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What other common strict liability causes of action exist?
Most states recognize similar types of conduct as subject to strict liability:
Ultrahazardous Activity – Courts may impose strict liability in tort for types of activities they call ultrahazardous. This may include activities such as working with explosives, wild animals, or extreme sports.
Dram Shop Acts – These laws make sellers of alcoholic beverages directly to customers on the seller’s premises liable for harm caused as a result of the consumer becoming intoxicated.
Common Carriers – Carriers of cargo on behalf of others may be strictly liable to the owner for any harm suffered by the cargo. Risk of loss, however, may be shifted back on the owner via contract.
Discussion: How do you feel about the idea that an individual can be held liable for actions without having any intent to achieve a result or knowledge that the action is wrong? What if an individual is intentionally deceived into undertaking activity that entails strict liability?
Practice Question: Garth has a Rottweiler named Alf. Alf is generally very amiable. She has an buried electric fence that keeps Alf in her yard. One day, Alf sees a bicyclist riding by her house. She runs through the electric fence and bites the bicyclist. What is the likelihood that Garth will be held liable in this situation?
- Garth will be liable for the injuries caused by her Rottweiler under a theory of strict liability. Some states consider specific breeds of dog to be vicious animals. These states subject owners of these animals to strict liability if the animal causes harm to another. This is based on a theory of ultra-hazardous activity. An ultra-hazardous activity is defined as any act that is so inherently dangerous that the person performing it can be held liable for injuries to other persons, even if they took every reasonable step to prevent the injury. This means that the person performing the activity can be held liable even if they did not make any mistakes and took precautions to prevent the harm. In order to prevail on an ultra-hazardous claim, the plaintiff needs to prove that the following elements exist;
- The activity involves a verifiable risk of serious harm to persons or property.
- The activity cannot be performed without the risk of serious harm, no matter how much care is taken.
- The activity is not commonly engaged in by the people of the community.
Cantu, Charles, Distinguishing the Concept of Strict Liability in Tort from Strict Products Liability: Medusa Unveiled (2003). University of Memphis Law Review, Vol. 33, 2003. Available at SSRN: https://ssrn.com/abstract=2890775. The justifications for strict products liability and other cases of strict liability in torts are different and distinct. The United States judiciary has limited strict liability in tort law to seven distinct scenarios: (1) animals that are trespassing, are domesticated but vicious, or are wild by nature; (2) fact situations involving ultra-hazardous activities; (3) nuisance; (4) misrepresentation; (5) vicarious liability; (6) defamation; or (7) a workman’s compensation statute. Strict liability is imposed for harm caused by animals capable of inflicting extensive harm. It also justifies liability for ultra-hazardous activities on the basis that an individual undertakes an activity that is inappropriate to the locale and poses great risk of harm to others. Private and public nuisance justify strict liability if the activity in question also qualifies as an ultra-hazardous activity. Misrepresentation places any resulting loss upon the defendant, even if innocent, rather than upon the innocent plaintiff. In vicarious liability scenarios, a variety of justifications for strict liability exist: the elements of control, the theory of the business enterprise having the deepest pocket, and the allocation of risk. These justifications have each been reasons for holding employers strictly liable for the torts of their employees. The law of defamation holds the publisher strictly liable on the basis that it is better to restrict an individual’s freedom of expression than to see an innocent plaintiff suffer from a loss of standing in the community. Liability is imposed and the corresponding right to recovery is given, not because of the plaintiff’s injury, but because the plaintiff’s injury was the result of the defendant’s fault. When speaking in terms of strict liability, each rationale of recovery is different and distinct from the rest.
Morgan, Jonathan Edward, Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886 (May 2014). The Modern Law Review, Vol. 77, Issue 3, pp. 434-459, 2014. Available at SSRN: https://ssrn.com/abstract=2431979 or http://dx.doi.org/10.1111/1468-2230.12073. The Riot (Damages) Act 1886 imposes a no‐fault obligation on police forces to compensate owners of property damaged in rioting. Following the riots across England in 2011 an independent Home Office review, the Kinghan Report, concluded that the fundamental principle of the Act should be retained, while the machinery should be modernised. The Report conceives of the Act as a useful, if highly unusual, compensation scheme that may ease socio‐economic problems in riot‐prone areas. This article questions that position. Strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision‐making that claims in negligence would inevitably require. The best alternative to negligence liability might not be ‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as the Law Commission proposed in 2008), but liability without fault.
Kiss, Alex and Shelton, Dinah L., Strict Liability in International Environmental Law. ; GWU Legal Studies Research Paper No. 345; GWU Law School Public Law Research Paper No. 345. Available at SSRN: https://ssrn.com/abstract=1010478. The principle that a State is responsible for causing environmental harm outside its territory in breach of an international obligation has been slow to evolve to address the allocation of loss due to accidents. In settling the well-known dispute between the United States and Canada concerning the activities of the Canadian smelter located in Trail, British Columbia, the arbitral tribunal asserted a general duty on the part of the State to protect other States from injurious acts by individuals (both state and non-state actors) within its jurisdictions. The tribunal, however, noted the difficulty determining what constitutes an injurious act, but it may be concluded that a State’s failure to regulate or prevent serious harm from polluting activities, in instances where it would protect its own inhabitants, would constitute a wrongful act. The Trail Smelter arbitration left open the question of whether a State exercising all due diligence would be liable if transfrontier harm results despite the State’s best efforts – whether there would be strict liability. States appear hesitant to accept international rules that would oblige them to restrict or accept liability for activities whose harmful environmental consequences are likely to be limited to their own territory. Here, economic interests play a major political role. However, specific activities such as nuclear activities and marine pollution present a significant risk for the environment of the commons or of other States. While international law has been slow in placing the risk of loss on the actor profiting from the enterprise, economic globalization potentially could lead to progress by harmonizing the conditions of operation in certain fields of activities dangerous to human health and to the environment.
Simons, Kenneth W., The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines (March 23, 2009). Boston Univ. School of Law Working Paper No. 09-15. Available at SSRN: https://ssrn.com/abstract=1367043 or http://dx.doi.org/10.2139/ssrn.1367043. The traditional strict liability doctrines – liability for abnormally dangerous activities, for wild animals, for abnormally dangerous animals, and for intruding livestock – can largely be explained by a small set of rationales. The Restatement Third Draft offers six principal economic and fairness-based rationales for strict rather than negligence liability: providing the injurer an incentive to optimize (1) the level of care and (2) the level of the activity; and recognizing the justice of requiring the injurer to pay when his activity (3) creates a nonreciprocal risk, (4) affords him a nonreciprocal benefit, (5) is the exclusive cause of the harm, or (6) when the community’s sense of fairness supports strict liability. The Draft also rejects (7) loss-spreading as a rationale in this context. With the notable exception of (5), exclusive causation, this is a defensible and plausible set of rationales. However, the actual strict liability doctrines endorsed in the Draft are narrower in scope than the robust logic of these rationales would imply. This mismatch is probably best explained by judicial reluctance to impose strict liability unless the effects of such liability are modest. At the same time, from a wider perspective, the supposed contest between strict liability and negligence approaches is overstated, for each approach contains traces of the other.