Strict Liability

AuthorEric E. Johnson
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
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
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
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
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.

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