STRICT LIABILITY

(Prepared by Mary warutere)

The negligence standard is not the only possible basis for imposing tort liability.
Sometimes courts will hold a defendant liable even if he acted without fault (i.e.,
without intent or negligence). The liability flows not from carelessness, but from
the very choice to conduct the activity at all. Such strict liability is not
premised on fault in the conventional sense of the term, but on the policy choice
to place accident losses from the activity on the actor rather than on its victims.
The defendant, it is said, acts at her peril in conducting such activities. NO
matter how much care she takes to avoid injuries to others, she will be held
strictly liable if such injuries result. Thus, strict liability means liability
without fault.
Four major areas where strict liability is assessed are:
harm caused by animals
abnormally dangerous activity (ultra-hazardous activity)
products liability
vicarious liability
A. Harm caused by animals
Dangerous/wild animals: Owner is strictly liable for any harm that a
dangerous animal causes if (a) victim did not contribute to animals
behaviour AND (b) the harm results from the dangerous propensity which
is characteristic to this type of animal, OR the owner knew or should have
known for the animals specific propensity.
Domestic animals: The owner is strictly liable only if he knows or should
have known that his animal has dangerous propensities. First bite rule:
owner is liable for the second time that his animal bites somebody but not
the first time it bites if it never showed such a propensity to bite before.
B. Abnormally dangerous activity
There is strict liability for activities that involve an inherently substantial risk of
harm in their performance. If the defendant engages in such an activity, and
unintentionally and non-negligently causes harm to the plaintiff, the defendant is
strictly liable, subject to a few limitations which are not covered in this course.
Examples of abnormally dangerous activities are nuclear reactors, explosives
and crop spraying.
In order to determine whether an activity is abnormally dangerous or not, the
courts look at the following factors:
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The high degree of risk of harm to person or property

The seriousness of the harm that could result
Whether actor cannot perform the activity with complete safety; and
Is the activity commonly carried out in the community/locale in which
defendant engages in it? In other words, extent to which activity is not a
matter of common usage, appropriateness of activity to the place where it
is carried on.

Strict liability encourages those who conduct high risk enterprises to avoid costs
in the following ways:
First, the threat of liability will encourage actors to forgo these risky
activities entirely. Because it makes the actor pay for all injuries
associated with the activity, strict liability encourages her to consider
alternative ways of achieving the same goal. Thus, imposing strict liability
may lead to less high risk activity and fewer accident losses from it.
Second, because actors who conduct abnormally dangerous activities
must compensate even for blameless injuries, strict liability encourages
them to reduce the cost of accidents by taking extra precautions. Thus, the
threat of liability will make high risk activities safer, though it cannot
make them completely safe.
Finally, economic analysts (and, increasingly, courts) argue that losses
should be placed on the party who can most easily spread the costs of the
enterprise by adding the costs of compensation for accidents resulting
from the activity to the price of the product. This policy also supports
strict liability for abnormally dangerous activities.
DEFENSES
Plaintiffs contributory negligence is not a defense for the defendant. The
reason is the policy of the law that places the full responsibility for
preventing the harm resulting from abnormally dangerous activities upon
the person who has subjected others to the abnormal risk. Other
authorities suggest that, since strict liability is not based on negligence,
plaintiffs negligence should not be relevant either.
Assumption of risk: If the plaintiff unreasonably exposed himself to the
risk, fully aware of its existence, then defendant will not be liable.
Cases as illustration: Rylands v. Fletcher, 3 H.L. 330 (1868)
C. Products Liability
Products liability refers to the liability of a seller/manufacturer of a product that
causes damages to the buyer, user or even a bystander, because it was
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defectively made. To recover damages, a plaintiff may sue under the following
three theories:
negligence
warranty
strict products liability
1. Negligence: A plaintiff can use ordinary negligence principles (duty, breach,
causation, damages, standard of care, etc...) to hold the manufacturer liable for a
defective product.
Manufacturers duty of care: P can sue the manufacturer in negligence if
manufacturer failed to properly ensure that:
Product is designed in a reasonably safe way
Products must be reasonably tested/inspected
Products must be packaged and shipped with reasonable safety
Manufacturer has to use reasonably competent component manufacturers
Retailers: It is extremely difficult to hold the retailer of a product liable under a
negligence theory. Usually retailers do not have duty to inspect the products they
sell. However, a retailer who knows or should have known that a product was
unreasonably defective has a duty to warn. NOTE: Car dealers must inspect in
some jurisdictions.
Bystanders: They may be able to sue a manufacturer if they can show that they
were foreseeable plaintiffs.
2. Warranty: Where the defendant (manufacturer) was not negligent, plaintiff
can still recover damages, if he can show that the seller made representations or
warranties as to the quality of the product which prove to be false.
3. Strict Products Liability: A manufacturer is strictly liable if an item it places
on the market which is defective causes injury to others. The policy reasons for
holding a manufacturer of a defective product strictly liable (regardless of fault)
include:
The manufacturer is in a better position to anticipate and avoid defects.
Loss spreading: The manufacturer can spread the costs better by charging
all of its customers a little more and using the money to compensate the
plaintiff.
Encourage research: Holding manufacturer liable will give them incentive
to develop safer products.
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 Difficulty of proof: It is almost impossible for the plaintiff to prove the

