Strict Liability

• Author: Eric E. Johnson
• Pages: 25-70

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13. Strict Liability

“ ‘Danger! What danger do you foresee?’

Holmes shook his head gravely. ‘It would cease to

be danger if we could define it,’ said he.”

– from “The Copper Beeches,” by Arthur Conan Doyle, 1892

Introduction

The dominant form of legal action for compensation following an

injury is the action for negligence, which we explored in Volume

One. The action for negligence involves the injured plaintiff showing

that the defendant was somehow blameworthy in causing the

plaintiff’s injury. In particular, laying blame is harnessed to a concept

of carelessness. In the abstract wisdom of tort law, the thinking goes

like this: Because the defendant was not appropriately careful, it is

sensible to blame the defendant for injuries caused by that lack of

care, thereby holding the defendant responsible for the injury. To put

it another way, with negligence, the law is saying something like,

“You are responsible for the damages caused by this incident because

you did something wrong. And what you did wrong was not being careful

enough.”

Strict liability presents a stark contrast – it is missing the idea of

blameworthiness that is at negligence’s core. Where strict liability

applies, the law will hold a defendant responsible even though the

defendant did nothing wrong – that is, regardless of whether the defendant

was being careful or not.

At first blush, it might seem extremely unfair that the law would

make people responsible for accidents even when they did nothing

wrong. And perhaps most of the time it would be. But strict liability

only is available under very particular circumstances. You might find,

as many others do, that in these limited circumstances, liability

without blameworthiness seems instinctively fair.

Let’s jump into an example. Suppose you decide to hold a

pyrotechnic demonstration in a crowded downtown area. Your plan

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is to wow a crowd of onlookers with fireballs created with a gasoline-

air mixture and generous heaps of aluminum perchlorate as well as

other fireworks ingredients. (Aluminum perchlorate is the same

compound that was used for the Space Shuttle’s solid rocket

boosters.) In this situation, if someone gets hurt by an errant fireball,

strict liability applies. Carefulness will be irrelevant.

To emphasize the point, you could hire a team of the world’s leading

chemists and pyrotechnics experts and give them an unlimited budget

for safety. It still wouldn’t change anything. That’s strict liability: If

you set off explosive fireballs in the middle of downtown, you are on

the hook if anything goes wrong.

It is as if the law says, “I don’t care how careful you say you were. It

doesn’t matter. You’re the one who decided to stage a pyrotechnic

display downtown. So, you are responsible if anyone gets hurt or

anyone’s property gets damaged.”

There are defenses and limits to the doctrine. These are important to

keep in mind because they do a lot of work to make strict liability

conform to intuitive notions of fairness. If, for instance, at your

downtown pyrotechnics display, some onlookers break past

barricades and climb up a structure to get right up next to the

fireballs, then the onlookers have brought the injury upon

themselves, and you will be relieved of liability. (The defense of

comparative fault or assumption of risk will do the trick.)

Strict Liability Basics, and Negligence Compared

Here are the elements of the cause of action for strict liability:

A plaintiff can establish a prima facie case for

strict liability by showing: (1) the defendant

owed the plaintiff an absolute duty of safety in

regard to some condition or activity, and that

condition or activity was (2) an actual cause and

(3) a proximate cause of (4) an injury to the

plaintiff’s person or physical property.

Compare that to the cause of action for negligence:

A plaintiff can establish a prima facie case for

negligence by showing: (1) the defendant owed

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the plaintiff a duty of due care, (2) the

defendant breached that duty, and that breach

was (3) an actual cause and (4) a proximate

cause of (5) an injury to the plaintiff’s person or

physical property.

You can see that the first two elements of the negligence case (duty

of care and breach) have been replaced by a single element of an

“absolute duty of safety.” The rest of the cause of action is exactly

the same as negligence. Actual causation is the same. Proximate

causation is the same. The requirement that the plaintiff prove the

existence of damages is the same. And, as it turns out, the same

defenses that apply in a negligence case generally apply in a strict

liability case as well.

Since those topics have all been covered in this casebook under the

heading of negligence, the main thing we have to do in this chapter is

to investigate the first element – the “absolute duty of safety.” After

that, we will then look at the economics of strict liability, discuss how

defenses and limitations constrain strict liability’s scope, and finally

we will see strict liability in action at trial.

The Absolute Duty of Safety

At the outset, a terminology note is in order. When it comes to

talking about the “absolute duty of safety,” some commentators take

issue with the use of the word “absolute.” They note that the duty is

not technically “absolute.” And they have a point. When it comes to

law, almost nothing is truly absolute. Indeed, there are various

limitations on strict liability, including proximate causation and

comparative fault. Yet if you think of “absolute duty” as a term of

art, there is no danger of confusion. The phrase “absolute duty”

signifies that there is no need to show that the defendant did

something wrong.

If you’ve become familiar with the cause of action for negligence, it

might seem strange that the law would ever impose liability without

fault. Indeed, scholars and judges have puzzled over whether strict

liability is justified – in particular, many have questioned whether it is

economically sound.