Clem on Torts: Chapter 6: Strict Liability

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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As you remember from the first chapter, there are four principles that cover just about everything you need to know in tort law. And one of these principles was that there are some special cases where someone engaging in a particular activity has a duty to prevent all injuries to others, regardless of how careful they were being. This is what is known as “strict liability”.

Generally, the first such activity discussed in most torts classes is the keeping of wild animals. In a quarter century of practicing law, I don’t recall a single case involving someone keeping wild animals. But when a plaintiff eventually walks into my office after being attacked by an escaped zoo animal, I’ll be able to tell them that my torts professor prepared me well, by spending a week or so teaching us all about this important area of the law.

The common-law rule is that for a “wild animal”, the owner is strictly liable for damages. In other words, even though I took extraordinary precautions, and nobody could possibly claim that I was negligent, if my pet lion escapes and harms someone, then I am responsible for the damages. A “wild animal” is generally defined as an animal that cannot be kept safely without restraint.

Since this definition isn’t particularly helpful, it’s often better to think in terms of what a wild animal is not. The opposite of a wild animal is a domestic animal. And a domestic animal is generally defined as one that has been in contact with humans so long that it can be safely kept without restraint. Alternatively, if an animal is safe by its nature, then it qualifies as a domestic animal. (In making this determination, we look at the species as a whole, not the particular animal. In other words, a dog, no matter how vicious, is not a “wild animal”. Of course, the owner might be liable for negligence if he or she knows that the dog is vicious. But that is not a case of strict liability.)

In addition to wild animals, the law imposes strict liability for other “ultra-hazardous activities.” These activities are abnormally dangerous, in the same way that a wild animal is dangerous.

We apply strict liability to activities when the risk cannot be eliminated through the use of care. Also, the activity must be one which is uncommon.

Generally, the activities that have been found to be ultra-hazardous come in four categories. If the activity on your final exam is not one of these four, then you probably shouldn’t impose strict liability unless you can show that it is extremely similar to one of these. Strict liability has been imposed in the case of poisons, explosives, compressed gasses, and storage of large “nonnatural” quantities of material on property.

The leading case for the fourth category is Rylands v. Fletcher, L.R. 3 H.L. (1868). In that case, the defendant had constructed a reservoir of water on his property. The reservoir burst and flooded the plaintiff’s land. Even in the absence of negligence, the House of Lords held that defendant was liable for the flood damage, due to the “nonnatural” use of the property.

It should be noted that if strict liability is applied, this liability extends only to the damages caused by the ultra-hazardous nature of the activity. In other words, if my pet lion attacks you, then I will probably be strictly liable for your medical bills. On the other hand, if you are injured because you tripped over my sleeping lion, but the lion didn’t attack you, then you would probably have to prove that I was negligent in allowing the lion to sleep in your path.

In most jurisdictions, the defense of contributory negligence is not available in a strict liability action. On the other hand, in most jurisdictions, assumption of the risk is a defense. In other words, if you negligently crash into my lion’s cage and it escapes, I am probably still liable. But if you voluntarily entered my lion’s cage, then I am probably not strictly liable for the resulting harm, because you assumed the risk.

Clem on Torts is also available at Amazon as a Kindle book.

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