defendants faulty conduct given the complex technologies and
procedures of modern production.
Reciprocal risk: Manufacturer marketed the product and he should be
responsible.
There are three general types of product defects for which a manufacturer
may be held strictly liable: (NOTE: plaintiff could actually base his action on
negligence, warranty or strict liability)
1. construction/manufacturing defect
2. design defect
3. unavoidable unsafe products and the duty to warn
Liability for defective products (product or products liability) has been
codified in many common law and civil law jurisdictions.
Restatement (Second) of Torts 402 A (USA)
2 Consumer Protection Act of 1987 (England)
Cases as illustration:
1. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 (1962)
2. Two Rivers Co. v. Curtiss Breeding Service, 624 F.2d 1242 (5th Cir. 1980)
3. Elmore v. American Motors Corp., 451 P.2d 84 (Cal. 1969)
4. Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436 (Cal. 1944)
4. Vicarious Liability
A person may be liable for the torts committed by others because of his
relationship to them. Vicarious liability usually arises in:
employer-employee relationships;
joint ventures;
automobile owner and driver; or
family relationships.
What the doctrine of vicarious liability actually does is to impute the wrongful
conduct of the tortfeasor (i.e. negligence) to a third person who is considered to
be responsible for the tortfeasors actions. One of the key motivating factors of
this doctrine is the need to find a defendant who can compensate the plaintiff.
A. Employer-Employee Relationship
Under the doctrine of respondeat superior an employer is liable for the torts
that his employee commits within the scope of his employment.

Who is an employee? An employee is considered to be a worker who is subject

to the control of his employer.
Who is an independent contractor? An independent contractor is a worker
who is not subject to the control of the employer. He decides for himself how to
do the work. An employer is NOT liable for the torts committed by an
independent contractor unless:
the work involved abnormally dangerous activities or
public policy makes the duty non-delegable (i.e. duty to keep premises
reasonably safe for business visitors, or an employers duty to make the
workplace reasonably safe), or
if employer negligently selected an independent contractor who is not
competent or does work haphazardly.
What is meant by in the scope of employment? It includes all actions that
are closely connected to the employees work (i.e. what he was hired to do) that
are done with a purpose, at least in part, to advance the employers business
interests. Acts that an employer expressly prohibits are not automatically outside
the scope of employment. Rather the court will consider both the fact that they
were prohibited and whether they were done for the employers benefit.
Likewise an employers instruction to use care in avoiding harm to others will
not suffice to relieve him of liability if the employee was not careful.
Travelling between work and home is outside the scope of
employment. Thus, for example, the employer is not liable if commuting
employee negligently runs over a pedestrian.
Frolic and detour during business trips: This occurs when an
employee makes a detour for personal reasons while on a business trip
(and causes damage). Courts will hold employer liable if the detour is
reasonably foreseeable. One of the factors to consider in foreseeability is
the distance of the detour.
What about intentional torts? The employer is liable for intentional torts by
the employee if they were done for the benefit of the employers business.
However, if the employee acted for personal reasons, i.e. racism, then employer
is not liable. Some courts allow liability for intentional torts only if they are
reasonably foreseeable by the employer.
B. Joint Ventures
All members of a joint venture are vicariously liable for the torts of each other.
Elements of a joint venture:
Mutuality of control: Each member must have an equal say on the issue of
how things are done. This does not always mean equal physical control,
but at least a situation where all have equal influence.
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 Agreement: The members must be acting in concert by some express or

implied agreement.
Common pecuniary purpose: All the members must have a common
purpose of a pecuniary nature. If they all share a social interest only - that
will not suffice. Furthermore, merely sharing expenses will not be enough
unless there is a common pecuniary goal.
C. Automobile Owner and Driver
Generally, an automobile owner is not vicariously liable for the conduct of
another person who drives his car. However the rule is subject to exceptions:
permissive use/auto consent statutes: Some states have enacted statutes
that make a car owner vicariously liable for the tortious conduct of any
person that drives the car with the owners consent. Of course the driver
has to act reasonably within the scope of what the owner agreed to, i.e., A
lends his car to B who wants to go to a movie, B drives 2,000 miles - no
consent. If an owner lends his car to a driver who in turn lends it out
again, the owner will be liable for damages by the second driver if the
first driver was in the car at the time of the accident.
family purpose doctrine: In the absence of a statute some courts will
hold the owner of a family car vicariously liable for the torts committed
by immediate family or household members driving with express or
implied permission. A family purpose exists anytime any family
member (including the one who is driving) benefits from the use of the
car.
Fine line distinction: Negligent owner vs. vicarious liability.
Negligence:
An owner may have been negligent to lend the car (i.e.
to a minor or a drunk).
Vicarious liability:

Owner is not negligent but still liable (i.e. under the

family purpose doctrine).

D. Family Relationships
Parents are usually not vicariously liable for the negligence of their child.
Exceptions:
Parent was negligent
Child was acting as a family agent
Statutes which make parents liable for their childrens negligence.

Case problem for review:

1. Franklin Pest Control Company is called in to fumigate an apartment house.
The process calls for spraying the premises with Vikane, a toxic chemical which
kills bugs. Unfortunately, Vikane is also toxic to people.
Prior to spraying the building, Carl, an employee of Franklin, carefully
investigates to be sure that the chemical fumes cannot spread through the party
wall into the adjacent apartment building. She is assured that the party wall is an
impenetrable fire wall, and her own inspection confirms this. Unfortunately, a
crack almost impossble to find, exists in the wall. The chemical fumes spread
through the wall and ovecome Mr. Peters in the next building.
Mr. Peters sues Franklin for his injuries. The company argues that it took all
reasonable precautions and had no reason to suspect that the fumes could travel
into Mr. Peters building.
(a) Assume that the court concludes that fumigation is a strict liabillity
activity, and agrees that the company conduct was reasonable. Is Franklin
liable to Mr. Peters?
(b) Mr. Peters sues Carl, the employee who sprayed the Vikane, for his
injuries. Should the court apply a negligence or strict liability standard in
determining liability?