animals that have not been generally domesticated and are likely, unless restrained, to cause physical injury
  2. Gehrts v. Batteen (p.615): Gehrts was bitten by a St. Bernard owned by Nielsen. Gehrts asked Nielsen if she could pet the dog, nielse allowed her to do so and as Gehrts reached up to pet the dog, it bit her in the face. Gehrts sued Nielson in SL and Negligence.

Court Lays out SL/Negligence Rules for Pets:
1. Wild Animals: Strict Liability
2. Normal/Non-Vicious Pets: Negligence
3. Normal/Non-Vicious Pets (of which you have had warning that they might be vicious): Strict Liability (Also, kind of negligence because you are negligent as to the dangerous propensities of the animal)

Court held in this case that there was no evidence presented that Nielsen had any knowledge that the dog had dangerous propensities, so therefore negligence applies (must be able to show that D failed to use reasonable care in the circumstances)
1. Court holds that there was no evidence that D failed to exercise reasonable care, so COA for negligence cannot survive.

Notice of Vicious Tendencies [Collier v. Zambito]:
1. Boy was visiting his friend when he was bitten in an unprovoked attack by the family dog. Court denied any liability since the defendant had no knowledge of its vicious tendencies, but laid out things that are evidence of vicious tendencies and would result in strict liability:

An animal that has been known to growl, snap, or bare its teeth

Notes on SL and Animals
1. There is a reciprocity that exists with having pets (lots of people have them)
  1. Conversely, no reciprocity with wild animals
2. Tiger in the Manhattan Apartment Hypo:
  1. If a Tiger escapes he cage and hurts someone, odds are someone was negligent. So we could keep expending resources by sending escaping Tiger cases to the jury and they can keep deciding people are negligent, or we can just create a category and apply strict liability to all wild animals
    1. SL rules with wild animals applier similar to res ipsa. When a tiger escapes, we know someone is probably negligent, so we just apply SL as an error reducing strategy in extremely high probability of negligence cases.
3. Wolf-Dog in cage in Backyard Hypo
  1. When D has something on the property that he knows or should know will attract children, that is an attractive nuisance
    1. Attractive nuisances sometimes confer an additional duty on the owner
4. Third Restatement § 23: Abnormally Dangerous Animals:
  1. An owner or possessor...

#11385 - Strict Liability - Long Torts Outline

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